Kriminaalmenetluse seadustik (KrMS)

§ 1. Scope of regulation of this Code

(1) This Code provides the rules for pre-trial and judicial procedure concerning criminal offences and the rules for mandating the enforcement of dispositions rendered in criminal cases.

(2) This Code also provides the grounds and rules for the conduct of covert operations.

§ 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 rules of international law as well as international treaties binding for Estonia;

3) this Code and other legislative instruments that make provision for criminal procedure;

4) dispositions of the Supreme Court on issues that have not been resolved in the other sources of the law of criminal procedure yet have arisen in the course of applying the law.

§ 4. Applicability of the law of criminal procedure by reason of the person concerned

The law of criminal procedure applies equally to all persons with the following exceptions:

1) special rules are provided by Chapter 14 of this Code concerning the issuing of a statement of charges and performance of certain procedural operations in respect of the President of the Republic, of members of the Government of the Republic, of the Auditor General, of the Chancellor of Justice and of the Chief Justice and justices of the Supreme Court;

2) special rules are provided by Chapter 14¹ of this Code concerning procedural operations that are performed in respect of members of the Riigikogu before the issuing of a statement of charges and concerning the issuing of the statement of charges;

3) in respect of a person who enjoys diplomatic immunity or is otherwise privileged under a treaty, the Estonian law of criminal procedure may be applied at the request of the relevant foreign State, subject to special rules provided by the treaty.

§ 5. Principle of exclusive State authority

Criminal proceedings are commenced and conducted in the name of the Republic of Estonia.

§ 6. Principle of mandatory criminal proceedings

Where the facts of a criminal offence come to light – unless the circumstances provided by § 199 of this Code that preclude criminal proceedings are present, or unless there are no grounds for terminating such proceedings under subsection 2 of § 201, under §§ 202, 203, 203¹, 204, 205, 205², 205³ or under subsection 3 of § 435 of this Code, the investigative authority and the Prosecutor’s Office are required to conduct criminal proceedings.

§ 7. Presumption of innocence

(1) No one is deemed guilty of a criminal offence before the relevant judgment of conviction has entered into effect in their respect.

(2) No one is required to prove their innocence in criminal proceedings.

(3) Any doubt that has not been eliminated, in the course of criminal proceedings, concerning the suspect or accused being guilty of an offence is construed in their favour.

§ 8. Safeguarding the rights of parties to proceedings

(1) Investigative authorities, the Prosecutor’s Office and the courts are required:

1) when leading in a procedural operation, where this is provided for by law, to explain to parties to proceedings the purpose of the operation, as well as the parties’ rights and obligations;

2) to provide the suspect or accused with a real opportunity to defend themselves;

3) to ensure the assistance of defence counsel to the suspect or accused in situations provided for by subsection 2 of § 45 of this Code, or if they apply for such assistance;

4) in a situation of urgency, on an application of a suspect or accused who has been committed in custody, to allow them other legal assistance;

5) to entrust any unsupervised property of the suspect or accused who has been committed in custody for safekeeping to the person named by them, or to the municipality;

6) to ensure supervision of any minor children of the person who has been committed in custody, or care for any persons close to that person who are in need of assistance;

7) to explain to an individual victim their right to contact a victim support official and, where this is needed, to receive victim support services as well as the national compensation that victims of violent crimes are entitled to, and to explain which means provided for by this Code can be used to ensure the victim’s safety.

(2) Where the Police and Border Guard Board, the Prosecutor’s Office or the court have ascertained, as a result of the assessment provided for by subsection 1 of § 37² of this Code, that the victim may require victim support services, the victim’s particulars are transmitted to the Social Insurance Board following the rules provided by the Victim Support Act.

§ 9. Safeguarding the liberty of persons; respect for human dignity

(1) In the absence of a court order committing them in custody, a suspect may be held under arrest for up to forty-eight hours.

(2) Any person who has been committed in custody is notified without delay, in a language and manner understandable to them, of the court ruling committing them in custody.

(3) Investigative authorities, the Prosecutor’s Office and courts must treat a party to proceedings such that they do no defame the party’s honour or degrade the party’s dignity. No one may be subjected to torture or other cruel or inhuman treatment.

(4) Under criminal procedure, interference with a person’s private or family life is allowed only in situations provided for and following the rules laid down in this Code in order to prevent a criminal offence, to apprehend the offender, to ascertain the truth in a criminal case or to ensure the enforcement of a judgment.

§ 10. Language of criminal proceedings

(1) The language of criminal proceedings is Estonian. With the consent of the proceedings authority, of the parties to proceedings and of the parties to judicial proceedings, criminal proceedings may also be conducted in another language, provided the authority and the parties concerned are proficient in that language.

(2) Suspects, accused, victims, civil defendants and third parties who are not proficient in the Estonian language are provided with the assistance of an interpreter or translator. Should there be doubt, the proceedings authority ascertains the knowledge of Estonian possessed by the person concerned. If it is not possible to ascertain a person’s knowledge of Estonian, or if such knowledge turns out to be insufficient, the person is provided with the assistance of an interpreter or translator.

(2¹) If the suspect or accused is not proficient in the Estonian language, they are, on their application or on an application of their defence counsel, provided with the assistance of an interpreter at a meeting with the defence counsel that is directly related to the procedural operation that is being performed with respect to the suspect or accused, or to an application or complaint to be made or to an appeal to be filed. If the proceedings authority finds that the assistance of an interpreter or translator is not necessary, it states its refusal by means of a corresponding order.

(3) All documents whose inclusion in the criminal file or court file is applied for must be in the Estonian language or must have an Estonian translation. Documents that, in criminal proceedings that have been terminated, were issued by an investigative authority or the Prosecutor’s Office in another language are translated into Estonian if the Prosecutor’s Office so directs or if a party to proceedings files a corresponding application.

(4) On an application of a party to judicial proceedings, a text in a language other than Estonian may be included in the record of the trial or hearing. In such a case, a translation of the text into the Estonian language is annexed to the record.

(5) If the suspect or accused is not proficient in the Estonian language, they are provided with a translation, into their native language or a language in which they are proficient, of the text, or at least the part of the text that is essential for understanding the substance of the suspicion or of the charges, or for ensuring the fairness of proceedings, of the report on the arrest of the person concerned as a suspect, of the order committing that person in custody, of the European arrest warrant, of the statement of charges and of the judgment rendered in their case.

(6) If the suspect or accused is not proficient in the Estonian language, they or their defence counsel may make a reasoned application for the translation, into their native tongue or into another language in which they are proficient, of a document that is essential for the purposes of understanding the substance of the suspicion or charges in the criminal case or for ensuring the fairness of proceedings. If the proceedings authority finds that such an application is not justified either in its entirety or in part, it states its refusal by means of an order.

(6¹) If an individual victim is not proficient in the Estonian language, they may, within ten days, apply to be provided with a translation, into their native language or a language in which they are proficient, of a text that is essential for the purposes of understanding the substance of the order by which criminal proceedings in the case were terminated, or of the judgment rendered, or for the purposes of ensuring the fairness of proceedings. An individual victim may also apply to be provided with a translation of other documents essential for ensuring their procedural rights. If the proceedings authority finds that the application is not justified, it states its refusal by means of an order.

(7) In the stead of a written translation of the documents listed in subsections 5–6¹ of this section, a sight translation of such documents may be provided or the documents may be summarised orally, if:

1) this does not affect the fairness of proceedings; or

2) the suspect or accused, having been informed of the consequences of waiving a written translation of the documents listed in subsections 5 and 6 of this section, has filed, in a form reproducible in writing, a statement waiving such a translation, or a record of such a statement has been made by another method.

(8) Interpretation is provided to the suspect or accused without delay, whereas written translations of documents are provided to them within a reasonable time such that this does not have an adverse impact on the exercise of their right of defence.

(9) A person may contest a refusal to provide a translation or the provision of a partial translation under this section according to the provisions of §§ 228 or 229 or following Chapter 15 of this Code.

(10) Where a translation of a procedural document is provided to a person under this section, the time limits for any complaints or appeals in respect of the document are calculated as of receipt of the translation.

§ 11. Public access to trials or hearings

(1) Any person can observe and make a record of any trial or hearing according to the rules provided by § 13 of this Code.

(2) The principle of public access applies, without limitation, to any pronouncement of judicial dispositions, unless the interests of a minor, spouse registered partner or victim require the disposition to be pronounced in a hearing to which the public is not allowed access.

(3) The principle of public access applies from the opening of the trial or hearing until pronouncement of the disposition rendered in the case, subject to the restrictions provided by §§ 12 and 13 of this Code.

(4) The court may remove a minor from a public trial or hearing if this is necessary for the protection of the minor’s interests.

§ 12. Imposing restrictions on public access to a trial or hearing

(1) The court may decide to conduct a trial or hearing, or a part of a trial or hearing, as proceedings to which the public is not allowed access:

1) in order to protect a State or business secret or classified information of a foreign State;

2) in order to protect public morality or the private or family life of a person;

3) in the interests of a minor or a victim;

4) in the interests of the administration of justice, including in situations where public access to the trial or hearing may jeopardise the security of the court, of a party to judicial proceedings, or of a witness.

(2) The court disposes of imposing a restriction on public access to a trial or hearing on the grounds provided by subsection 1 of this section by a substantiated order made of its own motion or on an application of a party to judicial proceedings.

(3) With permission of the court, a trial or hearing to which the public is not allowed access may be observed by an official of the relevant investigative authority, a court official, a witness, a specialist witness, an expert, an interpreter or a translator, a person mentioned in clause 3 of subsection 5 of § 38 of this Code as well as a person who, for the purposes of subsection 1 of § 71 of this Code, is close to the victim or the accused.

(4) At a trial or hearing to which the public is not allowed access, the court cautions the parties to proceedings and other persons present in the courtroom that they are not allowed to disclose the matters heard and the documents discussed in the trial or hearing insofar as this is necessary for the protection of the right or interest mentioned in subsection 1 of this section.

(4¹) The court may, by substantiated order, require the parties to proceedings and other persons present in the courtroom to maintain as confidential any circumstances that have become known to them in the course of proceedings also in a situation in which the trial or hearing has not been held as proceedings to which the public is not allowed access but in which the maintaining of confidentiality is clearly necessary for the protection of a right or interest mentioned in subsection 1 of this section.

(4²) In situations provided for by subsections 4 and 4¹ of this section, a note is entered in the record of the trial or hearing concerning the cautioning of the parties to proceedings and of any other persons present in the courtroom against violating the obligation to maintain confidentiality.

§ 13. Restrictions on the making of records at trials or hearings

(1) From the opening of a trial or hearing until the pronouncement of the disposition rendered in the case, persons present in the courtroom are allowed to take written notes.

(2) Any other means of making a record of the trial or hearing may be used only with permission of the court.

(3) At a trial or hearing to which the public is not allowed access, the court may only allow the taking of written notes.

§ 14. Adversarial nature of judicial proceedings

(1) In judicial proceedings, the functions of prosecution, defence and adjudication of the criminal case are performed by actors fulfilling separate procedural roles.

(2) Withdrawal of the charges according to the rules provided by § 301 of this Code releases the court from the obligation to continue proceedings. If charges are withdrawn for the reason that the act of the accused corresponds to the elements of a misdemeanour, withdrawal of the charges constitutes grounds for terminating criminal proceedings in the case. Otherwise, withdrawal of the charges constitutes grounds for entering a judgment of acquittal.

§ 15. First-hand proceedings at the trial or hearing

(1) A disposition of the district court may only rely on evidence that has been presented and examined at first hand at the trial or hearing and that appears in the record of proceedings.

(2) A disposition of the circuit court of appeal may rely on:

1) evidence that has been presented and examined at first hand at the hearing of the case in the circuit court of appeal and that appears in the record of proceedings;

2) evidence that has been examined at first hand in the district court and that has been disclosed in proceedings on appeal against the judgment of the district court.

(3) A judicial disposition may not be based solely or predominantly on the testimony of a person anonymised in accordance with § 67 of this Code, or on an evidentiary item whose direct source neither the accused nor their defence counsel was able to confront, or on the testimony of a person mentioned in subsection 2¹ of § 66.

§ 15¹. Uninterruptedness and expeditious conduct of the trial or hearing

The court tries or hears the case before it as an integral whole and ensures that a disposition is reached as expeditiously as possible.

§ 15². Processing of personal data in criminal proceedings

(1) Under criminal procedure, the proceedings authority is authorised to process personal data, including personal data of special categories, that are required for the conduct of pre-trial proceedings and of judicial proceedings, for the collection of evidence, for mandating the enforcement of a disposition rendered in a criminal case, for the conduct of a covert operation or for attaining any other aims provided for by this Act.

(2) When processing personal data in the course of criminal proceedings, the proceedings authority acts as a law enforcement authority for the purposes of subsection 2 of § 13 of the Personal Data Protection Act, and such processing of personal data is governed by the provisions established for law enforcement authorities.

(3) The rights of data subjects provided by the Personal Data Protection Act are exercised subject to the provisions of this Act, regardless of whether the data subject is the suspect, accused, victim, civil defendant, third party, witness or any other person.

(4) When processing personal data under this Act, the data controller may impose restrictions on the rights that the data subject enjoys under the Personal Data Protection Act, if this is required in order to prevent or detect an offence, to conduct proceedings concerning an offence or to enforce a sanction, to conduct civil, administrative or any other lawful proceedings, to prevent harm arising to the rights and freedoms of another person or of the data subject, to prevent threats to national security or to ensure maintenance of public order.

(5) Under subsection 4 of this section, restrictions may be imposed on the following rights of the data subject:

1) a right to know that their personal data are being processed, including the type of data that are processed, as well as the manner, method, purpose, legal basis and extent of or reason for the processing;

2) a right to know who are the recipients of their personal data and the categories of personal data that are disclosed, as well as information about whether their personal data are to be transferred to a foreign State or an international organisation;

3) a right to demand that restrictions be imposed on the processing of their personal data;

4) a right to object to the processing of their personal data;

5) a right to be informed of any breaches in relation to their personal data.

(6) Within their respective jurisdiction, the proceedings authorities are joint controllers of the personal data processed in criminal proceedings.

(7) Transfer of personal data to persons in third countries that are not law enforcement authorities for the purposes of subsection 2 of § 13 of the Personal Data Protection Act is permitted only under the conditions and following the rules provided by § 49 of the Personal Data Protection Act.

§ 16. Proceedings authorities and parties to proceedings

(1) The proceedings authorities are the court, the Prosecutor’s Office and the relevant investigative authority.

(2) The parties to proceedings are the suspect or accused together with their defence counsel, as well as the victim, civil defendant and any relevant third parties.

§ 17. Parties to judicial proceedings

(1) The parties to judicial proceedings are the Prosecutor’s Office, the accused and their defence counsel as well as the victim, civil defendant and any relevant third parties.

(2) The parties to judicial proceedings enjoy the rights of parties to proceedings as provided by this Code.

§ 18. Judicial panel in the district court

(1) In the district court, cases concerning a criminal offence of the first degree are dealt with by a panel composed of the presiding judge and two lay judges. At the trial or hearing, lay judges have all the rights of a judge.

(1¹) Lay judges do not participate in the administration of justice during the state of emergency or the state of war. During such a state, in the district court the administration of justice is carried out by the district judge sitting alone. When the state of emergency or the state of war ends, the district judge continues the administration of justice sitting alone in cases in which lay judges have not participated.

(2) Cases concerning a criminal offence of the second degree and criminal cases dealt with under a simplified procedure are heard by the judge sitting alone.

(4) Where the trial or hearing of a criminal case is likely to extend over a lengthy period of time, a stand-by judge or a stand-by lay judge may be enlisted by order of the court, to be present in the courtroom during the trial. If a judge or lay judge on the panel is unable to continue as a member of that panel, they are replaced respectively by the stand-by judge or the stand-by lay judge.

(5) In pre-trial proceedings, in preliminary judicial proceedings and in proceedings to enforce a judicial disposition, the functions of the court are performed in all criminal cases by the judge sitting alone. A case management order that, under the law, cannot be appealed may be entered during the entire course of the proceedings in any criminal case by the judge sitting alone.

(6) The composition of a panel to dispose of a criminal case dealt with under international cooperation is provided by Chapter 19.

§ 19. Judicial panel in the circuit court of appeal

(1) In the circuit court of appeal, criminal cases are heard by a panel consisting of at least three appeal judges. Preliminary proceedings in a criminal case are conducted by a circuit court judge sitting alone.

(2) The chief judge of the circuit court of appeal may enlist a judge of a district court within the judicial circuit to a panel of the circuit court of appeal, provided the judge agrees to be so enlisted.

(3) A case management order that, under the law, cannot be appealed, may be entered in all criminal cases for the entire duration of proceedings by the circuit judge sitting alone.

§ 20. Judicial panel in the Supreme Court

(1) In the Supreme Court, criminal cases are considered by a panel consisting of at least three justices of the Supreme Court.

(3) A case management order that does not conclude the proceedings before the Supreme Court may be entered for the entire duration of proceedings by the Supreme Court justice sitting alone.

§ 21. Pre-trial investigation judge

(1) The pre-trial investigation judge is a district court judge who, sitting alone, discharges the duties assigned to them by this Code in pre-trial proceedings.

(2) In situations provided for by this Code, permission to conduct a covert operation is granted by the pre-trial investigation judge.

§ 22. Enforcement judge

The enforcement judge is a district court judge who, sitting alone, discharges the duties assigned to them by this Code in relation to enforcement of judicial dispositions.

§ 22¹. Judicial panel to consider post-disposition motions

A motion made, after disposition of the case, to the court that entered the disposition – in particular, a motion to rectify an error in the disposition or a motion to limit its publication, does not have to be disposed of by the panel that gave it.

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

(1) A collegial panel resolves any issues related to a criminal case by voting.

(2) In the district court, the presiding judge is the last to present their opinion.

(3) In the circuit court of appeal and in the Supreme Court, the judge or justice who prepared the case for judicial proceedings is the first to present their opinion, unless they are the presiding judge or justice. Voting continues according to length of service, starting with the shortest-serving judge or justice. The presiding judge or justice votes last.

(4) If the votes are divided equally, the vote of the presiding judge or justice decides the matter.

(5) No member of the panel has a right to refuse to vote or to abstain. Where a series of issues are voted in sequence, a member of the panel to hold a view that previously turned out to be the minority position does not have a right to refuse to vote.

(6) A judge whose view, upon the vote, turns out to be the minority position, may file a dissenting opinion. Any dissenting opinions appended to a judgment of the Supreme Court are published together with the judgment.

§ 23¹. Court official

(1) An order preparing a case for trial or hearing or any other case management order which, under the law, is not subject to appeal – including an order by which the court provisionally refuses to consider a representation, motion or an appeal, as well as an order setting or extending a time limit, may also be made by a court official who is vested with the corresponding power under the rules of the court.

(2) When drawing up and issuing a judicial disposition, the court may employ the assistance of a court official.

§ 24. General jurisdiction rules concerning the hearing of criminal cases in the district court

(1) Jurisdiction to hear a criminal case lies with the district court that serves the area in which the criminal offence was committed.

(2) As an exception, a criminal case may be heard in the court that serves the locality in which the consequences of the criminal offence occurred or where the majority of the accused or victims or witnesses are. Exceptional transfer of a criminal case within the judicial district of a circuit court of appeal is decided by the chief judge of the circuit court of appeal; in other situations, the transfer is decided by the Chief Justice of the Supreme Court.

(3) If it is not possible to ascertain the place of commission of a criminal offence, the criminal case is heard at the court that serves the area in which the relevant pre-trial proceedings were completed.

(4) The duties of pre-trial investigation judge are performed by the pre-trial investigation judge of the district court that serves the area in which the criminal offence was committed. If it is not possible to unequivocally ascertain the place of commission of the criminal offence, the duties of pre-trial investigation judge are performed by the pre-trial investigation judge of the district court in whose district the relevant procedural operation was, or is to be, performed. Authorisation for a covert operation is issued by a judge who acts in the capacity of the pre-trial investigation judge and to whom it falls to deal with the case under the court’s schedule for division of tasks and who is not the court’s chief judge.

(5) Jurisdiction concerning criminal cases dealt with by international cooperation is provided by Chapter 19.

§ 25. Exclusive jurisdiction rules concerning the hearing of criminal cases in the district court

(1) Jurisdiction to hear the criminal case concerning a criminal offence committed by means of printed matter lies with the court that serves the area in which the printed matter was published, unless the victim applies for the criminal case be heard in the court that serves the locality of their residence or in the court that serves the area in which such matter has been disseminated.

(2) If a criminal offence is committed abroad, the criminal case is heard by the court that serves the locality in which the Estonian residence of the suspect or accused is situated. If the suspect or accused does not have a residence in Estonia, the criminal case is heard by Harju District Court.

