Chapter 16 1
PROCEEDINGS OF CONFISCATION OF PROPERTY WHICH WAS OBTAINED BY CRIMINAL OFFENCE

§ 403 1. Commencement of proceedings of confiscation of property which was obtained by criminal offence

(1) In the case of particular complexity or extent of circumstances relating to confiscation, a Prosecutor's Office may conduct preparation of a confiscation request on the basis of §§ 831 and 832 of the Penal Code in separate proceedings pursuant to the provisions of this Chapter.

(2) Severance of confiscation proceedings into a new file shall be formalised by an order of the Prosecutor's Office. A copy of an order or ruling on the severance shall be included in the new file.

(3) A request for decision on confiscation shall be submitted to the court not later than within two years after the entry into force of a court judgment in criminal proceedings conducted with regard to the criminal offence which is the basis for confiscation.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 2. Facts relating to subject of proof in confiscation proceedings

(1) If a request for confiscation is submitted on the basis of § 831 of the Penal Code, the facts relating to a subject of proof are :

1) ownership of the property by the accused, the convicted offender or third party ;
2) association of the property with the criminal offence which is the basis for confiscation ;
3) the circumstances of acquisition of the property by the third party pursuant to subsection 831 (2) of the Penal Code.

(2) If a request for confiscation is submitted on the basis of § 832 of the Penal Code, the facts relating to a subject of proof are :

1) ownership of the property by the accused, the convicted offender or third party ;
2) the circumstances specified in subsection 832 (1) of the Penal Code which give reason to presume that the property has been acquired through commission of criminal offences ;
3) the circumstances of acquisition of the property by the third party pursuant to subsection 832 (2) of the Penal Code and the time of acquisition of the property.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 3. Pre-trial proceedings in confiscation proceedings

(1) Pre-trial proceedings in confiscation proceedings shall be conducted pursuant to the provisions of this Code unless otherwise provided for in this Chapter.

(2) [Repealed - RT I, 29.06.2012, 2 - entry into force 01.01.2013]

(3) It is prohibited to apply a preventive measure in order to secure confiscation proceedings.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 4. Summary of confiscation proceedings

(1) If an official of an investigative body is convinced that the evidentiary information necessary for the confiscation proceedings has been collected, he or she shall prepare a summary of confiscation proceedings which shall set out :

1) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth of the accused or the convicted offender ;
2) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth of the third party ;
3) a reference to the title of the criminal matter and the court judgment of the criminal offence which is the basis for confiscation if a court judgment has been made in the criminal matter which is the basis for confiscation ;
4) information concerning seizure of the property to be confiscated ;
5) a description and location of the property to be confiscated ;
6) a list of evidence.

(2) The summary of confiscation proceedings together with evidence shall be delivered to the Prosecutor's Office.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 5. Activities of Prosecutor's Office upon receipt of summary of confiscation proceedings
A Prosecutor's Office which receives a summary of confiscation proceedings shall prepare a confiscation request, require the investigative body to perform additional acts or terminate the confiscation proceedings by a ruling pursuant to the procedure provided for in subsection 206 (1) of this Code due to the absence of the grounds for confiscation or confiscation being impossible.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 6. Sending of confiscation request to court

(1) A confiscation request shall set out :

1) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth of the accused or the convicted offender ;
2) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth of the third party ;
3) a reference to the title of the criminal matter and the court judgment of the criminal offence which is the basis for confiscation ;
4) information concerning seizure of the property to be confiscated ;
5) a description and location of the property to be confiscated ;
6) whether substitution of confiscation is applied for pursuant to § 84 of the Penal Code ;
7) a list of evidence.

(2) A copy of the application shall be sent to the accused or the convicted offender, his or her counsel and the third party and the application shall be forwarded to the court. The confiscation request shall be also delivered to the court by electronic means.

