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Code of Criminal Procedure¹

Passed 12.02.2003
RT I 2003, 27, 166
Entry into force 01.07.2004

Amended by the following legal instruments (show)

Chapter 1 GENERAL PROVISIONS 

§ 1.  Scope of regulation of this Code

 (1) This Code provides the rules for pre-court and court procedure concerning criminal offences and the rules concerning enforcement of decisions made in criminal matters.

 (2) This Code also provides the bases of and procedure for conduct of surveillance activities.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 2.  Sources of the law of criminal procedure

  The sources of the law of criminal procedure are:
 1) the Constitution of the Republic of Estonia;
 2) generally recognised principles and provisions of international law and international agreements binding on Estonia;
 3) this Code and other legislation which provides rules of criminal procedure;
 4) decisions of the Supreme Court on issues which are not regulated by other sources of the law of criminal procedure yet which have arisen in the application of the relevant legislation.

§ 3.  Territorial and temporal applicability of the law of criminal procedure

 (1) The law of criminal procedure applies in the territory of the Republic Estonia. The law of criminal procedure also applies outside the territory of the Republic Estonia if this arises from an international agreement or if the subject matter of criminal proceedings is an act of a person serving in the Defence Forces of Estonia.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) The law of criminal procedure that applies in criminal proceedings is the law in force at the time of performance of the procedural operation.

 (3) The requirements for using evidence taken abroad in criminal proceedings in Estonia are provided in § 65 of this Code.

 (4) During a state of emergency this Code applies, taking account of the specifications provided for in the State of Emergency Act.
[RT I 2009, 39, 260 – entry into force 24.07.2009]

§ 4.  Applicability of criminal procedural law by reason of person concerned

  The law of criminal procedure applies equally to all persons with the following exceptions:
 1) the specifications concerning preparation of a statement of charges and performance of certain procedural operations with regard to the President of the Republic, members of the Government of the Republic, the Auditor General, the Chancellor of Justice and the Chief Justice and justices of the Supreme Court are provided for in Chapter 14 of this Code;
 2) the specifications concerning procedural operations performed with regard to members of the Riigikogu before preparation of a statement of charges and of preparation of the statement of charges are provided for in Chapter 14¹ of this Code;
 3) Estonian law of criminal procedure may be applied to a person enjoying diplomatic immunity or other privileges prescribed by an international agreement at the request of the relevant foreign state, taking into account the specifications provided in an international agreement.
[RT I, 22.12.2014, 9 – entry into force 01.01.2015]

§ 5.  Principle of state jurisdiction

  Criminal proceedings shall be commenced and conducted on behalf of the Republic of Estonia.

§ 6.  Principle of mandatory criminal proceedings

  Investigative bodies and Prosecutors' Offices are required to conduct criminal proceedings upon the appearance of facts referring to a criminal offence, unless the circumstances provided for in § 199 of this Code exist which preclude criminal proceedings or unless the grounds to terminate criminal proceedings pursuant to subsection 201 (2), §§ 202, 203, 203¹, 204, 205, 205¹, 205² or subsection 435 (3) of this Code exist.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 7.  Presumption of innocence

 (1) No one shall be presumed guilty of a criminal offence before a judgment of conviction has entered into force with regard to him or her.

 (2) No one is required to prove his or her innocence in criminal proceedings.

 (3) Any doubts concerning the suspect or the accused being guilty as charged which have not been eliminated in criminal proceedings shall be interpreted to the benefit of the suspect or accused.

§ 8.  Safeguarding of rights of participants in proceedings

  Investigative bodies, Prosecutors' Offices and courts shall:
 1) in the performance of a procedural operation, in the cases provided by law, explain to the participants in proceedings the objective of the act and their rights and obligations;
 2) provide the suspect and accused with a real opportunity to defend themselves;
 3) ensure the assistance of a counsel to the suspect and accused in the cases provided for in subsection 45 (2) of this Code or if such assistance is requested by the suspect or accused;
 4) in the cases of urgency, provide a suspect or accused held in custody with other legal assistance at his or her request;
 5) deposit the unsupervised property of a suspect or accused held in custody with the person or local government specified by him or her;
 6) ensure that the minor children of a person held in custody be supervised or the persons close to him or her who need assistance be cared for;
 7) explain to a victim who is a natural person his or her right to contact a victim support official and, if necessary, receive victim support services and the state compensation prescribed for victims of crimes of violence and explain which opportunities arising from this Code can be used to ensure the safety of victims.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

§ 9.  Safeguarding of personal liberty and respect for human dignity

 (1) A suspect may be detained for up to forty-eight hours without an arrest warrant issued by a court.

 (2) A person taken into custody shall be immediately notified of the court's determination on his or her being taken into custody in a language and manner which he or she understands.

 (3) Investigative bodies, Prosecutors' Offices and courts shall treat the participants in proceedings without defamation or degradation of their dignity. No one shall be subjected to torture or other cruel or inhuman treatment.

 (4) In criminal proceedings, it is permitted to interfere with the private and family life of a person only in the cases and pursuant to the procedure provided for in this Code in order to prevent a criminal offence, apprehend a criminal offender, ascertain the truth in a criminal matter or secure the execution of a court judgment.

§ 10.  Language of criminal proceedings

 (1) The language of criminal proceedings is Estonian. With the consent of the body conducting criminal proceedings, of participants in proceedings and of the parties to judicial proceedings, the criminal proceedings may be conducted in another language if the body, participants and parties are proficient in that language.

 (2) Suspects, accused, victims, civil defendants and third persons who are not proficient in the Estonian language shall be ensured the assistance of an interpreter or translator. In the case of doubt, proficiency shall be ascertained by the body conducting proceedings. If it is impossible to ascertain proficiency or the individual’s command of Estonian proves to be insufficient, the assistance of an interpreter or translator shall be ensured.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (2¹) If a suspect or accused is not proficient in the Estonian language, he or she shall be ensured the assistance of an interpreter or translator at his or her request or the request of his or her counsel at the meeting with the counsel which is directly related to the procedural operation performed with respect to the suspect or accused, the application or complaint submitted. If the body conducting proceedings finds that the assistance of an interpreter or translator is not necessary, the body shall formalise the refusal by an order.
[RT I, 04.10.2013, 3 – entry into force 27.10.2013]

 (3) All documents which are requested to be included in a criminal and court file shall be in the Estonian language or translated into Estonian. Documents in other languages prepared by investigative bodies and prosecutors' office in terminated criminal proceedings shall be translated into Estonian by the order of the Prosecutor’s Office or at the request of a participant in proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) A text in a language other than Estonian may be entered in the minutes of a court session at the request of a party to judicial proceedings. In such case, a translation of the text into Estonian shall be appended to the minutes.

 (5) If a suspect or accused is not proficient in the Estonian language, the text of the report on detention of the suspect, arrest warrant, European arrest warrant, statement of charges and judgment shall be translated into his or her native language or a language in which he or she is proficient, at least to the extent which is significant from the point of view of understanding the content of the suspicion or charges or for ensuring fairness of the proceedings.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (6) If a suspect or accused is not proficient in the Estonian language, he or she or his or her counsel may submit a reasoned application for translating a document which is significant from the point of view of understanding the content of the suspicion or charges in the criminal matter or for ensuring the fairness of the proceedings into his or her native tongue or into another language in which he or she is proficient. If the body conducting the proceedings finds that the application for translating the documents is not justified either in full or in part, such body shall formalise the refusal by an order.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (6¹) If a victim who is a natural person is not proficient in the Estonian language, translating of the text which is essential for understanding the substance of the order on termination of criminal proceedings or the court judgment or for ensuring the fairness of the proceedings into his or her native language or a language in which he or she is proficient may be requested within ten days. A victim who is a natural person may also request translating of other documents which are essential for ensuring his or her procedural rights. If the body conducting proceedings finds that the request for translating other documents is not justified, such body shall formalise the refusal by an order.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (7) Instead of written translation of the documents listed in subsections (5)-(6¹) of this section, such documents may be translated orally or an oral summary may be made thereof, if:
 1) this does not affect the fairness of the proceedings; or
 2) a suspect or accused who has been informed of the consequences of waiver of written translation of the documents listed in subsections (5) and (6) of this section has filed a written application for waiver of written translation in a format which can be reproduced in writing or it was recorded in another manner.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (8) An oral translation shall be ensured to a suspect and accused immediately, a written translation of the documents shall be ensured to a suspect and accused within a reasonable period of time so that this does not impair the exercise of their rights of defence.
[RT I, 04.10.2013, 3 – entry into force 27.10.2013]

 (9) A person may appeal refusal to provide translations or partial provision thereof on the basis of this section according to the provisions of §§ 228 or 229 of this Code or pursuant to Chapter 15 of this Code.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (10) If procedural documents were translated to a person on the basis of this section, then in the case these procedural documents are appealed, the terms of appeal shall be calculated as of the date of receipt of the translated documents.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

§ 11.  Public access to court sessions

 (1) Every person has the opportunity to observe and record court sessions pursuant to the procedure provided for in § 13 of this Code.

 (2) The principle of public access applies to the pronouncement of decisions without restrictions unless the interests of a minor, spouse or victim require pronouncement of a decision in a court session held in camera.

 (3) The principle of public access applies as of the opening of a court session until pronouncement of a decision, taking into account the restrictions provided for in §§ 12 and 13 of this Code.

 (4) A court may remove a minor from a public court session if this is necessary for the protection of the interests of the minor.

§ 12.  Restrictions on public access to court sessions

 (1) A court may declare that a session or a part thereof be held in camera:
 1) in order to protect a state or business secret or classified information of foreign states;
[RT I 2007, 16, 77 – entry into force 01.01.2008]
 2) in order to protect morals or the private and family life of a person;
 3) in the interests of a minor or a victim;
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]
 4) in the interests of the administration of justice, including in the cases where public access to the court session may endanger the security of the court, of a party to judicial proceedings or of a witness.

 (2) The court shall resolve the imposition of restrictions on public access to a court session on the basis provided for in subsection (1) of this section by a reasoned order made on its own initiative or at the request of a party to judicial proceedings.
[RT I, 07.12.2018, 2 – entry into force 17.12.2018]

 (3) With the permission of a court, an official of an investigative body, a court official, a witness, a qualified person, an expert, an interpreter or a translator, a person specified in clause 38 (5) 3) of this Code and a person close to the victim and accused for the purposes of subsection 71 (1) of this Code may observe a court session held in camera.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (4) In a closed court session, the court shall caution participants in proceedings and other persons present in the courtroom that the contents of the hearing held and the documents examined in a closed session must not be disclosed to the extent which is necessary for the protection of the right or interest specified in subsection (1) of this section.
[RT I, 07.12.2018, 2 – entry into force 17.12.2018]

 (4¹) The court may, by substantiated order, require the participants in proceedings and other persons present in the courtroom to maintain the confidentiality of a fact which has become known to them in the course of the proceedings even if the court session has not been declared closed but maintaining confidentiality is clearly necessary for the protection of a right or interest specified in subsection (1) of this section.
[RT I, 07.12.2018, 2 – entry into force 17.12.2018]

 (4²) In the cases provided in subsections (4) and (4¹) of this section, a notation shall be made in the minutes of the court session concerning the participants in proceedings and other persons present in the courtroom being cautioned against violating the obligation to maintain confidentiality.
[RT I, 07.12.2018, 2 – entry into force 17.12.2018]

 (5) [Repealed – RT I, 07.12.2018, 2 – entry into force 17.12.2018]

§ 13.  Restrictions on recording of court sessions

 (1) As of the opening of a court session until the pronouncement of the decision, the persons present in the courtroom may take written notes.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) Other means for recording a court session may be used only with the permission of the court.

 (3) If a court session is held in camera, the court may decide that only written notes may be taken.

§ 14.  Adversarial nature of judicialproceedings

 (1) In judicial proceedings, the functions of prosecution, defence and adjudication of the criminal matter shall be performed by different persons subject to proceedings.

 (2) Withdrawal of the charges pursuant to the procedure provided for in § 301 of this Code releases the court from the obligation to continue the proceedings. If charges are withdrawn for the reason that the act of the accused comprises the necessary elements of a misdemeanour, withdrawal of the charges is the basis for termination of criminal proceedings. Withdrawal of the charges in other cases is the basis for a judgment of acquittal.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 15.  Judicial hearing at first hand

  [RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (1) The decision of a county court may be based only on evidence which has been presented and examined at first hand at judicial hearing and recorded in the minutes.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) The decision of the circuit court may be based on:
 1) evidence which has been presented and examined at first hand at judicial hearing by the circuit court and recorded in the minutes;
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]
 2) evidence which has been examined at first hand in the county court and disclosed in appeal proceedings.

 (3) The decision shall not be based solely or predominantly on the testimony of a person declared anonymous in accordance with § 67 of this Code, evidence whose direct source the accused or counsel was unable to question, or the testimony of the person specified in subsection 66 (2¹).
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 15¹.  Judicial hearing without interruption or delay

  The court shall hear a matter as an integral whole and shall ensure that a decision is made as quickly as possible.
[RT I 2008, 32, 198 – entry into force 15.07.2008]

§ 15².  Processing of personal data in criminal proceedings

 (1) In criminal proceedings, the body conducting proceedings shall have the right to process personal data, including personal data of specific categories, which are required for conduct of pre-court proceedings and judicial proceedings, taking of evidence, enforcement of the decisions made in criminal matters, conduct of surveillance activities or achievement of other objectives provided for in this Act.

 (2) When processing of personal data in the course of criminal proceedings, the body conducting proceedings shall act as a law enforcement authority for the purposes of subsection 13 (2) of the Personal Data Protection Act, and processing of personal data shall be guided by the provisions established for law enforcement authorities.

 (3) Exercise of the rights of data subjects arising from the Personal Data Protection Act shall be guided by the provisions of this Act, regardless of whether the data subject is a suspect, accused, victim, civil defendant, third party, witness or any other person.

 (4) When processing personal pursuant to this Act, a data controller may restrict the rights of a data subject arising from the Personal Data Protection Act, if this is required in order to prevent or detect an offence, to conduct proceedings with respect to an offence or to enforce a punishment, to conduct civil, administrative or any other legal proceedings, to prevent any damage to the rights and freedoms of another person or data subject, to prevent endangering of national security or to ensure maintenance of public order.

 (5) The following rights of data subjects may be restricted pursuant to subsection (4) of this section:
 1) the right to know that their personal data are processed, including what personal data are processed, and the way, method, objective, legal basis, extent or cause of processing;
 2) the right to know the recipients of their personal data and categories of personal data disclosed and information about whether their personal data are transmitted to foreign countries or international organizations;
 3) the right to demand restrictions on processing of their personal data;
 4) the right to object to processing of their personal data;
 5) the right to know about breaches related to their personal data.

 (6) Bodies conducting proceedings are joint controllers of personal data processed in the course of criminal proceedings in accordance with their competence.

 (7) Transfer of personal data to persons in third countries that are not law enforcement agencies for the purposes of subsection 13 (2) of the Personal Data Protection Act shall be permitted only under the terms and conditions and pursuant to the procedure provided for in § 49 of the Personal Data Protection Act.
[RT I, 13.03.2019, 2 – entry into force 15.03.2019]

Chapter 2 PERSONS INVOLVED IN CRIMINAL PROCEEDINGS 

§ 16.  Bodies conducting proceedings and participants in proceedings

 (1) Proceedings shall be conducted by the courts, Prosecutors' Offices and investigative bodies.

 (2) Participants in proceedings are the suspect or accused, his or her counsel, victim, civil defendant and third parties.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

§ 17.  Parties to judicial proceedings

 (1) The parties to judicial proceedings are the Prosecutor’s Office, the accused and his or her counsel and the victim, civil defendant and third parties.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

 (2) The parties to judicial proceedings enjoy all the rights of participants in proceedings provided in this Code.

Subchapter 1 Courts 

§ 18.  Panels of county courts

 (1) 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. Lay judges have all the rights of a judge in a court hearing.

 (2) Matters concerning criminal offences in the second degree and criminal matters in which simplified procedure is applied shall be heard by a judge sitting alone.

 (3) [Repealed – RT I, 29.06.2012, 3 – entry into force 09.07.2012]

 (4) If the court hearing of a criminal matter is time-consuming, a reserve judge or reserve lay judge may, by a court order, be involved in a court session who shall be present in the courtroom during the court hearing. If a judge or lay judge cannot continue as a member of a court panel, he or she shall be replaced by a reserve judge or reserve lay judge.

 (5) Pre-court proceedings shall be conducted by the judge sitting alone.

 (6) The composition of a court panel to deal with a criminal matter by way of international cooperation is provided in Chapter 19.
[RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 19.  Panels of circuit courts

 (1) In circuit courts, criminal matters shall be heard by a court panel consisting of at least three circuit court judges. Pre-court proceedings in criminal matters shall be conducted by a circuit court judge sitting alone.

 (2) The chairman of the circuit court may assign a judge of a county court of the same circuit to a panel of the circuit court with the consent of the judge.
[RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 20.  Panels of the Supreme Court

 (1) In the Supreme Court, criminal matters shall be considered by a court panel consisting of at least three justices of the Supreme Court.

 (2) [Repealed – RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 21.  Preliminary investigation judge

 (1) A preliminary investigation judge is a county court judge who, sitting alone, shall perform the duties assigned to him or her by this Code in pre-court proceedings.

 (2) In the case provided by this Code, permission for surveillance activities is granted by a preliminary investigation judge.
[RT I, 29.06.2012, 2 – entry into force 09.07.2012]

§ 22.  Judge in charge of execution of court judgments

  A judge in charge of the execution of court judgments is a county court judge who, sitting alone, shall perform the duties assigned to him or her by this Code in the execution of decisions.
[RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 23.  Voting in collegial court panels and dissenting opinions of judges

 (1) A collegial court panel shall resolve the issues relating to a criminal matter by voting.

 (2) In county courts, the presiding judge shall be the last to present his or her opinion.

 (3) In circuit courts and the Supreme Court, the judge who prepared the matter for judicial proceedings shall be the first to present his or her opinion unless he or she is the presiding judge. Voting is continued according to seniority in office, starting with the most junior judge. The presiding judge shall vote last.

 (4) Upon an equal division of votes, the presiding judge has the casting vote.

 (5) A member of a court panel has no right to abstain from voting or remain undecided. In the event of voting on a series of issues, a member of the court panel who took the minority position does not have the right to abstain from voting on a subsequent issue.

 (6) A judge who took the minority position in voting may present his or her dissenting opinion to the court judgment. The dissenting opinions appended to the judgments of the Supreme Court shall be published together with the judgments.
[RT I 2010, 19, 101 – entry into force 01.06.2010]

§ 23¹.  Court officials

 (1) An order preparing the matter for adjudication or other case management orders which are not subject to appeal under the law, including an order on refusal to proceed with a petition, application or appeal, and an order on provision or extension of a term may also be made by a competent court official pursuant to the internal rules of the courts.

 (2) The court may use the assistance of a court official in the preparation and formalisation of a decision.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

§ 24.  General jurisdiction in hearing of criminal matters in county courts

 (1) The criminal matter shall be heard by the county court in whose territorial jurisdiction the criminal offence was committed.

 (2) As an exception, a criminal matter may be heard according to the location of occurrence of the consequences of the criminal offence or the location of the majority of the accused persons or victims or witnesses. Exceptional transfer of a criminal matter within the territorial jurisdiction of one circuit court shall be decided by the chairman of the circuit court; in other cases, the transfer shall be decided by the Chief Justice of the Supreme Court.

 (3) If the place of commission of a criminal offence cannot be ascertained, the criminal matter shall be heard by the court in whose territorial jurisdiction the pre-court proceedings were completed.

 (4) A preliminary investigation judge of a county court in whose territorial jurisdiction the criminal offence was committed shall perform the duties of a preliminary investigation judge. Where it is impossible to clearly determine the place of commission of the criminal offence, a preliminary investigation judge of a county court of the place of performance of the procedural operation shall perform the duties of a preliminary investigation judge. Permission for surveillance activities is granted by a judge designated by the division of tasks plan who is not the chairman of the court.
[RT I, 13.03.2019, 1 – entry into force 01.01.2020]

 (5) The jurisdiction of criminal matters proceedings in which are conducted by international cooperation is provided for in Chapter 19.

§ 25.  Exclusive jurisdiction in hearing of criminal matters in county courts

 (1) A criminal matter concerning a criminal offence committed by means of printed matter shall be heard by the court of the place of publication of the printed matter unless the victim requests that the criminal matter be heard by the court of his or her residence or the court in whose territorial jurisdiction the printed matter has been disseminated.

 (2) If a criminal offence is committed abroad, the criminal matter shall be heard by the court of the residence of the suspect or accused in Estonia. If the suspect or accused does not have a residence in Estonia, the criminal matter shall be heard by Harju County Court.
[RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 26.  Jurisdiction over joined criminal matters

  If several courts are competent to hear a joined criminal matter, the matter shall be heard by one of such courts. The Prosecutor’s Office which sends the statement of charges to the court shall decide on the jurisdiction pursuant to the interests of justice.

§ 27.  Jurisdiction over criminal matters concerning judges

 (1) A criminal matter in which a judge is a participant in proceedings and which according to general jurisdiction should be heard by a county court within the territorial jurisdiction of the circuit court of the place of employment of the judge shall be referred for hearing by a county court within the territorial jurisdiction of another circuit court.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) If, according to general jurisdiction, the granting of permission for conducting of surveillance activities with regard to a judge falls within the jurisdiction of the county court within the territorial jurisdiction of the circuit court of the place of employment of the judge, permission for surveillance activities is granted, at the request of the Office of the Prosecutor General, by the chairman of the county court within the territorial jurisdiction of another circuit court or a judge designated by him or her acting as a preliminary investigation judge.
[RT I 2007, 1, 2 – entry into force 30.03.2007]

§ 27¹.  Jurisdiction of charge proceedings

 (1) An appeal against an order of the Office of the Prosecutor General specified in subsection 208 (1) of this Code falls within the jurisdiction of the circuit court in whose jurisdiction the Prosecutor’s Office or investigative body who sent the notice on refusal to commence criminal proceedings or the order on termination of the criminal proceedings to the victim is located.

 (2) If a notice on refusal to commence criminal proceedings or order on termination of the criminal proceedings has been sent to the victim by the Office of the Prosecutor General, the appeal specified in subsection 208 (1) of this Code falls within the jurisdiction of the Tallinn Circuit Court.
[RT I 2006, 21, 160 – entry into force 25.05.2006]

§ 28.  Verification of jurisdiction and resolution of jurisdictional disputes

 (1) A court shall verify the jurisdiction over a criminal matter during preparation for judicial hearing and, in the event of contestation of the jurisdiction, make an order on referral of the criminal matter to the court with appropriate jurisdiction.

 (2) Before a criminal matter is referred to a court with appropriate jurisdiction, only urgent procedural operations are permitted.

 (3) If a court contests the jurisdiction over a criminal matter received from another court, the jurisdiction shall be determined by the Chief Justice of the Supreme Court.

§ 29.  Procedural assistance between courts

  A court may request procedural assistance from another court if performance of a procedural operation in such other court would facilitate the hearing of a criminal matter, save the time of the participants in the proceedings and the court and reduce procedure expenses. A court from whom assistance is requested shall not refuse assistance unless otherwise provided by law.

Subchapter 2 Prosecutor's Office 

§ 30.  Prosecutor's Office in criminal procedure

 (1) The Prosecutor's Office shall direct pre-court proceedings and ensure the legality and efficiency thereof and represent public prosecution in court. In the case provided by this Code, the Prosecutor’s Office has the right to file a civil action or proof of claim in public law. Unless otherwise provided by this Code, the Prosecutor’s Office shall not have the rights of the body conducting proceedings provided by this Code in the collection of the evidence necessary for proving a civil action or proof of claim in public law.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (2) The authority of the Prosecutor's Office in criminal proceedings shall be exercised, in the name of the Prosecutor's Office, independently by the prosecutor having regard only to the law. The authority of the Prosecutor’s Office provided by this Code upon conducting the proceedings in a civil action or proof of claim in public law shall be exercised by the prosecutor or another person authorised by the Prosecutor General or a chief prosecutor.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (3) When performing a task of the European Prosecutor’s Office emanating from Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (OJ L 283, 31.10.2017, pp. 1–71), a European Prosecutor or a European Delegated Prosecutor have the same rights as those held by the Prosecutor’s Office under this Code.
[RT 29.12.2020, 1 – entry into force 08.01.2021]

Subchapter 3 Investigative Bodies 

§ 31.  Definition of investigative body

 (1) Investigative authorities are, within their respective jurisdictions, the Police and Border Guard Board, the Internal Security Service, the Tax and Customs Board, the Competition Board, the Military Police, the Environment Board as well as the Department of Prisons of the Ministry of Justice and the prisons, which perform the functions of an investigative authority directly or through an institution administered by them or through a local office.
[RT I, 10.07.2020, 2 – entry into force 01.01.2021]

 (2) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) The list of positions whose holders have the right to participate in criminal proceedings within the limits of the competence of the investigative body shall be approved by the heads of the bodies specified in subsection (1) of this section.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 32.  Investigative bodies in criminal procedure

 (1) An investigative body shall perform the procedural operations provided in this Code independently unless the permission of a court or the permission or order of the Prosecutor’s Office is necessary for the performance of the act.

 (2) An investigative body has the right to demand submission of any document necessary for solving a criminal matter.

Subchapter 4 Suspect and accused 

§ 33.  Suspect

 (1) A suspect is a person who has been detained on suspicion of a criminal offence, or a person whom there is sufficient basis to suspect of the commission of a criminal offence and who is subject to a procedural operation.

 (2) The rights and obligations of a suspect shall be immediately explained to him or her and he or she shall be interrogated with regard to the content of the suspicion. 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 interpreter or translator.

§ 34.  Rights and obligations of suspects

 (1) A suspect has the right to:
 1) know the content of the suspicion and give or refuse to give testimony with regard to the content of the suspicion;
 2) know that his or her testimony may be used in order to bring charges against him or her;
 2¹) the assistance of an interpreter or translator;
[RT I, 04.10.2013, 3 – entry into force 27.10.2013]
 3) the assistance of a counsel;
 4) confer with the counsel without the presence of other persons;
 5) be interrogated and participate in confrontation, comparison of testimony to circumstances and presentation for identification in the presence of a counsel;
 6) participate in the hearing of an application for an arrest warrant in court;
 7) submit evidence;
 8) submit requests and complaints;
 9) examine the minutes of procedural operations and give statements on the conditions, course, results and minutes of the procedural operations, with such statements being recorded in the minutes;
 10) give consent to the application of settlement proceedings, participate in the negotiations for settlement proceedings, make proposals concerning the type and term of punishment and enter or decline to enter into an agreement concerning settlement proceedings.

 (1¹) A suspect who is a minor and, taking into consideration the circumstances of the criminal matter and vulnerability of the person, a person below twenty-one years of age who is suspected of committing a crime when under eighteen years of age, shall have the right, in addition to as specified in subsection (1) of this section:
 1) to notify their legal representative or any other person pursuant to subsections 35² (1) and (2) of this Code;
 2) to the presence of a legal representative or any other person during the performance of procedural operations and in a court session pursuant to subsection 35² (3) of this Code;
 3) to that a pre-trial report is prepared for his or her individual assessment at the latest before bringing the charges, except in the case this is not in his or her interests in the specific criminal proceedings, and that the conclusions of the individual assessment shall be taken into account upon making procedural decisions;
 4) to that he or she shall undergo a medical examination without undue delay upon deprivation of liberty in the cases prescribed by law or if necessary, and at his or her request, the request of his or her counsel or the person specified in subsections 35² (1) or (2) of this Code or on the initiative of the body conducting proceedings, and the conclusions thereof shall be taken into account upon making procedural decisions;
 5) to special treatment upon deprivation of liberty;
 6) to treatment in a manner that protects privacy and dignity according to his or her age, maturity, comprehension and special needs, including potential communication difficulties, and to proceedings without undue delay.
[RT I, 20.12.2019, 1 – entry into force 30.12.2019]

 (2) A conference specified in clause (1) 4) of this section may be interrupted for the performance of a procedural operation if the conference has lasted for more than one hour.

 (3) A suspect is required to:
 1) appear when summoned by an investigative body, Prosecutor’s Office or court;
 2) participate in procedural operations and obey the orders of investigative bodies, Prosecutors' Offices and courts.

§ 34¹.  Suspects' right to examine materials of criminal file

 (1) Suspects have the right to request access to the evidence which is essential for specifying the content of the suspicion filed against them, if this is required for ensuring fair proceedings and the preparation of defence. Access to the evidence collected shall be ensured at the latest after the Prosecutor's Office has declared the pre-court proceedings completed and submitted the criminal file for examination pursuant to § 224 of this Code.

 (2) Suspects have the right to request access to any evidence which is essential for the hearing on whether an arrest warrant is justified and for contesting detention and taking into custody in court.

 (3) Enabling access to the evidence specified in subsection (1) and (2) of this section shall be decided by the Prosecutor’s Office. The Prosecutor’s Office may make a determination on refusal to enable access to evidence if this may significantly damage the rights of another person or if this prejudices criminal proceedings in the matter.

