Estonia

For the purposes of double criminality, differences in the level of penalties are, as a rule, irrelevant, save where there is a “manifestly excessive” disparity compared to the domestic legal system, such as to undermine the very premise of identity or comparability of the offences. In the present case, no such “manifestly excessive” disparity exists between the sanction provided by the foreign legal system and that under Italian law. For the offence under Article 421 of the Estonian Criminal Code, the basic penalty ranges from 3 to 12 years’ imprisonment and, only in the event of repeated conduct, from 5 to 20 years. For the corresponding offence identified under Article 20(1) of Legislative Decree No. 221/2017, the maximum penalty is 6 years’ imprisonment. However, even under Italian law, in the event of repeated conduct, the penalty may be increased pursuant to Article 81 of the Criminal Code (which provides for a more lenient regime than simple cumulative sentencing), up to three times the base penalty. Therefore, whether the comparison is made between the basic penalties in the two systems (with maximums of 12 and 6 years respectively), or with regard to repeated conduct (where maximum penalties may reach 20 and 18 years respectively), no absolute disproportion emerges between the two sanctioning frameworks. Certain discrepancies can be identified, but they are not such as to negate the requirement of double criminality. This requirement may be considered lacking only where the sanctions differ so markedly that the offence appears merely formally identical, while in substance reflecting a fundamentally different assessment of harmfulness and a different legal characterisation of the conduct.