Chapter 16.1 PROCEDURE FOR CONFISCATION OF INSTRUMENTS BY WHICH CRIMINAL OFFENCE WAS COMMITTED, OF DIRECT OBJECTS OF CRIMINAL OFFENCE AND OF PROPERTY OBTAINED BY CRIMINAL OFFENCE
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§ 403.1. Commencement of procedure for confiscation of instruments by which criminal offence was committed, of direct objects of criminal offence and of property obtained by criminal offence
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(1) In the case of particular complexity or extent of circumstances relating to confiscation, the Prosecutor’s Office may conduct preparation of a confiscation request on the basis of §§ 83, 831 and 832 of the Penal Code in separate proceedings pursuant to the provisions of this Chapter.
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(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 order 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.
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§ 403.2. Facts relating to subject of proof in confiscation proceedings
In confiscation proceedings, facts of subject of proof are the facts which correspond to the prerequisites for confiscation.
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§ 403.3. Pre-court proceedings under confiscation procedure
(1) Pre-court proceedings under confiscation procedure 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(2) [Repealed - RT I, 29.06.2012, 2 - entry into force 01.01.2013]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.
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§ 403.4. Acts performed by investigative body upon completion of pre-court proceedings under confiscation procedure
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(1) If the competent official of the investigative body is convinced that the evidentiary information required under the confiscation procedure has been collected, he or she shall send a file of the confiscation proceedings together with the evidence to the Prosecutor’s Office.
(2) If the Prosecutor’s Office so directs, the official shall submit to the Prosecutor’s Office a summary of the 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 or other measures securing confiscation or replacement thereof;
5) a description and location of the property to be confiscated;
6) a list of evidence.
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§ 403.5. Activities of Prosecutor’s Office upon receipt of file of confiscation proceedings
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The Prosecutor’s Office which receives a file of confiscation proceedings shall prepare a confiscation request, require the investigative body to perform additional acts or terminate the confiscation proceedings by an order in accordance with the rules provided in subsection 206 (1) of this Code due to the absence of the grounds for confiscation or confiscation being impossible.
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§ 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 or other measures securing confiscation or replacement thereof;
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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, the 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 procedure pursuant to the procedure provided for in § 243 of this Code. If the 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 procedure before the court
(1) A court shall decide on confiscation by an order 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 judicial hearing nor the consideration 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) Judicial 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 preclude consideration of the confiscation request. In such case, the court has the right to resolve the confiscation request by written procedure.
(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 an order.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 403.8. Issues of confiscation procedure that are to be resolved in chambers
(1) A court shall resolve a confiscation request by an order made in chambers.
(2) When giving the order, a court shall resolve the following issues:
1) whether the property whose confiscation is applied for is connected, under the conditions provided for in § 83, 831 or 832 of the Penal Code, with the criminal offence which is the basis for confiscation;
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2) whether the property has been acquired by the third party in the manner provided for in subsection 83 (3), 831 (2) or subsection 832 (2) of the Penal Code;
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3) whether and to which part of the property confiscation should be applied;
4) how to proceed with regard to property seized or taken which is not subject to confiscation;
5) the amount of the expenses of confiscation proceedings and the person who is to bear those 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 order, or
2) an order by which the confiscation request is denied.
(2) A copy of an order shall be submitted to the convicted offender and the third party.
(3) When resolving a confiscation request in the case provided for in subsection 4037 (5) of this Code, a copy of the order is sent to the participant in the proceedings who did not participate in the in judicial hearing.
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§ 403.10. Contestation of confiscation order
(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 order and an order by which the confiscation request is denied.
(2) A court order made on considering an appeal against a court order may be filed with a higher court.
[RT I 2007, 2, 7 - entry into force 01.02.2007]