 (4) An appeal may be filed against the determination of the Prosecutor's Office concerning the refusal provided for in subsection (3) of this section in accordance with the provisions of § 228 of this Code.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 35.  Accused

 (1) The accused is a person with regard to whom the Prosecutor’s Office has prepared a statement of charges in accordance with § 226 of this Code or a person against whom a statement of charges has been brought pursuant to expedited procedure or a person with whom an agreement has been entered into in settlement proceedings.

 (2) The accused has the rights and obligations of a suspect. The accused has the right to examine the criminal file through his or her counsel and participate in judicial hearing.

 (3) The accused with regard to whom a judgment of conviction has entered into force is a convicted offender.

 (4) The accused with regard to whom a judgment of acquittal has entered into force is an acquitted person.
[RT I 2006, 15, 118 – entry into force 14.04.2006]

§ 35¹.  Information on rights of suspects and accused

 (1) The suspect or accused shall be immediately provided information orally or in writing on his or her rights in plain and intelligible language. Explanation of rights shall be confirmed by signature.

 (1¹) The rights of a suspect and accused who is a minor shall be also introduced to their legal representatives and the person specified in subsection 35² (2) of this Code.
[RT I, 20.12.2019, 1 – entry into force 30.12.2019]

 (2) A suspect or accused who is detained or taken into custody shall be immediately submitted a written declaration of rights concerning his or her rights under criminal procedure. A suspect and accused shall have the right to keep the declaration in his or her possession during the time of detention or keeping in custody.

 (3) If the suspect or accused specified in subsection (2) of this section is not proficient in the Estonian language, he or she shall be provided with the declaration of rights in his or her mother tongue or in a language in which he or she is proficient.

 (4) The standard format of declarations of rights shall be established by a regulation of the minister responsible for the area.
[RT I, 20.12.2019, 1 – entry into force 30.12.2019]

§ 35².  Notification of and participation in proceedings by legal representatives or other persons

 (1) The body conducting proceedings is required to inform the legal representative of a suspect or accused who is a minor of the rights and obligations of a suspect who is a minor, except in the situation where this is not in the interests of the minor or may significantly damage the criminal proceedings. In the later cases, a local government authority must be notified.

 (2) If notification of the legal representative of a suspect or accused who is a minor is impossible or this is not in the interests of the minor or may significantly damage to the criminal proceedings, the body conducting the proceedings shall notify any other persons who has been designated by the suspect or accused who is a minor, and evaluated as suitable by the body conducting the proceedings.

 (3) At the request of a suspect or accused who is a minor, his or her legal representative and the person specified in subsection (2) of this section may present with the child:
 1) in a court session;
 2) during the performance of procedural operations, if this is in the interests of the minor in the opinion of the body conducting the proceedings and does not impede the criminal proceedings by means of causing delays or in any other manner.
[RT I, 20.12.2019, 1 – entry into force 30.12.2019]

§ 36.  Participation of suspect or accused who is legal person in criminal proceedings

  A suspect or accused who is a legal person shall participate in criminal proceedings through a member of the management board or the body substituting for the management board of the legal person or a trustee in bankruptcy and such person has all the rights and obligations of the suspect or accused, including the right to give testimony in the name of the legal person.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

Subchapter 5 Victim, Civil Defendant and Third Party 
[RT I 2007, 2, 7 - entry into force 01.02.2007]

§ 37.  Victim

 (1) A victim is a natural or legal person whose legal rights have been directly violated by a criminal offence aimed at the person or by an unlawful act committed by a person not capable of guilt. In the case of an attempt to commit a criminal offence, a person is a victim even if, instead of the legal rights attacked, such legal rights are violated the violation of which is covered by the legal rights attacked. The state or another public authority is a victim only in the case it has a proprietary claim due to violation of its legal rights and the claim can be enforced in criminal proceedings. A natural person is a victim even in the case a criminal offence or an unlawful act committed by a person not capable of guilt caused the death of any person close to him or her and damage was caused to him or her as a result of the death.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (2) A victim who is a legal person shall participate in criminal proceedings through its legal representative, an employee authorised by the legal representative, a trustee in bankruptcy or a contractual representative and such person has all the rights and obligations of the victim. A legal representative or a trustee in bankruptcy of a victim who is a legal person has the right to give testimony in the name of the legal person.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (3) The provisions applicable to witnesses apply to victims in the performance of procedural operations unless otherwise prescribed by this Code.

 (4) A person is joined to the proceedings as a victim by subjection to procedural operations or by a determination of the body conducting proceedings. A person may be joined to proceedings as a victim at any stage of the proceedings and in any court instance until termination of appeal proceedings. If it becomes evident that a person was joined to proceedings without basis or the person no longer corresponds to the concept of a victim due to changed circumstances, the person conducting the proceedings shall remove the person from the proceedings by the corresponding determination.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (5) If the body conducting pre-court proceedings denies the request for involvement of a person as a victim or removes a person joined to proceedings without basis as a victim, the victim shall be explained his or her right to submit an appeal against the determination of the body conducting the proceedings pursuant to the rules provided in § 228 of this Code. A person may apply for his or her joinder as a victim even by submitting an appeal against a court judgment.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

§ 37¹.  Victim's legal succession in proceedings

 (1) If a victim who is a natural person dies or a victim who is a legal person is dissolved after filing of a civil action but before entry into force of the decision made thereon, the body conducting proceedings permits the universal successors of the victim to join proceedings as a third person. Universal succession is possible at any stage of proceedings.

 (2) Universal successors of a victim shall have only the rights of the victim in connection with proceedings regarding civil actions.

 (3) Any procedural operations performed prior to the joining of proceedings by a universal successor are binding on the universal successor to the same extent to which such acts would have been binding on the legal predecessor of the universal successor.

 (4) If a victim who is a natural person dies or a victim who is a legal person is dissolved and the victim's universal successor is not known or identification thereof is impossible within a reasonable period of time, a court shall dismiss the civil action.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

§ 37².  Assessment of individual protection needs of victim who is natural person

 (1) The body conducting proceedings is obligated to assess whether any circumstances exist which give reason to believe that the victim who is a natural person requires special treatment and protection in criminal proceedings.

 (2) The assessment shall take into consideration the victim's personal characteristics, the gravity and nature of the criminal offence, the personality of the suspect, the circumstances relating to the commission of the criminal offence and the damage caused to the victim. A victim who is a minor is presumed to need special treatment and protection in criminal proceedings.

 (3) As a result of the assessment, a decision shall be made concerning which of the opportunities provided in this Code to use to ensure the safety of the victim and whether the questioning of with the victim should be conducted on premises adapted for the special needs of the victim, or by, or with the participation of, a specialist trained for questioning victims with special protection needs or, if possible, by the same person throughout the proceedings.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

§ 38.  Rights and obligations of victims

 (1) A victim has the right to:
 1) contest the refusal to commence, or termination of, criminal proceedings pursuant to the rules provided in §§ 207 and 208 of this Code;
 2) file a civil action or proof of claim in public law through an investigative body or the Prosecutor’s Office during the term provided for in subsection 225 (1) or clause 240 4) of this Code;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 3) give or refuse to give testimony on the bases provided for in §§ 71-73 of this Code;
 4) submit evidence;
 5) submit requests and complaints;
 6) examine the minutes of procedural operations and give statements on the conditions, course, results and minutes of the procedural operations, with such statements being recorded in the minutes;
 7) examine the materials of the criminal file pursuant to the procedure provided for in § 224 of this Code;
 8) participate in judicial hearing;
 9) 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 amount of damage set out in the charges and the civil action or the proof of claim in public law;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 10) give consent to the application of temporary restraining order and request application of restraining order pursuant to the procedure provided for in § 310¹ of this Code;
[RT I 2006, 31, 233 – entry into force 16.07.2006]
 11) request that his or her questioning be conducted by a person of the same sex when it comes to sexual violence, gender violence or a criminal offence committed in close relationship, except if the questioning is conducted by a prosecutor or a judge or if this would interfere with the course of proceedings.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (2) A victim is required to:
 1) appear when summoned by an investigative body, Prosecutor’s Office or court;
 2) participate in procedural operations and obey the directions of investigative bodies, the Prosecutor’s Office and the courts.

 (3) [Repealed – RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (4) An investigative body or the Prosecutor’s Office shall explain to the victim his or her rights, the procedure for filing a civil action, essential requirements for a civil action, term for filing a civil action and the consequences of allowing such term to expire, and the conditions and procedure for receipt of legal aid ensured by the state.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) A victim who is a natural person shall have the right to:
 1) receive information concerning taking into custody of a person suspected of a criminal offence and request to be notified of release of the person held in custody in the event of any danger, except in the case communication of such information would cause any harm to the suspect;
 2) request to be notified of the release of the convicted offender before the prescribed time or escape of the convicted offender from a custodial institution in the case the information can prevent danger to the victim;
 3) have one person chosen by him or her to accompany him or her at any procedural operations unless the body conducting the proceedings has refused this with good reason.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]
 4) apply for an opportunity to state an opinion on release on parole of an offender in the case of a criminal offence of the first degree provided for in Chapter 9 or 11 of the Penal Code;
[ RT I, 19.03.2019, 3 – entry into force 01.07.2019]
 5) express an opinion on the impact associated with the criminal offence on him or her and on taking of responsibility for the criminal offence.
[ RT I, 19.03.2019, 3 – entry into force 01.07.2019]

 (6) The person accompanying the victim at procedural operations on the basis of clause (5) 3) of this section shall be cautioned that disclosing information relating to proceedings is not permitted and interference in the course of the procedural operations is not permitted.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

§ 38¹.  Invocation of victim’s claim in criminal proceedings

 (1) The victim shall have the right to file a civil action against the suspect, accused or defendant which the court shall consider as part of the criminal proceedings. The victim may submit a claim by a civil action if:
 1) the objective of the claim is to restore or remedy the well-being of the victim infringed by the act which is the subject matter of the criminal proceedings if the factual circumstances which are the basis for the claim overlap in substantial part with the circumstances under which the criminal offence that is being considered in the proceedings was committed and if such claim could also be considered in civil proceedings;
 2) it is a claim for compensation for damage against a public authority which could be filed under administrative court procedure.

 (2) A public authority may, in addition to the provisions of subsection (1) of this section, file as a victim a proof of claim in public law for determination of financial obligations in public law claimed from the accused, if the factual circumstances which are the basis for such obligation overlap in substantial part with the circumstances under which the criminal offence that is being considered in the proceedings was committed. A proof of claim in public law may be filed by an administrative authority who would be entitled to determine the same financial obligation under administrative procedure. The filing of a proof of claim in public law in criminal proceedings shall exclude invocation of the same claim in other proceedings, except in the case the application is dismissed in criminal proceedings.

 (3) A civil action or proof of claim in public law is filed through an investigative body or Prosecutor’s Office during the term provided for in subsection 225 (1) or clause 240 4) of this Code.

 (3¹) If the state, local authority or another public authority has been joined to criminal proceedings as a victim and the representative thereof fails to file a civil action or proof of claim in public law during the term provided for in § 225 or clause 240 4) of this Code, the civil action or proof of claim in public law may be filed by the Prosecutor’s Office instead of the state, local authority or other public authority.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (3²) If the state, local authority or another public authority has been joined to criminal proceedings as a victim and the representative thereof files a civil action or proof of claim in public law during the term provided for in § 225 or clause 240 4) of this Code in and it is manifest that the claim of the victim expressed therein is unreasonably small taking into consideration the harm caused by the criminal offence, is unproven or contains other significant deficiencies which may lead the court to reject or dismiss the civil action or proof of claim in public law, and the person who filed the civil action or proof of claim in public law fails to eliminate the deficiencies by the due date, the Prosecutor’s Office may file a civil action or proof of claim in public law instead of the representative of the state, local authority or other public authority.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (3³) If the state, local authority or another public authority has been joined to criminal proceedings as a victim and the representative thereof withdraws the civil action or proof of claim in public law before the commencement of judicial hearing, the Prosecutor’s Office may file the civil action or proof of claim in public law instead of the representative of the state, local authority or other public authority.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (3⁴) In the cases specified in subsections (3¹)-(3³) of this section, the Prosecutor’s Office shall file a civil action or proof of claim in public law to the benefit of the state.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (4) Consideration of a civil action as part of criminal proceedings is exempt from state fees, with the exception of a civil action making a claim for compensation for non-proprietary damage, if the claim for compensation for non-pecuniary damage does not derive from the causing of a bodily injury or other health disorder or of the death of provider.

 (5) The Republic of Estonia as a victim is exempted from payment of state fees upon filing of a civil action and proof of claim in public law.

 (6) Resolution of any issues which are not regulated in this Code in relation to proceedings on the civil action shall be based on the provisions of the Code of Civil Procedure.

 (7) Resolution of any issues which are not regulated in this Code in relation to proceedings on proofs of claim in public law shall be subject to the provisions of Chapter 26 of the Code of Administrative Court Procedure.
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]

§ 38².  Specifications for enforceability of claims of victims in case of criminal offences related to competition

  Proceedings on actions concerning damage caused by commission of an act provided for in § 400 of the Penal Code shall take place under civil procedure.
[RT I, 26.05.2017, 1 – entry into force 05.06.2017]

§ 39.  Civil defendant

 (1) A civil defendant is a natural or legal person who is not a person suspected of a criminal offence or the accused but:
 1) a person bearing proprietary liability pursuant to law for damage caused to a victim by an act which is the object of the criminal proceedings; or
 2) against whom a victim has a real right claim pursuant to law for restoration of rights or a claim arising from unjust enrichment and the objective of the claim is to restore or remedy the well-being of the victim infringed by an act which is the object of the criminal proceedings.

 (2) A person is joined to proceedings as a civil defendant, and removed from proceedings, by a determination of the body conducting the proceedings. The body conducting the proceedings joins the person specified in subsection (1) of this section to proceedings at the request of a victim or the accused or on its own initiative if there is reason to believe that the claim of the victim against the civil defendant may be considered as part of criminal proceedings, or if it is necessary in order to protect the interests of the accused. The request of the victim must be accompanied by a civil action against the person whose joinder in the proceedings as a civil defendant the victim requests. If it becomes evident that a person was joined to proceedings without foundation or the person no longer corresponds to the concept of a civil defendant due to changed circumstances or if it becomes evident that the claim of the victim will not be considered as part of criminal proceedings, the body conducting the proceedings shall remove the person from the proceedings.

 (3) A person may be joined to proceedings as a civil defendant until the completion of judicial examination by the county court.

 (4) A civil defendant who is a legal person participates in criminal proceedings through its legal representative or a trustee in bankruptcy and such person has all the rights and obligations of a civil defendant.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

§ 40.  Rights and obligations of civil defendants

 (1) A civil defendant has the right to:
 1) contest a civil action or file a counterclaim;
 2) submit evidence;
 3) submit requests and complaints;
 4) examine the minutes of procedural operations and give statements on the conditions, course, results and minutes of the procedural operations, whereas such statements are recorded in the minutes;
 5) examine the materials of the criminal file pursuant to the procedure provided for in § 224 of this Code;
 6) participate in judicial hearing;
 7) 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.

 (2) A civil defendant is required to:
 1) appear when summoned by an investigative body, Prosecutor’s Office or court;
 2) participate in procedural operations and obey the orders of investigative bodies, Prosecutors' Offices and courts.

§ 40¹.  Third party

 (1) A third party is a natural or legal person who is not a person suspected of a criminal offence, accused, victim or civil defendant but whose rights or obligations may be decided on when dealing with the criminal matter or applying a specific procedure.

 (2) A person is joined to proceedings as a third party and removed from the proceedings by an order of the body conducting proceedings. The body conducting proceedings joins to proceedings, as a third party, any persons who conform to the characteristics provided for in subsection (1) of this section. If it becomes evident that a person was involved in the proceedings without basis or if the person no longer corresponds to the concept of a third party due to changed circumstances, the person conducting the proceedings shall remove the person from the proceedings.

 (3) The order on the joinder of a person as a third party to, or removal of the person from, proceedings may be made by the body conducting proceedings at each stage of the proceedings and in every court instance until entry into force of a court judgment or order made in special proceedings. A person may request his or her joinder to proceedings also in an appeal filed against the judicial decision. In such case, his or her joinder shall be resolved when deciding on acceptance of the appeal filed against the judicial decision.

 (4) A third party who is a legal person shall participate in criminal proceedings through its legal representative or a trustee in bankruptcy and such person has all the rights and obligations of a third party.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

§ 40².  Rights and obligations of third parties

 (1) Third parties have the right to:
 1) submit evidence;
 2) submit requests and complaints;
 3) examine the minutes of procedural operations and give statements on the conditions, course and results of the procedural operations, whereas such statements are recorded in the minutes;
 4) examine the materials of the criminal file pursuant to the procedure provided for in § 224 of this Code;
 5) participate in judicial hearing.

 (2) If confiscation of the property of a third party is decided in criminal proceedings, the third party has the rights of the suspect provided in clauses 34 (1) 1), 2) and 5) of this Code, taking account of the specifications of confiscation.

 (3) Third parties are required to:
 1) appear when summoned by an investigative body, Prosecutor’s Office or court;
 2) participate in procedural operations and obey the orders of investigative bodies, Prosecutors' Offices and courts.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

§ 41.  Representative of victim, representative of civil defendant and representative of third party

  [RT I 2007, 2, 7 – entry into force 01.02.2007]

 (1) A victim, civil defendant or third party who is a natural person may participate in criminal proceedings personally or through a representative. Personal participation in criminal proceedings does not deprive the person of the right to have a representative.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

 (2) A victim, civil defendant or third party who is a legal person may have a contractual representative in criminal proceedings s in addition to the legal representatives specified in subsections 37 (2), 39 (4) and 40¹ (4) of this Code.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (3) In criminal proceedings, state legal aid shall be provided to victims, civil defendants and third parties on the bases and pursuant to the procedure prescribed in the State Legal Aid Act. If a court finds that the essential interests of a victim, civil defendant or third party may be insufficiently protected without an attorney, the court may decide to grant state legal aid to the person on its own initiative and on the bases and pursuant to the procedure prescribed in the State Legal Aid Act.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

 (3¹) The body conducting proceedings shall designate a representative to a victim with restricted active legal capacity under state legal aid, if:
 1) it may be presumed under the circumstances that the interests of the legal representative of the victim are in conflict with the interests of the victim;
 2) the victim who is a minor is separated from his or her family;
 3) the victim is an unaccompanied minor for the purposes of the Act on Granting International Protection to Aliens.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (4) A victim, civil defendant and third party may have up to three representatives. A representative may have several principals if the interests of the principals are not in conflict. An attorney or any other person who has acquired at least officially recognised Master's degree in the field of study of law or a qualification equal thereto for the purposes of subsection 28 (2²) of the Republic of Estonia Education Act or a foreign qualification equal thereto may appear as a contractual representative in judicial proceedings.
[RT I 2008, 29, 189 – entry into force 01.07.2008]

 (5) A representative has all the rights of the principal. A representative of a natural person or the contractual representative of a legal person does not have the right to give testimony in the name of the principal.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

 (6) A representative is required to maintain the confidentiality of all the information which becomes known to him or her upon grant of state legal aid in the course of criminal proceedings. The representative is allowed to disclose to the principal the information which becomes known to him or her upon grant of state legal aid in criminal proceedings. The representative may disclose information concerning pre-court proceedings about the principal only with the consent of the principal and under the conditions prescribed in § 214 of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

Subchapter 6 Counsel 

§ 42.  Counsel

 (1) In criminal proceedings, the counsel is:
 1) an attorney or, with the permission of the body conducting the proceedings, any other person who meets the educational requirements established for contractual representatives by this Code and whose competence in criminal proceedings is based on an agreement with the person being defended (contractual counsel), or
[RT I 2005, 71, 549 – entry into force 01.01.2006]
 2) an attorney whose competence in criminal proceedings is based on an appointment of an investigative body, Prosecutor’s Office or court and an appointment by the Estonian Bar Association (appointed counsel).
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (2) In judicial proceedings, a person being defended may, by agreement, have up to three counsels.

 (3) A counsel may defend several persons if the interests of the persons are not in conflict.

§ 43.  Choice and appointment of counsel

 (1) In criminal proceedings, the suspect, the accused or the convicted offender may choose a counsel personally or through another person.

 (2) A counsel shall be appointed by an investigative body, Prosecutor’s Office or court if:
 1) a suspect or the accused has not chosen a counsel but has requested the appointment of a counsel;
 2) a suspect or the accused has not requested a counsel but the participation of a counsel is mandatory according to § 45 of this Code.

 (3) The body conducting proceedings shall notify a suspect or accused immediately of appointment of a counsel to him or her and communicate to him or her the contact details of an attorney who provides state legal aid appointed by the Estonian Bar Association.

 (3¹) If a suspect or accused requests appointment of a counsel on the basis of clause (2) 1) of this section, the investigative body, Prosecutor’s Office or court explains the terms and conditions of payment of remuneration and the procedure for compensation for costs to the counsel appointed to him or her.
[RT I, 28.12.2016, 14 – entry into force 01.04.2017]

 (4) If there is no suspect or accused in a criminal matter but the Prosecutor’s Office has applied for deposition of the testimony of a witness, the Estonian Bar Association shall appoint a counsel at the request of a preliminary investigation judge to represent the interests of a potential suspect in the hearing of a witness.

 (5) An order of an investigative body, Prosecutor’s Office or court on the appointment of a counsel shall be sent to the Estonian Bar Association.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 44.  Substitute counsel

 (1) The counsel may appoint a substitute counsel to participate in criminal proceedings in his or her stead during the period of time when he or she is prevented from participating in the proceedings. An investigative body, Prosecutor’s Office or court may appoint a substitute counsel in criminal proceedings in the cases provided by law.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (2) The substitute counsel has the rights and obligations of counsel.

§ 44¹.  Substitute counsel provided under state legal aid

 (1) In pre-court proceedings, the Estonian Bar Association shall appoint a substitute counsel based on an order of an investigative body, the Prosecutor's Office or court if the counsel chosen by the person cannot assume the duties of defence within 12 hours as of the detention of the person as a suspect or, in other cases, within 24 hours as of entry into an agreement to defend the suspect or accused or summoning to the body conducting the proceedings and the counsel has not appointed a substitute counsel for himself or herself.

 (2) In judicial proceedings, the court may decide to appoint a substitute counsel if a chosen or appointed counsel cannot appear at the court session held in a matter dealt with by regular procedure in which he or she has assumed the duties of defence, and the counsel has not appointed a substitute counsel for himself or herself.

 (3) If a chosen or appointed counsel is unable to participate in judicial hearing of a matter within three months as of the preliminary hearing, the court shall appoint a substitute counsel, requiring the Estonian Bar Association to appoint a counsel within one month as of making the court order and ensure the participation of the appointed counsel in judicial hearing within two months as of his or her appointment. If it becomes evident within one month as of making the order that the chosen or appointed counsel can himself or herself assume the duties of defence, the Estonian Bar Association shall not comply with the order and shall inform the court and provide the reasons thereof.

 (4) In the cases specified in this section, an appointed substitute counsel shall participate in criminal proceedings until the counsel chosen by the suspect or accused or the appointed counsel can assume the defence duties.

 (5) In the cases specified in this section, the appointment of a substitute counsel shall not terminate the authority of the counsel chosen by a suspect or accused or an appointed counsel or release the counsel from his or her defence duties.

 (6) In the cases specified in this section, an appointed substitute counsel shall consult, if possible, with the counsel chosen by the suspect or accused or an appointed counsel prior to assuming the duties of defence and comply with the instructions of the chosen or appointed counsel upon performance of the duties of defence.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 45.  Participation of counsel in criminal proceedings

 (1) The counsel may participate in criminal proceedings as of the moment when a person acquires the status of a suspect in the proceedings or in the case provided for in subsection 43 (4) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) The participation of counsel is mandatory for the entire course of criminal proceedings if:
 1) the person was a minor at the time of commission of the criminal offence or unlawful act;
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]
 2) due to his or her mental or physical disability, the person is unable to defend himself or herself or if defence is complicated due to such disability;
 3) the person is suspected or accused of a criminal offence for which life imprisonment may be imposed;
 4) the interests of the person are in conflict with the interests of another person who has a counsel;
 5) the person has been held in custody for at least four months;
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]
 6) [Repealed – RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (3) Participation of a counsel in pre-court proceedings is mandatory as of presentation of the criminal file for examination pursuant to the rules provided in subsection 223 (3) of this Code, except in the case where proceedings concern a criminal offence in the second degree, where the prosecutor considers it possible to resolve the criminal case by alternative procedure, including by alternative procedure conducted as expedited procedure, where the suspect has been informed in writing against a signature of the right to be assisted by counsel, the terms and conditions of being assisted by counsel and the consequences of failure to apply for the assistance of counsel but the suspect has not requested the participation of counsel in the proceedings and the prosecutor or judge finds that participation of a counsel is not required in the interests of the administration of justice.
[RT I, 28.12.2016, 14 – entry into force 01.04.2017]

 (4) The participation of a defence counsel in judicial proceedings is mandatory, except:
 1) in settlement proceedings, including in the settlement proceedings conducted pursuant to expedited procedure provided for in sections 239-250 of this Code, if the suspect or the accused has not submitted a request for participation of a counsel in judicial proceedings and participation of a counsel is not required in the interests of the administration of justice in the opinion of the body conducting proceedings;
 2) in proceedings concerning a criminal offence in the second degree conducted by alternative procedure, including in the proceedings conducted by alternative procedure as expedited procedure provided for in sections 233-238 of this Code, if the accused has waived the right to counsel and participation of a counsel is not required in the interests of the administration of justice in the opinion of the body conducting proceedings.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (4¹) The requirements for the format of the waiver specified in subsection (4) of this section shall be established by a regulation of the minister responsible for the area.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4²) If, at the request of the accused, the counsel does not participate in judicial hearing of the matter, the accused shall have the same procedural rights and obligations that the counsel would have in the course of the hearing.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4³) [Repealed – RT I, 05.07.2013, 2 – entry into force 15.07.2013]

 (5) An appointed counsel is required to participate in criminal proceedings until the end of consideration of the criminal matter under cassation procedure and he or she may refuse to assume the duties of defence on his or her own initiative or waive the duties of defence that he or she has assumed only on the bases provided in subsection 46 (1) of this Code.

 (6) The performance of duties of defence by a contractual counsel in pre-court proceedings includes participating in the completion of pre-court proceedings.

 (7) The performance of duties of defence by a contractual counsel in a county court includes drawing up an appeal against the decision or order of the county or city court if the person being defended so wishes.

 (8) The performance of duties of defence by a contractual counsel in a circuit court includes drawing up an appeal in cassation or appeal against the decision of the circuit court and preliminary proceedings in the Supreme Court if the person being defended so wishes.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (9) A contractual counsel may refuse to assume the duties of defence on his or her own initiative or waive the duties of defence assumed by him or her on own initiative only on the bases provided for in subsection 46 (1) of this Code.

§ 46.  Refusal to assume duties of defence and waiver of assumed duties of defence

 (1) A counsel may, on his or her own initiative and with the consent of the management of the law office, refuse to assume the duties of defence or waive the duties of defence assumed by him or her if:
 1) the counsel has been exempted from the obligation to maintain a professional secret pursuant to the procedure provided for in subsection 45 (5) of the Bar Association Act or if the suspect or accused has requested the performance of an act which is in violation of law or the requirements for professional ethics;
 2) performance of the duties of defence by such counsel would be in violation of the right of defence;
 3) the person being defended violates any of the essential conditions of the client contract.

 (1¹) [Repealed – RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (2) The body conducting proceedings shall be immediately notified of a refusal to assume the duties of defence or waiver of assumed duties of defence.

 (3) A refusal to assume the duties of defence or waiver of assumed duties of defence shall have legal effect as of the moment when a new counsel assumes the duties of defence.

 (4) If a counsel has refused to assume the duties of defence or has waived the duties of defence previously assumed by him or her, the new counsel who assumed the duties of defence thereafter may request that investigative activities requiring the participation of the person being defended and the counsel be postponed by three days in order to be able to examine materials of the criminal matter.

§ 47.  Rights and obligations of counsel

 (1) A counsel has the right to:
 1) receive from natural and legal persons documents necessary for the provision of legal assistance to the person being defended;
 2) submit evidence;
 3) submit requests and complaints;
 4) examine the minutes of procedural operations and give statements on the conditions, course, results and minutes of the procedural operations, with such statements being recorded in the minutes;
 5) with the knowledge of the body conducting the proceedings, use technical equipment in the performance of the duties of defence if this does not interfere with the performance of procedural operations;
 6) participate in the investigative activities carried out in the presence of the person being defended during pre-court proceedings with the right to put questions through the body conducting the proceedings;
 7) after joining criminal proceedings, examine the record of interrogation of the person being defended and the record of detention of the suspect and, upon the completion of pre-court proceedings, all materials in the criminal file;
[RT I 2004, 46, 329 – entry into force 01.07.2004]
 8) 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.

 (2) A counsel is required to use all the means and methods of defence which are not prohibited by law in order to ascertain the facts which vindicate the person being defended, prove his or her innocence or mitigate his or her punishment, and to provide other legal assistance necessary in a criminal matter to the person being defended.

 (3) A counsel is required to maintain the confidentiality of all the information which becomes known to him or her upon grant of state legal aid in the course of criminal proceedings. The counsel is allowed to disclose to the person being defended the information which becomes known to him or her upon grant of state legal aid in criminal proceedings. The counsel may disclose information concerning pre-court proceedings about the person being defended only with the consent of the person being defended and where the interests of the administration of justice so require.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 48.  Waiver of counsel

  A suspect and accused may waive counsel in writing during pre-court proceedings unless participation of a counsel is mandatory.

