Chapter 4
SECURING OF CRIMINAL PROCEEDINGS

Division 1
Preventive Measure

§ 130. Grounds for taking into custody and holding in custody

(1) Taking into custody is a preventive measure which is applied with regard to a suspect, accused or convicted offender and which means deprivation of a person of his or her liberty on the basis of a court ruling.

(2) A suspect or accused may be taken into custody at the request of a Prosecutor's Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling if he or she is likely to abscond from the criminal proceeding or continue to commit criminal offences.

(3) In pre-trial procedure, a suspect or accused shall not be held in custody for more than six months. The term shall not include the time spent in provisional custody and in custody for surrender in a foreign country by a person whose extradition has been applied for by the Republic of Estonia or the time a person was held in custody in pre-trial procedure based on a decision of a competent authority of a foreign state prior to assumption of criminal proceedings by the Republic of Estonia.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(3 1) In the case of particular complexity or extent of a criminal matter or in exceptional cases arising from international cooperation in a criminal proceeding, a preliminary investigation judge may extend the term for holding in custody for more than six months at the request of the Chief Public Prosecutor.

(4) An accused who has been prosecuted and is at large may be taken into custody on the basis of a ruling of a city, county or circuit court if he or she has failed to appear when summoned by a court and may continue absconding from the court proceeding.

(4 1) An accused who is at large may be taken into custody by a court in order to ensure execution of imprisonment imposed by a judgment of conviction.
[RT I 2008, 19, 132 - entry into force 23.05.2008]

(5) A convicted offender who is at large may be taken into custody by a court pursuant to the procedure provided for in § 429 of this Code in order to secure execution of the court judgment.

(6) A member of the Defence Forces who is a suspect and does not stay in the territory of the Republic of Estonia may, at the request of a Prosecutor's Office, be taken into custody on the bases provided for in subsection (2) of this section in order to bring him or her to the Republic of Estonia on the basis of an order of a preliminary investigation judge.
[RT I 2004, 54, 387 - entry into force 01.07.2004]

§ 131. Procedure for taking into custody

(1) At the request of a suspect or accused, the Prosecutor's Office shall immediately notify his or her counsel of preparation of an application for an arrest warrant.

(2) On the order of a Prosecutor's Office, an investigative body shall convey a suspect or accused with regard to whom an application for an arrest warrant or an application for extension of the term for holding in custody has been prepared to a preliminary investigation judge for the hearing of the application.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(3) In order to issue an arrest warrant, a preliminary investigation judge shall examine the criminal file and interrogate the person to be taken into custody with a view to ascertaining whether the application for an arrest warrant is justified. The prosecutor and, at the request of the person to be taken into custody, his or her counsel shall be summoned before the preliminary investigation judge and their opinions shall be heard.

(3 1) A preliminary investigation judge may organise the participation of the persons specified in subsection (3) of this section in the hearing of the request for taking into custody by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(4) For the purposes of taking a person who has been declared a fugitive or a suspect and who stays outside the territory of the Republic of Estonia into custody, a preliminary investigation judge shall issue an arrest warrant without interrogating the person. Not later than on the second day following the date of apprehension of a fugitive or bringing a suspect into Estonia, the person held in custody shall be taken before a preliminary investigation judge for interrogation.
[RT I 2008, 19, 132 - entry into force 23.05.2008]

(5) If there are no grounds for holding in custody, the person shall be released immediately.

§ 132. Arrest warrant

(1) An arrest warrant shall set out :

1) the name and residence of the person to be taken into custody ;
2) the facts relating to the criminal offence of which the person is suspected or accused, and the legal assessment of the act ;
3) the grounds for taking into custody with a reference to §§ 130 or 429 of this Code ;
4) the reason for taking into custody.

(2) An arrest warrant shall be included in the criminal file and a copy of the warrant shall be sent to the person in custody.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 133. Notification of taking into custody

(1) A preliminary investigation judge or court shall immediately give notification of taking of a person into custody to a person close to the person in custody and his or her place of employment or study.

(2) Notification of taking into custody may be delayed in order to prevent a criminal offence or ascertain the truth in a criminal proceeding.

(3) If a foreign citizen is taken into custody, a copy of the arrest warrant or court judgment shall be sent to the Ministry of Foreign Affairs.

§ 134. Refusal to take into custody and release of person held in custody

(1) A preliminary investigation judge or court shall set out the reasons for a refusal to take a person into custody in a ruling on the refusal of taking into custody.