§ 26. Jurisdiction over joined criminal cases

If several courts have jurisdiction over a criminal case, the joined cases may be heard in one of those courts. The court to exercise jurisdiction is determined by the Prosecutor’s Office that is to send the statement of charges to court, having regard to the interests of the administration of justice.

§ 27. Jurisdiction over a criminal case concerning a judge

(1) A criminal case in which a judge is a party to proceedings and which, according to general jurisdiction rules, should be heard by a district court within the judicial circuit of the circuit court of appeal in whose circuit such a judge is employed, is transferred for trial to a district court within the judicial circuit of another circuit court of appeal.

(2) Where, according to general jurisdiction rules, the issuing of authorisation for the conduct of covert operations in respect of a judge falls under the jurisdiction of a district court within the judicial circuit of the circuit court of appeal in whose circuit the judge is employed, the authorisation for covert operations is issued, on an application of the Office of the Prosecutor General, by the chief judge of a district court within the judicial circuit of another circuit court of appeal – or by a judge who has been designated by that chief judge and who acts in the capacity of the pre-trial investigation judge.

§ 27¹. Jurisdiction over proceedings to compel prosecution

(1) An appeal against an order of the Office of the Prosecutor General mentioned in subsection 1 of § 208 of this Code falls within the jurisdiction of the circuit court of appeal in whose judicial circuit lies the seat of the Prosecutor’s Office or investigative authority who sent the victim the notice concerning refusal to commence criminal proceedings or the order by which criminal proceedings in the case were terminated.

(2) Where the notice concerning refusal to commence criminal proceedings or the order by which criminal proceedings in the case were terminated has been sent to the victim by the Office of the Prosecutor General, the appeal mentioned in subsection 1 of § 208 of this Code falls within the jurisdiction of Tallinn Circuit Court of Appeal.

§ 28. Verification of jurisdiction and resolution of jurisdictional disputes

(1) When preparing a criminal case for trial, the court verifies whether it has jurisdiction to deal with the case and, if its jurisdiction is contested, makes an order by which it transfers that case to the court that has jurisdiction.

(2) Before the criminal case is transferred to the court that has jurisdiction, only urgent procedural operations are permitted.

(3) If a court contests jurisdiction concerning a criminal case received from another court, the jurisdiction to deal with the case is 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 certain procedural operations in the other court would facilitate the trial of a criminal case, save time for the parties to proceedings and for the court and reduce costs of the case. Unless otherwise provided for by law, the court whose assistance is requested may not refuse it.

§ 30. Prosecutor’s Office in criminal proceedings

(1) The Prosecutor’s Office directs pre-trial proceedings, ensures their legality and efficiency and represents public prosecution in the courts. Where provided for by this Code, the Prosecutor’s Office has a right to file a civil court claim or a statement of a public-law claim. Unless otherwise provided by this Code, the Prosecutor’s Office does not have, for the purposes of collecting the evidence required for proving such a claim, the rights of the proceedings authority as provided by this Code.

(2) The powers of the Prosecutor’s Office in criminal proceedings are exercised, in the name of the Prosecutor’s Office, by a prosecutor who acts independently and is subject only to the law. The powers of the Prosecutor’s Office provided by this Code in relation to conducting proceedings concerning a civil court claim or statement of a public-law claim are exercised by the prosecutor or another person authorised by the Prosecutor General or by the relevant chief prosecutor.

(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.

§ 31. Definition of investigative authorities

(1) Investigative authorities are, within their respective jurisdictions, the Police and Border Guard Board, the Internal Security Service, the Tax and Customs Board, the Military Police, the Environment Board as well as the Department of Prisons of the Ministry of Justice and Digital Affairs and the prisons, which perform the functions of the investigative authority directly or through an institution administered by them or through a local office.

(5) The list of official positions whose holders have a right to participate in criminal proceedings within the jurisdiction of the investigative authority concerned is approved respectively by the Head of each of the authorities mentioned in subsection 1 of this section.

§ 32. Investigative authorities under criminal procedure

(1) The investigative authority performs the procedural operations provided by this Code independently unless performance of the operation requires the permission of the court or the permission or direction of the Prosecutor’s Office.

(2) The investigative authority may require the production of any document that is, or any data that are, needed for solving the criminal case.

§ 33. Suspect

(1) The suspect is a person who has been arrested on suspicion of having committed a criminal offence, or a person in respect of whom there is sufficient cause to suspect them of having committed a criminal offence and who is subjected to a procedural operation.

(2) The suspect is without delay provided an explanation of their rights and obligations, and is interviewed concerning the substance of the suspicion. The interview may be postponed if the suspect’s state of health does not allow them to be interviewed immediately, or if the postponement is necessary in order to ensure the participation of the defence counsel or of an interpreter or translator.

§ 34. Rights and obligations of suspects

(1) The suspect has a right:

1) to know the substance of the suspicion and to provide or refuse to provide a statement concerning this, as well as to be provided information concerning overall developments in the proceedings;

2) to know that their statements may be used to bring charges against them;

2¹) to the assistance of an interpreter or translator;

3) to the assistance of the defence counsel;

4) to meet with their defence counsel without other persons being present;

5) in the presence of their defence counsel, to be interviewed or to participate in a concurrent interview of several persons conducted to resolve a contradiction in their statements, to participate in the linking of a statement to the relevant setting and to participate in an identification line-up;

6) to participate in the judicial hearing of any application for their committal in custody;

7) to offer evidence;

8) to file applications and complaints;

9) to acquaint themselves with the report of any procedural operation performed in the case and to make representations, which are to be included in the report, concerning the conditions, course, results and reports of the operation;

10) to consent to the use of the plea agreement procedure, to participate in plea agreement negotiations, to make proposals concerning the type and term of the sentence to be imposed and to conclude or decline to conclude the plea agreement.

(1¹) An underage suspect as well as, taking into consideration the circumstances of the criminal case and the vulnerability of the person concerned, a person below twenty-one years of age who is suspected of having committed a criminal offence when they were under eighteen years of age, has a right, in addition to what has been mentioned in subsection 1 of this section:

1) to notify their statutory representative or another person according to subsections 1 and 2 of § 35² of this Code;

2) to the presence, according to subsection 3 of § 35² of this Code, of their statutory representative or such other person during the performance of any procedural operations in their case and at the trial or hearing;

3) to have a pre-trial individual assessment report prepared in their respect at the latest before the charges are filed, except if this is not in their interests in criminal proceedings in the case, and to have the conclusions of such an assessment taken into account when procedural determinations are made in the case;

4) to have, when they are deprived of their liberty, a medical examination performed in their respect without undue delay where such an examination is prescribed by law or is needed, as well as on their application or on an application of their defence counsel or of a person mentioned in subsection 1 or subsection 2 of § 35² of this Code, or by the proceedings authority of its own motion, and to have the conclusions of the examination taken into consideration when procedural decisions are made in the case;

5) to special treatment when they are deprived of their liberty;

6) to be treated in a manner that protects their privacy and dignity according to their age, maturity, ability to understand, as well as any special needs, including potential communication difficulties, and to proceedings free of unjustified delay.

(2) The meeting mentioned in clause 4 of subsection 1 of this section may be interrupted for the performance of a procedural operation when it has lasted one hour.

(3) The suspect is required to:

1) appear when summoned by the investigative authority, the Prosecutor’s Office or the court;

2) participate in procedural operations and comply with the directions of the investigative authority, the Prosecutor’s Office and the court.

§ 34¹. Suspect’s right to acquaint themselves with materials in the criminal file

(1) The suspect has a right to apply for access to any evidence that is material for specifying the substance of the suspicion filed against them, if this is required for ensuring fair proceedings and for the preparation of defence in the case. Access to the evidence that has been collected is provided at the latest after the Prosecutor’s Office has declared the pre-trial proceedings completed and, according to § 224 of this Code, has presented the criminal file to the persons concerned in order for those persons to acquaint themselves with the file.

(2) The suspect has a right to apply for access to any evidence that is material to the hearing, in court, of the justification for an application to commit them in custody, and for contesting their arrest or committal in custody before the court.

(3) The Prosecutor’s Office decides whether to allow access to the evidence mentioned in subsections 1 and 2 of this section. The Prosecutor’s Office may, by order, refuse to allow access to such evidence if this may significantly harm the rights of another person or if this may harm criminal proceedings in the case.

(4) An order which is provided for by subsection 3 of this section and by which the Prosecutor’s Office refuses access to evidence may be appealed according to the provisions of § 228 of this Code.

§ 35. Accused

(1) The accused is a person in whose respect the Prosecutor’s Office has issued a statement of charges in accordance with § 226 of this Code, or a person against whom a statement of charges has been filed under the fast-track procedure or a person with whom a plea agreement has been concluded under the plea agreement procedure.

(2) The accused has the rights and obligations of the suspect. They have a right to acquaint themselves with the criminal file through their defence counsel, and the right to participate in the trial of their case.

(3) An accused in whose respect a judgment of conviction has entered into effect is a convicted offender.

(4) An accused in whose respect a judgment of acquittal has entered into effect is an acquitted person.

§ 35¹. Informing suspects and accused of their rights

(1) The suspect or accused is without delay informed of their rights in plain and intelligible language orally or in writing. They acknowledge their rights having been explained to them by signed receipt.

(1¹) Information concerning the rights of an underage suspect or accused is also provided to the statutory representative of the suspect or accused and to the person mentioned in subsection 2 of § 35² of this Code.

(2) A suspect or accused who has been arrested or committed in custody is, without delay, given a written declaration of rights concerning their rights under criminal procedure. The suspect or accused has a right to keep the declaration in their possession during the time that they remain under arrest or in custody.

(3) Where the suspect or accused mentioned in subsection 2 of this section is not proficient in the Estonian language, they are provided a copy of the declaration of rights in their mother tongue or in a language in which they are proficient.

(4) The model form of the declaration of rights is enacted by a regulation of the Minister in charge of the policy sector.

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

(1) The proceedings authority is required to notify the statutory representative of an underage suspect or accused of the rights and obligations of such a suspect, except in a situation where this is not in the minor’s interests or may significantly harm criminal proceedings in the case. In the latter situations, the relevant municipal authority must be notified.

(2) Where it is not possible to provide notification to the statutory representative of the underage suspect or accused, or if this is not in the minor’s interests, or may significantly harm criminal proceedings in the case, the proceedings authority notifies another person who has been named by the underage suspect or accused, and whom the authority considers to be suitable.

(3) Where an underage suspect or accused so wishes, their statutory representative and the person mentioned in subsection 2 of this section may accompany them:

1) at the trial or hearing;

2) during performance of procedural operations, provided that, in the assessment of the proceedings authority, such attendance is in the minor’s interests and does not interfere with criminal proceedings by causing a delay or in any other way.

§ 36. Participation of a corporate suspect or accused in criminal proceedings

A corporate suspect or accused participates in criminal proceedings through its statutory representative or an employee authorised by such a representative or through the trustee in bankruptcy or a contractual representative – any of whom is vested with all the rights and obligations of the suspect or accused. The authority to give a statement in the name of the corporate suspect or accused is vested in its statutory representative or trustee in bankruptcy.

§ 37. Victim

(1) The victim is an individual, or a legal person, whose legally protected interests have suffered direct harm as a result of a criminal offence that targeted them, or as a result an unlawful act committed by a person incapable of forming the corresponding mens rea. In a situation where an attempt is made to commit a criminal offence, a person is a victim also if, instead of the protected interest that was targeted, harm is dealt to an interest that is subsumed by that interest. The State or another public authority is a victim only if the harm dealt to its legally protected interest gives rise to a pecuniary claim which can be pursued in criminal proceedings. A person is a victim also in a situation in which a criminal offence or an unlawful act committed by a person incapable of forming the corresponding mens rea caused the death of a person close to them and they have suffered harm as a result of the death.

(2) A corporate victim participates in criminal proceedings through its statutory representative, an employee authorised by the statutory representative, the trustee in bankruptcy or a contractual representative, any of whom has all the rights and obligations of the victim. The right to give statements or testimony in the name of the corporate victim is vested in its statutory representative or trustee in bankruptcy.

(3) In relation to the carrying out of procedural operations, unless otherwise prescribed by this Code, the provisions applicable to witnesses apply to the victim.

(4) A person is joined to the proceedings as a victim by being subjected to a procedural operation in the case, or by order of the proceedings authority. A person may be joined to proceedings as a victim at any stage of those proceedings and before any judicial instance until termination of proceedings on appeal against judgment of the district court. Where it comes to light that the person was joined to proceedings unfoundedly or that they no longer correspond to the definition of the victim due to a change in the circumstances, the proceedings authority removes them from proceedings by a corresponding order.

(5) If the pre-trial proceedings authority decides not to grant an application to join a person to proceedings as a victim, or unfoundedly removes from those proceedings a person who was joined to them as such, an explanation is provided to the victim of their right to file an appeal against the authority’s order according to the rules provided by § 228 of this Code. A person may make a motion to be joined to proceedings as a victim also when they file an appeal against the judgment rendered in the case.

§ 37¹. Victim’s legal succession in proceedings

(1) If an individual victim dies – or a corporate victim is dissolved – after they have filed a civil court claim but before the disposition rendered concerning the claim enters into effect, the proceedings authority permits the universal successor of the victim to join the proceedings as a third party. Universal succession is possible at any stage of proceedings.

(2) The victim’s universal successor only has the rights of the victim in relation to the procedural operations concerning the civil court claim filed.

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

(4) If an individual victim dies or a corporate victim is dissolved and the victim’s universal successor is not known or it is not possible to identify such a successor within a reasonable time, the court dismisses the civil court claim.

§ 37². Assessment of specific protection needs of an individual victim

(1) The proceedings authority is obligated to assess whether any circumstances are present that amount to a reasonable cause to believe that the individual victim requires special treatment and protection – including victim support services – in the proceedings.

(2) The assessment takes into consideration the victim’s personality, the gravity and nature of the criminal offence, who the suspect is, the circumstances in which the criminal offence was committed and the harm caused to the victim. Any minor victims are presumed to require special treatment and protection in criminal proceedings.

(3) As a result of the assessment, a decision is made concerning which of the means provided for by this Code for ensuring the safety of the victim it is possible to employ, as well as whether the interview with the victim should be conducted in premises adapted for their special needs or by, or with the participation of, a specialist trained to interview victims with special protection needs or, if possible, by the same person throughout the proceedings or whether a victim who has special needs may require victim support services.

§ 38. Rights and obligations of the victim

(1) The victim has a right to:

1) contest the refusal to commence, or the termination of, criminal proceedings according to the rules provided by §§ 207 and 208 of this Code;

2) file, through the investigative authority or the Prosecutor’s Office, a civil court claim or statement of a public-law claim during the time limit provided by subsection 1 of § 225 or clause 4 of § 240 of this Code;

3) give statements or testimony, or refuse to give them, on the grounds provided by §§ 71−73 of this Code;

4) offer evidence;

5) file applications, motions and complaints;

6) acquaint themselves with the report of any procedural operation performed in the case and to make representations, which are to be included in the report, concerning the conditions, course, results and reports of the operation;

7) acquaint themselves with the materials of the criminal file following the rules provided by § 224 of this Code;

8) participate in the trial or hearing of the case;

9) consent to the use of the plea agreement procedure or refuse such consent, state their opinion concerning the charges and the sentence, as well as the quantum of harm mentioned in the charges and the civil court claim or statement of the public-law claim;

10) consent to the imposition of a temporary restraining order and apply for the imposition of a restraining order following the rules provided by § 310¹ of this Code;

11) make an application to be interviewed or examined by a person of their sex if the case concerns sexual violence, gender violence or a criminal offence committed in a close relationship – except if the interview is conducted by the prosecutor, or if the examination is conducted by the judge, or if this would interfere with the course of the proceedings.

(2) The victim is required to:

1) appear when summoned by the investigative authority, the Prosecutor’s Office or the court;

2) participate in procedural operations and comply with the directions of the investigative authority, the Prosecutor’s Office and the court.

(4) The investigative authority or the Prosecutor’s Office explains to the victim their rights, the procedure for filing a civil court claim, the principal requirements that apply to such a claim, the time limit for filing the claim and the consequences of allowing such a time limit to expire, and the conditions and rules that govern the provision of State-funded legal aid.

(5) An individual victim has a right to:

1) receive information concerning the committal in custody of a person suspected of the criminal offence, to apply to be notified of the release of the person committed in custody, in the event this poses a threat – except if communication of such information would cause harm to the suspect;

2) apply to be notified of any premature release of the convicted offender or of their escape from the custodial institution, if the information may prevent a threat to the victim;

3) have one person chosen by themselves accompany them at any procedural operation, unless the proceedings authority has refused this, stating its reasons;

4) apply for an opportunity to state their opinion concerning a premature release on parole of the offender, provided the offence that was committed is a criminal offence of the first degree provided by Chapter 9 or 11 of the Penal Code;

5) state their opinion concerning the impact that the criminal offence had on them and concerning the perpetrator’s taking of responsibility for the offence.

(6) The person to accompany the victim at a procedural operation under clause 3 of subsection 5 of this section is cautioned that they are not allowed to disclose any information concerning the proceedings or to intervene in the course of the operation.

§ 38¹. Giving effect to the victim’s claims in criminal proceedings

(1) The victim has a right to file a civil court claim against the suspect, accused or civil defendant, to be considered by the court as part of criminal proceedings in the case. The victim may seek relief by means of such a court claim, if:

1) the purpose of the relief is to reinstate or remedy the position of their interests that was transgressed against by the act which is the subject matter of criminal proceedings, provided the factual circumstances that the claim is based on overlap to a material extent with the facts that characterise the commission of the criminal offence that the proceedings focus on, and provided it would also be possible to consider such a claim under the rules of civil procedure;

2) the relief that is sought is compensation for harm that can be claimed against a public authority under the rules of administrative court procedure.

(2) As the victim, a public authority may, in addition to what is provided by subsection 1 of this section, file a statement of a public-law claim seeking disposition of the public-law financial obligation it requires the accused to perform, provided the circumstances under which the obligation arose overlap to a material extent with the facts that characterise the commission of the criminal offence that the proceedings focus on. The statement of the public-law claim may be filed by the administrative authority who would be entitled to determine the relevant financial obligation under administrative procedure. The filing of the statement of a public-law claim in criminal proceedings excludes pursuing such a claim in other proceedings, except if the application is dismissed in criminal proceedings.

(3) A civil court claim or statement of a public-law claim is filed through the investigative authority or the Prosecutor’s Office during the time limit provided by subsection 1 of § 225 or in clause 4 of § 240 of this Code.

(3¹) Where the State, a municipality or other public authority has been joined to criminal proceedings as the victim and its representative does not file its civil court claim or statement of public-law claim during the time limit provided by § 225 or in clause 4 of § 240 of this Code, such a claim may be filed by the Prosecutor’s Office in the stead of the State, municipality or other public authority.

(3²) Where the State, a municipality or other public authority has been joined to criminal proceedings as the victim and its representative files, during the time limit provided by § 225 or in clause 4 of § 240 of this Code, a civil court claim or a statement of a public-law claim, in which they state the victim’s claim such that it is manifest that the claim is unreasonably small having regard to the harm caused by the criminal offence, or is unproven or contains other material defects which may lead the court to reject or dismiss that claim or statement, and the person who filed that claim or statement has not cured those defects by the due date, the Prosecutor’s Office may file the civil court claim or statement of the public-law claim in the stead of the representative.

(3³) Where the State, a municipality or another public authority has been joined to criminal proceedings as the victim and its representative withdraws its civil court claim or statement of its public-law claim before commencement of the trial or hearing, the Prosecutor’s Office may file the claim or notice in the stead of the representative.

(3⁴) In situations mentioned in subsections 3¹–3³ of this section, the Prosecutor’s Office files the civil court claim or statement of the public-law claim for the benefit of the State.

(4) Consideration of a civil court claim as part of criminal proceedings is exempt from the statutory fee, with the exception of civil court claims that seek compensation for non-pecuniary harm, unless the claim for compensation for such harm derives from the causing of a bodily injury or other health disorder, or of the death of a provider.

(5) The Republic of Estonia as the victim is exempted from payment of the statutory fee when filing a civil court claim or statement of a public-law claim.

(6) Any issues which arise in relation to proceedings on a civil court claim and which are not regulated in this Code are disposed of based on the provisions of the Code of Civil Procedure.

(7) When disposing of any issues that arise in relation to dealing with a statement of a public-law claim and that are not regulated in this Code, the provisions of Chapter 26 of the Code of Administrative Court Procedure are applied.

§ 39. Civil defendant

(1) The civil defendant is a person or a corporate entity who is not suspected or accused of having committed a criminal offence, yet who is:

1) liable, by law, to pay pecuniary compensation for any harm caused to the victim by the act which is the subject matter of criminal proceedings; or

2) a person against whom, by law, the victim has an in rem claim for redress of rights, or a claim arising from unjust enrichment, the purpose of such a claim being to redress or remedy the position of the victim’s interests which was transgressed against by the act that is the subject matter of criminal proceedings.