Chapter 19INTERNATIONAL COOPERATION IN CRIMINAL PROCEEDINGS

Division 5Recognition and Compliance with Judgements of States Not Participating in Cooperation in criminal proceedings among Member States of European Union
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§ 476. Assistance in recognition and execution of judgments of foreign courts
Assistance may be provided to a requesting state in the execution of a punishment for an offence if a request together with the court judgment which has entered into force or an authenticated copy thereof has been submitted to the Ministry of Justice.
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§ 477. Scope of assistance
(1) In addition to the provisions of § 436 of this Code, no assistance shall 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 by 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 Penal Code of Estonia or the Penal Code does not prescribe such punishment or sanction;
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 judgment was made on a person less than fourteen years of age;
9) the judgement or decision was made with regard to a person who enjoys immunities or privileges on the basis of clause 4 2) of this Code.
(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 granted 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 waived after making the final decision on surrender.
(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.
(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 on the basis of the Code of civil procedure pursuant to Estonian law.
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§ 478. Proceedings 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 a court and the Office of the Prosecutor General.
(2) The surrender of or refusal to surrender a person sentenced to imprisonment shall be decided by a court.
(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 Penal Code of Estonia.
(4) If necessary, additional information is requested from the foreign state through the Ministry of Justice and a term for reply is determined.
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§ 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 the 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 a prosecutor and on the basis of an order 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.
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§ 480. Participation of counsel in recognition and execution of judgments of foreign courts
(1) Participation of a counsel in the proceedings of recognition and execution of judgments of foreign courts is mandatory if the following is decided:
1) recognition of a judgment on confiscation;
2) taking a person into custody and holding a person in custody for the purpose of execution of a foreign court judgment;
3) recognition of a sentence of imprisonment imposed on a person;
4) surrender of a person for service of sentence.
(2) A person has the right to also request the participation of a defence counsel in the cases not specified in subsection (1) of this section.
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§ 481. Jurisdiction over recognition of foreign court judgments
Harju County Court shall decide on the recognition of foreign court judgments.
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§ 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 or his or her authorised representative is mandatory.
(4) The participation of a prosecutor in a court session is mandatory.
(5) Minutes shall be taken of court sessions.
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§ 483. Court orders 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 orders:
1) to declare execution of the foreign court judgment admissible;
2) to declare execution of the foreign court judgment inadmissible, or
3) to terminate the proceedings, if the person has performed his or her obligations before the court session.
(2) If execution of a court judgment is not permitted, the court shall send a copy of the court order to the Ministry of Justice. The Ministry of Justice shall notify the foreign state of the refusal to execute a foreign court judgment.
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§ 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 Penal Code of Estonia.
(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 Penal Code of Estonia.
(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 of Estonia.
(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 Penal Code of Estonia.
(6) Pecuniary punishments, fines to the extent of assets and amounts subject to confiscation shall be converted into euros on the basis of the exchange rate applicable on the date of specification of the punishment.
(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.
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§ 485. Order on specification of judgment of foreign court
(1) A court shall decide the specification of a foreign court judgment by an order.
(2) An order 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 an order which has entered into force to the criminal records database 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 an order provided for in subsection (1) of this section by the accused, counsel, third parties and the Prosecutor’s Office.
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§ 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.
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§ 487. Disposal of assets received upon execution of 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) confiscated property shall be transferred to revenues of Estonia unless the parties have agreed otherwise.
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§ 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 a 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, 21.06.2014, 11 - entry into force 01.01.2015]

Chapter 19INTERNATIONAL COOPERATION IN CRIMINAL PROCEEDINGS

Division 5Recognition and Compliance with Judgements of States Not Participating in Cooperation in criminal proceedings among Member States of European Union
[RT I, 21.06.2014, 11 - entry into force 01.01.2015]

§ 487. Disposal of assets received upon execution of 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) confiscated property shall be transferred to revenues of Estonia unless the parties have agreed otherwise.
[RT I, 21.06.2014, 11 - entry into force 01.01.2015]

Part 1 GENERAL PART
Chapter 7 OTHER SANCTIONS

§ 83. Confiscation of object used to commit offence and direct object of offence
(1) A court may confiscate an object which was used or intended to be used to commit an intentional offence (hereinafter object used to commit offence), if it belongs to the offender at the time of the making of the judgment or ruling.
(2) In the cases provided by law, a court may confiscate the substance or object which was the direct object of the commission of an intentional offence, or the substance or object used for preparation of the offence if these belong to the offender at the time of the making of the judgment and confiscation thereof is not mandatory pursuant to law.
(3) The court may confiscate the objects or substance specified in subsections (1) and (2) of this section if it belongs to a third person at the time of the making of the judgment or ruling and the person:
1) has, at least through recklessness, aided in the use of the objects or substance for the commission or preparation of the offence,
2) has acquired the objects or substance, in full or in the essential part, on account of the offender, as a present or in any other manner for a price which is considerably lower than the normal market price; or
3) knew that the objects or substance was transferred to the person in order to avoid confiscation thereof.