(2) If the grounds for holding in custody cease to exist before a statement of charges is sent to a court pursuant to the procedure provided for in subsection 226 (3) of this Code, a preliminary investigation judge or Prosecutor's Office shall release the person held in custody by an order.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 135. Bail

(1) At the request of a suspect or accused, a preliminary investigation judge or court may impose bail instead of taking into custody.

(2) Bail is a sum of money paid as a preventive measure by a suspect, accused or another person on behalf of him or her to the deposit account of the court.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(3) A suspect or accused shall be released from custody after the bail has been received into the bank account of a court.

(4) A court shall determine the amount of bail on the basis of the degree of the potential punishment, the extent of the damage caused by the criminal offence, and the financial situation of the suspect or accused. The minimum amount of bail shall be five hundred days' wages.

(5) Bail is imposed by a court ruling. For the purposes of adjudication of an application for bail, the person held in custody shall be taken before a preliminary investigation judge; a prosecutor and, at the request of the person held in custody, his or her counsel shall be summoned to the judge and their opinions shall be heard.

(5 1) At the request of a Prosecutor's Office or on its own initiative, a court may, together with the imposition of bail, apply a prohibition on departure from residence with respect to a suspect or an accused pursuant to the procedure provided for in §§ 127 and 128 of this Code.
[RT I 2008, 19, 132 - entry into force 23.05.2008]

(5 2) A preliminary investigation judge may organise the participation of the persons specified in subsection (5) of this section in the adjudication of an application for bail by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(6) If a suspect or accused absconds from criminal proceedings or intentionally commits another criminal offence or violates the prohibition on departure from his or her residence, the bail shall be transferred into public revenues on the basis of a court judgment or ruling on termination of the criminal proceeding after deduction of the amount necessary for reimbursement of the expenses relating to the criminal proceeding.
[RT I 2008, 19, 132 - entry into force 23.05.2008]

(6 1) If the grounds for taking into custody cease to exist before a statement of charges is sent to a court pursuant to the procedure provided for in subsection 226 (3) of this Code, a preliminary investigation judge or Prosecutor's Office shall annul the bail by an order.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(7) Bail shall be refunded if :

1) the suspect or accused does not violate the conditions for bail ;
2) the criminal proceeding is terminated ;
3) the accused is acquitted.

§ 136. Contestation of taking into custody or refusal to take into custody and of extension of or refusal to extend term for holding in custody

A Prosecutor's Office, a person held in custody or his or her counsel may file an appeal pursuant to the procedure provided for in Chapter 15 of this Code against a court ruling by which holding in custody was imposed or refused, extension of the term for holding in custody or refusal to extend the term for holding in custody.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 137. Verification of reasons for holding in custody and bail
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(1) A suspect, accused or counsel may submit a request to a preliminary investigation judge or court to verify :

1) the reasons for holding in custody after two months have expired from the taking into custody ;
2) the reasons for bail after four months have expired from the imposition of bail.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(2) A preliminary investigation judge shall hear a request within five days as of receipt of the request. A prosecutor, counsel and, if necessary, the person held in custody or the person on whom bail was imposed shall be summoned before the preliminary investigation judge. A new request may be submitted after expiry of the term provided for in subsection (1) of this section after the review of the previous request.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(2 1) A preliminary investigation judge or court may organise the participation of the persons specified in subsection (2) of this section in the adjudication of a request by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(3) In order to adjudicate a request, a preliminary investigation judge shall examine the criminal file. The request shall be adjudicated by a court ruling which is not subject to appeal.

(3 1) If a preliminary investigation judge or court finds that further imposition of bail is not justified, the court ruling shall set out whether bail is to be returned or holding of the suspect or accused in custody is applied.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(4) If the term for holding a person in custody has been extended for more than six months pursuant to the procedure provided for in subsection 130 (31) of this Code, a preliminary investigation judge shall verify the reasons for holding in custody at least once a month by examining the criminal file regardless of whether verification of the reasons has been requested and shall appoint a counsel for the person held in custody if he or she does not have a counsel.
[RT I 2006, 21, 160 - entry into force 25.05.2006]

Chapter 8
PRE-TRIAL PROCEDURE

Division 3
Detention of Suspect

§ 217. Detention of suspect

(1) Detention of a suspect is a procedural act whereby a person is deprived of liberty for up to 48 hours. A report shall be prepared on a detention.