(2) A person is joined to, and removed from, proceedings as a civil defendant by order of the proceedings authority. The authority joins the person mentioned in subsection 1 of this section to proceedings on an application of the victim or the accused, or of its own motion, if there is reason to believe that the victim’s claim against the civil defendant could be considered part of criminal proceedings, or if this is needed to protect the interests of the accused. The victim’s application must be accompanied by a civil court claim against the person whose joinder to proceedings as a civil defendant the victim applies for. If it turns out that such a person was joined to proceedings unfoundedly or that, due to a change in the circumstances, they no longer fulfil the definition of a civil defendant or if it turns out that the victim’s claim will not be considered as part of criminal proceedings in the case, the proceedings authority removes them from the proceedings.

(3) A person may be joined to proceedings as a civil defendant until completion of the examination of evidence in the district court.

(4) A corporate civil defendant participates in criminal proceedings through its statutory representative or its trustee in bankruptcy, either of whom is vested with all the rights and obligations of the civil defendant.

§ 40. Rights and obligations of the civil defendant

(1) The civil defendant has a right to:

1) contest the civil court claim or file a counterclaim;

2) offer evidence;

3) file requests and complaints;

4) acquaint themselves with the report of any procedural operation performed in the case and to make representations, which are to be included in the report, concerning the conditions, course, results and reports of the operation;

5) acquaint themselves with the materials of the criminal file following the rules provided by § 224 of this Code;

6) participate in the trial or hearing of the case;

7) consent to the use of the plea agreement procedure or to refuse such consent, to state their opinion concerning the quantum of harm stated in the charges and concerning the civil court claim.

(2) The civil defendant is required to:

1) appear when summoned by the investigative authority, the Prosecutor’s Office or the court;

2) participate in procedural operations and comply with the directions of the investigative authority, the Prosecutor’s Office and the court.

§ 40¹. Third party

(1) A third party is a person or a corporate entity who does not appear as the suspect, accused, victim or civil defendant in relation to the criminal offence, yet whose rights and obligations could be decided upon when dealing with the criminal case or conducting specialised proceedings.

(2) A person is joined to, and removed from, the proceedings as a third party by order of the proceedings authority. The proceedings authority joins to the proceedings, as a third party, any person characterised by the elements provided by subsection 1 of this section. If it turns out that the person was joined to the proceedings unjustifiably or if, due to a change in the circumstances, they no longer fulfil the definition of a third party, the authority removes them from the proceedings.

(3) An order concerning the joinder of a person as a third party to, or removal of the person from, proceedings may be made by the proceedings authority at any stage of the proceedings and in any judicial instance until the entry into effect of the judgment rendered in the case, or of the court order made in specialised proceedings. A person may apply for their joinder to proceedings also in an appeal filed against the judicial disposition. In such a situation, their joinder is disposed of when a decision is made concerning acceptance of the appeal filed against the disposition.

(4) A corporate third party participates in criminal proceedings through its statutory representative or its trustee in bankruptcy, either of whom is vested with all of the party’s rights and obligations.

§ 40². Rights and obligations of a third party

(1) A third party has a right to:

1) offer evidence;

2) file applications, motions and complaints;

3) acquaint themselves with the report of any procedural operation performed in the case and to make representations, which are to be included in the report, concerning the conditions, course and results of the operation;

4) acquaint themselves with the materials of the criminal file following the rules provided by § 224 of this Code;

5) participate in the trial or hearing of the case.

(2) Where a decision is made in criminal proceedings to confiscate third-party property, the third party has the rights of the suspect provided by clauses 1, 2 and 5 of subsection 1 of § 34 of this Code without prejudice to special rules that apply to confiscations.

(3) A third party is required to:

1) appear when summoned by the investigative authority, the Prosecutor’s Office or the court;

2) participate in procedural operations and comply with the directions of the investigative authority, the Prosecutor’s Office and the court.

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

(1) An individual victim, civil defendant or third party may participate in criminal proceedings personally or through a representative. Personal participation in such proceedings does not deprive the person concerned of the right to have a representative.

(2) In criminal proceedings, a corporate victim, civil defendant or third party may, in addition to the statutory representatives mentioned respectively in subsection 2 of § 37, subsection 4 of § 39 and subsection 4 of § 40¹ of this Code, have a contractual representative.

(3) In criminal proceedings, State-funded legal aid is provided to victims, civil defendants and third parties on the grounds and following the rules prescribed in the State-Funded Legal Aid Act. If the court finds it likely that, without the assistance of an attorney, a victim’s, civil defendant’s or third party’s material interests would remain unprotected, the court may, of its own motion, decide to grant State-funded legal aid to the person concerned on the grounds and following the rules prescribed in the State-Funded Legal Aid Act.

(3¹) The proceedings authority assigns, under the rules for State-funded legal aid, a representative to a victim of limited active legal capacity, if:

1) it may be presumed under the circumstances that the interests of the victim’s statutory representative are in conflict with those of the victim;

2) the underage victim has been separated from their family;

3) the victim is an unaccompanied minor for the purposes of the Act on Granting International Protection to Foreign Nationals.

(4) The victim, civil defendant or third party may have up to three representatives. A representative may have several principals provided there is no conflict of interests between the principals. In judicial proceedings, the following persons may serve as a contractual representative: an attorney or another person who has acquired at least an officially recognised Master’s degree in the field of legal studies or a qualification that is equivalent to such a degree for the purposes of subsection 2² of § 28 of the Republic of Estonia Education Act, or an equivalent foreign qualification.

(5) A representative has all the rights of their principal. The representative of a person or the contractual representative of a corporate entity does not have a right to give statements or testimony in the name of the principal.

(6) The representative is required to maintain secrecy concerning any information they become privy to when providing legal aid in the course of criminal proceedings. The representative is allowed to disclose such information to their principal. The representative may disclose information that concerns their principal and that derives from pre-trial proceedings only with the consent of the principal and under the conditions prescribed in § 214 of this Code.

§ 42. Defence counsel

(1) In criminal proceedings, the defence counsel is:

1) an attorney or, with the permission of the proceedings authority, another person who meets the educational requirements established for contractual representatives by this Code and whose mandate in criminal proceedings derives from their agreement with the person defended (contractual defence counsel), or

2) an attorney whose mandate in criminal proceedings derive from the corresponding assignment by the investigative authority, the Prosecutor’s Office or the court and from their appointment by the Estonian Bar Association (appointed defence counsel).

(2) In judicial proceedings, the person defended may, by agreement, have up to three defence counsel.

(3) The defence counsel may defend several persons if the interests of those persons are not incompatible.

§ 43. Choice and appointment of defence counsel

(1) In criminal proceedings, defence counsel may be chosen by the suspect, the accused or the convicted offender personally or through another person.

(2) The defence counsel is assigned in the case by the investigative authority, the Prosecutor’s Office or the court if:

1) the suspect or accused has not chosen a defence counsel but has applied for one to be appointed to them;

2) the suspect or accused has not applied for defence counsel but participation of the counsel is mandatory according to § 45 of this Code.

(3) The proceedings authority notifies the suspect or accused without delay of the assignment to them of the defence counsel and relays to them the contact details of the attorney to provide the State-funded legal aid, who is appointed by the Estonian Bar Association.

(3¹) Where the suspect or accused has applied for appointment of defence counsel under clause 1 of subsection 2 of this section, the investigative authority, the Prosecutor’s Office or the court explains the terms and conditions of the payment of remuneration to, and the rules that govern compensation for the costs incurred by, an appointed defence counsel.

(4) If there is no suspect or accused in the criminal case, but the Prosecutor’s Office has applied for deposition a witness’s testimony, the Estonian Bar Association appoints, on an application of the pre-trial investigation judge, a defence counsel to represent the interests of the potential suspect at the examination of the witness.

(5) The order of the investigative authority, the Prosecutor’s Office or the court concerning assignment of defence counsel is sent to the Estonian Bar Association for the corresponding appointment to be made.

§ 44. Substitute defence counsel

(1) The defence counsel may appoint a substitute defence counsel to participate in criminal proceedings in their stead for the period of time during which they are prevented from participating in those proceedings. In criminal proceedings, the investigative authority, the Prosecutor’s Office or the court may appoint a substitute defence counsel where this is provided for by law.

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

§ 44¹. Substitute defence counsel provided under the rules for State-funded legal aid

(1) In pre-trial proceedings, a substitute defence counsel is appointed by the Estonian Bar Association under an order of the investigative authority, the Prosecutor’s Office or the court, if it is not possible for the chosen defence counsel to start performing the duties of the defence within 12 hours of the arrest of the person as a suspect or, in other situations, within 24 hours of the conclusion of the defence agreement with the suspect or accused, or of being summoned to the proceedings authority, and the chosen counsel has not appointed a substitute defence counsel for themselves.

(2) In judicial proceedings, the court may decide to appoint a substitute defence counsel if, in a case which is dealt with under regular rules of procedure and in which the chosen or assigned counsel has assumed the duties of the defence, it is not possible for that counsel to attend the trial or hearing, and they have not appointed a substitute for themselves.

(3) If the chosen or assigned defence counsel is unable to participate in the trial or hearing within three months following the preliminary hearing held in the case, the court assigns a substitute defence counsel, requiring the Estonian Bar Association to appoint a defence counsel within one month following the making of the court order and to ensure the participation of the appointed counsel in the trial or hearing within two months following their appointment. If, within one month following the making of the order, it comes to light that it is possible for the chosen or assigned defence counsel themselves to start performing the duties of defence, the Estonian Bar Association does not carry out that order, informing the court accordingly and stating the corresponding reasons.

(4) In situations mentioned in this section, the assigned substitute defence counsel participates in criminal proceedings until the defence counsel chosen by or assigned for the suspect or accused is able to start performing the duties of defence.

(5) In situations mentioned in this section, assignment of a substitute defence counsel does not terminate the mandate of the defence counsel chosen by or assigned for the suspect or accused, or release the defence counsel from their defence duties.

(6) In situations mentioned in this section, the assigned substitute defence counsel must, prior to starting to perform the duties of defence, if possible, consult with the defence counsel chosen by or assigned for the suspect or accused, and follow the instructions of that counsel when performing such duties.

§ 45. Participation of defence counsel in criminal proceedings

(1) The defence counsel may participate in criminal proceedings from the moment when the procedural role of suspect in the case is assigned to a person, or in a situation provided for by subsection 4 of § 43 of this Code.

(2) Participation of the defence counsel is mandatory during the entire length of criminal proceedings if:

1) the person subject to proceedings was a minor when they committed the criminal offence or unlawful act;

2) due to a mental or physical disability, the person subject to proceedings is unable to defend themselves, or if their defence is complicated because of the disability;

3) the person subject to proceedings is suspected or accused of a criminal offence for which life imprisonment may be imposed;

4) the interests of the person subject to proceedings are incompatible with those of another person who has a defence counsel;

5) the person subject to proceedings has spent at least four months in custody;

(3) The participation of defence counsel in pre-trial proceedings is mandatory starting from presentation – according to the rules provided by subsection 3 of § 223 of this Code – of the criminal file to the persons concerned for acquainting themselves with the file, except in a situation where the proceedings concern a criminal offence of the second degree, where the prosecutor considers it possible for the criminal case to be disposed of by the abridged procedure, including when that procedure is conducted in the fast-track form, and where the suspect has been informed in writing, against signed acknowledgement, of their right to be assisted by defence counsel, of the terms and conditions of being provided such counsel and of the consequences of not applying for one, and yet has not made the corresponding application, and the prosecutor or judge finds that the interests of the administration of justice do not require the participation of defence counsel.

(4) The participation of defence counsel in judicial proceedings is mandatory, except:

1) under the plea agreement procedure in accordance with the rules provided by §§ 239−250 of this Code, including under that procedure when it is conducted in the fast-track form, if the suspect or the accused has not filed an application for the participation of defence counsel in judicial proceedings and, in the opinion of the proceedings authority, the interests of the administration of justice do not require such participation;

2) in proceedings concerning a criminal offence of the second degree under the abridged procedure, including when that procedure is conducted in the fast-track form, following the rules provided by §§ 233−238 of this Code, if the accused has waived the right to a defence counsel and participation of such counsel is not required in the interests of the administration of justice in the opinion of the proceedings authority.

(4¹) Requirements for the form of the waiver mentioned in subsection 4 of this section are enacted by a regulation of the Minister in charge of the policy sector.

(4²) Where, on a motion of the accused, the defence counsel does not participate in the trial or hearing, the accused has the same procedural rights and obligations at the trial or hearing that their defence counsel would have.

(5) An assigned defence counsel is required to participate in criminal proceedings until completion of consideration of the criminal case under the rules governing appeals to the Supreme Court, and may, of their own motion, refuse to assume the duties of the defence or resign such duties, once they have assumed them, only on the grounds provided by subsection 1 of § 46 of this Code.

(6) Performance of duties of the defence by a contractual defence counsel in pre-trial proceedings includes participation in the completion of pre-trial proceedings.

(7) The performance of duties of the defence by a contractual defence counsel in the district court includes the making of appeals, or interim appeals, against dispositions of the district court if the person defended so wishes.

(8) The performance of duties of the defence by a contractual defence counsel in the circuit court of appeal includes the making of appeals – or interim appeals – to the Supreme Court against dispositions of the circuit court of appeal, as well as preliminary proceedings in the Supreme Court, if the person defended so wishes.

(9) A contractual defence counsel may, of their own motion, refuse to assume the duties of the defence or resign such duties, once they have assumed them, only on the grounds provided by subsection 1 of § 46 of this Code.

§ 46. Refusal to assume duties of defence and resignation of duties of defence once assumed

(1) The defence counsel may, of their own motion and with the consent of the owner of their law office, refuse to assume the duties of the defence or resign such duties, once they have assumed them, if:

1) following the rules provided by subsection 5 of § 45 of the Bar Association Act, the counsel has been released from the obligation to maintain professional secrecy, or if the suspect or accused has demanded that the counsel do something that involves a violation of the law or of the requirements of professional ethics;

2) performance of the duties of the defence by that defence counsel would amount to a violation of the right of defence;

3) the person defended has breached a material term or condition of the client contract.

(2) Any refusal to assume the duties of the defence or of any resignation of such duties, once assumed, is notified to the proceedings authority is notified without delay.

(3) Any refusal to assume the duties of the defence or any resignation of such duties, once they have been assumed, has legal significance from the time that a new defence counsel starts performing those duties.

(4) Where the defence counsel has refused to assume the duties of defence or has waived the duties of defence that they had previously assumed, the new defence counsel who assumes those duties next may, for the purpose of acquainting themselves with the materials of the criminal case, apply for postponement, by up to three days, of any investigative operations that require the participation of the person defended and of the defence counsel.

§ 47. Rights and obligations of the defence counsel

(1) The defence counsel has a right to:

1) receive from any person or corporate entity any documents necessary for the provision of legal assistance to the person defended;

2) offer evidence;

3) file applications, motions and complaints;

4) acquaint themselves with the report of any procedural operation performed in the case and to make representations, which are to be included in the report, concerning the conditions, course, results and report of the operation;

5) with the knowledge of the proceedings authority, use technical equipment when carrying out the duties of the defence provided this does not interfere with the performance of the procedural operation;

6) during pre-trial proceedings, participate in any investigative operations carried out in the presence of the person defended, with the right to put questions through the proceedings authority;

7) starting from becoming a participant in criminal proceedings in the case, acquaint themselves with the report of the interview with the person defended and the report of the person’s arrest as the suspect and, on completion of pre-trial proceedings, with the entirety of the material in the criminal file;

8) meet with the person defended without the presence of other persons, without any limitations on the number of times the duration of the meetings, unless a different provision is made in this Code for the duration of such meetings.

(2) The defence counsel is required to use any means and methods of defence that are not prohibited by law in order to find any facts that justify the person defended, are non-incriminating, or mitigate their sentence, and to provide other legal assistance to the person defended as necessary in the criminal case.

(3) The defence counsel is required to maintain secrecy concerning any information that they become privy to when providing legal aid in the course of criminal proceedings. The counsel is allowed to disclose such information to the person defended. The counsel may disclose information concerning pre-trial proceedings about the person defended only with the consent of the person defended and where the interests of the administration of justice so require.

§ 48. Waiver of defence counsel

The suspect or accused may waive defence counsel in writing during pre-trial proceedings unless participation of such counsel is mandatory.

§ 49. Grounds for the judge to recuse themselves

(1) The judge is required to recuse themselves from criminal proceedings if they:

1) have previously rendered the lower-instance judicial disposition in the criminal case, or a judicial disposition in that case which has been set aside by the higher-instance court in part or in full, except if the higher-instance court, when it set aside that disposition, remanded the case to the same panel for retrial or for a new hearing;

2) as the pre-trial investigation judge, have made an order mentioned in §§ 132, 134, 135 or 137 of this Code in the same criminal case, except where the case is dealt with under the plea agreement or the summary procedure;

3) have previously been involved in the same criminal case in another procedural role;

4) are or have been a person close to the accused, to the victim or to the civil defendant according to subsection 1 of § 71 of this Code.

(2) The judge’s participation in proceedings before the Criminal Chamber of the Supreme Court does not constitute a ground for the judge to recuse themselves from further proceedings in the same criminal case before the Supreme Court.

(3) The fact of having disposed of an appeal against an order of the pre-trial investigation judge or an order of the Prosecutor’s Office in the case does not constitute a ground for the judge to recuse themselves.

(4) Persons who, within the meaning of subsection 1 of § 71 of this Code, are or have been in a close relationship, may not serve on the judicial panel dealing with the case.

(5) The self-recusal of a judge is effected by means of a reasoned recusal declaration that is included in the court file.

(6) Should the judge find that it is not possible for them to remain impartial for a reason not mentioned in subsection 1 of this section, they file a motion for recusal according to the rules prescribed in § 49¹ of this Code.

§ 49¹. Dealing with a motion for recusal filed by the judge

(1) The judge or the judicial panel files the motion for recusal mentioned in subsection 6 of § 49 of this Code with the chief judge of the court or with a judge appointed by the chief judge.

(2) Until the motion for recusal is disposed of, the judge or the panel that received that motion may only perform urgent procedural operations.

(3) The chief judge of the court or a judge appointed by the chief judge disposes of the motion for recusal by an order made by written procedure within three working days following receipt of the motion.

(4) A motion to recuse the chief judge of the district court is disposed of by the chief judge of the circuit court of appeal or a judge appointed by the latter. A motion to recuse the chief judge of the circuit court of appeal is disposed of by the Chief Justice of the Supreme Court or a justice appointed by the Chief Justice. A motion to recuse a justice of the Supreme Court is disposed of by the judicial panel hearing the case.

§ 50. Recusal of the judge

(1) If the judge has not recused themselves on grounds provided by § 49 of this Code, a party to judicial proceedings may make a motion to recuse them.

(2) Motions for recusal are made during the lead-in to the trial or hearing. If the ground for the judge’s recusal comes to light at a later stage and is notified to the court without delay, the motion may be made before the accused is invited to make a final statement.

(3) Where a motion for recusal has been made, the judge may, before disposing of the motion, only perform urgent procedural operations in the case. Where the motion that has been made is manifestly unjustified or substantially identical with a motion for recusal that has previously been disposed of, the judge may continue the proceedings but may not, before having disposed of the motion, render the disposition that concludes these. Should the motion for recusal be granted, any operations that were carried out to continue the proceedings are void.

(4) Before disposing of the motion for recusal, the court hears the explanation of the judge to be recused and the submissions of the parties.

(5) A motion for recusal is disposed of by an order. A motion seeking the recusal of one of the judges is resolved by the rest of the judicial panel without the presence of the judge to be recused. In the event of an equal division of the votes, the judge is recused. A motion seeking the recusal of several judges or of the entire panel is disposed of by that panel by simple majority voting. If the panel finds that the motion must be granted for a reason not mentioned in subsection 1 of § 49 of this Code, or that the motion that was made under regular rules of procedure must be denied, the order is not issued and the motion is referred for disposition following the rules prescribed by § 49¹ of this Code.

(6) Where the criminal case is heard by the judge sitting alone, any motions to recuse the judge are disposed of by that judge. If the judge finds that the motion must be granted for a reason not mentioned in subsection 1 of § 49 of this Code, or that the motion that was made under regular rules of procedure must be denied, they refer the motion for disposition following the rules prescribed in § 49¹ of this Code.

(7) An appeal against a judicial disposition may invoke a ground for the judge’s recusal if the motion for such recusal was filed with the lower court at the proper time but was denied or if the ground comes to light after the criminal case has been disposed of.

§ 51. Replacing a judge who has recused themselves or who has been recused

Where it is not possible to replace, within the court, a judge who has recused themselves or who has been recused, the chief judge of the circuit court of appeal refers the criminal case to be dealt with by another district court within their judicial circuit. Referral of the criminal case to a district court within the judicial circuit of another circuit court of appeal is decided by the Chief Justice of the Supreme Court.