Subchapter 7 Circumstances Precluding Participation in Criminal Proceedings 

§ 49.  Bases for judge to remove himself or herself

 (1) A judge is required to remove himself or herself from criminal proceedings if he or she:
 1) has previously made a decision or a judicial decision of a lower court in the same criminal matter which was annulled by a higher court in part or in full, except in the case the higher court referred the criminal matter in the annulment of the decision for a new hearing by the same court panel;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 2) has made a court order specified in §§ 132, 134, 135 or 137 of this Code as a preliminary investigation judge in the same criminal matter, except in the hearing of the criminal matter in settlement and summary proceedings;
[RT I 2004, 46, 329 – entry into force 01.07.2004]
 3) has previously been involved in proceedings in the same criminal in another capacity;
 4) is or has been a person close to the accused, victim or civil defendant pursuant to subsection 71 (1) of this Code.
 5) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) The participation of a judge in the Criminal Chamber of the Supreme Court does not constitute a basis for the judge to remove himself or herself from further proceedings on the same criminal matter in the Supreme Court.

 (3) Adjudication of an appeal against an order of a preliminary investigation judge or an order of the Prosecutor’s Office does not constitute a basis for a judge to remove himself or herself.

 (4) Persons who are or have been close to each other pursuant to subsection 71 (1) of this Code shall not be members of the same court panel.

 (5) The removal of a judge by himself or herself shall be formalised by a reasoned petition for removal which shall be included in the court file.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) If a judge finds that he or she cannot be impartial for a reason not specified in subsection (1) of this section, the judge shall submit a petition of challenge pursuant to the procedure prescribed in § 49¹ of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 49¹.  Dealing with petition of challenge submitted by judge

 (1) A judge or court panel shall submit the petition of challenge specified in subsection 49 (6) of this Code to the chairman of the court or a judge appointed by the chairman.

 (2) Until the petition of challenge is resolved, the judge or the court panel having received the petition of challenge may perform only urgent procedural operations.

 (3) The chairman of a court or a judge appointed by the chairman shall, by order, resolve the petition of challenge by written procedure within three working days as of receipt of the petition.

 (4) The petition of challenge of the chairman of a county court shall be resolved by the chairman of the circuit court or a judge appointed by him or her. The petition of challenge of the chairman of the circuit court shall be resolved by the Chief Justice of the Supreme Court or a justice appointed by the Chief Justice. The petition of challenge of a justice of the Supreme Court shall be resolved by the court panel hearing the matter.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 50.  Removal of judge

 (1) If a judge does not remove himself or herself on the basis provided for in § 49 of this Code, a party to judicial proceedings may submit a petition of challenge against the judge.

 (2) Petitions of challenge shall be submitted at the opening of a court session. If the basis for a judge to remove himself or herself becomes evident later and the court is immediately notified thereof, petitions of challenge may be submitted before the final rebuttal of the accused.

 (3) In the event of submission of a petition challenge, the judge may perform only urgent procedural operations before resolution of the petition.

 (4) Before resolving the petition of challenge, the court shall hear the explanation of the judge to be removed and the opinions of the parties.

 (5) Petitions of challenge shall be resolved by an order made in chambers. A petition of challenge regarding a judge shall be adjudicated by the rest of the panel of the court in the absence of the judge to be removed. In the event of an equal division of votes, the judge is removed. A petition of challenge against several judges or the full panel of the court shall be resolved by the same panel of the court by a simple majority. If a court panel finds that the petition of challenge has to be granted for a reason not specified in subsection 49 (1) of this Code, no order shall be made but the petition of challenge shall be referred for resolution in accordance with the rules prescribed in § 49¹ of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) If a criminal matter is heard by a judge sitting alone, the judge shall resolve petitions of challenge himself or herself. If a judge finds that the petition of challenge has to be granted for a reason not specified in subsection 49 (1) of this Code, the judge shall refer the petition of challenge for resolution in accordance with the rules prescribed in § 49¹ of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (7) An appeal against a decision may contain a reference to the basis for the removal of a judge if the petition of challenge was submitted with the lower court on time but was denied or if the basis for removal becomes evident after the adjudication of the criminal matter.

§ 51.  Replacement of removed judge

  If a judge who has removed himself or herself or who has been removed cannot be replaced in the same court, the chairman of the circuit court shall refer the criminal matter for hearing by another county court within the territorial jurisdiction of the circuit court. Referral of a criminal matter for hearing by a county court within the territorial jurisdiction of another circuit court shall be decided by the Chief Justice of the Supreme Court.
[RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 52.  Bases for prosecutor to remove himself or herself

 (1) A prosecutor is required to remove himself or herself from criminal proceedings on the bases provided for in subsections 49 (1) and (6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) The fact that a prosecutor has previously participated in the same criminal proceedings as the prosecutor does not constitute a basis for his or her removal.

§ 53.  Removal of prosecutor

 (1) If a prosecutor does not remove himself or herself on a bases provided for in subsections 49 (1) and (6) of this Code, the suspect, accused, victim, civil defendant, third party or counsel may submit a petition of challenge against the prosecutor.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) A petition of challenge submitted against a prosecutor in a pre-court proceedings shall be resolved by an order of the Office of the Prosecutor General within five days as of the submission of the petition.

 (3) Petitions of challenge filed in judicial proceedings shall be resolved by the court.

§ 54.  Bases for counsel to remove himself or herself

  A person shall not act as counsel if he or she:
 1) is or has been involved in the proceedings in the same criminal matter in another capacity;
 2) in the same or related criminal matter, has previously defended or represented another person whose interests are in conflict with the interests of the person to be defended.

§ 55.  Bases for removal of counsel

 (1) If the bases provided for in subsection 20 (3¹) of the State Legal Aid Act exist or if a counsel does not remove himself or herself on the bases provided for in § 54 of this Code, the court shall, by order, remove the counsel on its own initiative or at the request of a party to judicial proceedings.
[RT I 2009, 1, 1 – entry into force 01.01.2010]

 (2) The court shall remove a counsel if it becomes evident in removal proceedings provided for in sections 56 and 57 of this Code that the counsel has abused his or her status in the proceedings by communicating, with the person being defended, after that person has been detained as a suspect or taken into custody, in a manner which may promote the commission of another criminal offence or violation of the internal procedure rules of the custodial institution.

 (3) [Repealed – RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 56.  Request for initiation of proceedings for removal of counsel

 (1) Proceedings for the removal of a counsel shall be conducted:
 1) in a pre-court proceedings, by the preliminary investigation judge;
 2) in a county court, by the judge sitting alone or one of the judges of the panel of the court;
 3) in a circuit court or the Supreme Court, by one of the judges of the panel of the court.

 (2) Submission of a request for initiation of proceedings for the removal of a counsel shall not hinder the pre-court proceedings.

 (3) If a request for initiation of proceedings for the removal of a counsel is submitted in judicial proceedings, the court session shall be adjourned for up to one month.

 (4) On the first working day following the date of receipt of the request for initiation of proceedings for the removal of a counsel, the judge shall schedule the time for a court session for the conduct of the proceedings and notify the Prosecutor's Office which submitted the request, the counsel to be removed, the person being defended by the counsel and, if the counsel to be removed is a member of the Bar Association, the leadership of the Bar Association of the scheduled time.
[RT I 2005, 39, 308 – entry into force 01.01.2006]

§ 57.  Proceedings for removal of counsel

 (1) Proceedings for the removal of a counsel shall be conducted within five days as of receipt of the corresponding request.

 (2) If the person who submitted the request fails to appear at the court session in which removal proceedings are to be conducted, the counsel shall not be removed.

 (3) If a counsel fails to appear, with good reason as referred to in § 170 of this Code, at the court session in which removal proceedings are to be conducted, the proceedings shall be adjourned for up to three days.

 (4) If a counsel who has received the summons fails, without good reason, to appear in a court session in which removal proceedings are conducted or if the reason for his or her failure to appear is unknown or if he or she fails to appear at the court session held after the adjournment, removal proceedings shall be conducted in his or her absence.

 (5) In removal proceedings, the court shall hear the person who submitted the request for the removal, and the counsel, and the person and counsel may submit evidence and put questions to each other with the permission of the court.

 (6) The decision made in removal proceedings shall be formalised as a court order.

 (7) A counsel who has been removed in accordance with the rules provided in this section and in section 55 has the right to re-join criminal proceedings after the basis for removal provided for in subsection 55 (2) of this Code has ceased to exist.

§ 58.  Replacement of removed counsel

  If a counsel removes himself or herself or is removed on a bases provided for in § 55 of this Code, the person being defended may choose a new counsel within the term granted by the court or, in the cases provided for in § 43 or 45 of this Code, a new counsel is appointed for him or her.

§ 59.  Removal of other persons participating in proceeding

 (1) An official of an investigative body who is conducting proceedings in a criminal matter is required to remove himself or herself on the bases provided for in subsections 49 (1) and (6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) An expert, clerk of a court session and interpreter or translator are required to remove themselves or they shall be removed on the bases and pursuant to the procedure provided by §§ 96, 97, 157 and 162 of this Code.

 (4) The representative of a victim, civil defendant, third party and witness is required to remove himself or herself on the bases provided for in § 54 of this Code. Upon removal of the representative of a victim, civil defendant, third party and witness, the provisions prescribed for removal of a counsel in this Code shall be applied.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) Petitions of challenge submitted in pre-court proceedings shall be resolved by an order of the Prosecutor's Office within three days as of the submission of the petition.

 (6) Petitions of challenge filed in judicial proceedings shall be resolved by a court.

Chapter 3 PROOF 

Subchapter 1 General Conditions for Proof and Taking of Evidence 

§ 60.  Proof and matter of common knowledge

 (1) When resolving a criminal matter, a court shall rely on facts which it has declared to be proved or a matter of common knowledge.

 (2) A fact is deemed to be proved if, as a result of the proof submitted, a court is convinced that the facts relating to the subject of proof exist or do not exist.

 (3) A fact concerning which reliable information is available from sources external to criminal proceedings may be declared a matter of common knowledge by the court.

§ 61.  Evaluation of evidence

 (1) No evidence has predetermined weight.

 (2) A court shall evaluate all evidence in the aggregate according to the conscience of the judges.

§ 62.  Subject of proof

  The facts relating to a subject of proof are:
 1) the time, place and manner of commission of the criminal offence and other facts relating to the criminal offence;
 2) the necessary elements of the criminal offence;
 3) the guilt of the person who committed the criminal offence;
 4) information describing the person who committed the criminal offence, and other circumstances affecting the liability of the person.

§ 63.  Evidence

 (1) Evidence 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 or video recordings on surveillance activities, and other documents, photographs, films or other data recordings.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (1¹) Submission of information collected pursuant to the Security Authorities Act as evidence in criminal proceedings shall be decided by the Prosecutor General taking into account the restrictions specified in subsections 126¹ (2) and 126⁷ (2) of this Code.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

 (2) Evidence not listed in subsection (1) of this section may also be used in order to prove the facts relating to criminal proceedings, except in the case the evidence has been obtained by a criminal offence or violation of a fundamental right.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 64.  General conditions for taking of evidence

 (1) Evidence shall be taken in a manner which is not prejudicial to the honour and dignity of the persons participating in the taking of the evidence, does not endanger their life or health or cause unjustified proprietary damage. Evidence shall not be taken by torturing a person or using violence against him or her in any other manner or by means affecting a person's memory capacity or degrading his or her human dignity.

 (2) If it is necessary to undress a person in the course of a search, physical examination or taking of comparative samples, the official of the investigative body, the prosecutor and the participants in the procedural operation, except health care professionals and forensic pathologists shall be of the same sex as the person.

 (3) If technical equipment is used in the course of taking of evidence, the participants in the procedural operation shall be notified thereof in advance and the objective of using the technical equipment shall be explained to them.

 (4) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) If necessary, participants in a procedural operation shall be warned that disclosure of information relating to pre-court proceedings is prohibited in accordance with § 214 of this Code.

 (6) The taking of evidence by surveillance activities is regulated by Chapter 3¹ of this Code.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 65.  Evidence obtained on ships during voyages and in foreign states

 (1) Evidence taken in a foreign state pursuant to the legislation of such state may be used in criminal proceedings conducted in Estonia unless the procedural operations performed in order to obtain the evidence are in conflict with the principles of Estonian criminal procedure taking into account the specifications provided for in subsection (2) of this section.

 (2) If the object of criminal proceedings is an act of a person who serves in the Defence Forces and has committed the act outside the Republic of Estonia, evidence taken in a foreign state may be used in criminal proceedings unless the procedural operations performed in order to obtain the evidence are in conflict with the principles of the Estonian criminal procedure regardless of the fact of whether the procedural operation was conducted on the basis of a request for assistance or not.

 (3) If an act to which the Penal Code of Estonia applies is committed on board a ship during a voyage, the documents prepared by the master of the ship pursuant to § 73 of the Merchant Shipping Code are the evidence in the criminal proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

Subchapter 2 Hearing of witnesses 

§ 66.  Witness

 (1) A witness is a natural person who may know facts relating to a subject of proof.

 (2) A suspect or accused or the official of the investigative body, prosecutor or judge conducting the proceedings in the criminal matter shall not participate in the same criminal matter as witnesses. An official of an investigative body, prosecutor or judge who has conducted proceedings in the criminal matter may be a witness in judicial proceedings for verifying the reliability of evidence.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (2¹) The testimony of a witness concerning such facts relating to a subject of proof of which the witness has become aware through another person shall not be evidence unless:
 1) the direct source of the evidence cannot be heard for the reason specified in subsection 291 (1) of this Code;
 2) the content of the testimony of the witness is what he or she heard from another person about the circumstances perceived by him or her immediately before speaking in the case the specified person was, during speaking, still under the influence of what he or she had perceived, and there is no basis to believe that he or she distorts the truth;
 3) the content of the testimony of the witness is what he or she heard from another person and which contains the admission of commission of a criminal offence or which is in another way in obvious conflict with the interests of the speaker;
 4) the content of the testimony of the witness is the circumstances relating to a criminal offence committed jointly.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) A witness is required to give testimony unless there are lawful bases specified in §§ 71-73 of this Code for refusal to give testimony. While giving testimony, the witness is required to tell the truth.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 67.  Ensuring safety of witnesses

 (1) Taking into account the gravity of a criminal offence or the exceptional circumstances relating thereto, a preliminary investigation judge may, at the request of the Prosecutor’s Office, declare a witness anonymous by an order in order to ensure the safety of the witness.

 (2) In order to make an order on anonymity, a preliminary investigation judge shall question the witness in order to ascertain his or her reliability and the need to ensure his or her safety, and shall hear the opinion of the prosecutor. If necessary, the preliminary investigation judge shall examine the criminal file.

 (3) A fictitious name shall be assigned to an anonymous witness on the basis of the order on anonymity and the name shall be used in procedural operations in accordance with subsection 146 (8) of this Code.

 (4) Information concerning the name, personal identification code or, in the absence thereof, date of birth, citizenship, education, residence and place of employment or the educational institution of a witness declared anonymous shall be enclosed in an envelope bearing the number of the criminal matter and the signature of the person conducting the proceedings. The envelope shall be sealed and kept separately from the criminal file. The information contained in the envelope shall be examined only by the person conducting the proceedings who shall seal and sign the envelope again after examining the information.

 (5) In judicial proceedings, a witness bearing a fictitious name shall be heard by telephone pursuant to the rules provided in clause 69 (2) 2) of this Code using voice distortion equipment, if necessary. Questions may be also submitted to the witness in writing.

 (6) Regardless of whether or not a witness has been declared anonymous, the provisions of the Witness Protection Act may be applied to the witness in order to ensure his or her safety.
[RT I 2005, 39, 307 – entry into force 21.07.2005]

§ 67¹.  Representative of witness

 (1) A witness may request that an attorney or any other person who meets the educational requirements established for contractual representatives be present for the protection of his or her rights at the interrogation of the witness in the pre-court proceedings.

 (2) The body conducting the proceedings shall not allow a witness to be represented at the interrogation by persons who are already parties to the proceedings, witnesses or qualified persons, who may prove to be witnesses or qualified persons in the criminal matter concerned or if there is a reasonable doubt that the interests of the person are in conflict with the interests of the witness. Such prohibition to allow a person to act as a representative shall be formalised by an order of the body conducting proceedings, and the witness may contest it before the preliminary investigation judge within two working days as of receipt of the order.

 (3) If a witness fails to appear for interrogation within two working days as of the time of the act specified in the summons of the body conducting proceedings together with a representative in compliance with the requirements of subsections (1) and (2) of this section, the interrogation shall be conducted without a representative.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (4) The representative of a witness has the right to intervene in the interrogation if violation of the procedural requirements results in violation of the rights of the witness and to submit complaints on the bases of and pursuant to the procedure specified in Subchapter 5 of Chapter 8 of this Code. The representative of the witness does not have the right to give testimony in the name of the principal.

 (5) A representative is required to maintain the confidentiality of all the information which becomes known to him or her upon grant of state legal aid in the course of criminal proceedings. The representative is allowed to disclose to the principal the information which becomes known to him or her upon grant of state legal aid. The representative may disclose information concerning pre-court proceedings about the principal only with the consent of the principal and under the conditions prescribed in § 214 of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 68.  Interrogation of witnesses

 (1) The rights and obligations of witnesses and the right to write their testimony in their own hand shall be explained to the witness.

 (2) A witness of at least fourteen years of age shall be warned against refusal to give testimony without a legal basis and giving knowingly false testimony, and the witness shall sign the minutes of the hearing to that effect. If necessary, it is explained to the witness that intentional silence on the facts known to him or her shall be considered refusal to give testimony.

 (3) While giving testimony, a witness may use notes and other documents concerning numerical data, names and other information which is difficult to memorise.

 (4) A witness may be heard only as regards the facts relating to a subject of proof. Leading questions may be posed only in the cases specified in clauses 288¹ (2) 2)-5) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) Questions concerning the moral character and habits of a suspect, accused or victim may be put to a witness only if the act which is the object of criminal proceedings needs to be assessed in inseparable connection with his or her previous conduct.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 69.  Telehearing

 (1) A body conducting the proceedings may organise telehearing if the direct hearing of a person is complicated or unreasonably burdensome or if telehearing is necessary to protect the interests of the person.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

 (2) For the purposes of this Code, telehearing means hearing:
 1) by means of a technical solution, as a result of which the testimony of the person heard is seen and heard directly via live coverage and he or she can be asked questions;
 2) by phone, as a result of which the testimony of the person is immediately heard and he or she can be asked questions.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

 (3) [Repealed – RT I, 06.05.2020, 1 – entry into force 07.05.2020].

 (4) The minutes of a telehearing shall contain a notation that the witness has been warned against refusal to give testimony without a legal basis and giving knowingly false testimony.

 (5) The provisions of § 489⁴¹ of this Code apply to hearing of persons staying in a foreign state, in co-operation between the Member States of the European Union, and in other cases the provisions of § 468 of this Code.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

 (6) The minister responsible for the area may establish more specific requirements for organising telehearing.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 69¹.  Deposition of testimony

 (1) The Prosecutor’s Office, suspect or counsel may request hearing, before a preliminary investigation judge, of a person who is a witness in criminal proceedings, if the object of criminal proceedings is an intentional criminal offence for which at least up to three years' imprisonment is prescribed as punishment.

 (2) A court shall grant the request if circumstances arise which enable to conclude that later hearing of a witness in judicial hearing of a criminal matter may be impossible or the witness may be influenced to give false testimony. The court shall formalise denial of the request by a reasoned order which can be contested by way of an appeal against the court order.

 (3) The court shall resolve the request for deposition of testimony within five days as of the receipt thereof and if the request is granted shall determine, at the earliest opportunity, the time of hearing and notify the Prosecutor’s Office and the counsel immediately thereof.

 (4) The prosecutor, counsel, suspect and witness shall be summoned to the hearing before a preliminary investigation judge. A suspect shall not be summoned to hearing at the request of a witness or the prosecutor if the presence of the suspect at the hearing poses a threat to the safety of the witness. Summoning of persons to deposition of testimony shall be arranged by the participant in proceedings who requests the hearing. A counsel may request the assistance of a preliminary investigation judge for summoning a person to the extent provided for in subsections 163¹ (4) and (5) of this Code.

 (5) Failure of a suspect who has received his or her summons to appear does not hinder the hearing. No hearing shall be conducted if a prosecutor or counsel who has received his or her summons does not appear for good reason and has given a prior notice thereof to the court. If the participant in proceedings who requested the hearing fails to appear for hearing or the person whose hearing is requested by a judge is not taken to the judge, no hearing shall be conducted before the preliminary investigation judge.

 (6) The provisions of §§ 155-158 and 287-291 of this Code shall apply to hearing and taking of minutes thereof.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 69².  Written testimony

 (1) In pre-trial procedure, a body conducting proceedings may require a witness to provide written answers to the questions posed within the term prescribed by the body conducting the proceedings if the body conducting the proceedings finds that direct or telehearing is not practicable.

 (2) A person who is required to answer any questions in writing shall be informed of their rights, obligation and liability and explained that regardless of giving written testimony he or she may be called to a hearing.

 (3) A person who gives written testimony shall confirm via the E-File system by his or her signature or in any other manner which can be reproduced that he or she has been advised of his or her rights, obligations and liability and that the answers given by him or her are true.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

§ 70.  Specifications concerning hearing of witnesses who are minors

 (1) A body conducting proceedings may involve a child protection official, social worker, teacher or psychologist in the hearing of a witness who is a miner.
[RT I, 11.07.2013, 1 – entry into force 01.09.2013]

 (2) If a body conducting proceedings has not received appropriate training, involvement of a child protection official, social worker, teacher or psychologist in the hearing of a minor is mandatory if:
[RT I, 11.07.2013, 1 – entry into force 01.09.2013]
 1) the witness is up to ten years of age and repeated hearing may have a harmful effect on the mind of a minor;
 2) the witness is up to fourteen years of age and the hearing is related to domestic violence or sexual abuse;
 3) the witness is with speech impairments, sensory or learning disabilities or mental disorders.

 (3) If necessary, the hearing of minors is video recorded. In the case specified in subsection (2) of this section, the hearing of minors is video recorded if the intention is to use such hearing as evidence in judicial proceedings because hearing of a minor directly in a court is impossible due to his or her age or mental state.

 (4) A suspect has the right to examine during the pre-court proceedings the video recordings specified in (3) of this section. The suspect or a counsel has the right to submit questions to witnesses during five days after the examining. The Prosecutor’s Office shall consider a request within five days as of the receipt thereof. Denial of a request shall be formalised by an order a copy of which shall be communicated to the person who submitted the request. The fact that the request was denied shall not prevent re-submission of the request in accordance with the rules in section 225 of this Code or in judicial proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 71.  Refusal to give testimony for personal reasons

 (1) The following persons have the right to refuse to give testimony as witnesses:
 1) the descendants and ascendants of the suspect or accused;
 2) a sister, stepsister, brother or stepbrother of the suspect or accused, or a person who is or has been married to a sister, stepsister, brother or stepbrother of the suspect or accused;
 3) a step or foster parent or a step or foster child of the suspect or accused;
 4) an adoptive parent or an adopted child of the suspect or accused;
 5) the spouse of or a person permanently living together with the suspect or accused, and the parents of the spouse or person, even if the marriage or permanent cohabitation has ended.

 (2) A witness may also refuse to give testimony if:

 (1) the testimony may lay blame on him or her or a person listed in subsection (1) of this section for the commission of a criminal offence or a misdemeanour;
 2) he or she has been acquitted or convicted in the same criminal offence as a joint principal offender or an accomplice.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 72.  Refusal to give testimony due to professional or other activities

  [RT I, 21.12.2010, 1 – entry into force 31.12.2010]

 (1) The following persons have the right to refuse to give testimony as witnesses concerning the circumstances which have become known to them in their professional or other activities:
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]
 1) the ministers of religion of the religious organisations registered in Estonia;
 2) counsels and notaries unless otherwise provided by law;
 3) health care professionals and pharmacists regarding circumstances concerning the descent, artificial insemination, family or health of a person;
 3¹) persons processing information for journalistic purposes regarding information which enables identification of the person who provided the information, except in the case taking of the evidence by other procedural operations is precluded or especially complicated and the object of criminal proceedings is a criminal offence for which at least up to eight years' imprisonment is prescribed as punishment, there is predominant public interest for giving testimony and the person is required to give testimony at the request of the Prosecutor’s Office based on an order of a preliminary investigation judge or court order;
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]
 4) persons on whom the obligation to maintain a professional secret has been imposed by law.

 (2) The professional support staff of the persons specified in clauses (1) 1)-3) of this section also have the right to refuse to give testimony.

 (2¹) In the case provided for in clause (1) 3¹) of this section, the persons who in their professional activities come across the circumstances which may identity the person who provided information to the person processing the information for journalistic purposes has the right to refuse to give testimony.
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]

 (3) The persons specified in subsection (1) of this section and their professional support staff and the persons specified in subsection (2¹) do not have the right to refuse to give testimony if their testimony is requested by a suspect or accused.
[RT I, 21.12.2010, 1 – entry into force 31.12.2010]

 (4) If the court is convinced on the basis of a procedural operation that the refusal of a person specified in subsection (1) or (2) of this section to give testimony is not related to his or her professional activities, the court may require the person to give testimony.

§ 73.  Refusal to give testimony concerning state secrets or classified information of foreign states

  [RT I 2007, 16, 77 – entry into force 01.01.2008]

 (1) A witness has the right to refuse to give testimony concerning circumstances to which the State Secrets and Classified Information of Foreign States Act applies.
[RT I 2007, 16, 77 – entry into force 01.01.2008]

 (2) If a witness refuses to give testimony in order to protect a state secret or classified information of a foreign state, the investigative body, Prosecutor’s Office or court shall request the agency in possession of the state secret or classified information of a foreign state to confirm classification of the facts as state secret or classified information of a foreign state.
[RT I 2007, 16, 77 – entry into force 01.01.2008]

 (3) If an agency in possession of a state secret or classified information of a foreign state does not confirm classification of facts as state secret or classified information of a foreign state or does not respond to a request specified in subsection (2) of this section within twenty days, the witness is required to give testimony.

§ 74.  Minutes of hearing of witness

  [RT I 2007, 16, 77 – entry into force 01.01.2008]

 (1) The following shall be entered in the minutes of the hearing of a witness:
 1) the name, personal identification code or, in the absence thereof, date of birth, citizenship, education, residence and the place of work or the name of the educational institution of the witness;
 2) the relationship between the witness and the suspect or accused;
 3) the testimony.

 (2) In the minutes of an additional or repeated hearing, the personal data of the person being heard or information concerning the relationship between him or her and the suspect or accused shall not be repeated but reference shall be made to the minutes of the first hearing.

 (3) At the request of a witness, the residence or place of work or the name of the educational institution of the witness shall not be indicated in the minutes of the hearing of the witness. Such data shall be appended to the minutes of the hearing in a sealed envelope.

 (4) After a witness being heard has spoken in his or her own words, he or she may write the testimony in the minutes of the hearing in hand-writing, and a corresponding notation shall be made in the minutes.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

Subchapter 3 Interrogation of Suspect 

§ 75.  Interrogation of suspect

 (1) Upon application of interrogation of a suspect, his or her name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution shall be ascertained.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

 (2) 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.

 (3) The suspect shall be asked whether he or she committed the criminal offence of which he or she is suspected and a proposal shall be made to the suspect to give statements in his or her own words concerning the facts relating to the criminal offence on which the suspicion is based.

 (3¹) 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 to the extent provided for in clauses 76 (1) 1)-3) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) Subsection 66 (2¹), subsections 68 (3)-(6) and subsections 69 (1) and (2) of this Code apply to interrogation of suspects. If necessary, the questioning of a suspect who is a minor shall be recorded.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

§ 76.  Record of interrogation of suspect

 (1) The following shall be entered in the minutes of the hearing of a witness:
 1) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution of the suspect;
 2) marital status of the suspect;
 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;
 4) statements of the suspect.

 (2) The record of interrogation of a suspect shall be prepared pursuant to subsections 74 (2) and (4) of this Code.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

Subchapter 4 Confrontation, Comparison of Statements to Circumstances and Presentation for Identification 

§ 77.  Confrontation

 (1) Persons may be confronted if a contradiction contained in their statements cannot be eliminated otherwise.

 (2) In confrontation, the relationship between the persons confronted shall be ascertained and questions concerning the contradicting facts shall be posed to them in series.

 (3) In confrontation, the previous statements of a person confronted may be disclosed and other evidence may be submitted.

 (4) With the permission of an official of the investigative body, the persons confronted may pose questions to each other through the official concerning the contradictions contained in their statements. If necessary, the official of the investigative body changes the wording of a question posed.

 (5) In the course of confrontation, statements are obtained pursuant to subsections 66 (2¹) and 68 (2)-(6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) The body conducting proceedings may organise the participation of a person confronted in confrontation by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code. Confrontation organized by means of a technical solution shall be video recorded.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 78.  Record of confrontation

 (1) A record of confrontation shall set out the course and results of the procedural operation in the form of questions and answers in the order of the questions posed and answers given.