(3.1) If the object used to commit an intentional offence or direct object of offence was used by the person on the basis of a contract for use or contract of sale with a reservation on ownership, a court many confiscate the proprietary rights of the person arising from that contract.
(3.2) The court may confiscate the proprietary rights specified in subsection (31 ) of this section if they belong to a third person at the time of the making of the judgment and he or she ta on has, at least through recklessness, aided in the use of the objects or substance for the commission of the offence.
(4) In the absence of the permission necessary for the possession of an object or substance, such object or substance shall be confiscated.
(5) In the cases provided for in subsection (4) of this section, a device, object or substance may be confiscated if the person has committed at least an unlawful act.
(6) In the cases provided for in subsections (1), (2) and (4) of this section, the object used to commit a misdemeanour or the substance or object which was the direct object of a misdemeanour may be confiscated by the body conducting extra-judicial proceedings prescribed by law.

§ 83.1. Confiscation of assets acquired through offence
(1) A court shall confiscate of the assets acquired through an offence object if these belong to the offender at the time of the making of the judgment or ruling.
(1.1) For the purposes of this section, assets acquired by an offence are the assets directly acquired by an offence and anything acquired for account of these assets.
(1.2) If any assets acquired by an offence are mixed with other assets, these assets are assets partially acquired by an offence. Assets partially acquired by an offence shall be deemed to be the assets acquired by an offence to the extent provided for in subsection (11 ) of this section and the confiscation thereof shall be replaced pursuant to the procedure provided for in § 84 of this Code.

(2) The court shall impose subsections (1)-(12 ) of this section to the assets which belong to a third person at the time of making the judgment, if:
1) these were acquired, in full or in the essential part, on account of the offender, as a present or in any other manner for a price which is considerably lower than the normal market price; or
2) the third person knew that the assets were transferred to the person in order to avoid confiscation.

(3) The court may decide not to confiscate, in part or in full, property acquired through offence if, taking account of the circumstances of the offence or the situation of the person, confiscation would be unreasonably burdensome or if the value of the assets is disproportionally small in comparison to the costs of storage, transfer or destruction of the property. The court shall decrease the amount of the property or assets to be confiscated by the amount of the object of a satisfied civil action or proof of claim in public law.

§ 83.2. Extended confiscation of assets acquired through criminal offence
(1) If a court convicts a person of a criminal offence, the court may, in the cases provided for in this Code, confiscate a part or all of the criminal offender's assets if these belong to the offender at the time of the making of the judgment, and if the nature of the criminal offence, the difference between the legal income and financial situation, expenses or the of living of the person or another fact gives reason to presume that the person has acquired the assets through commission of the criminal offence or for account of these assets (hereinafter assets acquired by criminal offence). Confiscation is not applied to assets with regard to which the person certifies that such assets were not acquired by a criminal offence.
(1.1) If any assets acquired by a criminal offence are mixed with other assets, these assets are assets partially acquired by a criminal offence. Assets partially acquired by a criminal offence shall be deemed to be the assets acquired by a criminal offence to the extent provided for in the first sentence of subsection (1) of this section and the confiscation thereof shall be replaced pursuant to the procedure provided for in § 84 of this Code.
(2) The court may impose subsections (1) and (11 ) of this section to the assets which belong to a third person at the time of making the judgment, if:
1) these were acquired, in full or in the essential part, on account of the offender, as a present or in any other manner for a price which is considerably lower than the normal market price; or
2) the third person knew that the assets were transferred to the person in order to avoid confiscation.

(3) Confiscation shall not be applied to Assets of a third party which have been acquired:
1) earlier than ten years as of the commission of a criminal offence in the first degree, or
2) earlier than five years as of the commission of a criminal offence in the second degree.

(4) Upon extended confiscation of assets acquired through criminal offence, the court shall take account of the provisions of subsection 831 (3) of this Code.

§ 84. Substitution of confiscation
If the assets acquired by an offence in the meaning of § 831 of this Code or assets acquired by a criminal offence in the meaning of § 832 of this Code, instrument by which a criminal offence was committed or direct object of a criminal offence have been transferred, consumed or the confiscation thereof is impossible or unreasonable for another reason, the court may order payment of an amount which corresponds to the value of the assets subject to confiscation.

§ 85. Effect of confiscation
(1) Confiscated objects shall be transferred into state ownership or, in the cases provided for in an international agreement, shall be returned.
(2) In the case of confiscation, the rights of third persons remain in force. The state shall pay compensation to third persons, except in the cases provided for in subsections 83(3), (32 ) and (4), 831 (2) and 832 (2) of this Code.
(3) Before entry into force, the decision of a body conducting extra-judicial proceedings or court concerning confiscation has the effect of a restraint on disposition.