§ 52. Grounds for a prosecutor to recuse themselves

(1) The prosecutor is required to recuse themselves from criminal proceedings on grounds provided by subsections 1 and 6 of § 49 of this Code.

(2) Previous participation as prosecutor in criminal proceedings in the case does not constitute a ground for the prosecutor to recuse themselves.

§ 53. Recusing the prosecutor

(1) Where the prosecutor has not recused themselves on grounds provided by subsections 1 and 6 of § 49 of this Code, the suspect, accused, victim, civil defendant, third party or defence counsel may file an application or motion to recuse them.

(2) During pre-trial proceedings, an application to recuse the prosecutor is disposed of by an order of the Office of the Prosecutor General within five days following the filing of the application.

(3) During judicial proceedings, the motion for recusal is disposed of by the court.

§ 54. Grounds for defence counsel to recuse themselves

A person may not act as defence counsel if they:

1) have appeared or are appearing in the criminal case in another procedural role;

2) in the same or a related criminal case, have previously defended or represented another person whose interests are incompatible with those of the person defended.

§ 55. Grounds for recusal of defence counsel

(1) Where grounds provided by subsection 3¹ of § 20 of the State-Funded Legal Aid Act are present or where the defence counsel does not recuse themselves on grounds provided by § 54 of this Code, the court, of its own motion or on a motion of a party to judicial proceedings, recuses the defence counsel by an order.

(2) The court recuses the defence counsel if it comes to light, in the recusal proceeding provided for by §§ 56 and 57 of this Code, that the counsel has abused their procedural capacity by communicating with the person defended – who is under arrest as a suspect or who has been committed in custody – in a manner which may facilitate the commission of another criminal offence or violation of internal rules of the custodial institution.

§ 56. Application or motion for a proceeding to recuse defence counsel

(1) A proceeding to recuse the defence counsel is conducted:

1) during pre-trial proceedings, by the pre-trial investigation judge;

2) before the district court, by the judge sitting alone or by one of the judges of the judicial panel;

3) before the circuit court of appeal, by one of the judges of the judicial panel and, before the Supreme Court, by one of the justices of the judicial panel.

(2) An application to conduct the defence counsel recusal proceeding does not preclude continuation of pre-trial proceedings.

(3) Where a motion to conduct the defence counsel recusal proceeding is made during judicial proceedings, the trial or hearing to be held in the case is adjourned by up to one month.

(4) On the first working day following the date of receipt of the motion to conduct the defence counsel recusal proceeding, the judge schedules the time of the hearing at which the proceeding is to be conducted and notifies it to the Prosecutor’s Office that filed the motion, to the defence counsel whose recusal is sought, to the person defended by that counsel and, if the counsel is a member of the Bar Association, to the Board of the Association.

§ 57. Proceeding to recuse the defence counsel

(1) The proceeding to recuse the defence counsel is conducted within five days following receipt of the corresponding motion.

(2) If the person who filed the motion does not attend the judicial hearing held to conduct the recusal proceeding, the defence counsel is not recused.

(3) If, for a valid reason mentioned in § 170 of this Code, the defence counsel does not appear at the judicial hearing held to conduct the recusal proceeding, that proceeding is adjourned by up to three days.

(4) If, without a valid reason, the defence counsel, having received the summons, fails to appear at the judicial hearing held to conduct the recusal proceeding, or if the reason for their non-appearance is unknown or if they do not appear at an adjourned hearing, that proceeding is conducted in their absence.

(5) In the recusal proceeding, the court hears the person who filed the motion and the defence counsel, both of whom may offer evidence and, with permission of the court, put questions to one another.

(6) The disposition made as a result of the recusal proceeding is issued as a court order.

(7) The defence counsel who has been recused according to the rules provided by this section and by § 55 of this Code has a right to resume their duties in criminal proceedings after the ground of recusal provided by subsection 2 of § 55 has ceased to apply.

§ 58. Replacement of defence counsel who has recused themselves or of defence counsel who has been recused

If the defence counsel withdraws from proceedings or is disqualified on the grounds provided by § 55 of this Code, the person defended may choose a new defence counsel within the time limit granted by the court or, in situations provided for by § 43 or § 45 of this Code, defence counsel is assigned to the person.

§ 59. Recusal of other persons participating in proceedings

(1) An official of the investigative authority that is conducting proceedings in the criminal case is required recuse themselves on the grounds provided by subsections 1 and 6 of § 49 of this Code.

(3) An expert, judicial hearing clerk and interpreter or translator are required to recuse themselves, or are recused, on the grounds and following the rules provided by §§ 96, 97, 157 and 162 of this Code.

(4) A representative of the victim, civil defendant, third party or witness is required to recuse themselves on the grounds provided by § 54 of this Code. Recusal of a representative of a victim, civil defendant, third party or witness is subject to the provisions prescribed in this Code for recusal of defence counsel.

(5) Recusal applications filed during pre-trial proceedings are disposed of by an order of the Prosecutor’s Office within three days following their filing.

(6) In judicial proceedings, motions for recusal are disposed of by the court.

§ 60. Proof by evidence and by judicial notice

(1) When disposing of the criminal case, the court relies on circumstances which it has declared to have been proven by evidence or of which it has taken judicial notice.

(2) ‘Proven by evidence’ means that as a result of the evidence heard in the case the court has become convinced that circumstances that constitute the subject matter of evidence are or are not present.

(3) The court may take judicial notice of a circumstance regarding which reliable information is available from sources external to criminal proceedings.

§ 61. Evaluation of evidence

(1) No item of evidence has predetermined weight.

(2) The court assesses the evidence as a whole, following its inner conviction.

§ 62. Subject matter of evidence

Circumstances that constitute the subject matter of evidence are:

1) the time, place and manner of, as well as other facts surrounding, the commission of the criminal offence;

2) the elements of the criminal offence;

3) the culpability of the person who committed the criminal offence;

4) information to characterise the person who committed the criminal offence, and any other circumstances that have an impact on that person’s liability.

§ 64. General conditions for the collection of evidence

(1) Evidence is collected in a manner which does not offend the honour and dignity of those participating in its collection, does not endanger the life or health of such participants and does not cause unjustified pecuniary harm. It is prohibited to collect evidence by torturing a person or by subjecting them to violence in any other way, or by using means which affects their faculty of memory, or by treating them in a manner that degrades human dignity.

(2) If, in the course of a search or physical examination of a person, or of the taking of reference material, it is necessary to reveal the body of the person, the official of the investigative authority, the prosecutor and any other participants in the corresponding procedural operation, except health care professionals and forensic pathologists, must be of the same sex as the person.

(3) If technical equipment is to be used to take the evidence, this is notified in advance to the participants in the corresponding procedural operation and the purpose of using the equipment is explained to them.

(5) Where this is needed, participants of a procedural operation are cautioned that, under § 214 of this Code, disclosure of information relating to pre-trial proceedings is not allowed.

(6) The taking of evidence by covert operations is regulated by Chapter 3¹ of this Code.

§ 65. Evidence obtained on a ship during voyage and in a foreign State

(1) Evidence taken in a foreign State according to the legislation of that State may be used in criminal proceedings in Estonia unless the procedural operations performed in order to obtain the evidence are contrary to the principles of Estonian criminal procedure, having regard to the special rule provided by subsection 2 of this section.

(2) If the subject matter of criminal proceedings is an act committed outside the Republic of Estonia by a person who serves in the Defence Forces, evidence taken in a foreign State may be used in such proceedings regardless of whether the procedural operations performed to obtain the evidence were or were not conducted on the basis of a request for assistance, unless such operations are contrary to the principles of Estonian criminal procedure.

(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 according to § 73 of the Merchant Shipping Code are deemed evidence in the corresponding criminal proceedings.

§ 66. Witness

(1) A witness is a natural person who may have knowledge of the circumstances that constitute the subject matter of evidence in the case.

(2) The person suspected or accused in the case, as well as an official of the investigative authority, the prosecutor or judge who is conducting proceedings in the criminal case may not appear in the case as a witness. An official of the investigative authority, a prosecutor or a judge who has conducted proceedings in the case may appear as a witness in judicial proceedings for the purposes of verifying the reliability of an item of evidence.

(2¹) The statement or testimony of a witness concerning any circumstances which constitute the subject matter of evidence and which the witness has become aware of through another person does not constitute evidence, unless:

1) the direct source of the evidence cannot be interviewed or examined for the reason mentioned in subsection 1 of § 291 of this Code;

2) the substance of the statement or testimony of the witness is what that witness heard from the other person about circumstances that they had perceived directly prior to speaking, provided they were, when speaking, still under the influence of what they had perceived, and provided there are no grounds to believe that they were distorting the truth;

3) the substance of the statement or testimony of the witness is what that witness heard from the other person, and what the witness heard contains an admission of having committed a criminal offence or is otherwise clearly contrary to the interests of the speaker;

4) the substance of the statement or testimony of the witness deals with the circumstances of a criminal offence committed jointly.

(3) A witness is required to give a statement or to testify unless there are lawful grounds according to §§ 71–73 of this Code for refusing to do so. When giving a statement or testifying, the witness is required to tell the truth.

§ 67. Ensuring the safety of a witness

(1) Having regard to the gravity of the criminal offence or to any exceptional circumstances, the pre-trial investigation judge may, on an application of the Prosecutor’s Office, by order, anonymise a witness in order to ensure their safety.

(2) To enter an order by which a witness is anonymised, the pre-trial investigation judge questions the witness in order to ascertain their reliability and their need for protection, and hears the relevant submissions of the prosecutor. Where this is needed, the pre-trial investigation judge acquaints themselves with the criminal file.

(3) The order by which a witness is anonymised assigns the witness a name to be used in procedural operations according to subsection 8 of § 146 of this Code.

(4) Information concerning the name, personal identification number (or, if the person does not possess such a number, their date of birth), citizenship, education, place of residence and position of employment or educational institution of a witness who has been anonymised is enclosed in an envelope bearing the number of the criminal case and the signature of the person conducting the proceedings. The envelope is sealed and kept separately from the criminal file. Only the proceedings authority may acquaint themselves with the information contained in the envelope; the authority is to re-seal and re-sign the envelope after having acquainted itself with the information.

(5) In judicial proceedings, a witness bearing an assigned name is examined by telephone according to the rules provided by clause 2 of subsection 2 of § 69 of this Code using voice changing equipment, if necessary. Questions may also be put to the witness in writing.

(6) To ensure the safety of the witness, regardless of whether or not they have been anonymised, the relevant provisions of the Witness Protection Act may be applied in their respect.

§ 67¹. Representative of a witness

(1) In pre-trial proceedings, in order to protect their rights, a witness may apply for an attorney or another person who meets the educational requirements established for contractual representatives to be present when they are interviewed.

(2) The proceedings authority may not allow a person who already appears in the case as a party to proceedings, a witness or a specialist witness, or who may turn out to be a witness or a specialist witness, or in whose respect there is a reasonable suspicion that their interests are in conflict with the interests of the witness, to appear as the witness’s representative. The decision disallowing a person to appear as a representative is issued as an order of the proceedings authority, which the witness may contest before the pre-trial investigation judge within two working days following its receipt.

(3) If, within two working days following the time of the operation mentioned in the summons of the proceedings authority, the witness proves unable to appear for the interview together with a representative who complies with the requirements of subsections 1 and 2 of this section, the interview is conducted without a representative.

(4) The representative of a witness has a right to intervene in the interview if a violation of the procedural requirements leads to a violation of the rights of the witness, and to file complaints on the grounds and following the rules provided by Subchapter 5 of Chapter 8 of this Code. The representative does not have a right to give statements in the name of the witness.

(5) A representative is required to maintain as confidential any information which becomes known to them when providing legal assistance in the course of criminal proceedings. The representative is allowed to disclose such information to the principal. The representative may disclose information that concerns the principal and that emanates from pre-trial proceedings in the case only with the consent of the principal and under the conditions prescribed in § 214 of this Code.

§ 68. Interviewing or examining a witness

(1) The witness is provided an explanation of their rights and obligations, and an explanation that they have a right to write their statement in their own hand.

(2) A witness of at least fourteen years of age is cautioned against refusing to give a statement or testifying when there is no statutory basis for doing so and against making a knowingly false statement or providing knowingly false testimony, concerning which a signed acknowledgement is taken in the interview report. Where this is needed, it is explained to the witness that deliberately withholding any circumstances known to them will be regarded as refusal to give a statement or to testify.

(3) When giving a statement or testifying, the witness may use notes and other documents concerning numerical data, names and other information which is difficult to retain.

(4) The witness may be interviewed or examined only concerning the circumstances that constitute the subject matter of evidence. Leading questions may be asked only in situations mentioned in clauses 2–5 of subsection 2 of § 288¹ of this Code.

(6) Questions concerning the morals and habits of the suspect, accused or victim may be put to a witness only if the act which is the subject matter of criminal proceedings must be assessed as an integral part of the previous conduct of the suspect, accused or victim.

§ 69. Distance interview or distance examination

(1) The proceedings authority may arrange a distance interview or examination of a person if interviewing or examining the person first-hand is complicated or unreasonably burdensome or if the distance interview or examination is necessary for protecting the person’s interests.

(2) For the purposes of this Code, distance interview or examination means an interview or examination:

1) by means of a technical solution as a result of which the statement or testimony of the person interviewed or examined is seen and heard directly via live streaming, and questions can be put to the person;

2) by telephone, as a result of which the statement or testimony of the person interviewed or examined is heard directly by live streaming, and questions can be put to the person.

(4) A note is recorded in the report of the distance interview or examination regarding the cautioning of the witness against refusing to give a statement or testimony without a statutory basis and against making a knowingly false statement or giving knowingly false testimony.

(5) Where the interviewing or examining of a person who is found in a foreign State requires the assistance of a judicial authority of the foreign State, the provisions of § 489⁴¹ of this Code are followed if the interview or examination takes place under a cooperative arrangement between the Member States of the European Union, whereas the provisions of § 468 of this Code are followed in other situations.

(6) The Minister in charge of the policy sector may enact more specific requirements for arranging distance interviews or distance examination.

§ 69¹. Deposition of testimony

(1) The Prosecutor’s Office, suspect or defence counsel may apply for a person who is a witness in criminal proceedings to be examined before the pre-trial investigation judge, provided the subject matter of such proceedings is an intentional criminal offence for which at least up to three years’ imprisonment is prescribed as the sentence.

(2) The court grants the application if circumstances are present which warrant the conclusion that a subsequent examination of the witness at trial may turn out to be impossible or the witness may be induced to give false testimony. Where it denies the application, the court issues its denial as a substantiated order which is contestable by way of interim appeal.

(3) The court disposes of an application for deposition of testimony within five days following its receipt and, where it grants the application, determines, at the earliest opportunity, the time of the examination, which it notifies without delay to the Prosecutor’s Office and to the defence counsel.

(4) The prosecutor, defence counsel, suspect and witness are summoned to the pre-trial investigation judge for the examination. On an application of the witness or of the Prosecutor’s Office, the summoning of the suspect to the examination is forgone if the presence of the suspect at the examination poses a threat to the safety of the witness. The summoning of the persons concerned to the deposition of testimony is arranged by the party to proceedings who applied for their examination. To the extent provided by subsections 4 and 5 of § 163¹ of this Code, the defence counsel may apply for assistance to the pre-trial investigation judge in order to summon such persons.

(5) Non-appearance of the suspect who has received a summons does not preclude the examination. The examination is not held if the prosecutor or the defence counsel who has received a summons does not appear for a valid reason and has notified this to the court in advance. If the party to proceedings who applied for examination does not appear for the examination or does not bring before the judge the person whom they applied to have examined, the examination before the pre-trial investigation judge is forgone.

(6) When conducting, and making a record of, the examination, the provisions of §§ 155−158 and §§ 287−291 of this Code are followed.

§ 69². Written statement

(1) Where, during pre-trial procedure, the proceedings authority finds it inexpedient to hold a direct or distance interview, it may require a witness to respond in writing to the questions that have been put to the witness, and set a time limit for providing the response.

(2) A person who is being required to respond to questions in writing is informed of their rights, obligations and potential liability, and it is explained to them that, regardless of having provided a written statement, they may be summoned for an interview.

(3) The person who provides a written statement certifies, in the eFile system, by their signature or by any other means reproducible in writing, that they have been apprised of their rights, obligations and potential liability and that the responses they have provided are truthful.

§ 70. Special rules for interviewing or examining an underage witness

(1) The proceedings authority may require a child protection official, social worker, teacher or psychologist to be present when it is interviewing or examining an underage witness.

(2) If the proceedings authority has not received appropriate training, enlisting the assistance of a child protection official, social worker, teacher or psychologist for interviewing or examining a minor is mandatory if:

1) the witness is younger than ten years of age and interviews or examination may have a harmful effect on the minor’s mental well-being;

2) the witness is younger than fourteen years of age and the interview or examination relates to domestic violence or to sexual abuse;

3) the witness has a speech or sensory impairment or an intellectual disability or suffers from mental disorders.

(3) Where this is needed, the interview with, or examination of, the minor is video recorded. In a situation mentioned in subsection 2 of this section, the interview with the minor is video recorded if – for the reason that the minor’s first-hand examination in court is not possible due to the minor’s age or the minor’s mental state – the intention is to use that interview as evidence in judicial proceedings.

(4) During pre-trial proceedings, the suspect has a right to acquaint themselves with the video recordings mentioned in subsection 3 of this section. During five days following their having acquainting themselves with the recordings, the suspect or the defence counsel has a right to put questions to the witness. The Prosecutor’s Office considers the corresponding application within five days following its filing. Denial of the application is issued as an order, a copy of which is transmitted to the person who filed the application. The fact that an application has been denied does not prevent its being filed anew in accordance with the rules provided by § 225 of this Code or during judicial proceedings.

§ 71. Refusing – for personal reasons – to give a statement or testify

(1) A right to refuse to give a statement as a witness or to testify is vested in:

1) any descendants and any lineally ascending relatives of the suspect or accused;

2) a sister, half-sister, brother or half-brother of the suspect or accused, or a person who is or has been married to or in a registered partnership with them;

3) a step or foster parent or a step or foster child of the suspect or accused;

4) an adoptive parent or adopted child of the suspect or accused;

5) the spouse or registered partner of or a person permanently living together with the suspect or accused, and the parents of the spouse, partner or person, including after the marriage, registered partnership or permanent cohabitation has ended.

(2) A witness may also refuse to give a statement or to testify if:

1) the statement or testimony may incriminate themselves or a person listed in subsection 1 of this section in the commission of a criminal offence or of a misdemeanour;

2) they have been convicted or acquitted of the same criminal offence as a joint principal offender or as an accomplice.

§ 72. Refusing to give a statement or testify due to professional or other activities

(1) A right to refuse to give a statement or testify as a witness concerning circumstances which have become known to the witness in the course of their professional or other activities is vested in:

1) a minister of religion of a religious organisation registered in Estonia;

2) the defence counsel and the notary, unless otherwise provided by law;

3) a health care professional and a pharmacist regarding circumstances concerning the descent, artificial insemination, family or health of a person;

3¹) a person processing information for journalistic purposes, regarding information which makes it possible to identify their informant, except in a situation in which the taking of the evidence by other procedural operations is precluded or exceedingly complicated and the subject matter of criminal proceedings is a criminal offence for which an imprisonment of at least up to eight years’ is prescribed, there is a predominant public interest for the statement or testimony to be given and the person is required to give the statement or testimony on an application or motion of the Prosecutor’s Office by order of the pre-trial investigation judge or by court order;

4) persons on whom the obligation to maintain a professional secret has been imposed by law.

(2) The right to refuse to give a statement or testify also extends to members of the professional support staff of the persons mentioned in clauses 1−3 of subsection 1 of this section.

(2¹) In a situation provided for by clause 3¹ of subsection 1 this section, the right to refuse to give a statement or testify also extends to a person who, in the course of their professional activities, learns of circumstances which may identify the informant of a person processing information for journalistic purposes.

(3) Persons mentioned in subsections 1, 2 and 2¹ of this section may not refuse to give a statement or testify if the person in whose interests the confidentiality obligation was imposed agrees to their giving the statement or testifying.

(4) Where, based on a procedural operation, the court is convinced that a refusal to give a statement or testify by a person mentioned in subsection 1 or subsection 2 of this section is not related to their professional activities, it may require the person to testify.

§ 73. Refusing to give a statement or testify concerning a State secret or classified information of a foreign State

(1) A witness has a right to refuse to give a statement or to testify concerning circumstances to which the State Secrets and Classified Information of Foreign States Act applies.

(2) Where a witness refuses to give a statement or to testify, invoking a State secret or classified information of a foreign State, the investigative authority, the Prosecutor’s Office or the court requests the authority in possession of the State secret or classified information of a foreign State to certify that the circumstances in question have been declared a State secret or classified information of a foreign State.