 (2) At the request of the body conducting proceedings the correctness of each answer recorded shall be confirmed by the signatures of the persons confronted.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) If the answers of the persons confronted coincide, the answers may be recorded as a single answer.

 (4) If the previous statements of a person confronted are disclosed or other evidence is submitted, such disclosure or submission shall be evident from the wording of the questions recorded.

§ 79.  Comparison of statements to circumstances

 (1) Upon comparison of statements to circumstances, a proposal shall be made to a suspect, accused, victim or witness who has been interrogated or heard to explain and specify the facts relating to the criminal act on the scene of the act and compare his or her statements to the circumstances on the scene.

 (2) If it is necessary in pre-court proceedings to compare the statements of several persons to circumstances, the comparison shall be conducted separately with each person.

 (3) In the course of comparison of statements to circumstances, statements are obtained pursuant to subsections 66 (2¹) and 68 (2)-(6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 80.  Report on comparison of statements to circumstances

  A report on comparison of statements to circumstances shall set out:
 1) the proposal made to the suspect, accused, victim or witness to explain and specify the facts relating to the subject of proof on the scene of events;
 2) the statements given upon comparison of statements to circumstances;
 3) the nature and content of the acts performed by the suspect, accused, victim or witness and the name of the place or object the circumstances relating to which are compared to the statements or acts;
 4) whether and to which extent the circumstances on the scene of events have been recreated in the course of the procedural operation;
 5) the location, on the scene of events, of the object the circumstances relating to which are compared to the statements, and information derived from inspection of the object;
 6) the names of the objects which are confiscated in order to be used as physical evidence.

§ 81.  Presentation for identification

 (1) If necessary, the person conducting proceedings may present a person, thing or other object for identification to a suspect, accused, victim or witness who has been heard or interrogated.

 (2) A person, thing or other object shall be presented for identification with at least two other similar objects.

 (3) A set of objects shall not be formed if the object presented for identification is:
 1) a body;
 2) an area, building, room or other object in the case of which presentation of several objects concurrently is impossible;
 3) an object the features of which are substantially different from other objects and therefore a set of similar objects cannot be formed.

 (4) If necessary, a photograph, film or audio or video recording of a person, thing or other object shall be presented for identification.

 (5) Presentation for identification may be repeated if the object was first presented for identification on a photograph, film or video recording or if there is reason to believe that the object was not recognised because it had changed, and it is possible to restore the former appearance of the object.

 (6) If a suspect, accused, victim or witness recognises an object which is presented to him or her for identification or confirms the similarity of the object to the object related to the act under investigation, he or she shall be asked to specify the features on the basis of which he or she reached such conclusion and to explain how the object and the act are related. If he or she denies equivalence or similarity, he or she shall be asked to explain how the object or objects presented to him or her differ from the object related to the act under investigation.

 (7) If an object or a set of objects is presented for identification, it shall be photographed or video recorded.

 (8) In the course of presentation for identification, statements are obtained pursuant to subsections 66 (2¹) and 68 (2)-(6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 82.  Report on presentation for identification

 (1) A report on presentation for identification shall set out:
 1) the names of the object or objects presented for identification;
 2) the essential features which were similar for all the objects presented for identification, and where the object presented for identification was located among the other objects;
 3) the place chosen by the person presented for identification among the other persons;
 4) the proposal made to the identifier to watch the object or objects presented to him or her and say whether he or she recognises the object related to the event under investigation and whether he or she finds the object similar to or different from the other objects;
 5) the features by which the identifier recognised the object.

 (2) If a person who has been recognised contests the result of the procedural operation, a corresponding notation shall be made in the report.

Subchapter 5 Inspection and Inquiries to Electronic Communications Undertakings 
[RT I, 29.06.2012, 2 - entry into force 01.01.2013]

§ 83.  Objective of inspection and objects of inspection

 (1) The objective of an inspection is to collect information necessary for resolving the criminal matter, detect the evidentiary traces of the criminal offence and confiscate objects which can be used as physical evidence.

 (2) The objects of inspection are:
 1) a scene of events;
 2) a body;
 3) a document, any other object or physical evidence;
 4) in the case of physical examination, the person and the postal or telegraphic item.

 (3) If the explanations of a suspect, accused, witness, qualified person or victim help to ensure the thoroughness, comprehensiveness and objectivity of the inspection, such person shall be asked to be present at the inspection.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 84.  Inspection of scene of events

 (1) Inspection of a scene of events shall be conducted at the place of commission of a criminal offence or a place related to the commission of a criminal offence.

 (2) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 85.  Inspection of body

 (1) Inspection of a body shall be conducted on a scene of events or at any other location of the body.

 (2) The following shall be ascertained upon inspection of a body:
 1) the identity of the body or, in the case of an unidentified body, a description of the body;
 2) the location and position of the body;
 3) the evidentiary traces of a criminal offence and the objects adjacent to the body;
 4) the evidentiary traces of a criminal offence on the uncovered parts of the body, clothes, footwear, and covered parts of the body;
 5) the signs of death;
 6) other characteristics necessary for resolving the criminal matter.

 (3) If possible, inspection of a body shall be conducted in the presence of a forensic pathologist or qualified person whose task is to:
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 1) ascertain that the person is dead unless death is evident;
 2) assist the official of the investigative body in the conduct of the inspection in order to collect and record the source information necessary for an expert assessment.

§ 86.  Inspection of document, other object or physical evidence

 (1) Upon inspection of a document or any other object, the evidentiary traces of a criminal offence and other features which are necessary for resolving the criminal matter and form the basis for using the object as physical evidence shall be ascertained.

 (2) If additional examination of a document, thing or any other object used as physical evidence is necessary, inspection of the physical evidence shall be conducted.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 87.  Inspection report

 (1) An inspection report shall set out:
 1) a description of the circumstances on the scene of events;
 2) the identity of the body or, in the case of an unidentified body, a description of the body;
 3) the names and characteristics of the documents or other objects discovered in the course of the inspection;
 4) a description of the evidentiary traces of the criminal offence;
 5) other information derived from the inspection;
 6) the names and numbers of the objects which have been confiscated in the course of the procedural operation in order to be used as physical evidence.

 (2) The statements of the persons participating in the inspection of a scene of events or information relating to the surveillance activities conducted in the course of the inspection shall not be recorded in the report on the inspection of the scene of events.

§ 88.  Physical examination

 (1) The following shall be ascertained upon physical examination:
 1) whether there are evidentiary traces of a criminal offence on the body, clothes or footwear of the person and whether this gives reason to declare him or her as a suspect;
 2) the nature of any health damage and the location and other characteristics of injuries;
 3) the specific features of the body of the suspect, accused or victim or the distinctive characteristics on his or her body which need to be recorded with a view to resolving the criminal matter;
 4) whether the person has objects which can be used as physical evidence with him or her or hidden in his or her body;
 5) other facts relating to a subject of proof in the criminal matter.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

 (2) If the objective of a physical examination is to detect the evidentiary traces of a criminal offence on the body of the person, a forensic pathologist, a health care professional or another qualified person shall participate in the examination.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) Samples and assessment material may be taken from a person upon physical examination. Samples and assessment material shall be taken in accordance with the provisions of § 100 of this Code.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

 (4) A report on physical examination shall set out:
 1) a description of the evidentiary traces of a criminal offence discovered on the body, clothes or footwear of the person;
 2) a description of the specific features or distinctive characteristics of the body of the person;
 3) the names of the objects which have been discovered in the course of the procedural operation and can be used as physical evidence.

 (5) A report on physical examination shall not contain conclusions as to the type of health damage, the time of incurring the health damage or the manner in or means by which the health damage was caused.

§ 89.  Seizure and examination of postal or telegraphic items

 (1) A postal or telegraphic item is seized for the purposes of examination at the request of the Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court order.

 (2) An order on the seizure of a postal or telegraphic item shall set out:
 1) the name of the sender or addressee of the seized item and the residence or seat and address thereof;
 2) the reason for the seizure;
 3) the procedure for notifying an investigative body of the seized postal or telegraphic item.

 (3) A copy of an order on the seizure of a postal or telegraphic item shall be sent to the head of the provider of the postal or telecommunications service for execution.

 (4) In the course of examination of a postal or telegraphic item, information derived from inspection of the circumstances relating to the subject of proof shall be collected and the item to be used as physical evidence in criminal proceedings shall be confiscated from the provider of the postal or telecommunications service. An object of examination which is not related to the criminal matter shall be communicated to the addressee by the provider of the postal or telecommunications service.

 (5) A postal or telegraphic item shall be released from seizure by an order of the Prosecutor’s Office. A copy of an order on release from seizure shall be communicated to the persons who are not participants in proceedings but in the case of whom the confidentiality of messages has been violated by the seizure and examination of the postal or telegraphic item.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 90.  Report on examination of postal or telegraphic items

  A report on the examination of a postal or telegraphic item shall set out:
 1) a reference to the order on the seizure of the postal or telegraphic item;
 2) the name of the object of seizure;
 3) information derived from the examination;
 4) the name of the postal or telegraphic item which was confiscated in order to be used as physical evidence.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 90¹.  Request to electronic communications undertakings to submit information

 (1) A body conducting proceedings may make enquiries to electronic communications undertakings about the data required for the identification of an end-user related to the identification tokens used in the public electronic communications network, except for the data relating to the fact of communication of messages.

 (2) With the permission of the Prosecutor’s Office an investigative body may make enquiries in pre-court procedure or with the permission of the court in proceedings before that court to electronic communications undertakings about the data listed in subsections 111¹ (2) and (3) of the Electronic Communications Act and not specified in the first subsection of this section. The permission to make inquiries shall set out the dates of the period of time about which the requesting of data is permitted.

 (3) The enquiries prescribed in this section may be made only if this is unavoidably necessary for achievement of the purpose of criminal proceedings.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

Subchapter 6 Search and Investigative Experiment 

§ 91.  Search

 (1) The objective of a search is to find an object to be confiscated or used as physical evidence, a document, thing or person necessary for resolving the criminal matter, assets to be seized in criminal proceedings, or a body, or to apprehend a fugitive in a building, room, vehicle or enclosed area. A search may be conducted if there is reasonable doubt that the object to be found is at the place of the search.

 (2) Unless otherwise provided by this Code, a search may be conducted at the request of the Prosecutor’s Office on the basis of an order of a preliminary investigation judge or on the basis of a court order. Both an order of a preliminary investigation judge as well as a court order resolving a search request by the Prosecutor’s Office may be drawn up as an endorsement on the request of the Prosecutor’s Office.

 (3) A search may be conducted on the basis of an order of the Prosecutor’s Office, except for searches of a notary's office or attorney's law office or at the persons processing information for journalistic purposes, if there is reason to believe that the suspect used or uses the site or vehicle to be searched at the time of commission of a criminal act or during the pre-court proceedings, and the person is suspected of committing the crime specified in subsection 126² (2) of this Code.

 (4) A search warrant shall set out:
 1) what is being searched for as the objective of the search (hereinafter object to be found);
 2) the reasons for the search;
 3) the place where the search is conducted.

 (5) In the cases of urgency, if execution of a search warrant on time is impossible, a search may be conducted on the terms and conditions specified in subsection (3) of this section on the basis of an authorisation of the Prosecutor’s Office issued in a format which can be reproduced in writing.

 (6) When a search is conducted on the bases specified in subsections (3) and (5) of this section, a preliminary investigation judge has to be notified thereof through the Prosecutor’s Office during the first working day following the beginning of the search. A preliminary investigation judge shall decide on the admissibility of the search by an order which may be drawn up as an inscription on the determination of the Prosecutor’s Office.

 (7) If a search is conducted, the search warrant shall be presented for examination to the person whose premises are to be searched or to his or her adult family member or a representative of the legal person or the state or local government agency whose premises are to be searched. The warrant shall be signed to confirm the presentation. In the case specified in subsection (5) of this section, the person whose premises are to be searched or his or her adult family member or a representative of the legal person or the state of local government agency whose premises are to be searched shall be explained upon implementation of a search the circumstances specified in subsections (4) of this section and the reasons for conducting a search urgently. The search report shall be signed to confirm that explanations of the circumstances were provided. In the absence of the responsible person or representative, a representative of the local authority shall be involved.

 (8) A notary's office or an attorney's law office shall be searched in the presence of the notary or attorney. If the notary or attorney cannot be present during the search, the search shall be conducted in the presence of a person substituting for the notary or another attorney providing legal services through the same law office, or if this is impossible, another notary or attorney.

 (9) When a search is implemented, the person shall be asked to hand over the object to be found or to show where the body is hidden or the fugitive is hiding. If the proposal is not complied with or if there is reason to believe that the person complied with the proposal only partly, a search shall be conducted.

 (10) In the course of a search, all objects may be taken away which are subject to confiscation or are evidently the evidence in the criminal proceedings if they were discovered without any search in a clearly visible place or in the course of reasonable search undertaken to find the objects to be found.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

§ 91¹.  Entry against possessor's will

  If entry into a building, premises, vehicle or enclosed area against the will of the possessor thereof is required for performance of a procedural operation, it shall be done in compliance with the procedure provided for in § 91 of this Code, except for the case this is necessary for:
 1) observation of a body or crime scene immediately after finding of the body or commission of the criminal offence, or
 2) for detention of a person as a suspect immediately after the commission of the criminal offence.
[RT I, 12.07.2014, 1 – entry into force 13.07.2014]

§ 92.  Search report

 (1) A search report shall set out:
 1) a proposal to hand over the object to be found or to show where the body is hidden or the fugitive is hiding;
 2) the names of the objects which were handed over voluntarily;
 3) the conditions, course and results of the search;
 4) the names of the objects found and the characteristics of the objects which are relevant with a view to resolving the criminal matter;
 5) the identification data of apprehended fugitives.
[RT I, 13.03.2019, 2 – entry into force 15.03.2019]

 (1¹) In the case specified in subsection 91 (5) of this Code, the circumstances specified in subsection 91 (4) shall be indicated in the introduction to the search report and the reasons why the search in urgent.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (2) If physical examination is performed in the course of a search, the data listed in subsection 88 (4) of this Code may be entered in the search report. In such case a report on physical examination need not be prepared.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 93.  Investigative experiment

 (1) The objective of an investigative experiment is to ascertain whether circumstances relating to an event under investigation existed or an act was performed at the time of commission of a criminal act or whether their existence or performance was perceptible.

 (2) A suspect, accused, victim or witness shall participate in an investigative experiment if:
 1) his or her assistance is necessary in order to recreate the circumstances relating to an event;
 2) the results of the investigative experiment enable his or her statements or testimony to be verified;
 3) the results of the experiment depend on the characteristics, abilities or skills of the participant in the experiment.

 (3) Physical evidence may be used in an investigative experiment if:
 1) replacement of the physical evidence may influence the results of the investigative activities, and the destruction of the evidence is precluded;
 2) it is not necessary to present the physical evidence for identification to a person participating in the investigative experiment.

 (4) In the evaluation of the results of an investigative experiment, conclusions based on specific expertise shall not be drawn.

§ 94.  Report on investigative experiment

  A report on an investigative experiment shall set out:
 1) the issue for the resolution of which it is deemed necessary to conduct tests;
 2) whether and how the circumstances on the scene of events were recreated for the purposes of the tests;
 3) whether the suspect, accused, witness or victim has confirmed the correspondence of the circumstances relating to the investigative experiment to the circumstances relating to the event under investigation;
 4) a description of the tests: the number, order, conditions, changes in the number, and the content of the tests;
 5) the results of the tests.

Subchapter 7 Ascertainment of Facts Requiring Expertise 
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 95.  Expert

 (1) Expert means a person who uses his or her specific non-legal expertise in the conduct of an expert assessment in the cases and pursuant to the procedure provided for in this Code.

 (2) Upon ordering expert assessment, the body conducting proceedings shall prefer a state forensic institution. If the required class of expert assessment is not on the list of the expert assessments conducted by a state forensic institution, the body conducting the proceedings shall give preference upon appointment of an expert to an officially certified expert but other persons with the relevant knowledge may also be appointed as experts.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (3) If an expert assessment is arranged outside a forensic institution, the body conducting the proceedings shall ascertain whether the person to be appointed as an expert is impartial with regard to the criminal matter and consents to conduct the expert assessment. The rights and obligations of experts provided for in § 98 of this Code shall be explained to him or her. If a person who has not been sworn in is appointed as an expert, he or she shall be warned about a criminal punishment for rendering a knowingly false expert opinion. The body conducting proceedings shall determine the term of an expert assessment by agreement with the expert.

 (4) The body conducting proceedings may request an expert assessment to be conducted in a foreign forensic institution and use an expert opinion rendered in a foreign state as evidence in the resolution of a criminal matter.

§ 96.  Bases for expert to remove himself or herself

 (1) An expert is required to remove himself or herself from criminal proceedings:
 1) on the bases provided for in subsections 49 (1) and (6) of this Code;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 2) if he or she works in a position subordinate to a participant in criminal proceedings or an official of an investigative body who is conducting proceedings in the criminal matter or is in any other dependent relationship with such persons.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

 (2) A committee of experts shall not include persons close to each other as specified in subsection 71 (1) of this Code.

 (3) Earlier participation of an expert in criminal proceedings as an expert or qualified person does not constitute a basis for him or her to remove himself or herself.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) The removal of an expert by himself or herself shall be formalised on the basis of a reasoned request for removal which shall be included in the criminal file.

§ 97.  Removal of expert

 (1) If an expert does not remove himself or herself on a bases provided for in § 96 of this Code, a suspect, accused, victim, civil defendant or counsel may submit a petition of challenge against the expert.

 (2) A petition of challenge against an expert shall be resolved pursuant to the procedure provided for in subsections 59 (5) and (6) of this Code.

§ 98.  Rights and obligations of experts

 (1) An expert conducting an expert assessment has the right to:
 1) request additions to be made to the materials of the expert assessment;
 2) in order to ensure the completeness of the assessment materials, participate in procedural operations at the request of the investigative body or Prosecutor’s Office and in court hearing at the request of the court;
 3) examine the materials of the criminal matter in so far as this is necessary for the purposes of the expert assessment;
 4) refuse to conduct the expert assessment if the assessment materials submitted to him or her are not sufficient or if the expert assignments set out in the order on the expert assessment are outside his or her specific expertise or if answering to the questions does not require expert enquiry or conclusions based on specific expertise;
 5) request that a person who may provide explanations necessary for the expert enquiries be present at the conduct of the expert assessment with the permission of the body conducting the proceedings;
 6) to assume and resolve, on his or her own initiative, expert assignments not set out in the order on the expert assessment.

 (2) An expert is required to:
 1) conduct an expert assessment if he or she has been appointed as an expert;
 2) appear when summoned by the body conducting the proceedings;
 3) ensure that all expert enquiries are conducted thoroughly, completely and objectively and the expert opinion rendered is scientifically valid;
 4) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 5) maintain the confidentiality of the facts which become known to him or her upon the conduct of the expert assessment and which may be disclosed only with the written permission of the body conducting the proceedings.

 (3) If an expert fails to appear without good reason, a fine may be imposed on the expert by a preliminary investigation judge at the request of the Prosecutor’s Office or by a court on the basis of a court order.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 99.  Securing of conduct of expert assessment and investigation

 (1) If necessary, assessment or examination material is taken for the conduct of an expert assessment or examination, compulsory placement in a medical institution is applied with regard to the suspect or accused in order to conduct a forensic psychiatric or forensic medical examination, or a body is exhumed in order to conduct a forensic medical examination or any other expert assessment or comparative examination.

 (2) Where necessary, any prints of papillary skin ridges that have been collected in the course of a procedural operation are recorded in the database of the Automated Biometric Identification System (hereinafter, ‘ABIS Database’), with other data concerning the collection of such prints being recorded in the National Fingerprint Database, and data obtained by analysing a DNA sample are recorded, where necessary, in the National DNA Database.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]

 (3) Unless otherwise provided for by law, an investigative authority or any other authority vested with the relevant power may preserve any prints and samples that have been taken in the course of a procedural operation and that have not been identified. An investigative authority may preserve non-identified prints of papillary skin ridges or non-identified DNA samples taken in the course of investigative operations only if those prints or samples are not recorded in the National Fingerprint Database, in the ABIS Database or in the National DNA Database.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]

§ 99¹.  Fingerprinting of persons and taking of their DNA samples

 (1) A person who is a suspect, accused or offender convicted of an intentionally committed criminal offence specified in Subchapters 1, 2, 6 or 7 of Chapter 9, Subchapter 2 of Chapter 11, Subchapters 1 or 4 of Chapter 22 of the Penal Code or provided for in another Chapter of the Penal Code which necessary elements of a criminal offence include use of violence and which is punishable by at least two years of imprisonment shall be fingerprinted and his or her DNA sample is taken for the purposes of conducting proceedings on, of detection and of prevention of, offences.

 (2) For the purpose of conducting proceedings on, of detection and of prevention of, offences, persons who are suspects, accused or offenders convicted of a criminal offence not specified in subsection (1) of this section but which is punishable by at least one year of imprisonment pursuant to the Penal Code may be also fingerprinted and their DNA samples may be taken.

 (3) Coercion may be imposed with regard to persons specified in subsections (1) and (2) of this section if the person refuses to give his or her fingerprints or DNA samples.

 (4) Biometric data obtained by fingerprinting any person mentioned in subsections 1 and 2 of this section are recorded in the ABIS Database, with data concerning the person and the fingerprinting being recorded in the National Fingerprint Database; any data obtained by analysing such a person’s DNA sample are recorded in the National DNA Database.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]

 (5) The data entered pursuant to subsection (4) of this section in the National Fingerprint Database and the National DNA Database shall be retained pursuant to the Forensic Examination Act.
[RT I, 13.03.2019, 2 – entry into force 15.03.2019]

§ 99².  Use for detection of offences of data obtained upon fingerprinting and analysis of DNA samples for other purposes

 (1) It is permitted to use the data collected upon fingerprinting and analysis of the DNA samples taken for other purposes for securing the conduct of the expert assessment ordered in criminal proceedings if taking of evidence by other procedural operations is impossible or especially complicated or if this may prejudice criminal proceedings in the case.

 (2) The provisions of subsection (1) of this section may be applied only in the case a need exists to collect information in the criminal proceedings about such criminal offence in the first degree or intentionally committed criminal offence in the second degree for which at least up to three years' imprisonment is prescribed as punishment.

 (3) The activities specified in subsection (1) of this section may be performed only with a written permission of the Prosecutor’s Office which also contains justifications of the need to use the data.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

§ 100.  Taking of comparative samples

  [RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (1) Comparative samples are taken in order to collect comparative trace evidence and samples necessary for an expert assessment or examination.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (1¹) For the purpose of exclusion of traces legally left on the scene of events, a victim, witness or another person may be fingerprinted and their DNA samples may be taken.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (2) An order on the taking of comparative samples is necessary if:
 1) a suspect or accused refuses to allow comparative samples to be taken but the objective of the procedural operation can be achieved by force;
 2) the taking of comparative samples infringes the privacy of the body of the person;
 3) a legal person is required to submit documents as comparative samples.

 (3) An order on the taking of comparative samples shall set out:
 1) the person from whom the comparative samples are taken;
 2) the type of the comparative samples;
 3) the reason for the performance of the procedural operation.

 (4) If taking of comparative samples infringes the privacy of the body of a person, a forensic pathologist, health care professional or another qualified person shall participate in the procedural operation.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) Investigative bodies or other competent authorities may preserve comparative samples taken for the purpose of conducting proceedings on, of detection and of prevention of offences, unless otherwise provided by law.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (6) The data obtained by fingerprinting a person under subsection 1¹ of this section are not recorded in the National Fingerprint Database or the ABIS Database, or are removed from those databases immediately after the carrying out of the comparative inquiry. The public forensic institution concerned returns the material collected for comparison to the proceedings authority together with the expert's report or the report of the inquiry. Any material collected for comparison under this section is destroyed when the criminal case is closed, when the limitation period for the offence expires or when the judgment rendered in the case enters into effect. The material is destroyed by the proceedings authority in whose possession it is at the time of destruction. The destruction is documented in writing and the document attesting the destruction is included in the file.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]

 (7) The data obtained upon analysis of DNA samples of persons pursuant to subsection (1¹) of this section shall not be entered in the National DNA Register or shall be deleted from the specified register immediately after conduct of the comparative examination. DNA samples taken shall be destroyed within two months as of the completion of the expert assessment or comparative examination. DNA samples shall be destroyed by a state forensic institution by making a respective notation in the expert's or examination report.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

§ 101.  Report on taking of assessment material

  A report on the taking of assessment material shall set out:
 1) the names of the comparative trace evidence and samples taken;
 2) the manner and conditions of taking the assessment material;
 3) the amount or quantity of the assessment material.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 102.  Compulsory placement of suspect or accused in medical institution

 (1) If long-term expert enquiries are necessary for a forensic psychiatric or forensic medical examination, a body conducting proceedings shall order the expert assessment from a committee of experts and apply compulsory placement in a medical institution with regard to the suspect or accused.

 (2) A suspect or accused shall be placed in a medical institution at the request of the Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court order.

 (3) A suspect or accused is placed in a medical institution for up to one month. At the request of the Prosecutor’s Office, a preliminary investigation judge or court may extend such term by three months.

 (4) The period for which a suspect or accused is placed in a medical institution shall be included in the term of his or her holding in custody.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 103.  Exhumation from official place of burial

 (1) A body or the remains thereof shall be exhumed from their official place of burial if it necessary to ascertain the cause of death or any other facts relating to the subject of proof, or take comparative trace evidence or samples for the purposes of an expert assessment in criminal proceedings.

 (2) A body is exhumed on the basis of an order of the Prosecutor’s Office or a court order.

 (3) A body is exhumed with the participation of a forensic pathologist or another qualified person and in the presence of a representative of the city or rural municipality government. If possible, a person close to the deceased is invited to be present at the performance of the procedural operation, and the body is presented to him or her for identification, if necessary.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) If necessary, soil and other samples are taken from a place of burial.

 (5) An order on exhumation shall contain an order addressed to the city or rural municipality government to re-bury the body and restore the grave.

§ 104.  Report on exhumation

  A report on exhumation shall set out:
 1) the name and location of the place of burial and information concerning the location of the grave;
 2) a description of the grave and the grave markers;
 3) information derived from inspection of the coffin and the body.

§ 105.  Arrangement of conduct of expert assessment

 (1) The conduct of an expert assessment shall be arranged based on the need for proof on the basis of an order of the body conducting the proceedings.

 (2) The body conducting proceedings may not refuse to order an expert assessment requested by a suspect, accused, counsel, victim or civil defendant if the facts for the ascertainment of which the assessment is requested may be essential for the resolution of the criminal matter.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 106.  Order on expert assessment

 (1) The main part of an order on an expert assessment shall set out:
 1) the title and number of the criminal matter, the facts relating to the criminal offence, and other source information necessary for the expert assessment;
 2) the reason for ordering the expert assessment.

 (2) The final part of an order on an expert assessment shall set out:
 1) the class of the expert assessment according to the field of special expertise;
 2) the need to conduct an expert assessment;
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]
 3) the name of the expert or state forensic institution who is to execute the order on the expert assessment;
 4) information concerning the objects of expert assessment related to the criminal act and concerning the comparative samples and the materials submitted for examination;
 5) questions posed to the expert;
 6) the term of the expert assessment in the case provided for in subsection 95 (3) of this Code.

 (3) If an expert assessment is to be conducted in a state forensic institution, a specific forensic expert may be appointed with the approval of the head of the institution. On the basis of an order on an expert assessment, experts who do not work at a state forensic institution may also belong to a committee of experts.

 (4) The following questions shall not be posed to an expert:
 1) questions which are of legal nature or fall outside his or her area of expertise;
 2) questions which can be answered without expert enquiry or conclusions based on specific expertise.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 107.  Preparation of expert's report

 (1) The introduction of an expert's report shall set out:
 1) the date and place of preparation of the report;
 2) the name of the person who ordered the expert assessment, and the date of preparation of the order on the expert assessment and of communication of the order to the expert;
 3) the title and number of the criminal matter;
 4) the class of the expert assessment;
 5) information concerning the expert;
 6) the name of the object of the expert assessment or of the person regarding whom the expert assessment was conducted;
 7) whether and when additions to the materials of the expert assessment were requested to be made and the date on which such request was granted;
 8) the source information necessary for the expert assessment;
 9) questions posed to the expert in the order on the expert assessment and questions formulated by the expert on his or her own initiative;
 10) the names of the persons who were present at the conduct of the expert assessment;
 11) the measures to be applied with regard to the physical evidence submitted for expert assessment, comparative samples, materials or objects of expert assessment.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (2) If an expert assessment is conducted by a person who has not been sworn in, such expert shall sign a notation in the introduction of the expert's report that he or she has been warned about criminal punishment.

 (3) The main part of an expert's report shall set out:
 1) a description of the examination;
 2) information derived from evaluation of the results of the examination, and the reasons for the expert opinion.

 (4) If questions posed to an expert are of legal nature, fall outside his or her area of expertise or do not require expert examination or conclusions based on specific expertise, the expert shall not provide answers to such questions in the expert's report.

 (5) [Repealed – RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (6) The final part of an expert's report shall set out the expert's opinion based on the examinations conducted.