(3) If necessary, a Prosecutor's Office shall perform the acts provided for in § 240 of this Code for the application of settlement procedure, taking into account the specifications of the confiscation proceedings. The third party shall grant his or her consent to the application of settlement proceedings pursuant to the procedure provided for in § 243 of this Code. If a Prosecutor's Office and the accused or the convicted offender reach a settlement concerning the amount of property, the agreement shall be sent to the court.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 7. Confiscation proceedings in court

(1) A court shall decide on confiscation by a ruling at the request of the Prosecutor's Office after the entry into force of a judgment of conviction of the criminal offence which is the basis for confiscation.

(2) The prosecutor, the accused or the convicted offender, his or her counsel and third party shall be summoned to a court session. The failure of a third party to appear in a court session shall hinder neither the court hearing nor the hearing of the confiscation request. If the accused or convicted offender fails to appear, the provisions of § 269 of this Code apply.

(3) Confiscation shall be decided by a judge sitting alone.

(4) A court hearing shall be conducted pursuant to the provisions of Division 2 of Chapter 9 or Chapter 10 of this Code, taking into account the specifications of the confiscation proceedings.

(5) If an accused, convicted offender or third party submits a written request to the Prosecutor's Office or court to the effect that he or she has no objections to the confiscation of his or her property, his or her failure to appear shall not hinder the hearing of the confiscation request. In such case, the court has the right to adjudicate the confiscation request by way of written proceedings.

(6) If a confiscation request is submitted to the court before the entry into force of the court judgment and a judgment of acquittal enters into force, the court shall terminate confiscation proceedings by a ruling.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 8. Issues to be adjudicated in chambers in confiscation proceedings

(1) A court shall adjudicate a confiscation request by a ruling made in chambers.

(2) Upon making of a ruling, a court shall adjudicate on the following issues :

1) whether the property of the convicted offender is connected, under the conditions provided for in § 831 or 832 of the Penal Code, with the criminal offence which is the basis for confiscation ;
2) whether the property has been acquired by the third party in the manner provided for in subsection 831 (2) or subsection 832 (2) of the Penal Code ;
3) whether and to which part of the property confiscation should be applied ;
4) how to proceed with regard to seized property or property which has been taken over which is not confiscated ;
5) the expenses relating to the confiscation proceeding and the person who is to bear the expenses.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 9. Decision in confiscation proceedings

(1) A court shall make one of the following in chambers :

1) a confiscation ruling, or
2) a ruling by which the confiscation request is denied.

(2) A copy of a ruling shall be submitted to the convicted offender and the third party.

(3) Upon adjudication of a confiscation request in the case provided for in subsection 4037 (5) of this Code, a copy of the ruling is sent to the participant in the proceedings who did not participate in the in the court hearing.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403 10. Contestation of confiscation ruling

(1) A prosecutor, convicted offender or third party may file an appeal pursuant to the procedure provided for in Chapter 15 of this Code against a confiscation ruling and a ruling by which the confiscation request is denied.

(2) A court ruling made in the hearing of an appeal against a court ruling may be filed with a higher court.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

Chapter 19
INTERNATIONAL CO-OPERATION IN CRIMINAL PROCEDURE

Division 5
Recognition and Execution of Judgments of Foreign Courts and Decisions of Other Authorities

§ 487. Specifications concerning execution of pecuniary punishments, fines to the extent of assets and confiscation imposed by foreign court judgments

(1) Pecuniary punishments and fines to the extent of assets shall be enforced as payments into the revenues of the Estonian state unless the parties have agreed otherwise.

(2) The provisions of this Division apply to confiscated property unless the parties have agreed otherwise.