(3) If the authority in possession of the State secret or classified information of a foreign State does not certify that the circumstances in question have been declared a State secret or classified information of a foreign State, or does not respond to the request mentioned in subsection 2 of this section within twenty days, the witness is obligated to give the statement or to testify.

§ 74. Witness interview report

(1) The following are recorded in the report of the interview:

1) the witness’s name, personal identification number (or, if they do not possess such a number, their date of birth), as well as their citizenship, education, residence and employment or the name of their educational institution;

2) the nature of the relationship between the witness and the suspect or victim;

3) the statement.

(2) The report filed when an additional or a repeat interview has been conducted does not restate the personal data of the person interviewed or the particulars concerning the relationship between the person and the suspect or accused, referring instead to the report of the first interview.

(3) Where the witness makes the corresponding application, their residence or employment, or the name of their educational institution, is not stated in the interview report. The particulars concerned are appended to the interview report in a sealed envelope.

(4) When being interviewed, a witness may, after having spoken freely, write their statement in the interview report in their own hand, regarding which a corresponding note is recorded in the report.

§ 75. Interview with the suspect

(1) When leading in an interview with the suspect, the suspect’s name, residence or seat with the corresponding address, personal identification number (or, if they do not possess such a number, their date of birth), citizenship, education, native language and employment or educational institution are ascertained.

(2) When beginning the interview, it is explained to the suspect that they have a right to refuse to give a statement and that any statement given may be used against them.

(3) The suspect is asked whether they committed the criminal offence of which they are suspected and they are invited to give a statement by speaking freely about the facts surrounding the criminal offence on which the suspicion is based.

(3¹) In the course of the interview, the suspect and their defence counsel have a right to receive a copy, to the extent provided by clauses 1−3 of subsection 1 of § 76 of this Code, of the interview report.

(4) Subsection 2¹ of § 66, subsections 3–6 of § 68 and subsections 1 and 2 of § 69 of this Code are followed when interviewing a suspect. Where this is needed, an interview with an underage suspect is recorded.

§ 76. Report of an interview with the suspect

(1) The following are recorded in the report of the interview:

1) the suspect’s name, residence or seat with the corresponding address, personal identification number (or, if they do not possess such a number, their date of birth), citizenship, education, native language and employment or the name of their educational institution;

2) the suspect’s marital status;

3) the facts of the criminal offence of which the person is suspected and the legal designation of the criminal offence according to the relevant section, subsection and clause of the Penal Code;

4) the suspect’s statement.

(2) A report of an interview with a suspect is filed following subsections 2 and 4 of § 74 of this Code.

§ 77. Contrastive interview or examination

(1) Persons may be interviewed or examined contrastively if it is not possible otherwise to resolve a contradiction contained in their statements or testimony.

(2) In a contrastive interview, the relationship between the persons whose statements or testimony is being contrasted is ascertained and questions concerning the circumstance that shows a contradiction are put to those persons in consecutive order.

(3) In a contrastive interview or examination, previous statements or testimony of the persons interviewed or examined may be presented and other evidence may be produced or offered.

(4) With permission of the official of the investigative authority, the persons whose statements are being contrasted may, through the official, put questions to each other concerning any contradictions shown by their statements. Were this is needed, the official of the investigative authority changes the wording of the question.

(5) When taking statements in the course of a contrastive interview, subsection 2¹ of § 66 and subsections 2−6 of § 68 of this Code are followed.

(6) Participation in a contrastive interview or examination of a person whose statement or testimony is to be contrasted with that of another person may be arranged by the proceedings authority by means of a technical solution which complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code. A contrastive interview or examination arranged by means of a technical solution is video recorded.

§ 78. Report of a contrastive interview

(1) The report of a contrastive interview records the course and results of the corresponding investigative operation in the form of questions and answers following the order in which the questions were put and answered.

(2) When the proceedings authority demands this, a person whose statement or testimony is being contrasted to that of another person signs a certificate of truth in respect of each answer recorded in the report.

(3) If the answers of the persons whose statements or testimony are being contrasted match, they may be recorded in the report as a single answer.

(4) Where a previous statement of the person interviewed or examined is presented or where other evidence is produced or offered, this must be reflected by the wording of the corresponding question recorded in the report.

§ 79. Linking a statement or testimony to the relevant setting

(1) When linking a statement or testimony to the relevant setting, the suspect, accused, victim or witness who has been interviewed or examined is invited to explain and specify the circumstances relating to the criminal event at the relevant scene and to link their statement or testimony to the setting at the scene.

(2) Where, during pre-trial proceedings, it is necessary to link the statements of several persons to the relevant setting, the linking is performed separately with each person.

(3) When taking a statement or testimony in the course of linking a previously given statement or testimony to the relevant setting, subsection 2¹ of § 66 and subsections 2−6 of § 68 of this Code are followed.

§ 80. Report of linking a statement or testimony to the relevant setting

The following are recorded in the report of linking a statement or testimony to the relevant setting:

1) an invitation to the suspect, accused, victim or witness to explain and specify the circumstances concerning the subject matter of evidence at the relevant scene;

2) any statement or testimony given when linking a previously given statement or testimony to the relevant setting;

3) the nature and substance of the operations performed by the suspect, accused, victim or witness and the name of the place or the object to which the previously given statement or testimony, or the operations performed, were linked;

4) whether and to what extent the setting at the scene of events was recreated in the course of the investigative operation;

5) the location, at the scene of events, of the object to which the previously given statement or testimony was linked and information reflecting inspection of the object;

6) common names of objects that have been seized for use as items of physical evidence.

§ 81. Identification line-up

(1) Where this is needed, the proceedings authority may present a person or thing, or any other object for identification to the suspect, accused, victim or witness who has been interviewed or examined.

(2) A person, thing or any other object is presented for identification in a line-up with at least two other similar objects.

(3) A set of objects is not assembled if the object to be presented for identification is:

1) a corpse;

2) an area, building, room or other object which does not allow for the line-up of several objects at the same time;

3) an object whose features render it substantially different from other objects and do not allow a line-up of objects similar to one another to be assembled.

(4) Where this is needed, a person, thing or other object is presented for identification by means of a photograph, footage or an audio or video recording.

(5) An identification line-up may be repeated if the first line-up took place by means of a photograph, footage 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 its former appearance.

(6) If the suspect, accused, victim or witness identifies the object which is presented to them for identification or declares it to be similar to an object related to the event that is being investigated, they are invited to name the characteristic features based on which they reached such a conclusion and to explain the relationship between the object and the event. If they reject the proposition of identity or of similarity, they are invited to explain in what respect the object or objects presented to them differ from the object related to the event.

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

(8) When taking a statement in the course of presentation for identification, subsection 2¹ of § 66 and subsections 2−6 of § 68 of this Code are followed.

§ 82. Report of an identification line-up

(1) The report of an identification line-up states:

1) the common names of the object or objects presented for identification;

2) material features that make the objects similar to one another, and where the object presented for identification was located in the line-up;

3) the place in the line-up that was chosen by the person presented for identification;

4) the invitation that was made to the identifying party to look at the object or objects presented to them and to tell whether they have identified the object related to the event under investigation and whether they accept that the object is similar to, or affirm that it is different from, the other objects;

5) characteristic features by which an object was identified by the identifying party.

(2) If the person who has been identified contests the result of the investigative operation, a corresponding note is made in the report.

§ 83. Aim of inspection and objects of inspection

(1) The aim of an inspection is to collect information required for resolving the criminal case, to detect the indicia of a criminal offence and to seize any objects that are to be used as physical evidence.

(2) The objects of inspection are:

1) the scene of events;

2) the corpse;

3) a document, another object or an item of physical evidence;

4) where a physical examination is to be conducted, the person or the postal or telegraphic item to be examined.

(3) Where explanations from the suspect, accused, witness, specialist witness or victim are conducive to ensuring the comprehensiveness, exhaustiveness and objectivity of the inspection, the person is summoned to attend the inspection.

§ 84. Inspection of the scene of events

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

§ 85. Inspection of the corpse

(1) An inspection of the corpse is conducted at the scene of events or at any other location where the corpse is situated.

(2) When inspecting a corpse, the following is ascertained:

1) the identity of the corpse or, where the corpse is unknown, its description is provided;

2) the location, position and pose of the corpse;

3) the indicia of a criminal offence and any objects located near the corpse;

4) the indicia of a criminal offence on the uncovered parts of the corpse, on its clothes, footwear, and on its covered parts;

5) the signs of death;

6) other characteristic features needed for resolving the criminal case.

(3) Where possible, an inspection of the corpse is conducted in the presence of a forensic pathologist or a specialist witness whose task is to:

1) unless death is evident, ascertain its arrival;

2) assist the official of the investigative authority in the conduct of the inspection in order to collect and record the source information necessary for an expert assessment.

§ 86. Inspection of document, another object or an item of physical evidence

(1) When inspecting a document or another object, the indicia of a criminal offence and any other characteristic features that are needed for resolving the criminal case and that constitute grounds for using the object in question as an item of physical evidence are ascertained.

(2) Where further examination of a document, thing or other object that appears as an item of physical evidence is needed, an inspection of the item of physical evidence is performed.

§ 87. Report of an inspection

(1) The report of an inspection records:

1) a description of the setting at the scene of events;

2) the identity of the corpse or, where the corpse is unknown, the person’s description;

3) the name and characteristic features of any document or other object discovered in the course of the inspection;

4) a description of the indicia of a criminal offence;

5) other information reflecting the inspection;

6) the name and number of any object that was taken into custody in the course of the investigative operation and that is to be used as an item of physical evidence.

(2) Any explanations provided by a person who participated in the investigative operation or any particulars of any covert operations performed in the course of the inspection are not recorded in the report of inspection of a scene of events.

§ 88. Physical examination of a person

(1) When performing physical examination of a person, the following is ascertained:

1) whether there are any indicia of a criminal offence on the body, clothes or footwear of the person, which constitute grounds for declaring them a suspect;

2) the nature of any harm to the person’s health and the location and other characteristics of any bodily injuries;

3) any bodily peculiarities of the suspect, accused or victim or any distinctive marks on their body, which need to be recorded with a view to resolving the criminal case;

4) whether, with the person or hidden in their body, there are items to be used as physical evidence;

5) any other facts related to the subject matter of evidence in the criminal case.

(2) If the aim of the physical examination of a person is to detect the indicia of a criminal offence on their body, a forensic pathologist, health care professional or other specialist witness takes part in the examination.

(3) When conducting a physical examination of a person, it is allowed to take, from the person, samples for analysis or material for expert assessment. The provisions of § 100 of this Code are followed when taking such samples and material.

(4) The report of a physical examination of a person records:

1) a description of the indicia of a criminal offence discovered on the body, clothes or footwear of the person;

2) a description of the peculiarities or distinctive marks on the person’s body;

3) the names of any objects were discovered in the course of the investigative operation and which are to be used as physical evidence.

(5) It is not allowed to draw any conclusions in the report of a physical examination of a person concerning the nature of any harm to their health, the aging of such harm or the manner in or means by which the harm was caused.

§ 89. Attachment and examination of a postal or telegraphic item

(1) In order to conduct an examination of a postal or telegraphic item, the item is attached on an application of the Prosecutor’s Office by order of the pre-trial investigation judge or of the court.

(2) An order by which a postal or telegraphic item is attached states:

1) the name of the sender or addressee of the item to be attached and their residence or seat, with the corresponding address;

2) the reasons for attachment;

3) the rules for notifying the investigative authority of the item that has been attached.

(3) A copy of the order by which a postal or telegraphic item is attached is sent for execution to the Head of the provider of the postal or telecommunications service.

(4) When conducting an examination of a postal or telegraphic item, information to reflect the inspection is collected concerning the circumstances that constitute the subject matter of evidence in the case and any items to be used as physical evidence in criminal proceedings are seized from the provider of the postal or telecommunications service. The provider transmits to the addressee any examined object that is not related to the criminal case.

(5) Attachment of a postal or telegraphic item is released by order of the Prosecutor’s Office. A copy of the order is transmitted to any person who is not a party to proceedings but in respect of whom the attachment and examination of the item violated the confidentiality of messages.

§ 90. Report of examination of a postal or telegraphic item

A report of examination of a postal or telegraphic item records:

1) a reference to the order by which the item was attached;

2) a reference to the object examined;

3) information reflecting inspection of the item;

4) a reference to the postal or telegraphic item that was seized and is to be used as physical evidence.

§ 90¹. Requiring data from an electronic communications undertaking

(1) A proceedings authority may make an enquiry to an electronic communications undertaking concerning the data required to identify an end user linked to certain identification tokens used in a public electronic communications network, with the exception of data relating to the fact of communication of a message.

(2) On an application of the Prosecutor’s Office and with the authorisation of the pre-trial investigation judge in pre-trial proceedings – or of the court in judicial proceedings – an investigative authority may make an enquiry to an electronic communications undertaking concerning data that are listed in subsections 2 and 3 of § 111¹ of the Electronic Communications Act and that are not mentioned in subsection 1 of this section.

(3) An enquiry provided for by subsection 2 of this section may be made if the criminal offence is one listed in subsection 2 of § 126² of this Code and if it is ineluctably necessary for achieving the purpose of criminal proceedings. In relation to a criminal offence not mentioned in the list, such an enquiry is permitted if it is ineluctably necessary for achieving the purpose of criminal proceedings, justified by the gravity and nature of the offence and does not unjustifiably interfere with personal rights.

(4) An authorisation for an enquiry concerning communication data states:

1) the data that are allowed to be collected by the enquiry;

2) the reason for collecting the data;

3) the period of time concerning which collection of the data is allowed.

(5) An order of the pre-trial investigation judge – or a court order – that disposes of the application of the Prosecutor’s Office may be made as a note on the application.

(6) In a situation of urgency where it is not possible to obtain, at the proper time, an authorisation of the pre-trial investigation judge or of the court, an enquiry mentioned in subsection 2 of this section may be made under an authorisation of the Prosecutor’s Office which has been given in a form that is reproducible in writing and contains at least the particulars provided for by clauses 1 and 3 of subsection 4 of this section. In such a case, a reasoned application for allowing the enquiry must be filed with the court within the first business day following its making. The pre-trial investigation judge decides on allowing the enquiry by an order that may be made as a note on the application of the Prosecutor’s Office.

§ 91. Search

(1) The aim of a search is to find, in a building, a room, a vehicle or an enclosed area, an object to be confiscated or used as an item of physical evidence, or a document, thing or person needed for resolving the criminal case, or property to be attached in criminal proceedings, or a corpse, or to apprehend a person who has been declared a fugitive from justice. A search may be conducted provided there is a reasonable suspicion that what is searched for is located at the place to be searched.

(2) Unless otherwise provided by this Code, a search may be conducted on an application of the Prosecutor’s Office under a warrant from the pre-trial investigation judge or from the court. The order by which the pre-trial investigation judge or the court disposes of such an application may take the form of a note made on the application.

(3) A search may be conducted based on a warrant from the Prosecutor’s Office, except for a search at a notary’s office or at the office of a law firm or at the premises of a person processing information for journalistic purposes, provided there is reason to believe that the suspect is using the premises or vehicle to be searched, or used those premises or that vehicle, at the time of the criminal event or during pre-trial proceedings, and the person is suspected of having committed a criminal offence mentioned in subsection 2 of § 126² of this Code.

(4) A search warrant states:

1) as the aim of the search, what the search is for (hereinafter, the object searched for);

2) the reasons for the search;

3) the place at which the search is conducted.

(5) In a situation of urgency, if it is not possible to issue a search warrant at a proper time, a search may be conducted, on conditions provided by subsection 3 of this section, based on an authorisation of the Prosecutor’s Office provided in a form reproducible in writing.

(6) When a search is conducted on the grounds provided by subsections 3 and 5 of this section, this must be notified, through the Prosecutor’s Office, to the pre-trial investigation judge during the first working day following commencement of the search. The judge decides, by an order which may be made as a note on the warrant from the Prosecutor’s Office, whether or not to declare the search permissible.

(7) During the lead-in to a search, the search warrant is presented to the person at whose premises the search is performed, or to a full-age member of their family, or to a representative of the legal person or of the State or municipal authority at whose premises the search is performed. Signed acknowledgement of such presentation is obtained on the warrant from the person, family member or representative. In a situation mentioned in subsection 5 of this section, the circumstances mentioned in subsection 4 of this section, and the reasons for conducting the search as a matter of urgency, are explained to the person, family member or representative. Signed acknowledgement of such explanation is obtained on the search report from the person, family member or representative. Where the relevant person or representative is not present, participation of a representative of the municipality must be arranged.

(8) When a search is conducted at the office of a notary or of a law firm, the notary or the attorney at whose premises the search is performed must be in attendance. If the notary or attorney cannot attend the search, it must be attended by the person who stands in for the notary or by another attorney who provides legal services through the same firm or, where this is impossible, by another notary or another attorney.

(9) During the lead-in to a search, an invitation is made to hand over the object searched for or to show the place where a corpse has been hidden or where a person who has been declared a fugitive is hiding. If the invitation is not acceded to or if there is reason to believe that it has only been followed in part, search operations are conducted.

(10) In the course of a search, any objects that are subject to confiscation or that clearly represent items of evidence in criminal proceedings may be seized, provided these were discovered without any search operations, in a clearly visible place, or in the course of reasonable search operations undertaken to find the objects searched for.

§ 91¹. Entry against the will of the possessor

Where the performance of a procedural operation requires entry, against the will of the possessor, into a building, a room, a vehicle or an enclosed area, the rules provided by § 91 of this Code are followed, except where this is necessary for:

1) inspection of a corpse or a scene of events directly after the corpse was found or the criminal offence was committed, or

2) for arresting a person as a suspect directly after commission of a criminal offence.

§ 92. Search report

(1) A search report records:

1) the invitation to hand over the object searched for or to show the location of a corpse or of a person who has been declared a fugitive from justice;

2) the names of any objects that were handed over voluntarily;

3) the conditions, course and results of any search operations;

4) the names of any objects found and the characteristic features of any objects that are of relevance for resolving the criminal case;

5) particulars regarding the identification of a person who has been declared a fugitive from justice and who was apprehended.

(1¹) In a situation mentioned in subsection 5 of § 9 of this Code, the circumstances mentioned in subsection 4 of § 91 and the reasons why the search was conducted as a matter of urgency are stated in the introductory part of the search report.

(2) Where a physical examination of a person is performed in the course of a search, the particulars listed in subsection 4 of § 88 of this Code may be recorded in the search report. In such a situation, it is not necessary to file a report of physical examination of the person.

§ 93. Investigative experiment

(1) The aim of an investigative experiment is to ascertain, by practical testing, whether the circumstances or operations of an investigated event were present at the time of the criminal event or whether it was possible to perceive their existence.

(2) The suspect, accused, victim or witness participates in an investigative experiment if:

1) their assistance is required in order to recreate the setting at the scene of events;

2) the results of the investigative experiment allow their statement or testimony to be verified;

3) the results of the tests depend on the qualities, abilities or skills of the participant.

(3) It is allowed to use an item of physical evidence in an investigative experiment if:

1) substitution of the item may affect the results of the investigative operation, and destruction of the item is precluded;

2) it is not necessary to present the item as part of an identification line-up to a person participating in the experiment.

(4) When explaining the results of an investigative experiment, conclusions based on specialised knowledge are not allowed.

§ 94. Report of an investigative experiment

The report of an investigative experiment records:

1) the question for whose determination it was deemed necessary to conduct practical tests;

2) whether the setting at the scene of events was recreated for conducting the tests;

3) whether the suspect, accused, witness or victim has declared the setting of the investigative experiment to correspond to the setting of the event under investigation;

4) a description of the tests: their number, sequential order, conditions, the changing of the number, and their substance;

5) the results of the tests.

§ 95. Expert

(1) ‘Expert’ means a person who applies non-legal specialised knowledge when conducting an expert assessment in situations and following the rules provided by this Code.

(2) When commissioning an expert assessment, the proceedings authority gives preference to a public forensic institution. If the required type of expert assessment is not on the list of assessments performed by the relevant public forensic institution, the proceedings authority, when nominating the expert, gives preference to a registered private expert, yet other persons possessing the relevant knowledge may also be nominated.

(3) If an expert assessment is arranged outside a forensic institution, the proceedings authority ascertains whether the person to be nominated as the expert is impartial with regard to the criminal case and agrees to conduct the assessment. The person is explained the rights and obligations of experts as provided by § 98 of this Code. If a person who has not been sworn in is assigned as the expert, they are cautioned with regard to a criminal sentence for rendering a knowingly false expert opinion. With the agreement of the expert, the proceedings authority sets a time limit for the expert assessment.

(4) The proceedings authority may request that an expert assessment be carried out at a forensic institution of a foreign State and use the expert opinion rendered in the foreign State as evidence in the criminal case.

§ 96. Grounds for an expert to recuse themselves

(1) An expert is required to recuse themselves from criminal proceedings:

1) on the grounds provided by subsections 1 and 6 of § 49 of this Code;

2) if they work in a position subordinate to, or are otherwise dependent on, a party to proceedings or an official of the investigative authority who is conducting proceedings in the criminal case.