 (7) [Repealed – RT I, 04.07.2012, 1 – entry into force 01.08.2012]

 (8) An expert's report is signed by the expert or experts who conducted the expert assessment.
[RT I, 04.07.2012, 1 – entry into force 01.08.2012]

§ 108.  Report on refusal to conduct expert assessment

 (1) If an expert refuses to conduct an expert assessment on the bases provided for in clause 98 (1) 4) of this Code, the expert shall prepare a report on his or her refusal to conduct the expert assessment.

 (2) A report on refusal to conduct an expert assessment shall set out the information specified in subsection 107 (1) of this Code, and the reasons for the refusal.

§ 109.  Hearing of experts

  If necessary, an expert shall be heard in a pre-court proceedings in order to specify the content of the expert's report or the report on his or her refusal to conduct the expert assessment. An expert is heard pursuant to subsection 66 (2¹) and §§ 68 and 69 of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 109¹.  Qualified person

 (1) Qualified person is a natural person who has specific expertise which he or she uses in the cases and pursuant to the procedure provided for in this Code but who has not been joined to the criminal proceedings as an expert.

 (2) Qualified persons may be involved in procedural operations. Before the commencement of a procedural operation, a body conducting proceedings shall ascertain the identity of the qualified person, his or her competence and his or her relations with the suspect accused. The statements made by the qualified person in connection with the detection and storage of evidence shall be recorded.

 (3) A qualified person may be questioned concerning the following circumstances:
 1) the course of the procedural operation performed in the presence of the qualified person;
 2) other circumstances concerning which the qualified person can provide explanations due to his or her specific expertise if this is necessary for the purposes of better understanding of the facts relating to a subject of proof.

 (4) A qualified person is heard pursuant to the provisions that apply to hearing of witnesses, taking into account the specifications arising from this section.

 (5) If it becomes evident that a qualified person may know the facts specified in § 66 of this Code, he or she shall be heard as a witness concerning such facts. The same person may be heard as a witness and a qualified person in the course of one procedural operation.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 109².  ABIS Database

 (1) The ABIS Database is an electronic database whose aim, for the purposes of this Code, is to process any biometric data obtained by fingerprinting a suspect, an accused or a convicted offender, or a victim, witness or any other person, as well as any prints of papillary skin ridges collected from a scene of events or obtained from another object:
 1) for exclusion purposes;
 2) for conducting offence proceedings and for the detection and prevention of offences;
 3) for performing expert assessments and inquiries.

 (2) The processing of data that have been entered in the ABIS Database is subject to the provisions of § 15⁵ of the Identity Documents Act.

 (3) The ABIS Database is established and its Constitutive Regulations are adopted by a regulation of the Government of the Republic.

 (4) Data controllers of the ABIS Database are the Police and Border Guard Board and the Estonian Forensic Science Institute. The Database’s processors are designated in its Constitute Regulations.

 (5) The composition of the data to be recorded in the ABIS Database and the time limit for retention of such data are provided for in the Constitutive Regulations of the Database.

 (6) Data in the ABIS Database are subject to an access restriction and have been declared to constitute data intended for internal use.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]

Subchapter 8 Taking of Evidence by Surveillance Activities 
[Repealed – RT I, 29.06.2012, 2 - entry into force 01.01.2013]

§ 110. – § 122. [Repealed – RT I, 29.06.2012, 2 – entry into force 01.01.2013]

Subchapter 9 Document and Physical Evidence 

§ 123.  Document

 (1) A document containing information concerning the facts relating to a subject of proof may be used for the purposes of proof.

 (2) A document is physical evidence if the document has the characteristics specified in subsection 124 (1) of this Code.

§ 124.  Physical evidence

 (1) Physical evidence means a thing which is the object of a criminal offence, the object used for the commission of a criminal offence, a thing bearing the evidentiary traces of a criminal offence, the impression or print made of the evidentiary traces of a criminal offence, or any other essential object relating to a criminal act, which can be used in ascertaining the facts relating to a subject of proof.

 (2) If an object used as physical evidence has not been described in the report on the investigative activities as exactly as necessary for the purposes of proof, inspection of the object shall be carried out in order to record the characteristics of the physical evidence.

 (3) Physical evidence or confiscated objects are immediately returned to their owner or former lawful possessor if this does not hinder criminal proceedings. In general, physical evidence or confiscated objects are returned in their storage place.
[RT I, 31.12.2016, 2 – entry into force 10.01.2017]

 (4) If six months have elapsed from the confiscation of physical evidence but there is no one accused in the criminal matter, physical evidence is stored at the request of the owner or lawful holder thereof with the person filing the request pursuant to the conditions for storage of physical evidence, except in the cases specified in subsections (5) and (6) of this section.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) A prosecutor may extend the six-month term specified in subsection (4) of this section at the request of an investigative body for up to one year. The term is extended automatically if the request specified in subsection (4) is not submitted.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) A preliminary investigation judge may extend the terms specified in subsections (4) and (5) of this section at the request of the Prosecutor’s Office for a term longer than one year if the delay in bringing the charges arose due to the complexity or extent of a criminal matter or exceptional cases arising from international cooperation. The term is extended automatically if the request specified in subsection (4) is not submitted.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 125.  Storage of physical evidence

 (1) Physical evidence shall be stored in a criminal file, physical evidence storage facility of an investigative body, Prosecutor’s Office or court or on other premises in the possession of or territory guarded by it or in a forensic institution, or the measures prescribed in § 126 of this Code shall be applied to the physical evidence if this does not prejudice criminal proceedings in the case.
[RT I, 31.12.2016, 2 – entry into force 10.01.2017]

 (2) Physical evidence which cannot be stored pursuant to the procedure provided for in subsection (1) of this section and with regard to which the measures prescribed in § 126 of this Code cannot be applied in the interests of the criminal proceedings prior to the entry into force of a court judgment or termination of criminal proceedings shall be deposited into storage with liability on the basis of a contract.

 (3) A person with whom physical evidence is deposited shall ensure the inviolability and preservation of the evidence.

 (4) A person with whom physical evidence is deposited but who is not the owner or legal possessor thereof has the right to receive compensation for the storage fee which shall be included in the procedure expenses. The storage costs shall be compensated for on the basis of a contract between the body conducting the proceedings and the depositary.

 (5) If physical evidence is a document which is necessary for the owner in the future economic or professional activity thereof or for another good reason, the body conducting the proceedings shall make a copy of the document for the owner. The authenticity of the copy shall be certified by the signature of the person conducting the proceedings on the copy.

 (6) Subsections (1)-(5) of this section are applied also with regard to confiscated objects which are not physical evidence.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 126.  Measures applicable to physical evidence and confiscated property

 (1) Highly perishable physical evidence which cannot be returned to its lawful possessor shall be granted to a state or local government health care of social welfare institution free of charge, transferred, or destroyed in the course of criminal proceedings on the basis of an order of the body conducting the proceedings. The money received from the sale shall be transferred into public revenues.

 (1¹) Physical evidence which cannot be returned to the legal possessor thereof, in the case of which the costs of keeping thereof are unreasonably high, may be transferred at the request of the Prosecutor’s Office and on the basis of an order of a preliminary investigation judge. The amount received from transfer shall be seized.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (1²) Physical evidence which the owner or legal possessor thereof has failed to take away within six months after becoming aware of the decision on return may be transferred or destroyed by the holder thereof pursuant to the procedure provided for in the State Assets Act.
[RT I, 31.12.2016, 2 – entry into force 01.02.2017]

 (2) Property subject to confiscation which lawful possessor has not been ascertained may be confiscated in the course of criminal proceedings at the request of the Prosecutor’s Office and on the basis of a court order.

 (2¹) Property seized in order to secure confiscation may be transferred at the request of the Prosecutor’s Office and with the consent of the owner of the property on the basis of an order of a preliminary investigation judge. Property may be transferred without the consent of its owner if the costs of keeping thereof are unreasonably high or if this is necessary for prevention of decrease in the value of the property. The amount received from transfer shall be seized.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (2²) Things of no or small value, pirated goods or counterfeit goods, which are seized in order to secure confiscation, may be destroyed without the consent of their owner or in the cases provided by law recycled at the request of the Prosecutor’s Office on the basis of an order of a preliminary investigation judge, if the costs of keeping thereof are unreasonably high.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (3) An order of a body conducting proceedings or a court judgment shall prescribe the following measures applicable to physical evidence:
 1) a thing bearing evidentiary traces of criminal offence, a document, or an impression or print made of evidentiary traces of a criminal offence may be stored together with the criminal matter, included in the criminal file or stored in the physical evidence storage facility or any other premises in the possession of the body conducting proceedings or in a forensic institution;
 2) other physical evidence the ownership of which has not been contested shall be returned to the owner or lawful possessor thereof;
 3) physical evidence of commercial value the owner or lawful possessor of which has not been ascertained shall be transferred into state ownership;
 4) things of no value and pirated or counterfeit goods shall be destroyed or, in the cases provided by law, recycled;
 5) objects which were used for staging a criminal offence shall be returned to the owners or lawful possessors thereof;
 6) property which was obtained by the criminal offence and the return of which is not requested by the lawful possessor shall be transferred into state ownership or transferred in order to cover the costs of the civil action or proof of claim in public law.
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (4) If the ownership relations pertaining to physical evidence specified in clause (3) 2) of this section are not apparent, the measures applicable to the physical evidence in pre-court proceedings shall be decided by an order of the preliminary investigation judge at the request of the Prosecutor’s Office.

 (5) Subsections (1)-(3) of this section are also applied with regard to objects confiscated in criminal proceedings which do not constitute physical evidence.

 (5¹) The procedure provided for confiscated property shall apply to physical evidence transferred into state ownership on the basis of subsection (3) of this section and property obtained by criminal offence.
[RT I, 31.12.2016, 2 – entry into force 01.02.2017]

 (6) The procedure for refund of the money received from transfer to the lawful possessor of the property from the budget shall be established by the Government of the Republic.
[RT I, 31.12.2016, 2 – entry into force 01.02.2017]

 (7) The procedure for registration, storage, transfer and destruction of physical evidence and seized property and for evaluation, transfer and destruction of highly perishable physical evidence and property seized in order to secure confiscation by the bodies conducting the proceedings shall be established by the Government of the Republic.
[RT I 2008, 19, 132 – entry into force 23.05.2008]

Chapter 3¹ SURVEILLANCE ACTIVITIES 
[RT I, 29.06.2012, 2 - entry into force 01.01.2013]

§ 126¹.  General conditions for conduct of surveillance activities

 (1) Surveillance activities denote the processing of personal data for the performance of a duty provided by law with the objective of hiding the fact and content of data processing from the data subject.

 (2) Surveillance activities are permitted on the bases provided for in this Code if collection of data by other activities or taking of evidence by other procedural operations is impossible, is impossible on time or is especially complicated or if this may prejudice criminal proceedings in the case.

 (3) Surveillance activities shall not endanger the life or health of persons, cause unjustified property and environment damage or unjustified infringement of other personality rights.

 (4) Information obtained by surveillance activities is evidence if application for and grant of authorisation for surveillance activities and the conduct of surveillance activities is in compliance with the requirements of law.

 (5) Surveillance activities are conducted both directly through the institution specified in subsection 126² (1) of this Code as well as the institutions, subordinate units and employees administered by them and authorised to conduct surveillance activities, and through police agents, undercover agents and persons recruited for secret cooperation.

 (6) A member of the Riigikogu or a rural municipality or city council, a judge, prosecutor, attorney, minister of religion or an official elected or appointed by the Riigikogu with his or her consent and a minor with the consent of his or her legal representative may be involved in the activities provided for in this Chapter with the permission of a preliminary investigation judge only if they are participants in proceedings or witnesses in the criminal matter concerned or a criminal offence is directed against him or her or a person close to him or her.

 (7) If the conduct of surveillance activities is requested by another investigative body, the surveillance agency which conducted the surveillance activities shall communicate the information obtained by the surveillance activities to the requesting investigative body together with the photographs, films, audio and video recordings and other data recordings made in the course of the surveillance activities.

 (8) A surveillance agency has the right to also process, when conducing the surveillance activities, the data available from other sources besides surveillance activities.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126².  Bases for conduct of surveillance activities

 (1) The Police and Border Guard Board, the Security Police Board, the Tax and Customs Board, the Military Police and the Prisons Department of the Ministry of Justice and prisons (hereinafter surveillance agency) may conduct surveillance activities on the following bases:
 1) a need to collect information about the preparation of a criminal offence for the purpose of detection and prevention thereof;
 2) the execution of an order on declaring a person a fugitive;
 3) a need to collect information in confiscation proceedings pursuant to the provisions of Chapter 16¹ of this Code;
 4) a need to collect information in criminal proceedings about a criminal offence.

 (2) On the basis of the provisions of clauses (1) 1) and 4) of this section, surveillance activities may be conducted in the event of criminal offences specified in §§ 89-93¹, 95-97, 99, 100¹, 101-104, 106-108, 110-114, 116, 118 and 120, subsection 121 (2), §§ 133-137, 138¹ and 141-146, § 157³, subsections 151 (2) and (4), subsection 161 (2), §§ 162, 163, 172-179, 183-185, 187-190, 194, 195, 199 and 200, subsections 201 (2) and (3), subsections 202 (2) and (3), §§ 204, 206-214, 216¹-217, 217², 222, 227, 231-238, 241, 243, 244, 246, 250, 251, 255 and 256, clause 258 2), §§ 259, 259¹ and 263, subsections 266 (2) and (4), §§ 274, 2901, 291, 291¹, 294, 296, 298-299, 300, 300¹, 302, 303, 310-313 and 315-316¹, subsection 321 (2), §§ 326-328, 331, 331³, 333-334, 335, 336, 340 and 347, subsections 356 (1) and (3), subsections 357 (1) and (3), subsections 361 (1) and (3), subsections 364 (2)-(3), §§ 375-376², 384, 389¹, 391, 393, 394 and 394¹, subsections 398 (2) and (4), subsections 398¹ (2) and (4), §§ 400, 402³, 402⁴, 403-407, 414-416, 418, 418¹, 421¹, 421², 434, 435 and 437-439, subsections 440 (3) and §§ 446 and 449 of the Penal Code.
[RT I, 20.12.2019, 1 – entry into force 30.12.2019]

 (3) On the basis of this Code, surveillance activities may be conducted in respect of the following persons:
 1) on the basis specified in clause (1) 1) of this section in respect of the person in the case of whom there are serious reasons to believe that he or she commits the criminal offence specified in subsection (2) of this section;
 2) on the basis specified in clause (1) 2) of this section in respect of the person who is declared to be a fugitive;
 3) on the basis specified in clause (1) 3) of this section in respect of the person who owns or possesses the assets which are the object of confiscation proceedings;
 4) on the basis specified in clause (1) 4) of this section in respect of the person who is a suspect in criminal proceedings or with respect to whom there is justified reason to believe that he or she has committed or commits the specified criminal offence.

 (4) The surveillance activities conducted on the basis provided for in clauses (1) 2)-4) of this section may be also conducted in respect of the person with regard to whom there is good reason to believe that he or she interacts with the person specified in clauses (3) 2)-4) of this section, communicates information to him or her, provides assistance to him or her or allows him or her to use his or her means of communication, and if the conduct of surveillance activities in respect of such person may provide the data required for the achievement of the objective of the surveillance activities.

 (5) A surveillance agency may conduct surveillance activities on the basis specified in subsection (1) of this section if this is related to a criminal offence which is in the investigative jurisdiction of such surveillance agency.

 (6) A surveillance agency may conduct surveillance activities at the request of another surveillance agency within the limits of its competence under the conditions and pursuant to the procedure provided for in this Code.

 (7) The Police and Border Guard Board and the Security Police may also conduct surveillance activities at the request of other investigative bodies.

 (8) The Prisons Department of the Ministry of Justice and prisons may also conduct surveillance activities in a custodial institution at the request of other investigative bodies.

 (9) Where the bases for surveillance activities cease to exist, the surveillance activities shall be immediately terminated.

 (10) Surveillance activities may be conducted on the basis not specified in this Code only on the basis provided for in the Estonian Defence Forces Organisation Act, Taxation Act, Police and Border Guard Act, Weapons Act, Strategic Goods Act, Customs Act, Witness Protection Act, Security Act, Imprisonment Act, Aliens Act and Obligation to Leave and Prohibition on Entry Act. The provisions of this Chapter apply to conduct of surveillance activities, processing of information collected by surveillance activities, giving notification of surveillance activities and submission of information collected for examination with the specifications provided for in the above specified Acts.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126³.  Surveillance activities

 (1) On the basis specified in subsection 126² (1) of this Code, a surveillance agency may covertly watch a person, thing or area, covertly take comparative samples and perform initial examinations, covertly examine a thing and covertly replace it.

 (2) The Police and Border Guard Board and the Security Police Board may conduct the following surveillance activities on the basis specified in clause 126² (1) 1) of this Code upon collection of information concerning the preparation for the criminal offence specified in §§ 244 and 246, clause 266 (2) 3) and §§ 255 and 256 of the Penal Code and on the basis specified in clauses 3) and 4):
[RT I, 12.07.2014, 1 – entry into force 01.01.2015]
 1) to covertly examine a postal item;
 2) to covertly observe or wire-tap information;
 3) to use a police agent.

 (3) The Police and Border Guard Board and the Security Police Board may stage a criminal offence on the basis specified in clause 126² (1) 4) of this Code for the purpose of detection of a criminal offence or detention of a criminal.

 (4) The Prisons Department of the Ministry of Justice and prisons may conduct the following surveillance activities specified in clauses 126² (1) 1) and 4) of this Code:
 1) to covertly examine a postal item;
 2) to covertly observe or wire-tap information.

 (5) Covert entry into a building, premises, vehicle, enclosed area or computer system is permitted upon conduct of the surveillance activities specified in subsection (1) and clauses (2) 2) and 3) of this section in the case this is unavoidably necessary for the achievement of the objectives of the surveillance activities.

 (6) For the purposes of this Code, entry into the possessions of other persons is deemed to be covert if the fact of entry is covert for the possessor or if a misconception of existing facts is knowingly caused by fraud upon entry and the possessor, with knowledge of the actual circumstances, would not have given possession for entry.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126⁴.  Grant of permission for surveillance activities

 (1) Surveillance activities may be conducted with a written permission of the Prosecutor’s Office or a preliminary investigation judge. The preliminary investigation judge shall decide the grant of permission by an order on the basis of a reasoned application of the Prosecutor’s Office. The preliminary investigation judge shall consider a reasoned request submitted by the Prosecutor’s Office without delay and grant or refuse to grant permission for the conduct of the surveillance activities by an order.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

 (2) In cases of urgency, surveillance activities requiring the permission of the Prosecutor’s Office may be conducted with the permission of the Prosecutor’s Office issued in a format which can be reproduced in writing. A written permission shall be formalised within 24 hours as of the commencement of surveillance activities.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

 (3) In the case of immediate danger to the life, physical integrity or physical freedom of a person or to proprietary benefits of high value and requesting a permission or execution thereof on time is impossible, surveillance activities requiring the permission of a court may be conducted, in cases of urgency, with the permission of the court issued in a format which can be reproduced in writing. A written application and permission shall be formalised within 24 hours as of the commencement of surveillance activities.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

 (4) A permission issued in cases of urgency in a format which can be reproduced in writing shall contain the following information:
 1) the issue of the permission;
 2) the date and time of issue of the permission;
 3) surveillance activities for which the permission is issued;
 4) if known, the name of the person with regard to whom the surveillance activities are conducted;
 5) the term of the permission for surveillance activities.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

 (5) If covert entry into a building, premises, vehicle, enclosed area or computer system is necessary for conduct of surveillance activities or in order to install or remove technical appliances necessary for surveillance, the Prosecutor’s Office shall apply for a separate permission of a preliminary investigation judge for such purpose.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

 (6) The duration of surveillance activities conducted with respect to a specific person on the basis provided for in clauses 126² (1) 1), 3) and 4) of this Code in the same proceedings must not exceed one year. In exceptional cases, the Prosecutor General may authorise or apply to a court for authorisation to conduct surveillance activities for more than one year. In a criminal case dealt with under Council Regulation (EU) 2017/1939, the relevant authorization is granted, or application made, by a European Prosecutor or a European Delegated Prosecutor.
[RT I, 29.12.2020, 1 – entry into force 08.01.2021]

§ 126⁵.  Covert surveillance, covert collection of comparative samples and conduct of initial examinations, covert examination and replacement of things

 (1) The Prosecutor’s Office shall issue a permission for covert surveillance of persons, things or areas, covert collection of comparative samples and conduct of initial examinations and covert examination or replacement of things for up to two months. The Prosecutor’s Office may extend the term of the permission for up to two months at a time.

 (2) In the course of the surveillance activities specified in this section, the information collected shall be, if necessary, video recorded, photographed or copied or recorded in another way.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126⁶.  Covert examination of postal items

 (1) Upon covert examination of a postal item, information derived from the inspection of the item is collected.

 (2) After the covert examination of a postal item, the item shall be sent to the addressee.

 (3) In the course of the activities specified in this section, the information collected shall be, if necessary, video recorded, photographed or copied or recorded in another way.

 (4) In the course of covert examination of a postal item, the item may be replaced.

 (5) A preliminary investigation judge grants permission for the surveillance activities specified in this section for up to two months. After expiry of the specified term, the preliminary investigation judge may extent this term by up to two months.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126⁷.  Wire-tapping or covert observation of information

 (1) Information obtained by wire-tapping or covert observation of messages or other information transmitted by the public electronic communications network or communicated by any other means shall be recorded.

 (2) Information communicated by a person specified in § 72 of this Code or information communicated to such person by another person which is subject to wire-tapping or covert observation shall not be used as evidence if such information contains facts which have become known to the person in his or her professional activities, unless:
 1) the person specified in § 72 of this Code has already given testimony with regard to the same facts or if the facts have been disclosed in any other manner;
 2) a permission has been granted with respect to such person for wire-tapping or covert observation; or
 3) it is evident on the basis of wire-tapping or covert observation of another person that the specified person commits or has committed a criminal offence.

 (3) A preliminary investigation judge grants permission for the surveillance activities specified in this section for up to two months. After expiry of the specified term, the preliminary investigation judge may extent this term by up to two months.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126⁸.  Staging of criminal offence

 (1) Staging of a criminal offence is the commission of an act with the elements of a criminal offence with the permission of a court, taking into account the restrictions prescribed in subsection 126¹ (3) of this Code.

 (2) If possible, a staged criminal offence shall be photographed, filmed or audio or video recorded.

 (3) A preliminary investigation judge grants permission for the surveillance activities specified in this section for up to two months. After expiry of the specified term, the preliminary investigation judge may extent this term by up to two months.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126⁹.  Use of police agents

 (1) A police agent for the purposes of this Code is a person who collects information on the basis specified in clauses 126² (1) 1), 3) or 4) of this Code in criminal proceedings by using a false identity.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (2) The Prosecutor’s Office shall issue a written permission for the use of police agents. Permission for the use of a police agent is granted for up to six months and this term may be extended by six months at a time.

 (3) A police agent has all the obligations of an official of a surveillance agency in so far as the obligations do not require disclosure of the false identity.

 (4) The statements of a police agent are used as evidence pursuant to the provisions of this Code concerning witnesses.

 (5) Based on an order of the Prosecutor’s Office, the fact of using a police agent or the identity of a police agent shall also remain confidential after completion of surveillance activities if disclosure may endanger the life or health, honour and good name or property of the police agent or the persons connected with him or her or his or her further activities as a police agent.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹⁰.  Documentation of surveillance activities

 (1) On the basis of the information collected by surveillance activities, an official of the body that conducted surveillance activities or applied for surveillance activities shall prepare a report on surveillance activities which shall set out:
 1) the name of the body which conducted the surveillance activities;
 2) the time and place of conducting the surveillance activities;
 3) the name of the person with regard to whom the surveillance activities were conducted;
 4) the date of issue of a permission of a court or a permission of the Prosecutor’s Office which is the basis for surveillance activities;
 5) the date of submission of an application of the Prosecutor’s Office if the surveillance activities are based on a permission of a court;
 6) information collected by surveillance activities which is necessary to achieve the purpose of surveillance activities or to resolve the criminal matter.

 (2) The photographs, films, audio and video recordings and other data recordings made in the course of surveillance activities shall be appended to a report, if necessary.

 (3) If necessary, the surveillance agency that conducted surveillance activities shall record the information collected by surveillance activities in a summary of surveillance activities. The summary of surveillance activities and the photographs, films, audio and video recordings and other data recordings made in the course of surveillance activities shall be appended to a surveillance file.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹¹.  Keeping of surveillance files

 (1) The information collected by surveillance activities, data recordings made in the course of surveillance activities, data obtained in the manner specified in subsection 126¹ (8) of this Code and data required for comprehension of the integrity of the information collected by surveillance activities concerning an undercover agent and simulated person, structural unit, body and branch of a foreign company shall be stored in a surveillance file.

 (2) The procedure for keeping and storage of surveillance files shall be established by a regulation of the Government of the Republic on the proposal of the minister responsible for the area.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹².  Storage, use and destruction of surveillance files and data recordings collected by surveillance activities

 (1) The photographs, films, audio and video recordings and other data recordings or any part thereof necessary for resolving a criminal matter and made in the course of surveillance activities shall be stored in the criminal file or together with the criminal matter. The rest of the materials on surveillance activities shall be stored at surveillance agencies pursuant to the procedure specified in subsection 126¹¹ (2) of this Code.

 (2) Surveillance files shall be stored as follows:
 1) surveillance files kept on criminal offences under preparation, files on searching persons and confiscation files – until the redundancy of information contained therein, but for not longer than 50 years;
 2) files on criminal offences – until the deletion of data concerning punishment from the criminal records database or expiry of the limitation period for the criminal offence.

 (3) Information collected by a covert operation may be used in another covert operation, in other criminal proceedings, in security vetting, as well as, where provided for by law, to prevent money laundering or terrorist financing or, when deciding the hiring of a person or the granting of an authorization or licence to a person, to verify whether the person meets the requirements provided by law.
[RT I, 21.11.2020, 1 – entry into force 01.01.2021]

 (4) The information collected by surveillance activities may be stored for study and research purposes. Personal data and, if necessary, the information collected shall be completely altered in order to prevent disclosure of persons who have been engaged in surveillance activities or recruited therefor.

 (5) If preservation of a data recording made in the course of surveillance activities and added to a criminal file is not necessary, the person subject to the surveillance activities whose fundamental rights were violated by such surveillance activities may request destruction of the data recording after the entry into force of the court judgment.

 (6) The data recording specified in subsection (5) of this section shall be destroyed by a court. A report shall be prepared on the destruction of a data recording and included in the criminal file.

 (7) If the materials on surveillance activities are stored in a criminal file, the information concerning the persons accused in criminal proceedings whose private or family life was significantly violated by the surveillance activities and whose rights or freedoms may be significantly damaged by disclosure shall be removed from or covered up in the criminal file upon disclosure thereof pursuant to the Public Information Act.

 (8) Files containing a state secret or classified information of a foreign state shall be stored and destroyed pursuant to the State Secrets and Classified Information of Foreign States Act.

 (9) Surveillance files subject to destruction and data recordings collected shall be destroyed by a committee formed by the head of a surveillance agency in the presence of a prosecutor. The committee shall prepare a report concerning the destruction of a file and data recording collected which shall set out the number of the file or information concerning the destructed data recording and the reason for the destruction thereof.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹³.  Notification of surveillance activities

 (1) Upon expiry of the term of a permission for the conduct of surveillance activities and, when several surveillance activities are conducted that coincide at least partly in time, upon expiry of the term of the last permission, the surveillance agency shall immediately notify the person with respect to whom the surveillance activities were conducted and the person whose private or family life was significantly violated by the surveillance activities and who was identified in the course of the proceedings. The person shall be notified of the time and type of surveillance activities conducted with respect to him or her.

 (2) With the permission of a prosecutor, a surveillance agency need not give notification of conduct of surveillance activities if this may:
 1) significantly prejudice criminal proceedings in the case;
 2) significantly damage the rights and freedoms of another person which are guaranteed by law or endanger another person;
 3) endanger the confidentiality of the methods and tactics of a surveillance agency, the equipment or police agent used in conducting surveillance activities, of an undercover agent or person who has been recruited for secret cooperation.

 (3) With the permission of the Prosecutor’s Office, a person need not be given notification of surveillance activities until the basis specified in subsection (2) of this section cease to exist. The Prosecutor’s Office shall verify the basis for non-notification in a criminal matter upon completion of pre-court proceedings but not later than one year after the expiry of the term of the permission for surveillance activities.

 (4) If the grounds for non-notification of surveillance activities are still present one year after the expiry of the term of the authorisation for surveillance activities, the Prosecutor’s Office applies, at the latest 15 days prior to the expiry of the specified term, for a permission of a preliminary investigation judge for extension of the non-notification term. The preliminary investigation judge grants permission by an order for non-notification of the person or refuses to grant such permission. Upon non-notification of a person, the order shall set out whether the non-notification is granted for an unspecified or specified term. In the case of non-notification during a specified term, the term during which a person is not notified shall be set out.

 (5) If the basis specified in subsection (2) of this section have not ceased to exist upon expiry of the term of the permission granted for non-notification by a preliminary investigation judge specified in subsection (4) of this section, the Prosecutor’s Office applies, at the latest 15 days prior to expiry of such term, for a permission from a preliminary investigation judge for extension of the non-notification term. The preliminary investigation judge grants permission by an order pursuant to the provisions of subsection (4) of this section.

