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(2) [Repealed - RT I, 29.06.2012, 2 - entry into force 01.01.2013]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]
Enforcement of forfeiture orders
Enforcement of sentences imposed
EDIT.