(2) A committee of experts may not include any persons who have, between themselves, a close relationship listed in subsection 1 of § 71 of this Code.

(3) An expert’s earlier participation in criminal proceedings in the case in the capacity of an expert or of a specialist witness does not constitute a ground for recusal.

(4) An expert’s recusal is formalised based on a corresponding recusal application that states its reasons and that is included in the criminal file.

§ 97. Recusing the expert

(1) Where the expert has not recused themselves from proceedings on the grounds provided by § 96 of this Code, the suspect, accused, victim, civil defendant or defence counsel may file an application or motion to recuse the expert.

(2) An application or motion to recuse the expert is disposed of following the rules provided by subsections 5 and 6 of § 59 of this Code.

§ 98. Rights and obligations of the expert

(1) When conducting an expert assessment, the expert has a right:

1) to make an application or motion that the material for expert assessment be supplemented by additional items;

2) in order to ensure that the material for expert assessment is exhaustive, to take part in procedural operations at the invitation of the investigative authority or the Prosecutor’s Office and, at the invitation of the court, to take part in the examination of evidence;

3) to acquaint themselves with materials of the criminal case that are required for the expert assessment;

4) to refuse to carry out the expert assessment if the material for such assessment that has been presented to them is not sufficient or if the assessment tasks stated in the order on expert assessment fall outside their specialised knowledge or if providing an answer to the questions posed does not require expert inquiry or the drawing of conclusions based on specialised knowledge;

5) to make an application or motion that, with permission of the proceedings authority, a person who may provide explanations that are required for expert inquiries be present when the expert assessment is carried out;

6) to set and resolve, of their own motion, expert assessment tasks not stated in the order concerning the expert assessment.

(2) An expert is required to:

1) carry out an expert assessment, when they have been assigned as the expert;

2) appear when summoned by the proceedings authority;

3) ensure that expert inquiries are conducted comprehensively, exhaustively and objectively, and that the expert opinion is scientifically sound;

5) maintain as confidential any facts that may be disclosed only with the written permission of the proceedings authority and that they have become privy to when carrying out the expert assessment.

(3) Where, without a valid reason, the expert does not appear, a fine may be imposed on them by the pre-trial investigation judge on an application of the Prosecutor’s Office or by order of the court.

§ 99. Making provision for expert assessment and inquiry

(1) Where this is needed, material is collected for expert assessment or inquiry, the suspect or accused is placed in a medical institution in a compulsory manner in order to carry out, in their respect, a forensic psychiatric or forensic medical examination, or a corpse is exhumed from its burial place in order for a forensic medical examination or any other expert assessment or comparative inquiry to be performed.

(2) Where this is needed, the prints of papillary skin ridges or facial image 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 the prints or image, as well as – where this is needed – data obtained on analysis of a DNA sample, and a voice sample, being recorded in the National Offence Proceedings Database of Biometrics.

(3) Unless otherwise provided for by law, an investigative authority or any other authority vested with the relevant power may preserve any indicia and samples that have been collected 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, facial images, voice or DNA samples collected in the course of a procedural operation only if those prints, images or samples are not recorded in the ABIS Database or in the National Offence Proceedings Database of Biometrics.

§ 99¹. Fingerprinting a person, capturing their facial image and voice sample and taking a sample of their DNA

(1) A person who is suspected, accused or convicted of an intentionally committed criminal offence which is mentioned in Subchapters 1, 2, 6 or 7 of Chapter 9, in Subchapter 2 of Chapter 11, in Subchapters 1 or 4 of Chapter 22 of the Penal Code or in any other Chapter of the Penal Code and whose elements include the use of violence and which is punishable by at least two years of imprisonment is fingerprinted, their facial image is captured, a sample of their DNA is taken and – if this is needed – a sample of their voice is captured for the purposes of offence proceedings or of the detection and prevention of offences.

(2) For the purposes of offence proceedings, or of the detection and prevention of offences, a person who is suspected, accused or convicted of a criminal offence which does not fall under subsection 1 of this section but which is punishable by at least one year of imprisonment according to the Penal Code may also be fingerprinted, their facial image and a sample of their voice may be captured, and a sample of their DNA may be taken.

(3) Coercion may be applied with regard to persons falling under subsections 1 and 2 of this section if they refuse to be fingerprinted or to allow their facial image or voice sample to be captured or to provide a sample of their DNA.

(4) The prints of papillary skin ridges and the facial image of persons mentioned in subsections 1 and 2 of this section are recorded in the ABIS Database, with information concerning the person, their fingerprinting and the capturing of their facial image being recorded in the National Offence Proceedings Database of Biometrics.

(5) The data obtained on analysis of the DNA sample, and voice samples, of persons mentioned in subsections 1 and 2 of this section as well as information on capturing the voice sample and taking a sample of their DNA are recorded in the National Offence Proceedings Database of Biometrics.

(6) The data recorded under subsections 4 and 5 of this section in the ABIS Database and in the National Offence Proceedings Database of Biometrics are retained according to the Forensic Examination Act.

§ 99². Use – to provide for a forensic examination – of data from the fingerprinting, the capturing of facial images and voice samples and the analysis of DNA samples that was carried out for another purpose, and of archived data

(1) To provide for an expert assessment ordered in criminal proceedings, it is permitted to use data from the fingerprinting, the capturing of facial images and voice samples and the analysis of DNA samples carried out for a purpose other than the fingerprinting, capturing or taking mentioned in § 99¹ of this Code, in § 31¹ of the Code of Misdemeanour Procedure and in § 18 of the Imprisonment Code, provided that it is not possible to collect evidence by other procedural operations or that collection of evidence by such operations is materially complicated or that it may prejudice the interests of criminal proceedings in the case.

(2) The provision of subsection 1 of this section may be applied only if, in criminal proceedings, a need has arisen to collect information about a criminal offence of the first degree or an intentional criminal offence of the second degree that is punishable by at least up to three years’ imprisonment.

(3) An operation mentioned in subsection 1 of this section may be performed on an authorisation by the pre-trial investigation judge or the court following an application from the Prosecutor’s Office.

§ 100. Taking of reference material

(1) The purpose of the taking of reference material is to collect reference indicia and samples required for an expert assessment or for expert inquiry.

(1¹) In order to exclude indicia lawfully left on the scene of events or any other object or location that is related to the scene, the victim, witness or any other person may be fingerprinted, their facial image and voice sample may be captured, or a sample of their DNA may be taken.

(2) An order authorising the taking of reference material is required if:

1) the suspect or accused refuses to provide such material, and it is possible to achieve the aim of the procedural operation by coercion;

2) the taking of the material interferes with the bodily inviolability of the person concerned;

3) a legal person is required to produce documents as the material.

(3) An order authorising the taking of reference material states:

1) who the material is to be taken from;

2) the type of the material;

3) the reasons for the procedural operation.

(4) Where the taking of reference material interferes with the bodily inviolability of the person concerned, a forensic pathologist, health care professional or other specialist witness participates in the procedural operation.

(5) Unless for the contrary intention emanates from the law, an investigative authority or another competent authority may preserve any reference material taken for the purposes of proceedings concerning, or of the detection and of prevention of, offences.

(6) The data obtained by fingerprinting a person, or capturing their facial image, under subsection 1¹ of this section are not recorded in the ABIS Database or the National Offence Proceedings Database of Biometrics, or are removed from those databases immediately after the carrying out of the comparative inquiry. The public forensic institution concerned returns the reference material to the proceedings authority together with the expert’s report or the report of the inquiry. Any reference material collected 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 case file.

(7) The data obtained on analysis of a person’s DNA samples f taken, or voice sample captured, under subsection 1¹ of this section are not recorded in the National Offence Proceedings Database of Biometrics or are removed from that database immediately after the carrying out of the comparative inquiry.

§ 101. Report of the taking of material for expert assessment

The report of the taking of material for expert assessment states:

1) the names of any reference indicia and samples taken;

2) the manner in and conditions under which the material for expert assessment was taken;

3) the amount or quantity of the material for expert assessment.

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

(1) If the performance of a forensic psychiatric or forensic medical examination requires long-term expert inquiries, the proceedings authority commissions expert assessment by a committee of experts and places the suspect or accused in the relevant medical institution in a compulsory manner.

(2) The suspect or accused is placed in the medical institution on an application of the Prosecutor’s Office by order of the pre-trial investigation judge or of the court.

(3) The suspect or accused is placed in the medical institution for up to one month. On an application of the Prosecutor’s Office, the pre-trial investigation judge or the court may extend that time limit by three months.

(4) The time spent by the suspect or accused in the medical institution is counted as time they have spent in custody.

§ 103. Exhumation of corpse from official place of burial

(1) A corpse is, or its remains are, exhumed from its official place of burial if, in criminal proceedings, it is necessary to ascertain the cause of death or any other circumstances that constitute the subject matter of evidence, or to collect trace or print material or samples for a comparison conducted as part of an expert assessment.

(2) The basis for exhuming a corpse from its place of burial is a corresponding order of the Prosecutor’s Office or of the court.

(3) A corpse is exhumed from its place of burial with the participation of a forensic pathologist or another specialist witness 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 during the procedural operation and, where this is needed, the corpse is presented to them for identification.

(4) Where this is needed, soil and other samples are taken from a corpse’s place of burial.

(5) In the order authorising exhumation of a corpse from its place of burial, a direction is addressed to the city or rural municipality government to reinter the corpse and restore the gravesite.

§ 104. Report of exhumation of a corpse from its place of burial

A report of exhumation of a corpse from its place of burial states:

1) the name and location of the place of burial and information showing where the grave is situated;

2) a description of the grave and the grave markers;

3) information reflecting inspection of the coffin and the corpse.

§ 105. Arranging an expert assessment

(1) Based on the need for evidence, an expert assessment is arranged by order of the proceedings authority.

(2) The proceedings authority may not refuse to commission an expert assessment applied for by the suspect, accused, defence counsel, victim or civil defendant if the circumstance to be ascertained by such an assessment may have material importance for the resolution of the criminal case.

§ 106. Order concerning expert assessment

(1) The order concerning expert assessment states:

1) the source information needed for the assessment;

2) the reasons for commissioning the assessment and for the making of arrangements to ensure the carrying out of the assessment;

3) the type of the assessment commissioned – by field of specialised knowledge;

4) the name of the expert or of the institution to carry out the order;

5) the particulars of the objects of expert assessment that are linked to the criminal event, and of the reference material and of the material for the expert or experts to acquaint themselves with;

6) the task for the assessment;

7) in a situation provided for by subsection 3 of § 95 of this Code, the time limit for the assessment.

(2) Where measures mentioned in subsection 1 of § 99 of this Code are not applied to ensure the carrying out of the expert assessment, the reasons mentioned in clause 2 of subsection 1 of this section may be omitted from the expert assessment order.

(3) Where an expert assessment is arranged in a public forensic institution, the expert is not assigned by name. A person who is not employed by the institution may be enlisted in a committee of experts as an expert.

(4) The following are not allowed to be put to the expert:

1) questions that are of a legal nature or fall outside their area of specialisation;

2) questions the answering of which does not require the drawing of conclusions based on specialised knowledge.

§ 107. Creating the expert’s report

(1) The expert’s report states:

1) the date and place of its creation;

2) the particulars of the commissioning of the expert assessment;

3) the source information needed for the assessment;

4) the type of assessment;

5) particulars concerning the expert;

6) the name of the object presented for assessment or the name of the person who was assessed;

7) particulars concerning additions to the material for assessment;

8) a reference to the persons present when the assessment was conducted;

9) the measures to be taken with regard to the item of physical evidence presented for assessment, to the reference material, to the material for assessment or to the object presented for assessment;

10) the substantiation of the expert’s report, i.e. the description of the investigations, analyses, tests or any other operations required for the expert to form their opinion;

11) the expert’s opinion.

(2) Where the expert assessment is carried out at a public forensic institution, an unsubstantiated expert’s report may be created that refers to the methods used or to the rules established in the forensic institution regarding the type of expert assessment. On a justified application of the party to proceedings, or of the proceedings authority’s own motion, a substantiated expert’s report is created, or the report that has been created is supplemented with a substantiation.

(3) The expert’s report does not need to restate the information contained in the expert assessment order.

(4) Where the expert assessment is conducted by a person who has not taken the relevant oath, a note is included in the expert’s report concerning person’s having been cautioned with regard to criminal liability.

(5) Where the committee of experts does not reach a consensus, the opinion of the dissenting expert is annexed to the expert’s report.

(6) Where the question put to the expert is of a legal nature, falls outside their area of the expert’s specialisation or does not require the drawing of conclusions based on specialised knowledge, the expert, in the expert’s report, refuses to answer it.

(7) The expert’s report is certified by the expert or experts who carried out the assessment.

§ 108. Report concerning refusal to undertake the expert assessment

(1) Where the expert refuses to undertake the expert assessment on the grounds provided by clause 4 of subsection 1 of § 98 of this Code, they create a report concerning the refusal.

(2) The report concerning refusal to undertake the expert assessment states the particulars listed in clauses 1–9 of subsection 1 of of § 107 of this Code and states the reasons for the refusal.

§ 109. Interviewing the expert

(1) Where this is needed, the expert is interviewed during pre-trial proceedings. When conducting the interview, the provisions of subsection 2¹ of § 66 and §§ 68, 69 and 69² of this Code are followed without prejudice to special rules provided by this section.

(2) The expert may be interviewed with regard to the following circumstances:

1) the facts of the subject matter of evidence that the expert has perceived at first hand;

2) the course of a procedural operation conducted with the expert’s participation;

3) the expert’s competence, experience and other circumstances that affect the trustworthiness of their opinion;

4) the investigations conducted by the expert in the criminal case, their results and the expert’s conclusions that are based on their specialised knowledge;

5) any other circumstances that the expert is capable of explaining based on their specialised knowledge, provided that this is needed for a better understanding of the facts constituting the subject matter of evidence.

§ 109¹. Specialist witness

(1) ‘Specialist witness’ means a natural person who possesses specialised knowledge that they use in situations and in accordance with the rules provided by this Code but who has not been enlisted in criminal proceedings as an expert.

(2) A specialist witness may be enlisted to assist in a procedural operation. Before the commencement of the operation, the proceedings authority ascertains the identity of the specialist witness, their competence and their relationship with the suspect or accused. Any representations made by the specialist witness in connection with the detection and preservation of evidence are recorded in the report.

(3) A specialist witness may be interviewed or examined concerning the following circumstances:

1) the course of the procedural operation performed in the presence of the specialist witness;

2) other circumstances concerning which the specialist witness can provide explanations due to their specialised knowledge, where this is needed for the purposes of acquiring a better understanding of the circumstances that constitute the subject matter of evidence.

(4) A specialist witness is interviewed or examined in accordance with the provisions that apply to the interviewing or examination of witnesses without prejudice to the special rules provided by this section.

(5) If it emerges that a specialist witness may know the circumstances mentioned in § 66 of this Code, they are interviewed or examined concerning such circumstances as a witness. The same person may be interviewed or examined as a witness and as a specialist witness during a single procedural operation.

§ 109². ABIS Database

(1) The ABIS Database is an electronic database whose aim, for the purposes of this Code, is to process the biometric data obtained by fingerprinting, or capturing the facial image of, a suspect, accused or convicted offender, or a victim, witness or any other person, as well as any prints of papillary skin ridges collected from the scene of events or obtained from another object, or facial images obtained from the scene of events or from another location related to the events:

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.

(5) Constitutive regulations of the ABIS database lay down the rules for keeping the database, including:

1) data providers and the data collected from them composition of the data collected from them;

2) specific composition of the data;

3) data exchange between databases;

4) the tasks of data controllers;

5) authorised processors and their tasks;

6) the rules for granting access to data and for release of data;

7) specific time limits for data retention;

8) other organisational matters.

(5¹) Data in the ABIS database are kept for a maximum of 75 years from entry into the database. Detailed time limits for data retention are provided by constitutive rules 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.

§ 110

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§ 123. Document

(1) When proving one’s case, any document may be used that contains information concerning circumstances that constitute the subject matter of evidence in the case.

(2) A document is deemed an item of physical evidence if it possesses the characteristics mentioned in subsection 1 of § 124 of this Code.

§ 124. Item of physical evidence

(1) ‘Item of physical evidence’ means a the object or material that constituted an element of the criminal offence committed, the means used to commit that offence, an object bearing indicia of the criminal offence, an impression or a print made of such indicia, or any other unique object that is related to the criminal event and that can be used to ascertain the circumstances that constitute the subject matter of evidence.

(2) If an object that is used as an item of physical evidence has not been described in the report on the investigative operation with the degree of detail required for evidentiary purposes, an inspection of the object is carried out in order to record its characteristic features.

(3) An item of physical evidence or an object that has been seized is returned to the owner or former lawful possessor without delay provided this does not interfere with criminal proceedings in the case. As a rule, such an item or object is returned at the place where it is held.

(4) Where six months have elapsed from the time when an item of physical evidence was seized but there is no accused in the criminal case, the item is handed over for safekeeping, on an application of its owner or lawful possessor and under the conditions for safekeeping of physical evidence, to the person who filed the application, except in situations mentioned in subsections 5 and 6 of this section.

(5) On an application of the investigative authority, the prosecutor may extend the six-month time limit mentioned in subsection 4 of this section to up to one year. Where no application mentioned in subsection 4 is has been made, the time limit extends automatically.

(6) On an application of the Prosecutor’s Office, the pre-trial investigation judge may extend the time limits mentioned in subsections 4 and 5 of this section to more than one year if the delay in bringing the charges is due to the complexity or large volume of the criminal case or to exceptional circumstances related to international cooperation. Where no application mentioned in subsection 4 is has been made, the time limit extends automatically.

§ 125. Safekeeping of the item of physical evidence

(1) An item of physical evidence is kept in the criminal file, in a physical evidence storage facility of the investigative authority, the Prosecutor’s Office or the court, or in any other room in their possession or area guarded or monitored by them, or in a forensic institution, or is made subject to the measures prescribed by § 126 of this Code, provided this does not prejudice the interests of criminal proceedings in the case.

(2) An item of physical evidence which cannot be kept following the rules provided by subsection 1 of this section – and with regard to which, having regard to the interests of criminal proceedings, prior to the entry into effect of the judgment or to termination of the proceedings, the measures prescribed in § 126 of this Code cannot be applied – is deposited for safekeeping on a contract basis.

(3) The keeper of an item of physical evidence ensures the inviolability and preservation of the item.

(4) A depositary who is not the item’s owner or lawful possessor is entitled to compensation for the safekeeping fee, that is included in costs of the case. The costs of safekeeping are compensated for on the basis of a contract between the proceedings authority and the depositary.

(5) If the item of physical evidence represents a document that its holder requires in the course of their subsequent economic or professional activity or for another valid reason, the proceedings authority makes a copy of the document for the holder. The truth of the copy is certified by the signature of the proceedings authority on the copy.

(6) Subsections 1−5 of this section are applied also with regard to an object that has been seized but that does not constitute an item of physical evidence.

§ 126. Measures to be applied to items of physical evidence and to property to be confiscated

(1) An item of physical evidence that is perishable in the short term and that cannot be returned to its lawful possessor is granted free of charge to a State or municipal health care or social welfare institution, or transferred or destroyed in the course of criminal proceedings by order of the proceedings authority. The money received from the sale is charged to public revenue.

(1¹) An item of physical evidence that cannot be returned to its lawful possessor and whose costs of safekeeping are unreasonably high may be disposed of on an application of the Prosecutor’s Office by order of the pre-trial investigation judge. The amount obtained from the disposal is attached.

(1²) An item of physical evidence that its owner or lawful possessor has not removed within six months as of learning of the decision to return it may be transferred or destroyed by the keeper of the item following the rules provided by the State Assets Act.

(2) Property that is subject to confiscation and whose lawful possessor has not been ascertained may be confiscated in the course of criminal proceedings on an application of the Prosecutor’s Office by order of the court.

(2¹) Property attached as an interim measure to achieve a confiscation may be disposed of on an application of the Prosecutor’s Office, with the consent of the owner of the property by order of the pre-trial investigation judge. Property may be disposed of without the consent of its owner if the cost of its safekeeping is unreasonably high or if this is necessary to prevent a material reduction of its value. The amount obtained from the disposal is attached.

(2²) Items of no value or of little value or pirate or counterfeit goods, which it is not possible to dispose of under subsection 2¹ of this section, may be destroyed without the consent of their owner or, in a situation provided for by law, reworked on an application of the Prosecutor’s Office by order of pre-trial investigation judge, provided the cost of safekeeping of such items or goods is unreasonably high.