 (6) A person shall be immediately notified of surveillance activities upon expiry of the permission for non-notification or refusal to grant permission for the extension thereof.

 (7) When a person is notified of surveillance activities conducted with respect to him or her, the procedure for appeal shall be explained to him or her.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹⁴.  Submission of information collected by surveillance activities for examination

 (1) The person who has been notified pursuant to § 126¹³ of this Code shall be permitted at his or her request to examine the data collected with respect to him or her and the photographs, films, audio and video recordings and other data recordings made in the course of the surveillance activities. With the permission of the Prosecutor’s Office, the following information need not be submitted until the corresponding bases cease to exist:
 1) information concerning the family or private life of other persons;
 2) information the submission of which may damages the rights and freedoms of another person which are guaranteed by law;
 3) information which contains state secrets, classified information of foreign states or secrets of another person that are protected by law;
 4) information the submission of which may endanger the life, health, honour, good name and property of an employee of a surveillance agency, police agent, undercover agent, person who has been recruited for secret cooperation or another person who has been engaged in surveillance activities or of persons connected with them;
 5) information the submission of which may endanger the right of a police agent, undercover agent and person who has been recruited for secret cooperation to maintain the confidentiality of cooperation;
 6) the submission of which may result in communication of information concerning the methods, tactics of a surveillance agency and the equipment used in conduct of surveillance activities;
 7) information which cannot be separated or disclosed without information specified in clauses 1)-6) of this subsection becoming evident.

 (2) Upon submission of or refusal to submit information collected by surveillance activities for examination to a person, the procedure for appeal shall be explained to him or her.

 (3) The procedure for notification of surveillance activities and submission of surveillance files shall be established by a regulation of the Government of the Republic on the proposal of the minister responsible for the area.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹⁵.  Supervision over surveillance activities

 (1) the Prosecutor’s Office shall exercise supervision over the compliance of surveillance activities with the permission provided for in § 126⁴ of this Code.

 (2) The committee of Riigikogu specified in § 36 of the Security Authorities Act shall exercise supervision over the activities of surveillance agencies. A surveillance agency shall submit a written report to the committee through the appropriate ministry at least once every three months.

 (3) The Ministry of Justice shall publish on its website once a year a report on the basis of the information obtained from surveillance agencies, Prosecutor’s Offices and courts, which contains the following information concerning the previous year:
 1) number and type of opened surveillance files;
 2) number of permissions for surveillance activities by types of surveillance activities;
 3) number of persons notified of conduct of surveillance activities and number of persons in the case of whom notification was postponed pursuant to subsection 126¹³ (4) of this Code for more than one year.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹⁶.  Filing of appeals in connection with surveillance activities

 (1) An appeal may be filed pursuant to the procedure provided for in Chapter 15 of this Code against the court order that grants permission for surveillance activities on the basis specified in this Code.

 (2) An appeal may be filed pursuant to the procedure provided for in Subchapter 5 of Chapter 8 of this Code against the course of surveillance activities conducted on the basis specified in this Code, non-notification thereof and refusal to submit information collected thereby.
[RT I, 29.06.2012, 2 – entry into force 01.01.2013]

§ 126¹⁷.  Surveillance activities information system

 (1) The surveillance activities information system (hereinafter information system) is a database belonging to the State Information Systems maintained for processing of the surveillance activities information provided for in this Code, the objective of which is to:
 1) provide an overview of surveillance activities conducted by surveillance agencies;
 2) provide an overview of requests of surveillance agencies and Prosecutor’s Offices for conduct of surveillance activities;
 3) provide an overview of permissions issued by Prosecutor’s Offices and courts for conduct of surveillance activities;
 4) provide an overview of notification of surveillance activities and submission of information collected by surveillance activities;
 5) reflect information concerning the surveillance activities conducted;
 6) enable the organisation of the activities of surveillance agencies, Prosecutor’s Offices and courts;
 7) collect statistics on surveillance activities which are necessary for the making of decisions concerning criminal policy;
 8) enable electronic forwarding of data and documents.

 (2) The information system shall be established and the statutes thereof shall be approved by the Government of the Republic.

 (3) The chief processor of the information system is the Ministry of Justice.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

 (4) The minister responsible for the area may organise the activities of the information system by a regulation.
[RT I, 29.06.2012, 2 – entry into force 01.01.2015]

Chapter 3² PASSENGER NAME RECORD (PNR) 
[RT I, 05.02.2019, 1 - entry into force 15.02.2019]

§ 126¹⁸.  Processing of passenger name record (PNR)

 (1) A body conducting proceedings may request the passenger name record (PNR) from a passenger information unit if this is necessary for the achievement of the objectives of the criminal proceedings.

 (2) Processing of the passenger name record (PNR) is permitted only in the case of the criminal offences listed in clauses 489⁶ (1) 1)-16), 18)-20), 22), 23), 25)-28) and 30)-32) of this Code.
[RT I, 05.02.2019, 1 – entry into force 15.02.2019]

Chapter 4 SECURING OF CRIMINAL PROCEEDINGS 

Subchapter 1 Preventive Measure 

§ 127.  Choice of preventive measure

 (1) A preventive measure shall be chosen taking into account the probability of absconding from criminal proceedings or execution of a court judgment, continuing commission of criminal offences, or destruction, alteration or falsification of evidence, the degree of the punishment, the personality of a suspect, accused or convicted offender, his or her state of health and marital status, and other circumstances relevant to the application of preventive measures.

 (2) A preventive measure is altered pursuant to the provisions of this Code concerning application of preventive measures.

§ 128.  Prohibition on departure from residence

 (1) Prohibition on departure from the residence means the obligation of a suspect or accused or the representative of a suspect or accused who is a legal person not to leave his or her residence for more than seventy-two hours without the permission of the body conducting the proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) A prohibition on departure from the residence shall be applied by an order which shall be signed by a suspect or accused or the representative of a suspect or accused who is a legal person. A person shall be cautioned upon the obtainment of a signature that in the case of violation of the preventive measure a fine may be imposed on the person or a more severe preventive measure may be applied with regard to him or her.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) In pre-court proceedings, the prohibition on departure from residence may be imposed for not longer than one year. In the case of particular complexity or extent of a criminal matter or in exceptional cases arising from international cooperation in criminal proceedings, the Prosecutor’s Office may extend the term of the prohibition on departure from residence in pre-court proceedings for more than six months.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) The preliminary investigation judge may, at the request of the Prosecutor’s Office, or at the request of a party to judicial proceedings, by court order, impose a fine on a person who violates the prohibition on departure from residence.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 129.  Supervision over members of Defence Forces

  A suspect or accused who is a member of the Defence Forces serving in compulsory military service may, by way of a preventive measure, be subjected to the supervision of the command staff of his or her military unit on the basis of an order.
[RT I 2008, 35, 212 – entry into force 01.01.2009]

§ 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 order.

 (2) A suspect or accused may be taken into custody at the request of the Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court order if he or she is likely to abscond from the criminal proceedings or continue to commit criminal offences and taking into custody is inevitable.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (3) In pre-court proceedings, the suspect or accused may be held in custody only within the time limits provided for in § 131¹ of this Code.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (3¹) [Repealed – RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (4) An accused who has been prosecuted and is at large may be taken into custody on the basis of an order of a county or circuit court if he or she has failed to appear when summoned by a court and may continue absconding from the judicial proceedings.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (4¹) 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 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.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (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 the 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.

§ 131.  Procedure for taking into custody

 (1) The Prosecutor’s Office shall immediately notify the counsel of preparation of an application for an arrest warrant.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (2) On the order of the Prosecutor’s Office, an investigative body shall convey a suspect or accused with regard to whom an application for an arrest warrant has been prepared to a preliminary investigation judge for consideration of the application.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (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 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. In the case of a minor who is taken into custody, a preliminary investigation judge shall assess particularly thoroughly the possible negative effects relating to taking into custody on the person held in custody.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (3¹) A preliminary investigation judge may organise the participation of the persons specified in subsections (2) and (3) of this section when considering 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, 21.06.2014, 11 – entry into force 01.07.2014]

 (3²) In the case a minor is taken into custody, a court may order that the taking into custody is replaced by placement of the minor in a closed child care institution and indicate in the arrest warrant the closed children's institution where the minor taken into custody is placed. Accompanying of a minor taken into custody outside the closed child care institution shall be performed in comply with the procedure provided for in § 7⁴¹ of the Police and Border Guard Act.
[RT I, 05.12.2017, 1 – entry into force 01.07.2018]

 (3³) A minor taken into custody who violates the terms and conditions of stay in a closed children's institution may be transferred to a prison for serving the punishment based on a report of the manager of the closed child care institution and with the permission of a court.
[RT I, 05.12.2017, 1 – entry into force 01.07.2018]

 (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.

§ 131¹.  Time limits for holding in custody during pre-court proceedings

 (1) During pre-court proceedings, a person suspected or accused of a criminal offence in the first degree may not be held in custody for more than six months and a person suspected or accused of a criminal offence in the second degree for more than four months. A suspect or accused who is a minor may not be held in custody during pre-court proceedings for more than two months.

 (2) In the case of particular complexity or extent of a criminal matter or in exceptional cases arising from international cooperation in criminal proceedings, a preliminary investigation judge may extend the time limit for holding in custody as specified in subsection (1) of this section on an application of the Prosecutor General. In a criminal case dealt with under Council Regulation (EU) 2017/1939, the aforementioned application is made by a European Prosecutor or a European Delegated Prosecutor.
[RT I, 29.12.2020, 1 – entry into force 08.01.2021]

 (3) The time limits specified in subsections (1) and (2) of this section shall not include the time spent in provisional custody and in custody for surrender in a foreign country in the case of a person whose extradition has been applied for by the Republic of Estonia or the time a person was held in custody in pre-court proceedings based on a decision of a competent authority of a foreign state prior to assumption of criminal proceedings by the Republic of Estonia.

 (4) Upon taking a person into custody, a preliminary investigation judge shall issue an authorisation for up to two months to hold the suspect or the accused in custody. The preliminary investigation judge may extend the specified time limit based on a reasoned request of the Prosecutor’s Office by up to two months at a time, taking into consideration the restriction provided for in subsections (1) and (2) of this section.

 (5) If the degree of a criminal offence of which the person held in custody is suspected or accused is changed during the time of holding in custody, the provisions of subsection (1) of this section apply according to the new legal assessment of the criminal offence as of the time when the basis for suspecting or accusing the person according to the new degree of criminal offence becomes evident.

 (6) A request for extension of the time limit on holding in custody is submitted and considered in accordance with the rules provided in § 131 of this Code.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

§ 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.

 (1¹) The Prosecutor’s Office or an investigative body with an order of the Prosecutor’s Office shall inform a victim who is a natural person of taking into custody and determine his or her wish to receive information about release of the person held in custody in the case the information can prevent danger to the victim.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

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

 (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 a court shall formalise a refusal to take into custody or extend the term for holding in custody by an order.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

 (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. When the person held in custody is released, the Prosecutor’s Office or the investigative body with an order of the Prosecutor’s Office shall inform the victim who is a natural person thereof in the case he or she so requested and the information can prevent danger to the victim.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

§ 135.  Bail

 (1) A preliminary investigation judge or a court may, with the consent of the suspect or accused, impose bail instead of taking into custody. The terms and conditions of and the time limit on imposition of bail instead of taking into custody may be prescribed in an arrest warrant.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (2) Bail is a sum of money paid to a prescribed account as a preventive measure by a suspect, accused or another person on behalf of him or her.
[RT I, 31.01.2014, 6 – entry into force 01.07.2014]

 (3) A suspect or accused shall be released from custody after the bail has been received into a prescribed account.
[RT I, 31.01.2014, 6 – entry into force 01.07.2014]

 (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 order. To resolve 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.

 (5¹) At the request of the 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]

 (5²) A preliminary investigation judge may organise the participation of the persons specified in subsection (5) of this section in the resolution 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 charged to public revenue on the basis of a court judgment or order on termination of criminal proceedings after deduction of the amount necessary for reimbursement of the expenses relating to the criminal proceedings.
[RT I 2008, 19, 132 – entry into force 23.05.2008]

 (6¹) 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) criminal proceedings are 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 duration of custody on an application of the Prosecutor General, of a European Prosecutor or of a European Delegated Prosecutor

  [RT I, 29.12.2020, 1 – entry into force 08.01.2021]
The Prosecutor’s Office, a person held in custody or his or her counsel may file an appeal pursuant to the rules provided for in Chapter 15 of this Code against the imposition of, or a refusal to impose, pre-trial custody or against an extension, on an application of the Prosecutor General or of a European Prosecutor or a European Delegated Prosecutor, of the duration of such custody, or of a refusal to extend such duration.
[RT I, 29.12.2020, 1 – entry into force 08.01.2021]

§ 137.  Verification of reasons for bail

  [RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (1) A suspect, accused or counsel may submit a request to a preliminary investigation judge or court to verify the reasons for bail after four months have expired from imposition of bail.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (2) A preliminary investigation judge shall consider a request within five days as of receipt of the request. A prosecutor, counsel and, if necessary, 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 consideration of the previous request.
[RT I, 19.03.2015, 1 – entry into force 01.09.2016]

 (2¹) A preliminary investigation judge or court may organise the participation of the persons specified in subsection (2) of this section in the resolution 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 resolve a request, a preliminary investigation judge shall examine the criminal file. The request shall be resolved by a court order which is not subject to appeal.

 (3¹) If a preliminary investigation judge or court finds that further imposition of bail is not justified, the court order 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) [Repealed – RT I, 19.03.2015, 1 – entry into force 01.09.2016]

§ 137¹.  Commutation of holding in custody to electronic surveillance

 (1) At the request of a suspect, accused or prosecutor, a preliminary investigation judge or court, with the consent of the person held in custody, may commute holding in custody to the obligation to submit to electronic surveillance provided for in subsection 75¹ (1) of the Penal Code. The time of electronic surveillance shall not be deemed to be custody pending trial or detention and it is not included in the term of punishment.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

 (1¹) Upon expiry of the term of electronic surveillance or the term provided for in § 75¹ of the Penal Code, a preliminary investigation judge at the request of the Prosecutor’s Office or a court decides on the application of further preventive measures.
[RT I, 12.07.2014, 1 – entry into force 01.01.2015]

 (1²) The provisions of subsection 75¹ (3) of this Code apply to the term of application of electronic surveillance to a person in pre-court proceedings.
[RT I, 07.07.2017, 1 – entry into force 01.11.2017]

 (2) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) When a preliminary investigation judge or court receives a request for commutation of holding in custody, he or she assigns a task to a probation officer of the residence of the suspect or accused to submit an opinion within five working days about the possibility of application of electronic surveillance.

 (4) Electronic surveillance is applied by court order. For the purposes of resolving a request for electronic surveillance, the person held in custody shall be taken before a preliminary investigation judge or court; the prosecutor and, at the request of the person held in custody, his or her counsel shall be summoned to the judge or court and their opinions shall be heard.

 (5) A preliminary investigation judge or court may organise the participation of the persons specified in subsection (4) of this section in the resolution of a request for application of electronic surveillance by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code.

 (6) Before making a decision on application of electronic surveillance, a preliminary investigation judge or court shall submit the opinion of a probation supervisor about the possibility of application of electronic surveillance at the place of residence of the suspect or accused.

 (7) A suspect or accused shall be released from custody and electronic surveillance shall be applied to him or her upon expiry of a term for filing of an appeal against the order or entry into force of a court order made by a higher court.

 (8) If a suspect or accused does not submit to electronic surveillance, a preliminary investigation judge or court shall commutate electronic surveillance to taking in custody by its order based on a report of the probation officer.

 (9) The provisions concerning bail in this Code apply to application of or refusal to apply electronic surveillance in pre-court proceedings and verification of reasons for application of surveillance.
[RT I, 07.07.2017, 1 – entry into force 01.11.2017]

§ 137².  Release from custody of persons who committed unlawful act in state of mental incompetence or persons with severe mental disorder

 (1) If it becomes evident as a result of expert assessment that a person held in custody committed an unlawful act in a state of mental incompetence, he or she is mentally ill, feeble-minded or he or she has another severe mental disorder, he or she shall be immediately released from custody by an order of the Prosecutor’s Office, unless otherwise provided for in § 395¹ of this Code.

 (2) An investigative body shall immediately communicate the expert's report specified in subsection (1) of this section to the Prosecutor’s Office.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

Subchapter 2 Other Means of Securing Criminal Proceedings 

§ 138.  Consequences of failure to appear when summoned by body conducting proceedings

 (1) A fine or detention for up to five days shall be imposed by a preliminary investigation judge at the request of the Prosecutor’s Office or by a court on its own initiative on the basis of a court order on a person who failed to appear when summoned by the body conducting the proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) On the basis of a complaint submitted by a person on whom a fine or detention was imposed, a court may annul the fine or detention imposed on the person for failure to appear if the person proves that he or she failed to appear for a good reason provided for in § 170 of this Code.

 (3) Compelled attendance may be imposed, pursuant to the provisions of § 139 of this Code, on a suspect, accused, convicted offender, victim, civil defendant or witness who failed to appear when summoned by a body conducting proceedings or such person may be declared a fugitive pursuant to the provisions of § 140 of this Code.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 138¹.  Imposition of fines

 (1) In the case provided by this Code where a court or preliminary investigation judge has the right to impose a fine, the amount of such fine may be up to 3200 euros, unless this Code provides otherwise. In determining the amount of a fine, a court or preliminary investigation judge shall take the financial situation of the person and other circumstances into consideration.

 (2) Instead of or in addition to a minor, a fine may be imposed on his or her parent or guardian, unless this Code provides otherwise. Instead of an adult with restricted active legal capacity, a fine may be imposed on his or her guardian. No fine shall be imposed on minors of less than 14 years of age and persons with restricted active legal capacity.

 (3) A fine may be imposed on a person only after a warning of fine has been given to him or her, except in the case where prior notice is impossible or unreasonable.

 (4) A fine imposed on a person for non-performance of an obligation does not release the person from performing the obligation. If an obligation is not performed after the imposition of a fine, a new fine may be imposed.

 (5) A copy of the order whereby a fine is imposed shall be immediately delivered to the person fined or the representative thereof.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 139.  Compelled attendance

 (1) Compelled attendance means conveyance of a suspect, accused, convicted offender, victim, civil defendant or witness to an investigative body, forensic institution, Prosecutor’s Office or court for the performance of a procedural operation and conveyance of a convicted offender to a prison or house of detention for serving the sentence.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) Compelled attendance may be applied if:
 1) a person who received a summons fails to appear without a good reason specified in § 170 of this Code;
 1¹) there is reason to believe that the person evades criminal proceedings;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 2) prior summoning of the person may interfere with criminal proceedings, or if the person refuses to come voluntarily at the order of the investigative body or Prosecutor’s Office;
 3) the person evades execution of a court judgment.

 (3) A person shall be conveyed to the Prosecutor’s Office or court on the basis of an order of the Prosecutor’s Office or court order which shall set out:
 1) the name of the person subjected to compelled attendance, his or her status in the proceedings, residence and place of employment or name of the educational institution;
 2) the reason for compelled attendance;
 3) the time of execution of the order and the place where the person is to be taken.

 (3¹) Compelled attendance to a prison or a house of detention may be applied to a convicted offender on the bases of and pursuant to procedure provided for in subsection 414 (3) of this Code.
[RT I 2008, 19, 132 – entry into force 23.05.2008]

 (4) An order on compelled attendance shall be communicated to an investigative body for execution.
[RT I 2008, 32, 198 – entry into force 15.07.2008]

 (5) A person subjected to compelled attendance may be detained for as long as is necessary for the performance of the procedural operation which is the basis for application of compelled attendance but not for longer than forty-eight hours.

§ 140.  Search

 (1) A body conducting the proceedings may declare a suspect, accused, victim, civil defendant or witness a fugitive by an order if he or she has failed, without a good reason specified in § 170 of this Code, to appear when summoned and if his or her whereabouts are unknown, and a body conducting the proceedings may declare a convicted offender a fugitive if he or she absconds from the execution of the court judgment.

 (2) An order on declaring a person a fugitive shall set out:
 1) the facts relating to the criminal offence;
 2) the name of the fugitive, his or her status in the proceedings, residence and place of employment or name of the educational institution.

 (2¹) If necessary, the body conducting proceedings shall set out in an order on declaring a person fugitive the obligation to bring the fugitive, upon his or her apprehension, before the body conducting proceedings pursuant to the provisions on compelled attendance.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) An order on declaring a person a fugitive shall be communicated for execution to a surveillance agency which conducts or conducted proceedings in the criminal matter in relation to which the person was declared a fugitive. If proceedings in the criminal matter were conducted by an investigative body which is not a surveillance agency, the order on declaring a person a fugitive shall be communicated to the Police and Border Guard Board for execution.
[RT I, 29.06.2012, 2 – entry into force 09.07.2012]

 (3¹) In the case a suspect, accused or convicted offender is declared a fugitive, an arrest warrant or a decision which has entered into force and is the basis for the enforced imprisonment shall be communicated to a surveillance agency together with the order declaring a person a fugitive.
[RT I, 29.06.2012, 2 – entry into force 09.07.2012]

 (4) Upon apprehension of a fugitive, compelled attendance at a body conducting proceedings shall be imposed on him or her or the fugitive is brought to the place of custody pending trial or imprisonment, and the body conducting the proceedings shall be notified thereof.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 140¹.  Identification

 (1) Bodies conducting proceedings may identify participants in the proceedings, convicted offenders, experts and witnesses in accordance with the rules provided in section 32 of the Law Enforcement Act.

 (2) If identification pursuant to the procedure provided for in subsection (1) of this section is impossible or disproportionately difficult, identification may be done in accordance with the rules provided in subsection section 33 of the Law Enforcement Act.
[RT I, 13.03.2014, 4 – entry into force 01.07.2014]

§ 140².  Prohibition on stay

  In order to ensure performance of procedural operations, prohibition to stay may be applied with regard to a particular place or particular person pursuant to the procedure provided for in § 44 of the Law Enforcement Act.
[RT I, 13.03.2014, 4 – entry into force 01.07.2014]

§ 141.  Exclusion of suspect or accused from office

 (1) A suspect or accused shall be excluded from office at the request of the Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court order if:
[RT I 2004, 46, 329 – entry into force 01.07.2004]
 1) he or she may continue to commit criminal offences in case he or she remains in the office;
 2) his or her remaining in office may prejudice criminal proceedings in the case.

 (2) A copy of an order on exclusion of a suspect or accused from office shall be submitted to the suspect or accused and sent to the head of his or her place of employment.

 (3) If the grounds for exclusion from office 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 exclusion from office by an order.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 141¹.  Temporary restraining order

 (1) For protection of private life or other personality rights of a victim, a person suspected or accused of a crime against the person or against a minor may be prohibited to stay in places determined by a court, to approach the persons determined by the court or communicate with such persons at the request of the Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court order.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

 (1¹) A court may apply, together with a temporary restraining order, the electronic surveillance provided for in § 75¹ of the Penal Code with the consent of the suspect or accused.
[RT I, 12.07.2014, 1 – entry into force 01.01.2015]

 (1²) In urgent cases, the protection order provided for in subsection (1) of this section may be established by an order of a prosecutor's office and regardless of the consent of the victim. In this case, the prosecutor's office shall inform a court of the establishment of the protection order within two working days and the court decides, taking into consideration the consent of the victim, on the admissibility of the protection order pursuant to the procedure provided for in subsections (1³)-(6) of this section.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

 (1³) An order on application of the temporary protection order specified in subsection (1) of this section and an order on admissibility of the protection order provided for in subsection (1²) may be drawn up as an inscription on the request or order of the prosecutor's office.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

 (2) A temporary restraining order is applied to a suspect or accused with the consent of the victim.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

 (3) In order to issue an order on application of a temporary restraining order, a preliminary investigation judge shall examine the criminal file and interrogate the suspect or accused and, if necessary, the victim with a view to ascertaining whether the request for temporary restraining order is justified. A prosecutor and, at the request of the suspect or accused, a counsel shall also be summoned before the court or the preliminary investigation judge and their opinions shall be heard.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

 (3¹) A preliminary investigation judge or court may organise the participation of the persons specified in subsection (3) of this section in the resolution of a request for application of a restraining order 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) An order on temporary restraining order shall set out:
 1) the reasons for the temporary restraining order;
 2) the conditions of the temporary restraining order.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

 (5) A victim, Prosecutor’s Office, suspect, accused or his or her counsel may file an appeal pursuant to the procedure provided for in Chapter 15 of this Code against application of temporary restraining order or refusal to apply temporary restraining order.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

 (6) A copy of an order on establishment of temporary restraining order shall be submitted to a suspect or accused and victim and shall be sent to the Police and Border Guard Board. A preliminary investigation judge or court shall also immediately notify other persons whom the restraining order concerns of the application of temporary restraining order.
[RT I, 29.12.2011, 1 – entry into force 01.01.2012]

§ 141².  Verification of reasons for exclusion from office and temporary restraining order

  [RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (1) A suspect or accused or his or her counsel may, upon expiry of four months from the exclusion from office or application of temporary restraining order, submit a request to a preliminary investigation judge or court to verify the reasons for the exclusion from office or application of temporary restraining order or to amend the conditions of application of temporary restraining order. A new request may be submitted four months after consideration of the previous request.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (1¹) If a temporary restraining order restricts the right of a suspect or accused to use his or her dwelling, the suspect, accused or his or her counsel may submit the request described in subsection (1) of this section upon expiry of one month from the application of a temporary restraining order.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) A preliminary investigation judge or court shall consider a request within five days as of the receipt thereof. The prosecutor, suspect or accused and, at the request of the suspect or accused, his or her counsel shall be summoned before the preliminary investigation judge or court. The victim shall be also summoned to the consideration of an application for verification of the reasons for a temporary restraining order.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2¹) A preliminary investigation judge or court may organise the participation of the persons specified in subsection (2) of this section in the resolution 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) A request shall be resolved by a court order. An order made on considering a request is not subject to contestation, except in the case the conditions of the temporary restraining order are amended.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

§ 141³.  Amendment and annulment of temporary restraining order at request of victim and Prosecutor’s Office

 (1) At the request of a victim or at the request of the Prosecutor’s Office and with the consent of the victim, a preliminary investigation judge or court may amend the conditions of a temporary restraining order or annul the temporary restraining order.

 (2) In order to issue an order on amendment of the conditions of or annulment of a temporary restraining order, a preliminary investigation judge or court shall examine the criminal file and interrogate the suspect or accused and the victim with a view to ascertaining whether the request is justified. The prosecutor, victim, suspect or accused and, at the request of the suspect or accused, his or her counsel shall be summoned before the preliminary investigation judge or court.

 (3) A copy of an order on amendment of the conditions of or annulment of a temporary restraining order shall be submitted to the suspect or accused and victim and to other persons whom the restraining order concerns.
[RT I 2006, 31, 233 – entry into force 16.07.2006]

§ 141⁴.  Securing of confiscation, substitution thereof, civil action, proof of claim in public law and fine to extent of assets

  [RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (1) For securing confiscation, substitution thereof, civil action, proof of claim in public law or fine to the extent of assets, assets may be seized in the case of reasonable suspicion of criminal offence pursuant to the procedure provided for in § 142 of this Code, or other measures for securing an action provided for in § 378 of the Code of Civil Procedure may be applied if there is reason to believe that failure to secure the claim of the victim, confiscation, substitution thereof or fine to the extent of assets may impair the execution of a court decision or make it impossible.
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (2) The procedure provided for in § 142 of this Code shall be complied with upon application of measures for securing actions.
[RT I, 26.02.2014, 1 – entry into force 08.03.2014]

 (3) A means for securing a proprietary claim shall be chosen such that the means, when applied, would burden the suspect, accused, civil defendant or third party only in so far as this can be considered reasonable taking account of the circumstances. The amount of a financial claim must be taken into consideration upon securing thereof.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (4) A court may implement several measures concurrently to secure a financial claim.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

§ 142.  Seizure of property

 (1) The objective of seizure of property is to secure a civil action, proof of claim in public law, confiscation or replacement thereof or fine to the extent of assets. 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.
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (2) Assets are seized at the request of the Prosecutor’s Office on the basis of an order of a preliminary investigation judge or on the basis of a court order, taking into account the exceptions specified in subsection (3) of this section.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (2¹) Seizure of any assets held in an account with a credit or financial institution means imposition of such restrictions on the use of the account during which the credit institution or financial institution does not comply with any account debiting instructions to the extent of the assets seized.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (3) In the cases of urgency, assets may be seized on the basis of an order of the Prosecutor’s Office. A preliminary investigation judge must be informed of seizure of assets within 24 hours as of the seizure and the preliminary investigation judge shall deliver a decision to grant or refuse to grant an authorisation by an order immediately but not later than 72 hours after becoming aware of the seizure. If the preliminary investigation judge refuses to grant permission, the property shall be released from seizure immediately.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

 (4) Upon seizure of property in order to secure a civil action, the extent of the damage caused by the criminal offence shall be taken into consideration.

