Estonia
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Legal Resources for Estonia• Constitution of the Republic of Estonia [1]
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Introduction
Context/Background
Estonia gained independence from the Soviet Union in 1991 but Russian troops did not leave the country until August of 1994. Throughout the next decade, Estonia would develop a stronger democratic governing body, joining international organizations such as the World Trade Organization and later improving relations with Russia. The central legislative body of Estonia is known as the Riigikogu which consists of elected officials responsible for enacting the laws for the country.
Type of system
Estonia’s legal system is based on civil law.
Legal aid situation
State sponsored legal aid
According to the State Sponsored Legal Aid Act, Estonia provides state sponsored legal aid to its citizens and other members of the European Union if, due to financial reasons, they cannot afford competent legal services.
Number of lawyers (criminal/civil) if known
The official number of lawyers in Estonia is available on the Estonian Bar Association website.
Sources of Defendants’ rights
National sources of Defendants’ rights
The Constitution of the Republic of Estonia, the Penal Code, the Code of Criminal Procedure and the Imprisonment Act are national sources of defendant’s rights.
International Sources of Defendants rights
International treaties that ensure the defendant's rights in Estonia are the European Convention on Human Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Rights of the Accused
According to section thirty-five of the Code of Criminal Procedure, the accused has the same rights and obligations of a suspect as listed below.
Right Against Unlawful Arrests, Searches and Seizures
According to section thirty-four of the Code of Criminal Procedure, a suspect has the right and obligation to participate in the hearing of an application for an arrest warrant in court. According to chapter two, section thirty-two of the Constitution, the property of every person is inviolable and equally protected but it may be taken from the owner without consent only in public interest, in the cases and pursuant to a procedure provided by law, and for fair and immediate compensation. Everyone whose property has been taken without their consent has the right to bring an action in the courts to contest the taking of the property, the compensation, or the amount of the compensation. Additionally, section thirty-three specifies no one’s dwelling or other premises lawfully occupied by him or her, or his or her workplace may be forcibly entered or searched, except in the cases and pursuant to a procedure provided by law to protect public order, public health or the rights and freedoms of others, to prevent a criminal offence, to apprehend the offender, or to ascertain the truth in a criminal case.
Right Against Unlawful Detention
According to chapter two, section twenty-one of the constitution, no one may be held in custody for more than forty-eight hours without a specific authorisation of a court. The decision of the court must be promptly communicated to the person in custody in a language and manner that he or she understands.
Right Not to be Tortured or Ill-Treated
According to chapter two, section 18 of the constitution, no one may be subjected to torture or to cruel or degrading treatment or punishment.
Right to Medical Care
While there is no explicit right to medical care for the accused there are considerations given to the overall state of health of the accused as seen in the section on interrogation.
Right to be Informed of Charges
According to chapter two, section twenty-one of the constitution, everyone who has been deprived of his or her liberty must be informed promptly in a language and manner which he or she understands, of the reason for the deprivation of liberty and of his or her rights, and be given an opportunity to notify those closest to him or her.
Right to Presumption of Innocence
According to chapter two, section twenty-two of the constitution, no one may be deemed guilty of a criminal offence before he or she has been convicted in a court and before the conviction has become final
Right Against Self-Incrimination
According to section thirty-four of the Code of Criminal Procedure a suspect has the right to know that their testimony may be used in order to bring charges against him or her.
Right to Counsel and Effective Assistance
According to chapter two, section twenty-one of the constitution, a person suspected of a criminal offence must also be promptly given an opportunity to choose a counsel and to confer with him or her.
Right to a Present a Defense
According to chapter one, section eight of the Code of Criminal Procedures, the Prosecutors’ Offices and court shall provide the suspect and the accused with a real opportunity to defend themselves.
Right to Due Process
According to chapter one, section eight of the Code of Criminal Procedures the Prosecutors’ Offices and courts shall in the performance of a procedural act in the cases provided by law, explain to the participants in the proceeding the objective of the act and the rights and obligations of the participants.
Right to Equal Protection of the Laws
According to chapter two, section nine of the constitution, the rights, freedoms and duties of all persons and of everyone, as set out in the Constitution, apply equally to citizens of Estonia and to citizens of foreign states and stateless persons in Estonia
Right to Bail
According to section 135 of the Code of Criminal Procedure, at the request of a suspect or accused, a preliminary investigation judge or court may impose bail instead of taking into custody.