Chapter 19
INTERNATIONAL CO-OPERATION IN CRIMINAL PROCEDURE

Division 5
Recognition and Execution of Judgments of Foreign Courts and Decisions of Other Authorities

§ 476. Assistance in recognition and execution of judgments of foreign courts and decisions of other authorities

Assistance may be provided to a requesting state in the execution of a punishment or any other sanction imposed for an offence if a corresponding request together with the court judgment or a decision of another authority which has entered into force or an authenticated copy thereof has been submitted to the Ministry of Justice.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

§ 477. Scope of assistance
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(1) In addition to the conditions provided for in § 436 of this Code, assistance shall not be provided to a requesting state in the execution of a punishment or any other sanction imposed in the requesting state if :

1) the court judgment which is the basis for the request has not entered into force ;
2) the judgment was not made by an independent and impartial court ;
3) the judgment was made on default ;
4) the right of defence was not ensured to the accused or the criminal proceedings were not conducted in a language understandable to him or her ;
5) the act for the commission of which a punishment or any other sanction was imposed is not punishable as a criminal offence pursuant to the Estonian Penal Code or the Penal Code does not prescribe such punishment or sanction, except for the offences provided for in subsection (5) of this section ;
6) an Estonian court has convicted the person on the same charges, or commencement of criminal proceedings with regard to him or her has been refused or the criminal proceedings have been terminated ;
7) pursuant to Estonian law, the limitation period for the execution of the court judgment or the decision of another authority has expired ;
8) the judgement or decision has been made with regard to a natural person who, pursuant to Estonian law, cannot be punished due to his or her age for the acts in connection of which the judgement or decision was made ;
9) the judgement or decision has been made with regard to a person who enjoys diplomatic immunity on the basis of clause 4 2) of this Code ;
10) the pecuniary punishment or fine is equal to or less than 70 euros;
[RT I 2010, 22, 108 - entry into force 01.01.2011]
11) a certificate is not produced, is incomplete or manifestly does not correspond to the court judgement or the decision of another authority.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(2) If a person has been sentenced to imprisonment in a foreign state, a request for assistance in the execution of the punishment may be satisfied if the person is a citizen of Estonia and the written consent of the person to his or her surrender in order to continue service of the punishment in Estonia has been appended to the request. The consent shall not be withdrawn.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(3) If a court judgment made with regard to a citizen of the Republic of Estonia, or an administrative act relating to such judgment contains an order to expel the person from the state immediately after his or her release from imprisonment, the person may be surrendered without his or her consent.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(4) If a judgment on confiscation made in a requesting state concerns a person not subject to the proceedings, the judgment shall not be executed if :

1) such third party has not been given the opportunity to protect his or her interests, or
2) the judgment is in conflict with a decision made in the same matter subject to civil procedure pursuant to Estonian law.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(5) Mutual recognition of pecuniary punishments and fines is permitted regardless of the punishment of the act pursuant to Estonian law if punishment is prescribed in a Member State of the European Union for the following offences :

1) participation in a criminal organisation ;
2) terrorism ;
3) trafficking in human beings ;
4) sexual exploitation of children and child pornography ;
5) illicit trafficking in narcotic drugs and psychotropic substances ;
6) illicit trafficking in weapons, ammunition and explosives ;
7) corruption ;
8) fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests ;
9) money laundering ;
10) counterfeiting currency, including of the euro ;
11) computer-related crime,
12) environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties ;
13) facilitation of unauthorised entry and residence ;
14) manslaughter, causing serious damage to health ;
15) illicit trade in human organs and tissue ;
16) kidnapping, unlawful deprivation of liberty and hostage taking ;
17) racism and xenophobia ;
18) organised or armed robbery ;
19) illicit trafficking in cultural goods, including antiques and works of art ;
20) swindling ;
21) extortion ;
22) counterfeiting and piracy of products and trafficking therein ;
23) forgery of administrative documents and trafficking therein ;
24) counterfeiting and forgery of means of payment ;
25) illicit trafficking in hormonal substances and other growth promoters ;
26) illicit trafficking in nuclear or radioactive materials ;
27) trafficking in stolen vehicles ;
28) rape ;
29) arson ;
30) criminal offences which fall within the jurisdiction of the International Criminal Court;
31) unlawful seizure of aircraft or ships ;
32) sabotage ;
33) offences against traffic regulations, including offences relating to the requirements for working, rest and driving time and safety requirements for road transport ;
34) smuggling of goods ;
35) offences against intellectual property ;
36) offences against health ;
37) offences of damage to property specified in Subdivision 2 of Division 1 of Chapter 13 of the Penal Code ;
38) theft ;
39) offences established by the issuing State and serving the purpose of implementing obligations arising from instruments adopted under the EC Treaty or under Title VI of the EU Treaty.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