 (5) An order on the seizure of property shall be immediately submitted for examination to the person whose property is to be seized or to his or her adult family member, or if the property of a legal person is to be seized, to the representative of the legal person, and he or she shall sign the order to this effect. If obtaining of a signature is impossible, the order shall be communicated to the person whose property is to be seized or to the representative of the legal person who is the owner of the property to be seized. If property is seized in the courses of performance of a procedural operation, the representative of the local government shall be involved in the absence of the responsible person or representative.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) If necessary, an expert or qualified person who participates in a procedural operation shall ascertain the value of the seized property on site.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (7) Seized property shall be confiscated or deposited into storage with liability. Property shall be deposited into storage with liability on the basis of a deposit contract. The depositary shall ensure that property be preserved and the depositary shall be warned about a criminal punishment for unauthorised use, disposal of or intentional damage to the property.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (8) In order to seize an immovable, a preliminary investigation judge shall submit an order on the seizure to the Land Registry Department of the Tartu County Court in order for a prohibition on the disposal of the immovable to be made in the land register.
[RT I, 21.06.2014, 8 – entry into force 01.01.2015]

 (9) For seizure of a movable or right entered in a state register, the Prosecutor’s Office shall submit an order on seizure to the relevant state register, for seizure of registered securities to the central securities depository.
[RT I, 26.06.2017, 1 – entry into force 06.07.2017]

 (10) Property which pursuant to law is not be subject to a claim for payment shall not be seized.

 (11) If the grounds for the seizure of property cease to exist before the completion of pre-court proceedings, the Prosecutor’s Office or preliminary investigation judge shall release the property from seizure by an order. Immovable property is released from seizure by an order of a preliminary investigation judge.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 143.  Report of seizure of property

 (1) The report of seizure of property shall set out:
 1) the names and characteristics of the seized objects and the number, volume or weight and value of the objects;
 2) a list of property taken over or deposited into storage with liability;
 3) absence of property to be seized if such property is missing.

 (2) A list of seized property may be appended to the report of seizure of property and a notation concerning the list is made in the report. In such case, the report shall not contain the information listed in clause (1) 1) of this section.

§ 143¹.  Additional restrictions applied to persons whose personal liberty has been restricted

 (1) If there is sufficient reason to believe that a suspect or accused who is held in custody or imprisoned or serving detention may adversely affect the conduct of criminal proceedings by his or her actions, the Prosecutor's Office or court may issue the order to transfer the suspect or accused, or to isolate the suspect or accused from other remand or convicted prisoners or persons serving a detention. The Prosecutor's Office or court may also, by order, restrict or totally prohibit the following with regard to a suspect or accused:
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 1) right to short or long-term visit;
 2) right to correspondence or use of telephone;
 3) right to prison leave;
 4) right to prison leave under supervision or release.

 (2) The order shall set out:
 1) the name of the suspect or accused;
 2) the reasons for and extent of transfer or restriction of rights;
 3) the term for application of transfer or restrictions.

 (3) The order shall be sent to the prison or house of detention to be executed without delay. A copy of the order shall be sent to the suspect or accused.

 (4) The restriction specified in clause (1) 2) of this section shall not extend to the correspondence and use of telephone for communication with state agencies, local governments and their officials and with a criminal defence counsel.
[RT I 2006, 63, 466 – entry into force 01.02.2007]

Chapter 5 PROCEDURAL DOCUMENTS, TRANSLATION, INTERPRETATION AND SUMMONING 

Subchapter 1 Procedural Documents 

§ 144.  Language of procedural documents

 (1) Procedural documents shall be prepared in the Estonian language. If a procedural document is prepared in another language, a translation into Estonian shall be appended thereto.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) Translation into the Estonian language of procedural documents prepared in other languages by investigative bodies and the Prosecutor’s Office in terminated criminal proceedings shall be appended at the order of the Prosecutor's Office or at the request of a participant in proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 145.  Order

 (1) An order is:
 1) a substantiated determination on a procedural issue by the body conducting proceedings which is formalised in writing;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 1¹) a determination terminating criminal proceedings, made in accordance with the rules provided in subsection 206 (1¹) of this Code;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 1²) in the case provided in this Code, a determination on a procedural issue which is endorsed on the request and whose reasons are not provided;
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]
 2) a determination on a procedural issue which is made in accordance with the rules provided in section 137 of this Code and entered in the minutes of the court session as the result of resolving a specific issue in judicial proceedings and whose substantiation is not provided.

 (2) The introduction of a reasoned order shall set out:
 1) the date and place of preparation thereof;
 2) the official title and name of the person who prepared the order;
 3) the title of the criminal matter: the number of the criminal matter and the legal assessment of the criminal offence or the name of the suspect or accused.
[RT I 2006, 21, 160 – entry into force 25.05.2006]

 (3) The main part of a reasoned order shall set out:
 1) the reasons for the order;
 2) the basis for the order under procedural law.

 (4) The final part of a substantiated order shall set out the determination made as a result of resolution of the criminal matter or a specific issue arising within that matter.

 (4¹) The court may add to an order, whereby a participant in proceedings is ordered to pay an amount of money to the Republic of Estonia that arises from a claim which has not arisen from participation of the state or administrative body of the state in the proceedings as a participant in proceedings, the data required for payment of the claim in a separate document.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (4²) A list of the data required for the fulfilment of the claim specified in subsection (4¹) of this section and the technical requirements for formalising these shall be established by a regulation of the minister responsible for the area.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (5) An order shall be prepared in accordance with the additional requirements for the content thereof.

 (6) In the case provided by this Code, a reasoned order shall be submitted for examination to a participant in the proceedings and his or her rights and obligations shall be explained to him or her and the participant shall sign the order to this effect.

 (7) An order made by a body conducting the proceedings in a criminal matter heard by the body is binding on everyone.

§ 146.  Report of investigative activities and other procedural operations

 (1) Report of the conditions, course and results of investigative activities or other procedural operations shall be made in typewritten form or in clearly legible handwriting. If necessary, the assistance of a secretary shall be used.

 (2) The introduction of the report shall set out:
 1) the date and place of the investigative activities or other procedural operations;
 2) the official title and name of the person preparing the report;
 3) the number of the criminal matter and the title of the investigative activities or other procedural operations;
[RT I 2004, 46, 329 – entry into force 01.07.2004]
 4) in the cases provided by law, a reference to the order on the basis of which the investigative activities or other procedural operations were conducted;
 5) the status in the proceedings of the person subject to the investigative activities or other procedural operations, the person's name, residence or seat, address, and telecommunications numbers or electronic mail address;
 6) the status in the proceedings, name, residence or seat and address of any other person who participated in the investigative activities or other procedural operations;
 7) the time of commencement and end of the investigative activities or other procedural operations and other information relating thereto;
 8) the performance of the investigative activities or other procedural operations pursuant to § 8 of this Code;
 9) the basis of the investigative activities or other procedural operations under procedural law.

 (3) If a witness who gives testimony in the course of investigative activities is at least fourteen years of age, the introduction of the report of the activities shall set out that the witness was warned that, pursuant to the Penal Code, refusal to give testimony without a legal basis or giving knowingly false testimony may result in a criminal punishment.

 (4) A participant in the proceedings shall sign the introduction of the report in confirmation that his or her rights and obligations were explained to him or her.

 (5) The main part of the report shall set out:
 1) the course and results of the investigative activities or other procedural operations in such detail as is necessary for the purposes of proof and in compliance with the additional requirements provided for the content of procedural operations by this Code;
 2) the technical equipment used.

 (6) The final part of the report shall set out:
 1) the names of the objects confiscated in the course of the investigative activities or other procedural operations and the manner of packaging of the objects;
 2) submission of the report for examination to the persons who participated in the investigative activities or other procedural operations;
 3) the annexes to the report.

 (7) If the report contains conclusions the comprehension of which requires specific expertise, the report shall set out the method of reaching such conclusions and the personal data of the person who made the conclusions based on specific expertise.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (8) If a witness participates in a procedural operation under a fictitious name, a copy shall be made of the minutes of the procedural operation where no other personal data besides the fictitious name shall be indicated and the witness shall not sign the copy. The original report shall be placed in an envelope specified in subsection 67 (4) of this Code which is kept separately from the criminal file.

§ 147.  Secretary

  An investigative body or Prosecutor’s Office may use the assistance of a secretary when making report of the conditions, course and results of procedural operations.

§ 148.  Annex to report of investigative activities or other procedural operations

 (1) If necessary, evidentiary information may be recorded, in addition to the report of the investigative activities or other procedural operations, on a photograph, on film, as an audio or video recording, drawing or in any other illustrative manner.

 (2) Photographs, drawings and other illustrative material shall be included in the criminal file together with the report, and films and audio and video recordings shall be packaged and stored with the criminal matter.

§ 149.  Photographs

 (1) The conditions, course and results of investigative activities or other procedural operations shall be photographed if this is considered necessary by the official of the investigative body or if the obligation to take photographs is provided for in this Code.

 (2) If negatives are used in photographing, the negatives shall be appended to the report of the investigative activities or other procedural operations.

 (3) Digital photographs shall be included in the minutes of a procedural operation or presented as an annex thereto and preserved in the form of computer files in the E-File system. Digital photographs may also be created of single shots of a video recording.
[RT I 2008, 28, 180 – entry into force 15.07.2008]

§ 150.  Films and audio and video recordings

 (1) An investigative activity or any other procedural operation or a distinct part thereof may be filmed or audio or video recorded. The witness or the participant in proceedings shall be notified thereof before the commencement of the investigative activities or other procedural operations.

 (2) The information specified in subsections 146 (2) and (3) of this Code shall be set out at the beginning of an audio or video recording. After the completion of investigative activities or other procedural operations, the recording shall be submitted to the participants in the investigative activities or procedural operations for listening or watching.

 (3) Report shall be made of investigative activities or other procedural operations on the basis of an audio or video recording of the activity or act pursuant to the procedure provided for in this Code.

 (4) An audio or video recording shall be appended to the criminal file. Later changes to an audio or video recording are prohibited.

 (5) A witness of less than 14 years of age shall not be shown the video recording of his or her hearing or the video recording of other investigative activities or procedural operations. The specified recordings need not be shown to witnesses of less than 18 years of age.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

§ 151.  Drawings

 (1) Drawings may be appended to a report of investigative activities in order to illustrate the conditions, course and results of the activities and clarify and amend the content of the report.

 (2) A drawing shall contain a reference to the report of the investigative activities and the time of preparing the report.

 (3) A drawing shall be signed by a body conducting the proceedings. If a drawing is made by a qualified person or a person subject to the investigative activities, he or she shall also confirm the authenticity of the drawing by his or her signature.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) If necessary, a body conducting the proceedings shall have another person who participated in the investigative activities sign a drawing in order to confirm the authenticity of the drawing.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 152.  Submission of report of investigative activities or other procedural operations for examination

 (1) The report of investigative activities or any other procedural operations shall be submitted for reading to the person subject to the activities or acts and to other persons who participated therein or the report shall be read to the persons at their request and a notation to this effect shall be made in the report.

 (2) Petitions concerning the conditions, course and results of investigative activities or any other procedural operations or concerning the report of the activities or acts, the requests for amendment of the report and other requests made upon examination of the report shall be entered in the same report.

 (3) A copy of a search report or of a report of seizure of property shall be submitted to the person subject to the procedural operation or to his or her adult family member or, if the person is a legal person, state or local government agency, to the representative thereof who participated in the procedural operation. In the absence of such persons, a copy of the report shall be submitted to the representative of a local government agency.

 (4) The report shall be signed by the person conducting the proceedings, qualified persons, persons subject to the act and the persons participating in the act.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) If a person specified in subsection (4) of this section refuses to sign the report or if a person is unable to sign the report due to a physical disability, a notation concerning the refusal and the reasons therefor or concerning the person's inability to sign the report shall be made in the report and confirmed by the official of the investigative body.

 (6) A witness of less than 14 years of age shall not be enabled to examine the hearing record prepared on the basis of the video recording of his or her hearing or the video recording of other investigative activities or procedural operations. The specified record need not be shown to witnesses of less than 18 years of age.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

§ 153.  Summary of pre-court proceedings

 (1) The summary of pre-court proceedings shall set out:
 1) the date and place of preparation thereof;
 2) the official title and name of the official of the investigative body;
 3) the title of the criminal matter;
 4) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution of the suspect;
 5) the suspect's criminal record;
 6) the preventive measures applied with regard to the suspect and the duration thereof;
 7) facts relating to the subject of proof which were ascertained in the pre-court proceedings, as listed in clause 62 1) of this Code;
 8) a list of evidence;
 9) a list of physical evidence and recordings, and information concerning the location thereof;
 10) information concerning the objects seized in order to secure the confiscation thereof;
 11) information concerning a civil action or a proof of claim in public law and the measures for securing the action;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 12) information concerning property which was obtained by the criminal offence;
 13) a list of the data recorded in the National Fingerprint Database, the ABIS Database and the National DNA Database.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]

 (2) The summary of pre-court proceedings shall be signed and dated by the official of an investigative body.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 154.  Statement of charges

 (1) The introduction of a statement of charges shall set out:
 1) the date and place of preparation thereof;
 2) the official title and name of the prosecutor;
 3) the title of the criminal matter;
 4) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution of the accused;
 5) the criminal record of the accused.

 (2) The main part of a statement of charges shall set out:
 1) the facts relating to the criminal offence;
 2) the nature and extent of the damage caused by the criminal offence;
 3) information concerning property which was obtained by the criminal offence;
 3¹) the mitigating and aggravating circumstances;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 3²) data on whether the victim has filed the request provided for in clause 38 (5) 2) or 4) of this Code or expressed the opinion provided for in clause 5);
[RT I, 19.03.2019, 3 – entry into force 01.07.2019]
 4) the evidence in proof of the facts which are the basis of the charge, and a reference to the facts which are intended to be proven with each piece of evidence;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 5) information concerning application and change of preventive measures applied to the accused and concerning the preventive measure in force;
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]
 5¹) in the case of the accused who is a citizen of a foreign state, information concerning the possibility to impose expulsion as a supplementary punishment provided for in § 54 of the Penal Code;
[RT I, 19.03.2019, 3 – entry into force 01.07.2019]
 6) information concerning the circumstances on the basis of which a fine to the extent of assets is calculated or the circumstances which are the basis for confiscation;
[RT I 2007, 2, 7 – entry into force 01.02.2007]
 7) [Repealed – RT I, 05.07.2013, 2 – entry into force 15.07.2013]
 8) information concerning the circumstances which are the prerequisites for the administration of addiction treatment of drug addicts or complex treatment of sex offenders;
[RT I, 15.06.2012, 2 – entry into force 01.06.2013]
 9) information concerning the children and property of the accused requiring supervision;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 10) information concerning physical evidence and other objects seized during criminal proceedings;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 11) information concerning the expenses relating of the criminal proceedings;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 12) a list of the data recorded in the National Fingerprint Database, the ABIS Database and the National DNA Database.
[RT I, 08.07.2021, 1 – entry into force 15.07.2021]
 13) data concerning appointment of a probation officer.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (3) The final part of a statement of charges shall set out:
 1) the name of the accused;
 2) the content of the charges;
 3) the legal assessment of the criminal offence pursuant to the relevant section, subsection and clause of the Penal Code.

 (4) A statement of charges shall be signed and dated by the prosecutor.

§ 154¹.  Civil action

 (1) A civil action shall be filed in writing and shall set out:
 1) the name, address and other contact details of the person filing a civil action;
 2) the name of the accused or civil defendant against whom the civil action was filed. Prior to submission of a criminal file to the victim, the victim may refuse to state the name of the accused or civil defendant in a civil action. In such case, the victim must supplement the civil action within the term provided for in subsection 225 (1) or clause 240 4) of this Code;
 3) the clearly expressed claim of the person filing the civil action;
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]
 4) the factual circumstances which are the basis for the claim of the person filing the civil action;
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]
 5) the evidence in proof of the facts which are the basis for the claim and upon which the victim intends to rely regardless of the set of evidence submitted by the Prosecutor’s Office, if the person filing the civil action is not the Prosecutor’s Office. If the civil action is filed by the Prosecutor’s Office pursuant to subsections 38¹ (3¹), (3²) or (3³) of this Code, the civil action shall set out the evidence in proof of the facts which are the basis for the claim and on which the Prosecutor’s Office intends to rely.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

 (2) In an action for compensation of non-proprietary damage, the size of the compensation claimed may be left unspecified and fair compensation at the discretion of the court may be requested.
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]

§ 154².  Proof of claim in public law

  A proof of claim in public law shall be filed in writing and it shall set out:
 1) the person filing the proof of claim in public law, his or her address and other contact details;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 2) the name of the accused of defendant against whom the proof of claim in public law is filed;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 3) the clearly expressed claim of the person filing the proof of claim in public law;
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]
 4) the basis of the claim under substantive law filed in the proof of claim in public law and the legal and factual reasoning thereof;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 5) the evidence in proof of the facts which are the basis for the claim and upon which the victim intends to rely regardless of the set of evidence submitted by the Prosecutor’s Office, if the person filing the proof of claim in public law is not the Prosecutor’s Office. If the proof of claim in public law is filed by the Prosecutor’s Office pursuant to subsections 38¹ (3¹), (3²) or (3³) of this Code, the civil action shall set out the evidence in proof of the facts which are the basis for the claim and on which the Prosecutor’s Office intends to rely.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

§ 155.  Minutes of court session

 (1) The minutes of a court session of a court of first instance or a court of appeal is a procedural document which is prepared in typewritten or word-processed form and where the clerk of the court session records the conditions and course of the hearing of a criminal matter in his or her own wording or as summarised by the judge.

 (2) The minutes of a court session shall set out:
 1) the date and place of the session and the time of commencement and end of the session;
 2) the name of the court and the composition of the panel of the court;
 3) the names of the parties to judicial proceedings, the clerk of the court session, translators, interpreters and experts;
 4) the title of the criminal matter being heard;
 5) [Repealed – RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 6) the names of the court activities in chronological order;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 7) the questions posed by parties to judicial proceedings in a cross-examination and the testimony of the person being cross-examined;
 8) the petitions and requests and the results of adjudication thereof;
 9) the titles of the orders made in the court session;
 10) the requests submitted by the parties in the summations;
 11) the requests submitted in the final statement of the accused;
 12) whether the court judgment or order was made in chambers;
 13) pronouncement of the court judgment or order and explanation of the procedure and term for appeal.

 (2¹) The clerk of a court session shall take the minutes of the session without interrupting the smooth running thereof.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2²) If a court session was audio or video recorded, the audio or video recording shall be an integral part of the minutes of the court session. If the minutes contradict the recording, the recordings shall be relied upon.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) The minutes shall be signed and dated by the presiding judge and the clerk of the court session.

§ 156.  Audio and video recording of court sessions

 (1) Court sessions shall be audio recorded. A court may also video record a court session or any part thereof.
[RT I, 31.05.2018, 2 – entry into force 01.01.2019]

 (2) If a court session or court activity is audio or video recorded, the court may use the recording in order to amend and specify the minutes of the court session.

 (3) Changes to an audio or video recording are prohibited.

 (4) Court sessions need not be recorded if:

 (1) it becomes evident before a session or in the course of a session that recording is technically impossible and if the court is convinced that holding of the court session without recording it is appropriate and in line with the interests of the parties to judicial proceedings;
 2) the session is held outside the court premises;
 3) the session is held for pronouncement of the decision;
 4) in the event of a session of the Supreme Court.
[RT I, 31.05.2018, 2 – entry into force 01.01.2019]

 (5) Court sessions are audio or video recorded in digital format.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 156¹.  Examination of recordings and minutes of court sessions

 (1) Parties to judicial proceedings have the right to receive a copy of the minutes of a court session and the recording thereof in the case the court session is recorded.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) The court shall notify the parties to judicial proceedings of the time of signing the minutes and send the minutes immediately after signing thereof by electronic means to the prosecutor and other parties to judicial proceedings who have communicated their electronic mail addresses to the court. The parties to judicial proceedings may also examine the minutes in the court office.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) At the request of a party to judicial proceedings, the court shall make the signed minutes of a court session accessible to the parties to judicial proceedings not later than three days after the day of the court session.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) A copy of the audio recording of a court session shall be issued by a court office on a digital data medium or sent by electronic means within three days after submission of the respective request. Audio recordings of court sessions are made accessible to prosecutors by means of the E-File system.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) In the case a court session is video recorded, a court shall show the video recording to a party to judicial proceedings at the court within three days after submission of the respective request.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) A copy of the minutes or recording of a court session held in camera or a part thereof shall be issued by a court only in the case this does not endanger the interests specified in subsection 12 (1) of this Code. The court shall allow a party to judicial proceedings to examine the recordings or minutes of a court session held in camera at the court.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (7) The fee chargeable for making the audio recording copies specified in subsection (1) of this section in the amount of up to five euros and the procedure for payment thereof shall be established by a regulation of the minister responsible for the area.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (8) A state fee shall be paid for a copy of the minutes specified in subsection (1) of this section in the amount provided for in subsection 61 (1) of the State Fees Act.
[RT I, 30.12.2014, 1 – entry into force 01.01.2015]

§ 156².  Making procedural documents available in judicial proceedings

 (1) The court shall make all procedural documents of judicial proceedings immediately available to parties to those proceedings in the E-File system regardless of how these are delivered to the parties.

 (2) The minister responsible for the area may establish more specific requirements by a regulation for making procedural documents available through the information system.
[RT I, 22.03.2013, 9 – entry into force 01.04.2013]

§ 157.  Court session clerks

 (1) A court session clerk is a court officer whose duty is to conduct the technical preparations for a court session, to organise the audio and video recording thereof in the cases prescribed by law or at the direction of the court and to take minutes of the conditions, course and results of the court session.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) A court session clerk is required to remove himself or herself from criminal proceedings on the bases provided for in subsections 49 (1) and (6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) If a court session clerk does not remove himself or herself on the bases provided for in subsections 49 (1) and (6) of this Code, the prosecutor, accused, counsel, victim or civil defendant may submit a petition of challenge against the clerk. Petitions of challenge shall be resolved pursuant to the procedure prescribed in subsection 59 (6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 158.  Request for amendment of minutes of court session

 (1) Within three days after signing of the minutes of the court session, the parties to judicial proceedings may submit written requests for amendment of the minutes of the session and the requests shall be included in the criminal file.

 (2) Requests shall be considered by a judge or presiding judge. If the judge or presiding judge consents to a request, he or she shall amend the minutes and the correctness of the amendments shall be confirmed by the signatures of the judge or presiding judge and the clerk of the court session.

 (3) If a judge or presiding judge does not consent to a request for amendment, the request shall be considered in a court session held within five days as of receipt of the request. If possible, the audio or video recording of a court session shall be heard in order to resolve the request. The request shall be resolved by an order of the judge or presiding judge.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 159.  Court judgment

 (1) A court judgment is a decision on the merits of a criminal matter made in the name of the Republic of Estonia as a result of judicial proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) A court judgment shall be prepared pursuant to §§ 311-314 of this Code.

 (3) The court may add to a judgment, whereby a participant in proceedings is ordered to pay an amount of money to the Republic of Estonia that arises from a claim which has not arisen from participation of the state or administrative body of the state in proceedings as a participant in proceedings, the data required for payment of the claim in a separate document.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (4) A list of the data required for the fulfilment of the claim specified in subsection (3) of this section and the technical requirements for formalising these shall be established by a regulation of the minister responsible for the area.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 160.  Restoration of document

 (1) If a procedural document or another document relevant for the resolution of a criminal matter is destroyed, lost or removed and restoration thereof is impossible, a copy of the document which has been authenticated by a court or notary is deemed to be equal to the original.

 (2) If a procedural document cannot be replaced by an authenticated copy, the procedural document shall be restored on the basis of a draft of the document if such draft exists. A restored procedural document is deemed to be valid if the person conducting the proceedings who initially prepared the document confirms by his or her signature that the restored document corresponds to the original.

§ 160¹.  Criminal file

 (1) Criminal file means a set of documents collected in a criminal matter.

 (2) The court maintains a court file on every criminal matter which it deals with and which includes, in chronological order, all the procedural documents and other documentation related to the matter. In the cases prescribed by law, other objects relevant to the proceedings shall be included in the court file.

 (3) A court file is kept in the form of a collection of written documents.

 (4) A court file may be maintained, in whole or in part, in digital form.

 (5) If a court file is maintained in digital format, paper documents are scanned and saved in the E-File system under the relevant proceedings. The E-File system shall automatically record the time of saving a document and the data of the person saving it. Documents saved in the E-File system substitute for paper documents.

 (6) The time and procedure for transfer to mandatory maintaining of digital court files, technical requirements for maintaining of digital court files and access thereto and preservation of electronic documents shall be established by a regulation of the minister responsible for the area.

 (7) More specific requirements for archiving of digital court files and access to archived files and procedural documents shall be established by a regulation of the minister responsible for the area.
[RT I, 22.03.2013, 9 – entry into force 01.04.2013]

§ 160².  Delivery of digital documents

 (1) Digital applications, appeals and other documents in criminal proceedings shall be delivered directly or through the E-File system, unless otherwise provided for in this Code. A body conducting proceedings shall enter the directly delivered digital documents in the E-File system.
[RT I 2008, 28, 180 – entry into force 15.07.2008]

 (2) For a digital document to be appended to a criminal file, the document shall be printed and included in the file. A body conducting proceedings shall certify the authenticity of the printed document and the correspondence thereof to the digital document by his or her signature and add the identification number of the document in the E-File system thereto.
[RT I 2008, 28, 180 – entry into force 15.07.2008]

 (3) Advocates, notaries, bailiffs, trustees in bankruptcy and state or local government agencies shall submit applications, complaints and other documents to a body conducting proceedings by electronic means, unless there is good reason to submit procedural documents in another format.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 160³.  Requirements for documents

 (1) The requirements for a criminal file and the standard format of a statement of defence shall be established by the minister responsible for the area.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (1¹) The standard format of documents of pre-court procedure in criminal matters shall be established by the Prosecutor General by direction provided to the Prosecutor’s Office and investigative bodies on the basis of subsection 213 (5) of this Code.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (2) The procedure for the preparation, delivery and preservation of documents signed digitally in criminal proceedings and other digital documents shall be established by the minister responsible for the area.
[RT I 2008, 28, 180 – entry into force 15.07.2008]

§ 160⁴.  Making of excerpts and obtainment of copies

 (1) If a person has the right to examine procedural documents on the basis of this Code, he or she shall be allowed to make excerpts therefrom and receive a copy thereof for a fee, unless otherwise regulated by this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) In the interests of the criminal proceedings, the Prosecutor’s Office may restrict the right to make excerpts and receive copies by a reasoned order for a certain period of time.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) A state fee shall be paid for a copy specified in subsection (1) of this section in the amount provided for in subsection 61 (1) of the State Fees Act.
[RT I, 30.12.2014, 1 – entry into force 01.01.2015]

Subchapter 2 Translation and Interpretation 

§ 161.  Translators and interpreters

 (1) If a text in a foreign language needs to be translated or interpreted or if a participant in a criminal proceeding is not proficient in Estonian, a translator or interpreter shall be involved in the proceeding. Participation of an interpreter in a procedural operation or court session may be arranged by means of any technical solutions which comply with the requirements specified in subsection 69 (2) of this Code.
[ RT I, 06.05.2020, 1 – entry into force 07.05.2020]

 (2) An interpreter or translator is a person proficient in language for specific purposes or a person interpreting for a deaf or dumb person. Other subjects of criminal proceedings shall not perform the duties of an interpreter or translator.

 (3) An interpreter or translator to whom the oath of interpreters and translators has not been administered shall be warned that he or she may be punished pursuant to criminal procedure for a knowingly false interpretation or translation.

 (4) If an interpreter or translator does not participate in a procedural operation where the participation of an interpreter or translator is mandatory, the act is null and void.

 (5) In order to ensure the correctness of interpretation or translation, an interpreter or translator has the right to pose questions to participants in the proceedings, examine the minutes of procedural operations and make statements concerning the report, and such statements shall be recorded in the minutes.

 (6) An interpretation or translation of any aspect of a procedural operation rendered by an interpreter or translator shall be precise and complete and the interpreter or translator shall maintain the confidentiality of the information which became known to him or her in the course of the translation. If a non-staff interpreter or translator is not sufficiently proficient in language for specific purposes or in the form of expression of a deaf or mute person, he or she is required to refuse to participate in the criminal proceedings.
[RT I, 04.10.2013, 3 – entry into force 27.10.2013]

 (7) A suspect or accused or his or her counsel may file an appeal against the provision of a false translation or interpretation by a translator or interpreter pursuant to the procedure provided for in § 228 of this Code.
[RT I, 04.10.2013, 3 – entry into force 27.10.2013]

§ 162.  Bases for interpreters and translators to remove themselves and removal of translators or interpreters

 (1) An interpreter or translator is required to remove himself or herself from criminal proceedings on the bases provided for in subsections 49 (1) and (6) of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) If an interpreter or translator does not remove himself or herself on a bases provided for in subsections 49 (1) and (6) of this Code, the prosecutor, suspect, accused, counsel, victim or civil defendant may submit a petition of challenge against the interpreter or translator.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2¹) A body conducting the proceedings may remove an interpreter or translator if the interpreter or translator does not perform his or her duties as required or if the quality of the interpretation or translation may impair the exercise of the right of defence of the suspect or accused.
[RT I, 04.10.2013, 3 – entry into force 27.10.2013]

 (3) Petitions of challenge shall be resolved pursuant to the procedure prescribed in subsections 59 (5)-(6) of this Code.