Right Against Ex Post Facto Prosecution
According to chapter one, section two, no one shall be convicted or punished for an act which was not an offence pursuant to the law applicable at the time of the commission of the act
Right Against Double Jeopardy
According to chapter two, section twenty-three of the constitution, no one may be prosecuted or sentenced for a second time for an act in respect of which he or she has been the subject of a final conviction or acquittal pursuant to the law.
Right to a Fair Trial
Right to a Trial by Jury
There are no explicit mentions of a jury in the available legal documents but there are two lay judges at the county level who assist the judge on a volunteer basis which may be viewed as serving a similar role as a jury.
Right to a Speedy Trial
According to chapter two, section 22 of the Constitution, no one may be held for more than 48 hours without a specific authorization of a court. The decision of the court must be promptly communicated to the person in custody in a language and manner which he or she understands.
Right to an Impartial Judge
According to section forty-eight of the Code of Criminal Procedure, if a judge finds that he or she cannot be impartial for a reason not specified in the Code, the judge shall submit a petition of challenge
Right to Language Interpretation
According to chapter one, section nine of the Code of Criminal Procedures, a person taken into custody shall be immediately notified of the court’s decision on taking into custody in a language and manner which he or she understands. Additionally, section ten guarantees that with the consent of the body conducting criminal proceedings, participants in the proceeding and parties to the court proceeding, the criminal proceedings may be conducted in another language if the body, participants and parties are proficient in such language.
Capital Punishment
According to Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, Estonia as a signatory has abolished capital punishment meaning no one shall be condemned to such penalty or executed. Additionally, section 440 of the Code of Criminal procedures states that if death penalty may be imposed in a requesting state as punishment for a criminal offence and is the basis for the request for extradition, the person may be extradited only on the condition that the competent authority of the requesting state has assured that death penalty will not be imposed on the person to be extradited or, if death penalty was imposed before the submission of the request for extradition, the penalty will not be carried out.
Right to Appeal
According to chapter two, section twenty-four of the constitution, in accordance with the procedure provided by law, everyone is entitled to appeal a judgement rendered in his or her case to a higher court
Rights of Counsel
Right to Provide Representation
According to chapter one, section 8 of the Code of Criminal Procedures, the Prosecutors; Offices and courts shall ensure the assistance of a counsel to the suspect and the accused or if such assistance is requested by the suspect or the accused. Additionally, in the cases of urgency, the offices and courts shall provide a suspect or accused held in custody with other legal assistance at his or her request
Right of Access to the Client
According to chapter one, section forty-seven of the Code of Criminal Procedures, a counsel has the right to confer with the person being defended without the presence of other persons for an unlimited number of times with unlimited duration unless a different duration of the conference is provided for in this Code.
Right to Information
According to chapter one, section forty-seven of the Code of Criminal Procedures, a counsel has the right to receive from natural and legal personas documents necessary for the provision of legal assistance to the person being defended and examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes.
Right to Confidential Communication with the Client
According to chapter one, section thirty-four of the Code of Criminal Procedures a suspect has the right to confer with the counsel without the presence of other persons. The accused has the same rights and obligations of a suspect.
Means of Protecting or Enforcing Rights
Contempt
According to section 267 of the Code of Criminal Procedure, if a prosecutor, representative or counsel violates order in a court session, fails to comply with the order of a judge or acts in contempt of the court, a fine may be imposed on him or her based on a court ruling. Additionally, if any other participant in a proceeding or a person present in a courtroom violates order in a court session, fails to comply with the orders of the judge or acts in contempt of court, he or she may be removed from the courtroom, or a fine or detention for up to five days may be imposed on him or her on the basis of a court ruling.
Civil Actions
According to section thirty-eight of the Code of Criminal Procedure, a victim has the right to file a civil action through an investigative body or the Prosecutor’s Office. Section forty also states that civil defendants have the right to contest a civil action or file a counterclaim.
Pre trial Procedures
Police procedures
Complaint/information
According to chapter 8 section 195, a report of a criminal offense shall be submitted to an investigative body or a Prosecutor’s Office orally or in writing.