§ 478. Proceedings conducted by Ministry of Justice concerning requests for execution of court judgments submitted by foreign states

(1) The Ministry of Justice shall verify whether a request is in compliance with the requirements and has the required supporting documents and, in the case of compliance, shall immediately forward the request to the Public Prosecutor's Office.
[RT I 2008, 19, 132 - entry into force 23.05.2008]

(1 1) The central authority upon execution of a decision on pecuniary punishment or fine imposed in a foreign state is the Ministry of Justice who shall verify whether the certificate meets the requirements and shall forward the judgement together with the certificate immediately to Harju County Court and the Public Prosecutor's Office.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(2) The surrender of or refusal to surrender a person sentenced to imprisonment shall be decided by the Minister of Justice.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

(3) Execution of a court judgment by which a person has been sentenced to imprisonment in a requesting state shall be continued without amending the judgment if the term of the imprisonment imposed on the person in the requesting state corresponds to the punishment prescribed for the same criminal offence by the Estonian Penal Code.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

(4) If necessary, additional information is requested from the foreign state through the Ministry of Justice and a term for reply is determined.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 479. Taking into custody and holding in custody for purposes of execution of foreign court judgment

(1) If a request for the execution of a court judgment is received from a foreign state, the person staying in Estonia with regard to whom execution of the court judgment by which the person has been sentenced to imprisonment is requested may be taken into custody at the request of the public prosecutor and on the basis of a ruling of a preliminary investigation judge if there is reason to believe that the person evades execution of the court judgment.

(2) A person shall not be taken into custody if it is evident that execution of the court judgment is impossible.

(3) A person shall be released from custody if within three months as of his or her taking into custody the court has not made a judgment on the recognition and enforcement of the court judgment of the requesting state.

(4) An arrest warrant may be appealed by the person taken into custody, his or her counsel, or the Prosecutor's Office.

§ 480. Participation of counsel in recognition and execution of judgments of foreign courts

Participation of a counsel in recognition and execution of a judgment of a foreign court is mandatory. The counsel in recognition and execution of a judgment of a foreign court must be an advocate.
[RT I 2008, 19, 132 - entry into force 23.05.2008]

§ 481. Jurisdiction over recognition of foreign court judgments and decisions of other authorities

The Harju County Court shall decide on the recognition of foreign court judgments and decisions of other authorities.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

§ 482. Court procedure for recognition of foreign court judgments

(1) Recognition of a foreign court judgment shall be decided by a judge sitting alone. A court session where recognition of a foreign court judgment is heard shall be held within thirty days as of the receipt of the request by the court.

(2) If necessary, additional information is requested from a foreign state through the Ministry of Justice and a term for reply is determined.

(3) Persons not subject to the proceedings whose interests are concerned by a court judgment may be summoned to a court session if they are in Estonia. In deciding on confiscation, the participation of a third party is mandatory.

(4) The participation of the punished person and a prosecutor in a court session is mandatory.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(5) Minutes shall be taken of court sessions.

§ 483. Court rulings made in recognition and enforcement of foreign court judgments

(1) In deciding on the recognition of a foreign court judgment, a court shall make one of the following rulings :
1) to declare execution of the foreign court judgment admissible, or
2) to declare execution of the foreign court judgment inadmissible.