Subchapter 3 Summoning and Publication of Time of Court Session 
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 163.  Summons

 (1) A summons shall set out:
 1) the name of the person summoned;
 2) the official title, name and details of the person issuing the summons;
 3) the reason for summoning the person, and the capacity in which the person is summoned;
 4) if a legal person is summoned, whether the summons is addressed to a legal representative or a representative;
 5) whether appearance is mandatory;
 6) the place and time of appearance;
 7) the number of the criminal matter;
 8) the obligation to give notice of failure to appear and of the reasons for such failure;
 9) the consequences of failure to appear.

 (2) The final part of a summons shall contain a notice which shall be completed if the summons is served on the person against signature. The notice shall set out the name of the person who received the summons, his or her signature confirming the receipt of the summons, the date of receipt of the summons and the obligation of the person who receives the summons in the absence of the summoned to deliver the summons to the summoned at the earliest opportunity or give notification to the person who issued the summons if delivery of the summons is impossible. If a person refuses to accept the summons, the person serving the summons shall make a notation on the notice in the final part of the summons and confirm the notation by his or her signature.

 (3) If a person is summoned to a body conducting proceedings pursuant to the procedure provided for in § 164 of this Code, the notice provided for in subsection (2) of this section shall set out the number of the telephone or other means of communication to which the summons was sent.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

§ 163¹.  Summoning pursuant to general procedure in county court

 (1) Summoning of a witness, qualified person and expert in proceedings in a criminal matter conducted pursuant to the general procedure in a county court shall be organised by the party to judicial proceedings who applies for the hearing of the respective person in court.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) Summoning of a victim, civil defendant, third party and the representatives thereof in proceedings in a criminal matter conducted pursuant to the general procedure in a county court shall be organised by the Prosecutor's Office.

 (3) Summoning of an accused in proceedings in a criminal matter conducted pursuant to the general procedure in a county court shall be organised by the counsel or the Prosecutor’s Office as agreed in a preliminary hearing. Failing agreement, summoning of the accused shall be organised by the Prosecutor’s Office.

 (4) At the request of the parties to the judicial proceedings the court shall issue summonses to the parties in a preliminary hearing and set out the information listed in subsection 163 (1) of this Code in the summonses. The court shall indicate the details of the parties to judicial proceedings above the official title and details of the person issuing the summons.

 (5) The court shall issue to the counsel, at his or her request, the address of the person in the population register who is summoned to court as a witness at the request of the counsel.

 (6) A summons shall be served on a witness, qualified person and expert by a party to judicial proceedings or by a third party at the request of a party to judicial proceedings.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (7) If the Prosecutor’s Office performs the duties prescribed in this section, the rights specified in clauses 213 (1) 5) and 10) of this Code extend to the Prosecutor’s Office. The Prosecutor’s Office has the right to summon independently persons in judicial proceedings whose summoning has been decided in a preliminary hearing.
[RT I 2008, 32, 198 – entry into force 01.01.2009]

§ 164.  Regular procedure for service of summonses

 (1) A person shall be summoned to an investigative body, Prosecutor’s Office or court by a summons communicated by telephone or other means of communication.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

 (2) If there is reason to believe that a person absconds appearance at a body conducting proceedings or a person has expressed a wish to receive a written summons, the person shall be summoned to an investigative body, Prosecutor’s Office or court by a written summons.

 (3) The notices read by an official of an investigative body, prosecutor or court to the persons present are deemed to be equal to summonses served against signature within the meaning of subsection 165 (2) of this Code if a corresponding notation is made in the report.

 (4) A summons shall be communicated to or served on a person in sufficient time for the appearance.

 (5) Summonses may be served on any day and at any time.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 165.  Rules for service of written summonses

 (1) A written summons may be served against signed receipt on a notice, as a postal item delivered against signed receipt or by electronic means.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (2) A written summons shall be served on an adult or minor of at least fourteen years of age against signed receipt on a notice. The written summons addressed to a person who is less than fourteen years of age or suffers from a mental disorder shall be served on his or her parent or any other legal representative or guardian against signed receipt on a notice. If a summons cannot be served on the person summoned, the summons shall be served against signed receipt on a notice on an adult family member living together with the summoned or shall be sent to the place of employment or educational institution of the summoned for forwarding to him or her.

 (3) A summons sent by post is deemed to be received by the person on the date indicated in the notice of delivery of the postal service provider.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4) A summons may be served on participants in proceedings by electronic mail at the electronic mail addresses disclosed by the participants in proceedings to a body conducting the proceedings or by the employer of a participant in proceedings or published on a personal website. The summons served by electronic mail shall include a notation stating the obligation to confirm the receipt of the summons electronically. In the case no confirmation of receipt of the summons is received within three working days as of serving the summons at the electronic mail address ascertained by the body conducting the proceedings, the summons shall be served as a postal item served against signature or shall be served on the person summoned against signature.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (4¹) If a summons is made accessible through the E-File system, the person summoned shall be notified of the existence of the summons at his or her electronic mail address indicated in a procedural document or published on the Internet. The notice shall include a reference to the digital summons in the E-File system and the term for accessing thereof which is three days as of the moment of sending the summons. A summons shall not be accompanied by digital signature if the sender and the time of sending thereof can be identified through the E-File system. A summons made accessible through the E-File system is deemed delivered if the recipient opens it in the information system or confirms the receipt thereof in the information system without opening the document and in the case this is done by another person to whom access to the documents in the information system is enabled by the recipient. If the summons is not accessed through the E-File system within three days as of the date of sending thereof, the summons shall be sent as a postal item served against signature or it shall be served on the person summoned against signature.
[RT I, 22.03.2013, 9 – entry into force 01.04.2013]

 (5) Notices concerning the serving of a summons against signature, notices of delivery issued by postal service providers, the printouts of electronic mails concerning the issue of the summons and the printouts of electronic mails confirming the receipt of the summons shall be included in the criminal file. The fact of the receipt of a summons through the E-File system shall be registered in the E-File system and no printout shall be included in the criminal file.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (6) The minister responsible for the area may, by regulation, establish more specific requirements for electronic delivery of procedural documents in judicial proceedings through the E-File system.
[RT I, 22.03.2013, 9 – entry into force 01.04.2013]

§ 166.  Sending of summonses to prisoners

  A summons shall be sent to a person held in custody or imprisoned person through the head of the custodial institution who shall arrange for the appearance of the summoned.

§ 167.  Sending of summonses to persons serving in Defence Forces

  A summons shall be sent to a person serving in the Defence Forces through the direct commander who shall arrange for the appearance of the summoned.
[RT I 2008, 35, 212 – entry into force 01.01.2009]

§ 168.  Communication of summonses through notice in newspaper

 (1) If there are several victims or civil defendants or if their identities cannot be established, an investigative body, Prosecutor’s Office or court may summon such persons through a notice in a newspaper. A summons published in such manner is deemed to be served as of the publication of the notice.

 (2) A notice in a newspaper shall set out the information listed in subsection 163 (2) of this Code.

 (3) A notice shall be published in the newspaper prescribed for the publication of court notices at least twice with an interval of at least one week.

 (4) The text of a notice published in a newspaper shall be included in the criminal file.

§ 169.  Communication of summons to persons whose whereabouts are unknown

  If a summons cannot be served on a person pursuant to the procedure provided for in §§ 164-167 of this Code, he or she shall be declared a fugitive by an order of an investigative body or Prosecutor’s Office or by a court order pursuant to the provisions of § 140 of this Code.

§ 169¹.  Publication of time of court session on website of court

  The time of a court session is published on the website of a court indicating the number of the criminal matter, the name of the accused who is an adult and the initials of the accused who is a minor and the legal assessment of the criminal offence in which the person is accused pursuant to the corresponding section, subsection or clause of the Penal Code. In the case of a court session in camera, only the time of the session, number of the criminal matter and a notation that the court session is held in camera shall be published. The time of the court session shall be removed from the website when seven days have passed from the court session.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 170.  Good reason for failure to appear when summoned

 (1) If a person summoned cannot appear on the specified date, he or she shall immediately give notice thereof.

 (2) Good reason for failure to appear is:
 1) absence which is not related to evading criminal proceedings;
 2) failure to receive a summons or belated receipt of the summons;
 3) a serious illness of the person summoned or a sudden serious illness of a person close to him or her which prevents the person from appearing at the body conducting the proceedings;
 3¹) participation in a court session prescribed earlier;
[RT I 2008, 32, 198 – entry into force 15.07.2008]
 4) other circumstances which the investigative body, Prosecutor’s Office or court deems to be a good reason.

 (3) If an eyewitness to a criminal offence who has not been identified refuses to participate in criminal proceedings as a witness, an official of the investigative body may detain the person for identification for up to 12 hours and a report shall be prepared thereon.

 (4) A person shall submit a certificate concerning the occurrence of an impediment specified in clause (2) 3) of this section to the body conducting proceedings. The format and the procedure for the issue of certificates shall be established by the minister responsible for the area.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

Chapter 6 TIME-LIMITS FOR PROCEEDINGS 

§ 171.  Calculation of time-limits

 (1) Time-limits shall be calculated in hours, days and months. A time-limit shall not include the hour or day as of which the beginning of the time-limit is calculated.

 (2) If a person is detained as a suspect or taken into custody, the time-limit shall be calculated as of the moment of his or her detention. 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 judgment.
[RT I 2008, 19, 132 – entry into force 23.05.2008]

 (3) Upon the calculation of a time-limit in days, the time-limit shall end on the last working day at twenty-four hours. If the end of a time-limit calculated in days falls on a day off, the first working day following the day off shall be deemed to be the last day of the time-limit.

 (4) Upon the calculation of a time-limit in months, the time-limit shall end on the corresponding date of the last month. If the ending of a time-limit falls on a calendar month which lacks a corresponding date, the time-limit shall end on the last date of the month.

 (5) If the end of a time-limit calculated in months falls on a day off, the first working day following the day off shall be deemed to be the last day of the time-limit.

 (6) If an act is performed by an investigative body, Prosecutor’s Office or court, the time-limit shall end at the time of the end of the working hours in the corresponding agency.

 (7) A time-limit shall be deemed not to have been allowed to expire, if an appeal is posted or sent by commonly used technical communication channels before the expiry of the time-limit. A time-limit shall be deemed not to have been allowed to expire, if a person held in custody submits an appeal to the administration of the custodial institution before the expiry of the time-limit.

§ 172.  Restoration of term for appeal

 (1) A term for appeal expired with good reason shall be restored by order of the investigative body or Prosecutor’s Office or court which conducts proceedings in the criminal matter.

 (2) The following are good reasons for allowing a term for appeal to expire:
 1) absence which is not related to evading criminal proceedings;
 2) other circumstances which the investigative body, Prosecutor’s Office or court deems to be a good reason.

 (3) Restoration may be applied for within 14 days as of the day when the impediment ceased to exist.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

Chapter 7 EXPENSES RELATING TO CRIMINAL PROCEEDINGS 

Subchapter 1 Types of expenses relating to criminal proceedings 

§ 173.  Expenses relating to criminal proceedings

 (1) Expenses relating to criminal proceedings are:
 1) procedure expenses;
 2) special costs;
 3) additional costs.

 (2) Procedure expenses shall be compensated for by the obligated person pursuant to this Code to the extent determined by the body conducting proceedings.

 (3) Special costs shall be compensated for by the person by whose fault those costs are incurred. The state may be ordered to bear special costs caused by a minor.
[RT I, 05.12.2017, 1 – entry into force 01.01.2018]

 (4) Additional costs shall be borne by the person who incurs such costs.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 174.  Compensation for expenses of persons not subject to proceedings

  [RT I, 23.02.2011, 1 – entry into force 01.09.2011]
Expenses incurred by a person not subject to proceedings, except the procedure expenses specified in clauses 175 (1) 1)-3) of this Code, shall not be deemed to be procedure expenses.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

§ 175.  Procedure expenses

 (1) The following are procedure expenses:
 1) reasonable remuneration paid to the chosen counsel or representative and other necessary expenses incurred by a participant in proceedings in connection with criminal proceedings;
 2) amounts paid to victims, witnesses, experts and qualified persons pursuant to § 178 of this Code, except expenses specified in clause 176 (1) 1) of this Code;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 3) expenses incurred by a state forensic institution or any other state agency or legal person in connection with conducting expert assessment or establishment of intoxication;
[RT I 2004, 46, 329 – entry into force 01.07.2004]
 4) remuneration established for an appointed counsel and the expenses thereof to the justified and necessary extent thereof;
[RT I 2009, 1, 1 – entry into force 01.01.2010]
 5) expenses incurred in the making of copies of the materials of a criminal file for a counsel in accordance with subsection 224 (1) of this Code at the rate provided for in subsection 61 (1) of the State Fees Act;
[RT I, 30.12.2014, 1 – entry into force 01.01.2015]
 6) storage fees and expenses relating to the forwarding and destruction of evidence;
 7) expenses relating to the storage, transfer and destruction of confiscated property;
 8) expenses incurred as a result of securing a civil action or proof of claim in public law;
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]
 9) compensation levies paid upon a judgment of conviction;
 10) other expenses incurred by a body conducting proceedings in the course of conducting criminal proceedings, except costs considered to be special or additional costs pursuant to this Code.

 (2) If a participant in proceedings has several counsels or representatives, procedure expenses shall cover remuneration paid to the counsels or representatives in an amount not exceeding reasonable remuneration normally paid to one counsel or representative.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

 (3) If a suspect or the accused defends himself or herself, necessary defence expenses shall be included in procedure expenses. Excessive expenses which would not have occurred if a counsel had participated shall not be included in procedure expenses.

 (4) Expenses related to the conduct of expert analyses incurred by persons not subject to proceedings shall be compensated for under the conditions and pursuant to the procedure provided for in the Forensic Examination Act.
[RT I 2010, 8, 35 – entry into force 01.03.2010]

§ 176.  Special costs

 (1) The following are special costs:
 1) costs incurred as a result of the adjournment of a court session due to the failure of a participant in proceedings to appear;
 2) costs relating to compelled attendance.

 (2) The procedure for the calculation and the amount of special costs shall be determined by the Government of the Republic.

§ 177.  Additional costs

  The following are additional costs:
 1) remuneration payable to a person not subject to proceedings for information concerning facts relating to a subject of proof;
 2) the costs of keeping a suspect or the accused in custody;
 3) amounts paid to interpreters or translators pursuant to § 178 of this Code;
 4) the amounts paid in criminal proceedings pursuant to the Compensation for Harm caused in offence proceedings Act;
[RT I, 20.11.2014, 1 – entry into force 01.05.2015]
 5) costs which have been incurred by state and local government agencies in connection with criminal proceedings and which are not specified in clauses 175 (1) 1) and 10) of this Code;
[RT I 2004, 46, 329 – entry into force 01.07.2004]
 6) amounts paid to representatives of witnesses pursuant to § 67¹ of this Code.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 178.  Compensation for expenses of victims, witnesses, interpreters, translators, experts and qualified persons

  [RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (1) The following expenses incurred in connection with criminal proceedings shall be reimbursed to a victim, witness, non-staff interpreter or translator and an expert or qualified person not employed by a state forensic institution:
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 1) unreceived income in accordance with subsection (4) of this section;
 2) daily allowance;
 3) travel and overnight accommodation expenses.

 (2) Translators and interpreters, experts and qualified persons shall receive remuneration for the performance of their duties, unless they performed their duties as official duties. The hourly fee paid to experts, qualified persons and interpreters or translators shall not be less than the minimum hourly fee promised to be paid to a person in employment relationship and shall not exceed it more than 50 times.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (3) Expenses specified in subsection (1) of this section shall also be compensated for in case the court session is adjourned. Neither remuneration nor compensation shall be paid to the person who causes the adjournment.

 (4) Victims, witnesses, translators and interpreters, experts and qualified persons whose salaries or wages are not retained shall receive compensation in the amount of their average wages, on the basis of a certificate from the employer, for the full time of their absence from work when summoned by the body conducting the proceedings. If a victim, witness, interpreter or translator, expert or qualified person fails to submit a certificate from the employer, compensation for the time of absence from work shall be calculated based on the established minimum wage.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

 (5) By its regulation, the Government of the Republic shall establish the following:
[RT I 2006, 21, 160 – entry into force 25.05.2006]
 1) the amount of and the procedure for payment of remuneration payable to victims, witnesses, interpreters and translators, experts and qualified persons;
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]
 2) the amount of and the procedure for payment of the compensations specified in subsection (1) of this section;
[RT I 2006, 21, 160 – entry into force 25.05.2006]
 3) if necessary, specifications upon payment of remuneration or compensation to experts, qualified persons and interpreters and translators residing in a foreign state.
[RT I, 23.02.2011, 1 – entry into force 01.09.2011]

§ 179.  Compensation levies

 (1) The amount of compensation levies paid upon a judgment of conviction is:
 1) in the case of conviction of a criminal offence in the first degree, 2.5 times the amount of the minimum monthly wage;
[RT I 2008, 19, 132 – entry into force 23.05.2008]
 2) in the case of conviction of a criminal offence in the second degree, 1.5 times the amount of the minimum monthly wage.
[RT I 2008, 19, 132 – entry into force 23.05.2008]

 (2) If a person is convicted on the basis of several sections of the Penal Code, the person shall pay the compensation levy corresponding to the degree of the most serious criminal offence.

 (3) No compensation levies are prescribed if a sanction is imposed against a minor pursuant to subsection 87 (1) of the Penal Code.
[RT I, 05.12.2017, 1 – entry into force 01.01.2018]

Subchapter 2 Compensation for expenses relating to criminal proceedings 

§ 180.  Compensation for procedure expenses in case of conviction

 (1) In the case of a conviction, procedure expenses shall be compensated for by the convicted offender. In such case, the exceptions provided for in § 182 of this Code shall be taken into consideration.

 (1¹) When determining the procedure expenses provided for in clause 175 (1) 4) of this Code, the court shall take the grounds and circumstances of the arise of procedural expenses into account upon making the decision to compensate.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

 (2) If several persons are convicted in a criminal matter, the distribution of expenses shall be decided by the court, taking into account the extent of the liability and financial situation of each convicted offender.

 (3) When determining procedure expenses, a court shall take into account the financial situation and chances of re-socialisation of a convicted offender. If a convicted offender is obviously unable to reimburse procedure expenses, the court shall order a part of the expenses to be borne by the state. The procedural expenses of a minor may be covered by the state in full. A court may order that the expenses relating to criminal proceedings shall be compensated for in instalments.
[RT I, 05.12.2017, 1 – entry into force 01.01.2018]

§ 181.  Compensation for procedure expenses in case of acquittal

 (1) In the case of an acquittal, procedure expenses shall be compensated for by the state, taking into account the exceptions provided for in § 182 of this Code.

 (2) A person who has been acquitted shall reimburse any procedure expenses caused by the person's wrongful failure to perform his or her obligations or false admission of guilt.

§ 182.  Division of procedural expenses related to civil action and proof of claim in public law

  [RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (1) If the case a civil action or proof of claim in public law is denied, the expenses related to the conduct of proceedings on the civil action or proof of claim in public law shall be borne by the victim. The fee of the legal aid appointed for the victim shall be borne by the state pursuant to the procedure provided for in subsection 41 (3¹) of this Code.

 (2) If the case a civil action or proof of claim in public law is granted in full, the expenses related to the conduct of proceedings on the civil action or proof of claim in public law shall be borne by the accused or defendant.

 (3) If a civil action or proof of claim in public law is granted in part, the court shall divide the expenses related to the conduct of proceedings on the civil action or proof of claim in public law between the victim, accused and defendant, taking into account all the circumstances.

 (4) Regardless of the provisions of subsections (1)-(3) of this section, the court may decide that the costs of the accused, victim or defendant related to the conduct of proceedings on the civil action or proof of claim in public law be borne in part or in full by the party who incurred the costs in the cases where ordering payment of the costs by the opposing party would be extremely unfair or unreasonable for the latter.

 (5) Upon dismissal of a civil action or proof of claim in public law due to a judgment of acquittal or termination of criminal proceedings, the costs related to the conduct of proceedings on the civil action or proof of claim in public law shall be borne by the state. Upon dismissal of a civil action or proof of claim in public law due to other reasons, the court shall divide the costs related to the conduct of proceedings on the civil action or proof of claim in public law between the victim and the state, taking into account all the circumstances.
[RT I, 06.01.2016, 5 – entry into force 01.01.2017]

 (6) In the cases provided for in subsections (1), (3), (4) and (5) of this Code, if the person who files the civil action or proof of claim in public law is the Prosecutor’s Office pursuant to subsection 38¹ (3¹), (3²) or (3³) of this Code, procedure expenses shall be borne by the state.
[RT I, 05.02.2019, 2 – entry into force 15.02.2019]

§ 183.  Compensation for procedure expenses upon termination of criminal proceedings

 (1) If criminal proceedings are terminated, procedure expenses shall be covered for by the state, unless otherwise provided for in this Code.

 (2) If criminal proceedings are terminated and the materials of the criminal matter are referred for a decision to be taken on commencement of misdemeanour proceedings due to elements of a misdemeanour being revealed in the case, the covering of the procedure expenses which would also have arisen in misdemeanour proceedings may be left to be determined in the decision resolving the misdemeanour proceedings. If the decision is taken not to commence misdemeanour proceedings, the procedure expenses shall be covered by the state.
[RT I, 06.01.2016, 5 – entry into force 01.07.2016]

§ 184.  Compensation for procedure expenses in case of false report of criminal offence

  If criminal proceedings are commenced on the basis of a knowingly false report of a criminal offence, procedure expenses shall be reimbursed by the person who filed the report.

§ 185.  Compensation for procedure expenses in appeal proceedings

 (1) If a decision specified in clauses 337 (1) 2)-4) or subsection 337 (2) of this Code is made in appeal proceedings, procedure expenses shall be borne by the state.

 (2) If a decision specified in clause 337 (1) 1) of this Code is made in appeal proceedings, procedure expenses shall be borne by the person in whose interests the appeal was filed. If the appeal was filed by the Prosecutor’s Office, procedure expenses shall be borne by the state.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

§ 186.  Compensation for procedure expenses under cassation procedure and review procedure

 (1) If a decision specified in clauses 361 1) 2)-7) of this Code is made in cassation proceedings, procedure expenses shall be borne by the state.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

 (2) If a decision specified in clause 361 (1) 1) of this Code is made in cassation proceedings, procedure expenses shall be borne by the person in whose interests the cassation was filed. If the cassation was filed by the Prosecutor’s Office, procedural expenses shall be borne by the state.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

 (3) If a petition for review is denied, the reimbursement of procedure expenses may be imposed on the petitioner.

§ 187.  Compensation for procedure expenses under the procedure for resolution of appeals against court orders

 (1) If a court order is annulled in the course of proceedings for the resolution of an appeal against the order, procedure expenses shall be borne by the state.

 (2) If an appeal against a court order is denied, procedural expenses shall be borne by the person in whose interests the appeal against the order was filed. If the appeal against a court order, which was denied, was filed in the interests of a suspect, accused or third person, the person obligated to compensate for the procedural expenses incurred in the course of proceedings dealing with the appeal against the order shall be determined upon making the final decision in the criminal matter on the basis of the provisions of §§ 180-184, 187¹ and 188 of this Code.
[RT I, 19.03.2015, 1 – entry into force 29.03.2015]

§ 187¹.  Compensation for procedure expenses under confiscation procedure

 (1) If a confiscation request is granted, the procedure expenses related to the proceedings on the confiscation of property obtained by a criminal offence shall be compensated for by the convicted offender. If a confiscation request is granted in part, the court may decide that a part of the procedure expenses will be borne by the state.

 (2) In the case the confiscation request is denied, procedure expenses shall be compensated for by the state.
[RT I 2007, 2, 7 – entry into force 01.02.2007]

§ 188.  Obligation of minor to compensate for expenses relating to criminal proceedings

  If a minor is required to compensate for expenses relating to criminal proceedings, the body conducting the proceedings may impose the reimbursement of expenses on his or her parent, guardian or child care institution.

Subchapter 3 Determination concerning compensation for expenses relating to criminal proceedings 

§ 189.  Determination concerning compensation for expenses relating to criminal proceedings

 (1) In pre-court proceedings, compensation for expenses relating to criminal proceedings shall be resolved by order of the investigative body or the Prosecutor’s Office.

 (2) In judicial proceedings, compensation for expenses relating to criminal proceedings shall be resolved by a court order or judgment.

 (3) If compensation for expenses relating to criminal proceedings is prescribed by a court judgment, such compensation may be contested separately from the judgment in accordance with Chapter 15 of this Code.

 (4) A request for determining the amount of the fee and the extent of compensation for costs of appointed counsel shall be resolved digitally in the information system of the investigative body, Prosecutor’s Office or court.
[RT I, 21.05.2014, 1 – entry into force 31.05.2014]

 (5) The cases when the body conducting proceedings may resolve the request specified in subsection (4) of this section by means of endorsement on the corresponding paper document shall be established by a regulation of the minister responsible for the area.
[RT I, 21.05.2014, 1 – entry into force 31.05.2014]

 (5¹) The body conducting proceedings may resolve the payment of compensation for the costs of a victim, witness, interpreter or translator, expert or qualified person by means of endorsement on the corresponding request.
[RT I, 21.06.2014, 11 – entry into force 01.07.2014]

§ 190.  Content of determination concerning compensation for expenses relating to criminal proceedings

  In the determination concerning compensation for the expenses relating to criminal proceedings, the body conducting the proceedings shall set out:
 1) who shall reimburse the procedure expenses and the share of the procedure expenses to be paid by each payer expressed as an absolute amount or, if this is impossible, as a fraction;
 2) the amount of special costs and the person required to reimburse those costs;
 3) whether and to what extent the request to compensate for harm caused in offence proceedings under the Compensation for Harm caused in offence proceedings Act is to be granted.
[RT I, 20.11.2014, 1 – entry into force 01.05.2015]

§ 191.  Contestation of determination concerning compensation for expenses relating to criminal proceedings

 (1) The Prosecutor’s Office or the participant in proceedings who is required to compensate for the expenses relating to criminal proceedings on the basis of a determination concerning compensation for expenses relating to criminal proceedings may contest the determination in accordance with the provisions of sections 228 or 229 of this Code by an appeal or appeal in cassation or in accordance with Chapter 15 of this Code.

 (2) When considering an appeal filed against a determination concerning compensation for expenses relating to criminal proceedings, the court may, regardless of the content of the appeal, extend the scope of consideration of the appeal to the entire determination.

 (3) When considering an appeal or an appeal in cassation filed against a court judgment, the circuit court or the Supreme Court may make a new determination concerning compensation for expenses relating to criminal proceedings regardless of whether or not the expenses have been contested.

§ 192.  Determining the compensation for expenses

 (1) Compensation for expenses is a sum of money payable by a person on the basis of the determination concerning compensation for expenses relating to criminal proceedings.

 (2) The body conducting proceedings shall determine the amount of the compensation for expenses at the request of a participant in proceedings or of the Prosecutor’s Office on the basis of the determination concerning compensation for expenses relating to criminal proceedings if:
 1) the distribution of procedure expenses in that determination is expressed by means of fractions;
 2) the distribution of expenses in that determination is contradictory;
 3) that determination grants compensation for expenses whose amount was not known at the time of granting.

 (3) The order referred to in subsection (1) of this section may be contested pursuant to the procedure provided for in subsection 191 (1) of this Code.
[RT I 2004, 46, 329 – entry into force 01.07.2004]

Chapter 8 PRE-COURT PROCEDURE 

Subchapter 1 Commencement and Termination of Criminal Proceedings 

§ 193.  Commencement of criminal proceedings

 (1) The investigative body or the Prosecutor’s Office commences criminal proceedings by the first investigative activity or other procedural operation if a reason and grounds for commencement are present and if the circumstances provided in subsection 1 of section 199 of this Code are absent.

 (2) If criminal proceedings are commenced by an investigative body, the body shall immediately notify the Prosecutor’s Office of the commencement of proceedings.

 (3) If criminal proceedings are commenced by the Prosecutor’s Office, the Office shall transmit the materials of the criminal matter in accordance with investigative jurisdiction.

§ 194.  Reason and grounds for criminal proceedings

 (1) The reason for the commencement of criminal proceedings is a report of a criminal offence or other information indicating that a criminal offence has taken place.

 (2) The grounds for criminal proceedings are constituted by ascertainment of criminal elements in the reason for the criminal proceedings.

§ 195.  Report of criminal offence

 (1) A report of a criminal offence shall be submitted to an investigative body or the Prosecutor’s Office orally or in writing.

 (2) A report in which a person is accused of a criminal offence is a complaint of crime.

 (3) An oral report of a criminal offence which is submitted directly on site shall be recorded in a report and a copy of the report shall be submitted to the person who submitted the report of a criminal offence. A report of a criminal offence communicated by telephone shall be recorded in writing or audio recorded.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (4) If the person who submitted a report of a criminal offence is a victim who is a natural person, a written confirmation shall be sent to him or her confirming the receipt of the report of a criminal offence within 20 days as of the receipt thereof and the confirmation may be included in a notice of refusal to commence criminal proceedings or in the summons to a procedural operation.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]

 (5) If necessary, language assistance shall be provided to a victim who is the person who submitted a report of a criminal offence. At the request of the victim, the confirmation concerning receipt of a report of a criminal offence shall be issued to him or her in a language which he or she understands.
[RT I, 06.01.2016, 5 – entry into force 16.01.2016]