Arrest, Search and Seizure laws
Pre-trial detention
According to chapter two, section 22 of the Constitution, no one may be held for more than 48 hours without a specific authorization of a court. The decision of the court must be promptly communicated to the person in custody in a language and manner which he or she understands
Searches
According to chapter two section thirty-two of the Constitution, the property of every person is inviolable and equally protected. Property may be taken from the owner without his or her consent only in the public interest, in the cases and pursuant to a procedure provided by law, and for fair and immediate compensation. Everyone who has their property taken without their consent has the right to bring an action in the courts to contest the taking of the property, the compensation, or the amount of the compensation.
Seizures
According to section 142 of the Code of Criminal Procedure, the objective of seizure of property is to secure a civil action, confiscation or replacement thereof or fine to the extent of assets. The section specifies that seizure of property means recording the property of a suspect, accused, convicted offender, civil defendant or third party or the property which is the object of money laundering or terrorist financing and preventing the transfer of the property.
Interrogation
According to section 34 of the Code of Criminal Procedure, a suspect has the right and obligation to be interrogated and participate in confrontation, comparison of testimony to circumstances and presentation for identification in the presence of a counsel.
Before and after formal charge
According to section seventy-five of the Code of Criminal Procedure, at the beginning of interrogation, it shall be explained to the suspect that he or she has the right to refuse to give statements and that the statements given may be used against him or her. Additionally, the suspect and his or her counsel have the right to get a copy of the record of interrogation of the suspect during the interrogation of the suspect during the interrogation to the extent that a copy includes basic personal identification information, the marital status of the suspect, and 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.
Enforcing the rules (procedures to protect against illegal interrogation)
According to section thirty-three of the Code of Criminal Procedure, interrogation may be postponed if immediate interrogation is impossible due to the state of health of the suspect, or if postponing is necessary in order to ensure the participation of a counsel and the interpreter or translator.
Court Procedures
Pre-Trial
According to section 34 of the Code of Criminal Procedure, a suspect has the right to know the content of the suspicion and give or refuse testimony with regard to the content of the suspicion. Additionally, they have the right to know that their testimony may be used in order to bring charges against him or her. According to section eighteen of the Code of Criminal Procedure, pre-trial proceedings shall be conducted by a judge sitting alone.
Trial
Defendant
According to section forty of the Code of Criminal Procedure, a civil defendant has the right to:
Contest a civil action or file a counterclaim
submit evidence
Submit requests and complaints
Examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes
Examine the materials of the criminal file
Participate in the court hearing
Give consent to the application of settlement proceedings or to refuse to give such consent, to present an opinion concerning the damage set out in the charges and the civil action
Lawyers
While the Code of Criminal Procedure makes no explicit references to lawyers, section eight does specify that the investigative bodies, Prosecutors’ Offices and courts shall ensure the assistance of a counsel to the suspect and the accused.
Expert Witnesses
According to section sixty-three of the Code of Criminal Procedure, evidence for criminal procedures means the statements of a suspect, accused, victim, the testimony of a witness, an expert’s report, the statements given by an expert upon provision of explanations concerning the expert’s report, physical evidence, reports on investigative activities, minutes of court sessions and reports on surveillance activities and other documents, photographs, films, or other data recordings.
Judges
According to section 18 of the Code of Criminal Procedure, in county courts, criminal matters concerning criminal offences in the first degree shall be heard by a court panel consisting of the presiding judge and two lay judges with lay judges having all the rights of a judge in a court hearing. Additionally, matters concerning criminal offences in the second degree and criminal matters in which simplified proceedings are applied shall be heard by a judge sitting alone.
Victims
According to section thirty-eight of the Code of Criminal Procedure, a victim has the right to:
Contest a refusal to commence or termination of criminal proceedings
File a civil action through an investigative body or the prosecutor’s office not later than by the date provided for in subsection 225 of the Code of Criminal Procedures
Give or refuse to give testimony
Submit evidence
Submit requests and complaints
Examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes
Examine the materials of the criminal file
Participate in the court hearing
Give consent to the application of settlement proceedings or to refuse to give such consent, to present an opinion concerning the charges and punishment and the damage set out in the charges and the civil action
Give consent to the application of temporary restraining order and request application of restraining order
Sentencing
According to section 171 of the Code of Criminal Procedure, if a person is sentenced to imprisonment, the time-limit shall be calculated as of the moment of his or her arrival at the prison for serving the punishment unless the time of commencement of the service of the sentence arises from a court judgement. According to section 414 of the Code of Criminal Procedure, if a convicted offender was not held in custody during the court proceedings, the county court enforcing the decision shall send a notice prepared according to the treatment plan to the convicted offender, setting out by which time and to which prison the convicted offender must appear for the service of the sentence.