(3) The following measures are to be prescribed in respect of an item of physical evidence in an order of the proceedings authority or in the judgment rendered in the case:

1) a thing bearing an indicium of the criminal offence, a document, or an impression or a print made of an indicium of the criminal offence may be retained in the materials of the criminal case, included in the criminal file or preserved in a physical evidence storage facility or any other room in the possession of the proceedings authority, or in a forensic institution;

2) other items of physical evidence whose ownership has not been contested are returned to their owner or lawful possessor;

3) the right of ownership in respect of an item of physical evidence that has commercial value and whose owner or lawful possessor of has not been ascertained is vested in the State;

4) items of no value and pirate or counterfeit goods are destroyed or, in a situation provided for by law, converted;

5) any objects used to create the appearance of a criminal offence are returned to their owner or lawful possessor;

6) the right of ownership in any property which was obtained by the criminal offence and whose return has not been applied for by its lawful possessor vests in the State, or such property is disposed of to satisfy a related civil court claim or statement of a public-law claim.

(4) Where the ownership relations pertaining to an item of physical evidence mentioned in clause 2 of subsection 3 of this section are not clear, the measures to be applied in respect of the item in pre-trial proceedings are decided by order of the pre-trial investigation judge on an application of the Prosecutor’s Office.

(5) Subsections 1−3 of this section also apply with regard to any objects that have been confiscated in criminal proceedings and that do not constitute physical evidence.

(5¹) An item of physical evidence that has passed into the ownership of the State under subsection 3 of this section, and any property obtained by a criminal offence, is subject to the rules laid down concerning confiscated property.

(6) The rules concerning the return, from the budget, of money received from disposal of confiscated property to the lawful possessor of such property are enacted by the Government of the Republic by a regulation.

(7) The Government of the Republic enacts rules for registration, safekeeping, transfer and destruction of items of physical evidence and attached property by proceedings authorities as well as for appraisal, disposal and destruction – by such authorities – of highly perishable items of physical evidence and of property attached as an interim measure to achieve a confiscation.

§ 126¹. General conditions for conducting a covert operation

(1) ‘Covert operation’ means the processing of personal data in order to perform a task provided for by law with the objective of concealing the fact and the substance of such processing from the data subject.

(2) A covert operation is permitted on the grounds laid down in this Code provided it is not possible to gather the data by means of other operations or to collect evidence by means of other procedural operations, or provided such gathering or collection is not possible at a proper time, or is materially complicated, or may prejudice the interests of criminal proceedings in the case.

(3) The conduct of a covert operation may not endanger the life or health of a person, create an unjustified risk to property and the environment or unfoundedly interfere with other personal rights.

(4) Information obtained by means of a covert operation constitutes evidence, provided the requirements of the law have been observed when applying for authorisation for the operation, when granting the authorisation and when conducting the operation.

(5) Covert operations are conducted directly by the authorities mentioned in subsection 1 of § 126² of this Code and through the institutions administered by such authorities as well as through authorities empowered to conduct such operations, through subordinate units and employees, through undercover agents, covert operatives and persons whose secret cooperation has been enlisted.

(6) The assistance of a member of the Riigikogu or of the council of a rural municipality or a city, a judge, a prosecutor, an attorney-at-law, a minister of a religion or an official elected or appointed by the Riigikogu may be enlisted in the operations provided by this Chapter subject to their consent – and a minor’s assistance may be enlisted with the consent of their statutory representative and permission of the pre-trial investigation judge – only if they are a party to proceedings or a witness in the criminal case in question or if they, or a person close to them, are the target of the criminal offence.

(7) Where a covert operation is requested by another investigative authority, the covert operations authority to conduct the operation transmits the information obtained by that operation to the requesting authority together with any photographs, footage, audio or video recordings and recordings of other data made in the course of the operation.

(8) When conducting a covert operation, a covert operations authority has a right to process, in addition to data obtained from covert operations, also data from other sources.

§ 126³. Covert operations

(1) On the grounds mentioned in subsection 1 of § 126² of this Code, a covert operations authority may conduct covert surveillance of a person, thing or area, covertly collect samples for comparison and perform preparatory investigations, covertly conduct an examination of an object and covertly substitute it with a replacement object.

(2) On the ground mentioned in clause 1 of subsection 1 of § 126​​²​​ of this Code, the Police and Border Guard Board and the Internal Security Service may, when collecting information concerning preparation of a criminal offence mentioned in §§ 244 and 246, in clause 3 of subsection 2 of § 266 and in §§ 255 and 256 of the Penal Code, and on the grounds mentioned in clauses 3 and 4 of § 126​​²​​ of this Code, conduct the following covert operations:

1) covert examination of a postal item;

2) secret interception of auditory or visual information;

3) using an undercover agent.

(3) For the purpose of detecting a criminal offence or arresting a criminal offender, the Police and Border Guard Board and the Internal Security Service may simulate a criminal offence on the ground mentioned in clause 4 of subsection 1 of § 126² of this Code.

(4) On the grounds mentioned in clauses 1 and 4 of subsection 1 of § 126² of this Code, the Department of Prisons of the Ministry of Justice and Digital Affairs and a prison may conduct the following covert operations:

1) covert examination of a postal item;

2) secret interception of auditory or visual information.

(4¹) The Tax and Customs Board may, on the ground mentioned in clause 4 of subsection 1 of § 126² of this Code, covertly examine a postal item.

(5) When conducting a covert operation mentioned in subsection 1 and in clauses 2 and 3 of subsection 2 of this section, it is permitted to covertly enter a building, a room, a vehicle, an enclosed area or a computer system provided this is ineluctably necessary for achieving the objectives of the operation.

(6) For the purposes of this Act, entry on premises in possession of another party is deemed to be covert if the fact of such an entry remains concealed from that party or if, when making such an entry, the party in possession has been misled by means of deception as to the actual circumstances, and the party, had they known those circumstances, would not have given their permission for the entry.

§ 126⁴. Granting an authorisation for a covert operation

(1) A covert operation may be conducted when this is authorised in writing by the Prosecutor’s Office or by the pre-trial investigation judge. The pre-trial investigation judge decides the grant of the authorisation by an order on the basis of a reasoned application of the Prosecutor’s Office. The pre-trial investigation judge considers the application without delay and grants, or refuses, the authorisation by an order. The court may also issue the authorisation to conduct a covert operation that, under this Chapter, requires the authorisation of the Prosecutor’s Office.

(2) In situations of urgency, a covert operation that requires an authorisation from the Prosecutor’s Office may be conducted with such an authorisation being issued in a reproducible form. A written authorisation is issued within 24 hours following commencement of the operation.

(3) Where an immediate danger to the life, physical integrity, physical freedom or a high-value property interest of a person is involved, and where it is not possible to apply for or to issue a relevant authorisation at a proper time, a covert operation that requires authorisation from the court may be conducted, in a situation of urgency, with such an authorisation being issued in a reproducible form. A written application is filed and a corresponding authorisation issued within 24 hours following commencement of the operation.

(4) An authorisation issued in a situation of urgency in a reproducible form must contain the following information:

1) the issuer of the authorisation;

2) the date and time of issue of the authorisation;

3) the covert operation for which the authorisation is issued;

4) where it is known, the name of the person in respect of whom the covert operation is to be conducted;

5) the time limit of the permission for covert operations.

(5) Where, to conduct a covert operation or to place or remove any technical means required for such an operation, covert entry needs to be made to a building, room, vehicle, an enclosed area or a computer system, the Prosecutor’s Office applies for and obtains a corresponding separate authorisation from the pre-trial investigation judge.

(6) The duration of covert operations conducted with respect to a particular person on the grounds provided by clauses 1, 2 and 4 of subsection 1 of § 126² of this Code in the same proceedings must not exceed one year. In exceptional situations, the Prosecutor General may authorise, or apply to the court for authorisation to conduct, covert operations for more than one year. In a criminal case dealt with under Council Regulation (EU) 2017/1939, the relevant authorisation is granted, or application made, by a European Prosecutor or a European Delegated Prosecutor.

§ 126⁵. Covert surveillance, covert collection of samples for comparison and conduct of initial investigations, covert examination and substitution of an object

(1) For conducting covert surveillance of a person, an object or area, for covert collection of samples for comparison and for conducting initial investigations, and for covert examination or substitution of an object, the Prosecutor’s Office grants an authorisation for up to two months. The Prosecutor’s Office may extend the time limit of the authorisation by up to two months at a time.

(2) In the course of covert operations mentioned in this section, collected information is – where this is needed – video recorded, photographed or copied or recorded by any other method.

§ 126⁶. Covert examination of a postal item

(1) When covertly examining a postal item, inspection information is collected regarding the item.

(2) After having conducted a covert examination of a postal item, the item is transmitted to the addressee.

(3) In the course of the operation mentioned in this section, collected information is – where this is needed – video recorded, photographed or copied or recorded by any other method.

(4) As part of a covert examination of a postal item, the item may be substituted with a replacement.

(5) For the covert operation mentioned in this section, authorisation is granted by the pre-trial investigation judge for up to two months. When the time limit for which the authorisation was granted elapses, the pre-trial investigation judge may extent it by up to two months at a time.

§ 126⁷. Secret interception of auditory or visual information

(1) Information obtained by secret interception of messages transmitted over a public electronic communications network or of auditory or visual information transmitted by any other method is recorded.

(2) Information that is transmitted by a person mentioned in § 72 of this Code or that is transmitted to such a person by another person and that is obtained by secret interception is not used as evidence provided the substance of such information consists in facts that have become known to the person in the course of the person’s official or professional activities, unless:

1) such a person has already provided a statement or given testimony concerning those facts or if the facts have been made public by any other method;

2) an authorisation for secret interception has been granted with respect to such a person or

3) a secret interception concerning another person shows that the person in question is committing or has committed a criminal offence.

(3) For the covert operation mentioned in this section, authorisation is granted by the pre-trial investigation judge for up to two months. When the time limit for which the authorisation was granted elapses, the pre-trial investigation judge may extent it by up to two months at a time.

§ 126⁸. Simulating a criminal offence

(1) ‘Simulating a criminal offence’ means the commission, with the authorisation of the court, of an act that has elements of a criminal offence, having regard to the restrictions prescribed by subsection 3 of § 126¹ of this Code.

(2) If possible, the simulation of a criminal offence is recorded by means of photographs, footage or an audio or video recording.

(3) For the covert operation mentioned in this section, authorisation is granted by the pre-trial investigation judge for up to two months. When the time limit for which the authorisation was granted elapses, the pre-trial investigation judge may extent it by up to two months at a time.

§ 126⁹. Using an undercover agent

(1) For the purposes of this Code, ‘undercover agent’ means a person who uses a changed identity to collect information on the grounds mentioned in clauses 1, 3 or 4 of subsection 1 of § 126² of this Code.

(2) Authorization for using an undercover agent is granted by the Prosecutor’s Office in writing. The authorisation is granted for up to six months and the time limit in question may be extended by up to six months at a time.

(3) If an undercover agent is an official of a covert operations authority, they are subject to all the obligations of such an official insofar as this does not lead to disclosure of their changed identity.

(4) When using a statement of an undercover agent as an item of evidence, the provisions of this Code concerning witnesses are followed.

(5) When the Prosecutor’s Office so decides, the fact of using an undercover agent, or the identity of such an agent, is kept confidential also after termination of the corresponding covert operation, provided making it public may endanger the life or health, honour or reputation or property of the agent or of a person closely connected to them, or the agent’s further work as an undercover agent.

§ 126¹⁰. Documenting the covert operation

(1) Based on the information collected by the covert operation, an official of the authority that conducted the operation or applied for it files a report of the operation that states:

1) the name of the authority that conducted the operation;

2) the time and place of conducting the operation;

3) the name of the person in respect of whom the operation was conducted;

4) the date of issue of the authorisation by the court or by the Prosecutor’s Office that was the basis for the operation;

5) where the basis for the operation was an authorisation of the court, the date on which the corresponding application of the Prosecutor’s Office was filed;

6) information that is collected by the operation and that is necessary for achieving the aim of the operation or for resolving the criminal case.

(2) Where necessary, any photographs, footage or audio or video recordings, or any other recordings of information, made in the course of the covert operation are annexed to the report.

(3) Where necessary, the covert operations authority that conducted the covert operation states the information collected by that operation in an operation summary. The operation summary and any photographs, footage, audio or video recordings or other recordings of information made in the course of the operation are included in the operation file.

§ 126¹¹. Keeping the covert operation file

(1) The information collected by the covert operation, any recordings of information made in the course of the operation, any information obtained in a manner mentioned in subsection 8 of § 126¹ of this Code as well as any information that is required in order to comprehend the entirety of the information collected by the operation and that concerns any covert operative or any person, organisational unit or body or branch of a foreign company that has been used as a front in the operation, is preserved in the operation file.

(2) The rules for keeping and preservation of covert operation files are enacted by a regulation of the Government of the Republic at the proposal of the Minister in charge of the policy sector.

§ 126¹². Preservation, use and destruction of covert operation files and recordings of information collected by a covert operation

(1) Any photographs, footage, audio or video recordings and any other recordings of information or any part of such recordings that is required for resolving the criminal case and that has been made in the course of a covert operation are preserved in the criminal file or with the materials of the criminal case. The remainder of the material of a covert operation is preserved at the covert operations authority following the rules provided by subsection 2 of § 126¹¹ of this Code.

(2) Covert operation files are preserved as follows:

1) covert operation files kept concerning a criminal offence under preparation, files documenting operations to apprehend a person who has been declared a fugitive from justice and confiscation files – until the need to use the information contained in the file ceases to be, but not longer than for 50 years;

2) files on criminal offences – until removal of information concerning the sentence from the Criminal Records Database or until the lapsing of the limitation period for the offence.

(3) Information collected by a covert operation may be used:

1) in another covert operation;

2) in other criminal proceedings;

3) in security vetting;

4) for assessment of the reliability of a foreign investment within the meaning of Foreign Investment Reliability Assessment Act;

5) in situations provided for by law, to prevent money laundering or terrorist financing;

6) when deciding the hiring of a person or the granting of an authorisation or licence to a person, to verify whether the person meets the requirements provided by law.

(4) Information collected by a covert operation may be preserved for study and research purposes. Personal data and, where this is needed, the relevant setting, must be completely altered in order to avoid revealing any persons who participated in the operation or were enlisted for it.

(5) Where the criminal file includes a recording of information that has been made in the course of a covert operation and that does not need to be preserved, the person whose fundamental rights were interfered with by the covert operation may, when the judgment has entered into effect, make a motion to destroy such a recording.

(6) A recording of information provided for by subsection 5 of this section is destroyed by the court. A report is filed concerning the destruction of the recording; the report is included in the criminal file.

(7) Where materials of a covert operation are preserved in the criminal file, and where the file is to be made public in accordance with the Public Information Act, any information concerning persons who did not appear as the accused in criminal proceedings in the case and the inviolability of whose private or family life was materially interfered with by such an operation and whose rights or freedoms may suffer material harm when the file is made public is removed from or masked in the file.

(8) Case files containing a State secret or classified information of a foreign State are preserved and destroyed according to the State Secrets and Classified Information of Foreign States Act.

(9) Covert operation files that are to be destroyed and the corresponding recordings of information that have been collected are destroyed in the presence of a prosecutor by a committee formed by the Head of the covert operations authority. The committee draws up a record concerning destruction of the file and of any corresponding recording of information that has been collected; the record states the number of the file or other particulars concerning the destroyed recording of information and the reason for its destruction.

§ 126¹³. Notification regarding a covert operation

(1) When the time limit of an authorisation to conduct a covert operation expires and, if several covert operations are being conducted that are at least partly concurrent, when the time limit of the authorisation of the last operation expires, the covert operations authority, without delay, notifies the person in respect of whom the operation was conducted as well as any person the inviolability of whose private or family life was materially interfered with by the operation and who has been identified in the course of the proceedings. Such persons are notified of the time and type of the operation conducted in their respect.

(2) Where this is authorised by the Prosecutor’s Office, a covert operations authority may decide not to provide notification of a covert operation, if such notification may:

1) materially harm criminal proceedings in the case;

2) materially harm the rights and freedoms of another person that are guaranteed by law or endanger another person;

3) jeopardise the secrecy of the methods and tactics of the authority, of the means used to conduct covert operations, or of the cooperation of an undercover agent, of a covert operative or of a person whose secret cooperation has been enlisted in the case.

(3) Where this is authorised by the Prosecutor’s Office, notifying a covert operation to a person concerned may be forgone until the grounds mentioned in subsection 2 of this section cease to be present. The Prosecutor’s Office verifies the presence of grounds for forgoing notification when pre-trial proceedings are completed in the criminal case, but not later than one year after expiration of the time limit of the authorisation for the operation.

(4) If the grounds for forgoing notification of a covert operation are still present one year after expiration of the time limit of the authorisation for the operation, the Prosecutor’s Office applies, at the latest 15 days prior to the expiration of that time limit, to the pre-trial investigation judge for an authorisation to extend the time limit. The pre-trial investigation judge, by order, grants the authorisation to forgo notification of the person or refuses to grant such an authorisation. Where it is decided not to notify the person, the order states whether notification is to be forgone for an unspecified or a specified period of time. Where notification is to be forgone for a specified period of time, that period is stated.

(5) If the grounds mentioned in subsection 2 of this section have not ceased to be present when the time limit of an authorisation that has been granted by the pre-trial investigation judge for forgoing notification and that is mentioned in subsection 4 of this section expires, the Prosecutor’s Office applies, at the latest 15 days prior to the expiration of that time limit, to the pre-trial investigation judge for an authorisation to extend the time limit for forgoing notification. The pre-trial investigation judge, by order, grants the authorisation according to the provisions of subsection 4 of this section.

(6) Where the time limit of an authorisation for forgoing notification expires or where authorisation to extend such a time limit is refused, the persons concerned are notified of the corresponding covert operation without delay.

(7) When a person is notified of a covert operation conducted in their respect, the relevant rules for appeal must also be explained to them.

§ 126¹⁴. Presenting the information collected by a covert operation to the person concerned

(1) Arrangements are made, for a person who has been notified according to § 126¹³ of this Code, if they so wish, to acquaint themselves with the information collected in their respect and with the photographs, footage, audio or video recordings or other recordings of information made in the course of the corresponding covert operation. Where this is authorised by the Prosecutor’s Office, a decision may be made not to present, to such a person, until the relevant grounds cease to be present, the following particulars:

1) particulars concerning the family or private life of other persons;

2) particulars whose presentation may harm the rights and freedoms of another person that are guaranteed by law;

3) particulars that contain State secrets, classified information of a foreign State or secrets of another person that are protected by law;

4) particulars whose presentation may endanger the life, health, honour or reputation or property of an employee of a covert operations authority, of an undercover agent, of a covert operative, of a person whose secret cooperation has been enlisted in the case or of another person who participated in the covert operation concerned or of any person closely connected with any of the aforementioned persons;

5) particulars whose presentation may jeopardise the right of an undercover agent, a covert operative or a person whose secret cooperation has been enlisted in the case to maintain the confidentiality of their cooperation;

6) particulars whose presentation may lead to information being passed concerning the methods or tactics of a covert operations authority or concerning the means used to conduct covert operations;

7) particulars that it is not possible to separate and present such that they would not disclose the particulars mentioned in clauses 1–6 of this subsection.

(2) When information collected by a covert operation is presented to a person concerned or when a decision is made not to present such information to such a person, the relevant rules for appeal must also be explained to them.

(3) The rules for notification of covert operations and for presentation of covert operation files are enacted by a regulation of the Government of the Republic at the proposal of the Minister in charge of the policy sector.

§ 126¹⁵. Overseeing a covert operation

(1) The Prosecutor’s Office oversees a covert operation for compliance with the authorisation provided for by § 126⁴ of this Code.

(2) The activities of the covert operations authorities are overseen by the committee of the Riigikogu mentioned in § 36 of the Security Authorities Act. At least once every three months, a covert operations authority files a written report with the committee through the relevant ministry.

(3) Once a year, based on the information obtained from covert operations authorities, the Prosecutor’s Office and courts, the Ministry of Justice and Digital Affairs publishes on its website a report that contains the following information concerning the previous year:

1) the number and type of covert operation files that have been opened;

2) the number of authorisations for covert operations, by type of operation;

3) the number of persons notified of a covert operation having been conducted in their respect and the number of persons in whose respect notification has been postponed for more than one year in accordance with subsection 4 of § 126¹³ of this Code.

§ 126¹⁶. Filing of appeals related to a covert operation

(1) An interim appeal may be filed, following the rules provided by Chapter 15 of this Code, against any judicial warrant authorising a covert operation on the grounds mentioned in this Code.

(2) A complaint may be filed, following the rules provided by Subchapter 5 of Chapter 8 of this Code, against actions in the course of a covert operation conducted on the grounds mentioned in this Code, against a decision to forgo notification of such an operation, and against a decision not to present certain information collected by such an operation.