(2) A person shall be detained as a suspect if :

1) he or she is apprehended in the act of committing a criminal offence or immediately thereafter ;
2) an eyewitness to a criminal offence or a victim indicates such person as the person who committed the criminal offence ;
3) the evidentiary traces of a criminal offence indicate that he or she is the person who committed the criminal offence.

(3) A suspect may be detained on the basis of other information referring to a criminal offence if :

1) he or she attempts to escape ;
2) he or she has not been identified ;
3) he or she may continue to commit criminal offences ;
4) he or she may abscond criminal proceedings or impede the criminal proceedings in any other manner.

(4) A person who is apprehended in the act of committing a criminal offence or immediately thereafter in an attempt to escape may be taken to the police by anyone for detention as a suspect.

(5) An advocate may be detained as a suspect under the circumstances relating to his or her professional activities only at the request of a Prosecutor's Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling.

(6) Section 377 of this Code applies to the detention of the President of the Republic, a member of the Government of the Republic, a member of the Riigikogu, the Auditor General, the Chancellor of Justice, or the Chief Justice or a justice of the Supreme Court as a suspect.

(7) An official of an investigative body shall explain the rights and obligations of a person detained as a suspect to the person and shall interrogate the suspect immediately pursuant to the procedure provided for in § 75 of this Code .

(8) If a Prosecutor's Office is convinced of the need to take a person into custody, the Prosecutor's Office shall prepare an application for an arrest warrant and, within forty-eight hours as of the detention of the person as a suspect, organise the transport of the detained person before a preliminary investigation judge for the adjudication of the application.

(9) If the basis for the detention of a suspect ceases to exist in pre-trial proceedings, the suspect shall be released immediately.

(10) A person detained as a suspect is given an opportunity to notify at least one person close to him or her at his or her choice of his or her detention through a body conducting proceedings. If the notification prejudices a criminal proceeding, the opportunity to notify may be refused with the permission of a Prosecutor's Office.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 218. Report on detention of suspect

(1) A report on the detention of a suspect shall set out :

1) the basis for the detention and a reference to subsection 217 (2) or (3) of this Code ;
2) the date and time of the detention ;
3) the facts relating to the criminal offence of which the person is suspected and the legal assessment of the criminal offence pursuant to the relevant section, subsection and clause of the Penal Code ;
[RT I 2006, 15, 118 - entry into force 14.04.2006]
4) explanation of the rights and obligations provided for in § 34 of this Code to the suspect ;
5) the names and characteristics of the objects confiscated from the suspect upon detention ;
6) a description of the clothing and bodily injuries of the detained person ;
7) the petitions and requests of the detained person ;
8) in the case the detained person is released, the grounds, date and time of release.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(2) A Prosecutor's Office is immediately informed of the detention of a suspect.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 219. Substitution of detention of suspect

(1) If a person has committed a criminal offence in the second degree for which a pecuniary punishment may be imposed and the person does not have a permanent or temporary place of residence in Estonia, an investigative body may, with the consent of the person, substitute the detention of the person as a suspect by a payment covering the procedure expenses, the potential pecuniary punishment and the damage caused by the criminal offence into the public revenues.

(2) A statement, a copy of which is sent to the Prosecutor's Office, shall be prepared on the substitution of the detention of a suspect and on the receipt of a payment into the public revenues.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

Chapter 19
INTERNATIONAL CO-OPERATION IN CRIMINAL PROCEDURE

Division 2
Extradition

Subdivision 1
Extradition of Persons to Foreign States

§ 438. Admissibility of extradition

Estonia as the requested state is entitled to extradite a person on the basis of a request for extradition if criminal proceedings have been initiated and an arrest warrant has been issued with regard to the person in the requesting state or if the person has been sentenced to imprisonment by a judgment of conviction which has entered into force.

Chapter 19
INTERNATIONAL CO-OPERATION IN CRIMINAL PROCEDURE

Division 7
International Criminal Court

§ 489. Co-operation with International Criminal Court

(2) If the Public Prosecutor's Office receives an application for arrest from the International Criminal Court, the Public Prosecutor's Office shall arrange the detention of the person pursuant to the procedure provided for in § 217 of this Code and the arrest of the person pursuant to the procedure provided for in § 131 of this Code.