Appeals
According to section 228 of the Code of Criminal Procedure, before a statement of charges is prepared, participants in a proceeding or a person not subject to the proceedings has the right to file an appeal with the Prosecutor’s Office against a procedural act or order of the investigative body if he or she finds that violation of the procedural requirements in the performance of the procedural act or preparation of the order has resulted in the violation of his or her rights.
Right to counsel
According to section 34 of the Code of Criminal Procedure, a suspect has the right to the assistance of a counsel and to confer with the counsel without the presence of other persons.
Ineffective assistance of counsel
While there is no explicit law on appealing on the basis of ineffective counsel, section eight of the Code of Criminal Procedure does state that in the cases of urgency, investigative bodies, Prosecutors’ Offices and courts shall provide a suspect or accused held in custody with other legal assistance at his or her request.
Other Grounds for Appeal
According to section ten of the Code of Criminal Procedure a suspect or accused or his or her counsel may file an appeal against the ruling on the basis of the language of Estonian not being the defendant’s native language or a language which he or she understands comprehensively.
Rights in Prison
Right to Humane Conditions of Confinement
According to section forty-five of the Imprisonment Act, the cell of a prisoner shall meet the general requirements established for dwellings on the basis of the Building Code which ensure the air flow and circulation, light and temperature in the cell which is necessary for living. The Act also states that a cell must have a window and artificial lighting which ensures sufficient lighting of the room.
Immigrant’s Rights in Detention
According to chapter two, section 9 of the constitution, the rights, freedoms and duties of all persons and of everyone as set out in the Constitution, apply equally to citizens of Estonia and to citizens of foreign states and stateless persons in Estonia.
Right to Medical Care in Prison
According to section fifty-two of the Imprisonment Act, health care services in prisons are provided by a health care provider in accordance with the provisions of the Health Care Services Organization Act regulating the provision of specialised medical care. Additionally, a health care professional is required to supervise the state of health of a prisoner on a constant basis, treat them in prison to the extent possible and, where necessary, refer them to treatment at a relevant provider of specialized medical care, and perform other functions assigned to them.
Right to Mental Health Care
There are no explicit mentions of a right to mental health care for prisoners from available documents.
Restriction of rights
According to section four of the Imprisonment Act, liberties of prisoners, detained persons or persons in custody shall be subject to the restrictions provided by law. It also states that unless the law provides a specific restriction, a prison, the Ministry of Justice or a house of detention may apply only such restrictions which are necessary for reasons of security of the prison or house of detention. Lastly, any restrictions shall comply with their objective application and the principles of human dignity and may not distort the nature of the other rights and liberties provided by law.
Rights of Special Populations
According to section twelve of the Imprisonment Act, certain populations shall be segregated which include: Men and women, and Minor and adults
Additionally, section seventy-one of the Imprisonment Act, it is prohibited to use firearms against women and minors, except in the case where a woman or minor escapes, uses firearms to initiate resistance against a prison service officer or attacks a prison service officer or other people.
Women
According to section fifty-four of the Imprisonment Act, prisons shall provide separate premises fitted out for women prisoners who are pregnant and organize care for children.
Juveniles
According to section eighty-three of the Imprisonment Act, all specifications for the work of minors arising from labour protection laws, including the specifications for working hours, shall be applied to the work of young prisoners less than 18 years of age.
References
Code of Criminal Procedure. Riigi Teataja. 2003. https://www.riigiteataja.ee/en/eli/530102013093/consolide
Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty. Council of Europe. 1983. https://rm.coe.int/168007952b
Estonia Factsheet. Northeastern University School of Law. January 2020. https://cglj.org/human-rights-law
Imprisonment Act. Riigi Teataja. 2000. https://www.riigiteataja.ee/en/eli/ee/Riigikogu/act/516012025003/consolide
Penal Code. Riigi Teataja. 2001. https://www.riigiteataja.ee/en/eli/522012015002/consolide
State-funded Legal Aid Act. Riigi Teataja. 2004. https://www.riigiteataja.ee/en/eli/ee/503052023005/consolide
The Constitution of the Republic of Estonia. Riigi Teataja. 1992. https://www.riigiteataja.ee/en/eli/530102013003/consolide