(2) If execution of a court judgment is not permitted, the court shall send a copy of the court ruling to the Ministry of Justice. The Ministry of Justice shall notify the foreign state of the refusal to execute a foreign court judgment.

§ 484. Specification of punishment imposed in foreign state

(1) If a court declares execution of a foreign court judgment admissible, the court shall determine the punishment to be executed in Estonia. The punishment imposed in the foreign state shall be compared to the punishment prescribed for the same act by the Estonian Penal Code.

(2) A specified punishment shall by nature as much as possible correspond to the punishment imposed in the foreign state. The court shall take into account the degree of the punishment imposed in the foreign state but the punishment shall not exceed the maximum rate prescribed by the sanction specified in the corresponding section of the Estonian Penal Code.

(3) If the term of a punishment has not been determined in a foreign state, the court shall determine the punishment in accordance with the principles of the Penal Code.

(4) It is not permitted to aggravate a punishment imposed in a foreign state.

(5) If probation is applied with regard to a person or he or she is released on parole in a foreign state, the court shall apply the provisions of the Estonian Penal Code.

(5 1) If a convicted offender provides proof of payment of a sum of money in part or in full, the Ministry of Justice shall consult the competent authority of the foreign state who made the decision. The part of a pecuniary punishment or fine paid in another state shall be deducted from the collectable sum of the pecuniary punishment or fine.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

(6) Pecuniary punishments, fines to the extent of assets and amounts subject to confiscation shall be converted, if necessary, into euros on the basis of the exchange rate applicable on the date of specification of the punishment.
[RT I 2010, 22, 108 - entry into force 01.01.2011]

(7) In the specification of a punishment, the time spent in imprisonment or held in custody on the basis of § 479 of this Code in a foreign state shall be included in the term of the punishment.

§ 484 1. Substitution of pecuniary punishment imposed in foreign state

If a pecuniary punishment imposed in a foreign state cannot be executed, the court may substitute the punishment with the permission of the requesting state pursuant to the procedure provided for in § 70 of the Penal Code taking into account that the term of imprisonment or community service shall not exceed the maximum term prescribed in the requesting state.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

§ 485. Ruling on specification of judgment of foreign court

(1) A court shall decide the specification of a foreign court judgment by a ruling.

(2) A ruling shall set out the extent to which a foreign court judgment is recognised and specify the punishment to be executed in Estonia.

(3) A court shall send a copy of a ruling which has entered into force to the punishment register and the Minister of Justice. The Ministry of Justice shall notify the foreign state of compliance with the request and of the specified punishment.

(4) Appeals may be filed against a ruling provided for in subsection (1) of this section by the accused, counsel, third parties and the Prosecutor's Office.

§ 486. Execution of specified punishments

(1) Punishments shall be executed pursuant to the procedure provided by Estonian legislation.

(2) A punishment shall not be enforced if the competent authority of the foreign state gives notification that the circumstances which were the basis for imposition of the punishment have ceased to exist .

§ 487. Specifications concerning execution of pecuniary punishments, fines to the extent of assets and confiscation imposed by foreign court judgments

(1) Pecuniary punishments and fines to the extent of assets shall be enforced as payments into the revenues of the Estonian state unless the parties have agreed otherwise.

(2) The provisions of this Division apply to confiscated property unless the parties have agreed otherwise.

§ 487 1. Termination of enforcement of court judgement of foreign state

Enforcement of a court judgement of a foreign state shall be terminated immediately when the requesting state notifies of granting pardon or amnesty or a request for the conversion of the sentence or any other decision on the basis of which the court judgement cannot be enforced.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

§ 487 2. Recognition and execution of pecuniary punishments and fines imposed by other authorities of foreign states

The provisions of this Division concerning the recognition and execution of judgments of foreign courts apply to recognition and execution of pecuniary punishments or fines imposed by authorities of foreign states other than courts.
[RT I 2008, 33, 201 - entry into force 28.07.2008]

Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.