Article 87
Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to States Parties for
cooperation. The requests shall be transmitted through the diplomatic channel or any other
appropriate channel as may be designated by each State Party upon ratification, acceptance,
approval or accession.
Subsequent changes to the designation shall be made by each State Party in accordance
with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a),
requests may also be transmitted through the International Criminal Police Organization or any
appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be
accompanied by a translation into an official language of the requested State or one of the working
languages of the Court, in accordance with the choice made by that State upon ratification,
acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance with the Rules of
Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents
supporting the request, except to the extent that the disclosure is necessary for execution of the
request.
4. In relation to any request for assistance presented under this Part, the Court may take such
measures, including measures related to the protection of information, as may be necessary to
ensure the safety or physical or psychological well-being of any victims, potential witnesses and
their families. The Court may request that any information that is made available under this Part
shall be provided and handled in a manner that protects the safety and physical or psychological
well-being of any victims, potential witnesses and their families.
5. (a) The Court may invite any State not party to this Statute to provide assistance under
this Part on the basis of an ad hoc arrangement, an agreement with such State or any other
appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc
arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such
arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the
Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or
documents. The Court may also ask for other forms of cooperation and assistance which may be
agreed upon with such an organization and which are in accordance with its competence or
mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to
the provisions of this Statute, thereby preventing the Court from exercising its functions and
powers under this Statute, the Court may make a finding to that effect and refer the matter to the
Assembly of States Parties or, where the Security Council referred the matter to the Court, to the
Security Council.

Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for
all of the forms of cooperation which are specified under this Part.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the
material supporting the request outlined in article 91, to any State on the territory of which that
person may be found and shall request the cooperation of that State in the arrest and surrender of
such a person. States Parties shall, in accordance with the provisions of this Part and the procedure
under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the
basis of the principle of ne bis in idem as provided in article 20, the requested State shall
immediately consult with the Court to determine if there has been a relevant ruling on
admissibility. If the case is admissible, the requested State shall proceed with the execution of the
request. If an admissibility ruling is pending, the requested State may postpone the execution of
the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law,
transportation through its territory of a person being surrendered to the Court by another State,
except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with
article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization;
and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of
transit;
(d) No authorization is required if the person is transported by air and no landing is
scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may
require a request for transit from the Court as provided for in subparagraph (b). The transit State
shall detain the person being transported until the request for transit is received and the transit is
effected, provided that detention for purposes of this subparagraph may not be extended beyond
96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested
State for a crime different from that for which surrender to the Court is sought, the requested State,
after making its decision to grant the request, shall consult with the Court.

Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under
article 89 shall, if it also receives a request from any other State for the extradition of the same
person for the same conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the
request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in
respect of which surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the
requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may,
at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal
with the request for extradition from the requesting State but shall not extradite the person until the
Court has determined that the case is inadmissible. The Court’s determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall give priority
to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the
requested State may, at its discretion, proceed to deal with the request for extradition from the
requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing
international obligation to extradite the person to the requesting State not Party to this Statute, the
requested State shall determine whether to surrender the person to the Court or extradite the
person to the requesting State. In making its decision, the requested State shall consider all the
relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime
was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting
State.
7. Where a State Party which receives a request from the Court for the surrender of a person
also receives a request from any State for the extradition of the same person for conduct other than
that which constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing international obligation to
extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to
extradite the person to the requesting State, determine whether to surrender the person to the Court
or to extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall
give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be
inadmissible, and subsequently extradition to the requesting State is refused, the requested State
shall notify the Court of this decision.

Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may
be made by any medium capable of delivering a written record, provided that the request shall be
confirmed through the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a person for whom a warrant of
arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be
supported by:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be necessary to meet the
requirements for the surrender process in the requested State, except that those requirements
should not be more burdensome than those applicable to requests for extradition pursuant to
treaties or arrangements between the requested State and other States and should, if possible, be
less burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of a person already convicted, the
request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the one referred to in the
judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the sentence imposed and, in
the case of a sentence for imprisonment, a statement of any time already served and the time
remaining to be served.
4. Upon the request of the Court, a State Party shall consult with the Court, either generally
or with respect to a specific matter, regarding any requirements under its national law that may
apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the
specific requirements of its national law.

Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending
presentation of the request for surrender and the documents supporting the request as specified in
article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a
written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A concise statement of the crimes for which the person’s arrest is sought and of the
facts which are alleged to constitute those crimes, including, where possible, the date and location
of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction
against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State
has not received the request for surrender and the documents supporting the request as specified in
article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the
person may consent to surrender before the expiration of this period if permitted by the law of the
requested State. In such a case, the requested State shall proceed to surrender the person to the
Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3
shall not prejudice the subsequent arrest and surrender of that person if the request for surrender
and the documents supporting the request are delivered at a later date.