§ 126¹⁷. Covert operations information system

(1) ‘Covert operations information system’ (hereinafter, the information system) means a database within the National Information System that is maintained for processing information regarding the covert operations provided by this Code; the purpose of the information system is to:

1) provide an overview of the conduct, by covert operations authorities, of covert operations;

2) provide an overview of applications by covert operations authorities and by the Prosecutor’s Office for conducting a covert operation;

3) provide an overview of the authorisations issued by the Prosecutor’s Office and the courts for conducting a covert operation;

4) provide an overview of notifications provided regarding covert operations and of the presentation of information collected by covert operations;

5) serve as a record of information concerning the covert operations conducted;

6) facilitate organisation of the work of covert operations authorities, the Prosecutor’s Office and the courts;

7) ensure the collection of statistics of covert operations that are necessary for the making of criminal justice policy decisions;

8) to allow for electronic transmission of data and documents.

(2) The information system is established and its constitutive regulations are enacted by the Government of the Republic.

(3) The controller of the information system is the Ministry of Justice and Digital Affairs.

(4) The Minister in charge of the policy sector may organise the operation of the information system by a regulation.

§ 126¹⁸. Processing of passenger name record information

(1) A proceedings authority may make an enquiry concerning passenger name record (PNR) information to a PNR unit if this is necessary to achieve the purpose of criminal proceedings in the case.

(2) The processing of PNR information is permitted only in relation to the criminal offences listed in clauses 1–16, 18–20, 22, 23, 25–28 and 30–32 of subsection 1 of § 489⁶ of this Code.

§ 126²¹. Processing of data of European Union information systems

(1) Where data from an information system are needed in order to achieve the purpose of criminal proceedings, the proceedings authority may address queries to the verifying authority of the Eurodac system, or to the central access point of the Entry/Exit System or Visa Information System.

(2) The processing of data from European Union information systems is permitted strictly in the case of criminal offences mentioned in clauses 1–21 and 23–32 of subsection 1 of § 489⁶ of this Code.

§ 127. Choosing a compliance enforcement measure

(1) When choosing a compliance enforcement measure, the factors to be considered include the possibility of the suspect, accused or convicted offender evading criminal proceedings or the execution of a judgment, of their continuing to commit criminal offences or destroying, altering or fabricating evidence, the severity of their sentence, who they are, their state of health and marital status, as well as other circumstances relevant to the imposition of such a measure.

(2) When changing a compliance enforcement measure, the provisions of this Code concerning the imposition of such a measure are followed.

§ 128. Prohibition of departure from residence

(1) ‘Prohibition of departure from residence’ consists in imposing an obligation on the suspect or accused – or a representative of the corporate suspect or accused – not to leave their residence for more than seventy-two hours without permission of the proceedings authority.

(2) To impose a prohibition of departure from residence, an order is issued on which the suspect or accused or the representative of the corporate suspect or accused is directed to provide signed acknowledgement. When taking the person’s acknowledgement, they are cautioned that, should they violate the compliance enforcement measure in question, a fine or more severe compliance enforcement measure may be imposed on them.

(3) In pre-trial proceedings, a prohibition of departure from residence may not be imposed for longer than one year. Where the criminal case is of particular complexity or involves particularly extensive material, or in exceptional circumstances linked to international cooperation in criminal proceedings, the Prosecutor’s Office may, in pre-trial proceedings, extend the duration of the prohibition up to two years.

(4) On an application of the Prosecutor’s Office, the pre-trial investigation judge or, on an application of a party to judicial proceedings, the court may, by court order, impose a fine on a person who violates a prohibition of departure from residence.

§ 129. Custody of a member of the Defence Forces

As a compliance enforcement measure, the suspect or accused who is a member of the Defence Forces and who is performing their compulsory military service may, by an order, be released into the custody of the command staff of their military unit.

§ 130. Committal in custody and grounds for such committal

(1) ‘Committal in custody’ means a compliance enforcement measure that is imposed on the suspect, accused or convicted offender and that consists in the person’s being deprived of their liberty by order of the court.

(2) The suspect or accused may be committed in custody on an application of the Prosecutor’s Office by order of the pre-trial investigation judge, or by court order, if they are likely to evade criminal proceedings or to continue to commit criminal offences and if committal in custody is an ineluctable necessity.

(3) In pre-trial proceedings, the suspect or accused may be committed in custody only for the period provided by § 131¹ of this Code.

(4) An accused who has been committed to answer the charges and who is at large may be committed in custody by order of the district court or of the circuit court of appeal if they have not appeared when summoned by the court and may continue to evade judicial proceedings.

(4¹) An accused who is at large may be committed in custody by the court in order to ensure execution of imprisonment imposed by a judgment of conviction.

(5) To ensure execution of a judgment of conviction, the court may commit a convicted offender in custody following the rules provided by § 429 of this Code.

(6) A suspect who is a member of the Defence Forces and who is not present in the territory of the Republic of Estonia may, on an application of the Prosecutor’s Office, be committed in custody by order of the pre-trial investigation judge on grounds provided by subsection 2 of this section in order for them to be transferred to the Republic of Estonia.

§ 131. Rules for committal in custody

(1) An application or motion to commit a person in custody is notified by the Prosecutor’s Office immediately to the person’s defence counsel.

(2) At the direction of the Prosecutor’s Office, the suspect or accused in whose respect an application for committal in custody has been filed is brought by the investigative authority before the pre-trial investigation judge for the application to be considered.

(3) In order to issue an order committing the suspect or accused in custody, the pre-trial investigation judge acquaints themselves with the criminal file and questions the person to be committed in custody to ascertain whether the application for their committal in custody is justified. The prosecutor and, on an application of the person to be committed in custody, their defence counsel, are summoned to the pre-trial investigation judge and their submissions are heard. Where the person to be committed in custody is a minor, the pre-trial investigation judge assesses, with particular thoroughness, any potential adverse impacts that such a person’s committal in custody would entail.

(3¹) The pre-trial investigation judge may arrange the participation, in the consideration of an application for committal in custody, of the persons mentioned in subsections 2 and 3 of this section by means of a technical solution that complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.

(3²) Where a minor is committed in custody, the court may order the minor’s committal to be substituted by placement in a secure children’s institution and state, in the order, the secure children's institution where the minor who has been committed in custody is to be placed. Outside the secure children’s institution, the escorting of such a minor is carried out following the rules provided by § 7⁴¹ of the Police and Border Guard Act.

(3³) A minor who has been committed in custody and who violates the conditions of their stay in a secure children’s institution may, on the basis of a corresponding report of the Head of the institution, and with permission of the court, be transferred to a prison to serve their custody.

(4) For committing in custody a person who has been declared a fugitive from justice or for committing in custody a suspect who is outside the territory of the Republic of Estonia, the pre-trial investigation judge, without having questioned such a person, issues a warrant authorising their committal in custody. At the latest on the second day following apprehension of the person or transfer of the suspect to Estonia, the person committed in custody is brought before the pre-trial investigation judge for questioning.

(5) If no grounds for committal in custody apply, the person is released without delay.

§ 131¹. Duration of committal in custody in pre-trial proceedings

(1) During pre-trial proceedings, a person suspected or accused of a criminal offence of the first degree may not remain committed in custody for more than six months and a person suspected or accused of a criminal offence of the second degree for more than four months. An underage suspect or an underage accused may not remain committed in custody during pre-trial proceedings for more than two months.

(2) Where a criminal case is particularly complex or voluminous, or under exceptional circumstances linked to international cooperation in criminal proceedings, the pre-trial investigation judge may, on an application of the Prosecutor General, extend the duration of committal in custody mentioned in subsection 1 of this section. In a criminal case dealt with under Council Regulation (EU) 2017/1939, the aforementioned application is made by the European Prosecutor or a European Delegated Prosecutor.

(3) The duration mentioned in subsections 1 and 2 of this section does not, in the case of a person whose extradition has been requested by the Republic of Estonia, include time spent in the foreign State in extradition custody or in surrender custody, or the time during which the person was held in custody during pre-trial proceedings under a decision of the competent authority of a foreign State prior to assumption of criminal proceedings in the case by the Republic of Estonia.

(4) When committing a person in custody, the pre-trial investigation judge issues an authorisation for holding the suspect or the accused in custody for up to two months. The pre-trial investigation judge may extend the duration of custody on the basis of a substantiated application of the Prosecutor’s Office by up to two months at a time, having regard to the restrictions provided by subsections 1 and 2 of this section.

(5) Where the degree of the criminal offence of which the person who has been committed in custody is suspected or accused changes during their time in custody, the provision of subsection 1 of this section is applied according to the updated legal designation of the offence as of the time when the grounds for suspecting or accusing the person based on the updated degree of severity came to light.

(6) An application for extending the duration of custody is filed and considered in accordance with the rules provided by § 131 of this Code.

§ 132. Order of committal in custody

(1) An order of committal in custody states:

1) the name and residence of the person being committed in custody;

2) the facts of the criminal offence of which the person is suspected or accused, and the legal designation of the offence;

3) the ground for committal in custody with a reference to § 130 or § 429 of this Code;

4) the reason for committal in custody.

(2) The order committing a person in custody is included in their criminal file and a copy of the order is transmitted to the person.

(3) The court may make the order of committal in custody – or the order by which it refuses to commit the person in custody – without written reasons, issuing the version that includes such reasons within 48 hours of making the order. When it announces the order made without written reasons, the court orally explains its principal reasons as well as the fact that the time limit for appealing the order begins to run from the day on which the version of the order that includes its written reasons becomes available.

§ 133. Notification of committal in custody

(1) Where the person committed in custody expresses the corresponding wish, the court notifies their committal in custody without delay to a person close to them, or to their place of work or education. A minor’s committal in custody is notified by the court without delay to their parent or statutory representative.

(1¹) The Prosecutor’s Office or, where the Prosecutor’s Office so directs, the investigative authority notifies the committal in custody to any individual victim in the case and ascertains whether they wish to receive information concerning release of the person held in custody, provided such notification may prevent a threat to such a victim.

(2) Notification of committal in custody may be delayed where this is ineluctably necessary to prevent material harm to criminal proceedings.

(3) Where a citizen of a foreign State is committed in custody, a copy of the order committing them in custody or of the relevant judgment is sent to the Ministry of Foreign Affairs.

§ 134. Refusal to commit a person in custody and release of a person committed in custody

(1) The pre-trial investigation judge or the court issues a refusal to commit a person in custody, or to extend the duration of such committal, as an order.

(2) If the grounds for committal in custody cease to be present before a statement of charges is sent to court following the rules provided by subsection 3 of § 226 of this Code, the pre-trial investigation judge or the Prosecutor’s Office makes an order to release the person committed in custody. When such a person is released, the Prosecutor’s Office or, where the Prosecutor’s Office so directs, the investigative authority notifies this to any individual victim in the case, provided they have expressed a corresponding wish and provided such notification may prevent a threat to such a victim.

§ 135. Cash bail

(1) The pre-trial investigation judge or the court may, with the consent of the suspect or accused, substitute cash bail for committal in custody. The conditions and duration of such substitution may be prescribed in the order of committal in custody.

(2) ‘Cash bail’ means a sum of money paid, as a compliance enforcement measure, to a prescribed account by the suspect or accused or by another person on their behalf.

(3) The suspect or accused is released from custody when the cash bail has been credited to the prescribed account.

(4) When setting the amount of a cash bail, the court has regard to the severity of the sentence that may be imposed, the extent of the harm caused by the criminal offence, and the financial situation of the suspect or accused. The minimum amount of cash bail is five hundred days’ wages.

(5) Cash bail is imposed by a court order. To dispose of an application for cash bail, the person committed in custody is brought before the pre-trial investigation judge; the prosecutor and, on the application of the person, their defence counsel are summoned, and their submissions are heard.

(5¹) On an application of the Prosecutor’s Office or of its own motion, the court may, when making a cash bail order, impose a prohibition of departure from residence on the suspect or accused following the rules provided by §§ 127 and 128 of this Code.

(5²) The pre-trial investigation judge may arrange the participation, in the proceeding held to dispose of an application for cash bail, of the persons mentioned in subsection 5 of this section by means of a technical solution that complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.

(6) Where the suspect or accused evades criminal proceedings or continues to commit intentional criminal offences or violates a prohibition of departure from residence, their cash bail is charged to public revenue by the judgment or by the order terminating criminal proceedings in the case, after deduction of the amount required to compensate for the costs of such proceedings.

(6¹) If the grounds for committal in custody cease to be present before the statement of charges is sent to court following the rules provided by subsection 3 of § 226 of this Code, the pre-trial investigation judge or the Prosecutor’s Office revokes cash bail by an order.

(7) Cash bail is refunded if:

1) the suspect or accused does not violate its conditions;

2) criminal proceedings in the case 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

The Prosecutor’s Office, the person committed in custody or their defence counsel may file an interim appeal following the rules provided by Chapter 15 of this Code against the decision, or refusal, to commit the person in custody or against an extension, on an application of the Prosecutor General or in accordance with subsection 2 of § 131¹ of this Code of a European Prosecutor or a European Delegated Prosecutor, of the duration of such custody, or of a refusal to extend such duration.

§ 137. Verifying the justifiability of cash bail

(1) When four months have elapsed following imposition of cash bail, the suspect, accused or defence counsel may make an application to the pre-trial investigation judge or the court to verify the justifiability of such a measure.

(2) The pre-trial investigation judge considers such an application within five days following its receipt. The prosecutor, the defence counsel and, where this is needed, the person on whom cash bail has been imposed, are summoned to the judge. A new application may be filed when the period provided by subsection 1 of this section has elapsed after consideration of the previous application.

(2¹) The pre-trial investigation judge or the court may arrange the participation, in the hearing convened to dispose of the application, of the persons mentioned in subsection 2 of this section by means of a technical solution that complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.

(3) To dispose of the application, the pre-trial investigation judge acquaints themselves with the criminal file. The application is disposed of by a court order against which no further appeal lies.

(3¹) If the pre-trial investigation judge or the court finds that continuing the cash bail arrangement is not justified, it must be stated in the court order whether cash bail is to be returned or whether the suspect or accused is committed in custody.

§ 137¹. Substituting electronic monitoring for committal in custody

(1) On an application of the suspect, the accused or the prosecutor, the pre-trial investigation judge or the court, with the consent of the person committed in custody, may substitute committal in custody with the obligation, provided for by subsection 1 of § 75¹ of the Penal Code, to submit to electronic monitoring. The time spent under electronic monitoring is not deemed time in pre-trial confinement or time under arrest and is not counted as time served for the purposes of the sentence imposed.

(1¹) When the period for which electronic monitoring was imposed or the period provided by § 75¹ of the Penal Code elapses, the pre-trial investigation judge – on an application of the Prosecutor’s Office – or the court decides on any further compliance enforcement measures to be imposed.

(1²) The period for which electronic monitoring is imposed in pre-trial proceedings is subject to the provisions of subsection 3 of § 75¹ of the Penal Code.

(3) When the pre-trial investigation judge or the court receives an application for substitution of committal in custody, they instruct a probation officer serving the locality of residence of the suspect or accused to present, within five working days, an opinion concerning the possibility of employing electronic monitoring.

(4) Electronic monitoring is imposed by a court order. To dispose of an application for electronic monitoring, the person committed in custody is brought before the pre-trial investigation judge or the court; the prosecutor and, on an application or motion of the person committed in custody, their defence counsel are summoned to the judge or court and their submissions are heard.

(5) The pre-trial investigation judge or the court may arrange the participation, for disposing of the application for imposition of electronic monitoring, of the persons mentioned in subsection 4 of this section by means of a technical solution that complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.

(6) Before making a decision on the imposition of electronic monitoring, the pre-trial investigation judge or court presents the opinion of a probation supervisor concerning the possibility of employing electronic monitoring in the locality of residence of the suspect or accused.

(7) The suspect or accused is released from custody and electronic monitoring is used in their respect when the time limit for filing an interim appeal elapses or the order of the higher-instance court enters into effect.

(8) If the suspect or accused does not submit to electronic monitoring, the pre-trial investigation judge or the court, by an order based on a report of the probation officer, substitutes such monitoring with committal in custody.

(9) The imposition of, or refusal to impose, electronic monitoring in pre-trial proceedings and verification of the justifiability of such monitoring is subject to the provisions of this Code concerning cash bail.

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

(1) Where it is ascertained, as a result of expert assessment, that a person who has been committed in custody perpetrated an unlawful act in a state of mental incompetence, or that they are mentally ill or suffer from dementia or any other severe mental disorder, they are, without delay, released from custody by order of the Prosecutor’s Office, unless otherwise provided by § 395¹ of this Code.

(2) The investigative authority transmits the expert’s report mentioned in subsection 1 of this section to the Prosecutor’s Office.

§ 138. Consequences of not appearing when summoned by a proceedings authority

(1) Any person who has been summoned by a proceedings authority and who does not appear is fined by order of the court, made by the pre-trial investigation judge on an application of the Prosecutor’s Office or by the court of its own motion, or is given a short-term custodial sentence of up to five days by the pre-trial investigation judge or the court.

(2) On an appeal filed by the person who was given a fine or a short-term custodial sentence, the court may set aside such a fine or sentence, which was imposed for not appearing when summoned, if the person proves that their non-appearance was due to a valid reason provided for by § 170 of this Code.

(3) Any suspect, accused, convicted offender, victim, civil defendant or witness who does not appear when summoned by a proceedings authority may be forcibly brought in following the provisions of § 139 of this Code, or may be declared a fugitive from justice following the provisions of § 140 of this Code.

§ 138¹. Imposing a fine

(1) Where the court or pre-trial investigation judge is authorised, in a situation provided for by this Code, to impose a fine, the amount of such a fine may be up to 3200 euros, unless this Code provides otherwise. In determining the amount of the fine, the court or pre-trial investigation judge has regard to the financial situation of the person as well as to other circumstances of their case.

(2) In the stead of or besides the minor, a fine may be imposed on their parent or guardian, unless this Code provides otherwise. In the stead of the full-age person of limited active legal capacity, a fine may be imposed on their guardian. No fine is imposed on a minor of less than 14 years of age and on a person of limited active legal capacity.

(3) A fine may be imposed on a person only after they have been given a corresponding caution, except where prior cautioning is not possible or reasonable.

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

(5) A person who has been fined, or their representative, is without delay served with a copy of the order imposing the fine.

§ 139. Forcible bringing-in

(1) ‘Forcible bringing-in’ means the conveying of a suspect, accused or convicted offender, or of the statutory representative of a corporate suspect, accused or convicted offender, or of the victim, civil defendant, third party or witness to an investigative authority, forensic institution, the Prosecutor’s Office or court for the performance of a procedural operation, or the conveying of a person ordered to undergo coercive psychiatric treatment to the institution providing the treatment, or the conveying of a convicted offender to a prison or jail to serve their sentence.

(2) A person may be ordered forcibly brought in where:

1) they have received a summons but have not appeared – without a valid reason mentioned in § 170 of this Code;

1¹) there is reason to believe that they are evading criminal proceedings;

2) prior summoning of a person may interfere with criminal proceedings, and the person refuses to come in voluntarily when so directed by the investigative authority or the Prosecutor’s Office;

3) they are evading the execution of a judgment.

(3) The person is conveyed to the Prosecutor’s Office or to court by order of the Prosecutor’s Office, or of the court, that states:

1) the name of the person to be forcibly brought in, their procedural status, residence and place of employment or the name of their educational institution;

2) the reason for their being forcibly brought in;

3) the time of execution of the order and the place to which the person is to be conveyed.

(3¹) A convicted offender may be ordered forcibly brought in to a prison or jail on the grounds and according to the rules provided by subsection 3 of § 414 of this Code.

(4) An order to forcibly bring in a person is transmitted for execution to an investigative authority.

(5) A person who has been ordered to be forcibly brought in may be arrested for as long as is necessary for the performance of the procedural operation that is grounds for the order, but not for longer than forty-eight hours.

§ 140. Declaring a person to be a fugitive from justice

(1) A proceedings authority may, by an order, declare the suspect, accused, victim, civil defendant or witness a fugitive from justice if they have failed, without a valid reason mentioned in § 170 of this Code, to appear as summoned and if their whereabouts are unknown, and may so declare a convicted offender if the offender evades execution of the judgment given in their case.

(2) An order declaring a person to be a fugitive from justice states:

1) the facts of the criminal offence;

2) the name of the person declared a fugitive, their procedural role, residence and place of employment or name of their educational institution.

(2¹) Where this is needed, the proceedings authority includes in the order by which it declares a person a fugitive, an obligation to bring the person, when they are apprehended, before the proceedings authority following the provisions on forcible bringing-in.

(3) An order declaring a person to be a fugitive from justice is transmitted for execution to the covert operations authority that conducts or conducted proceedings in the criminal case that is grounds for the order. If proceedings in the criminal case are, or were, conducted by an investigative authority that is not a covert operations authority, the order is transmitted for execution to the Police and Border Guard Board.

(3¹) Where an order declaring a person to be a fugitive concerns the suspect, accused or convicted offender, the warrant for their committal in custody, or a judicial disposition which has entered into effect and on the basis of which the execution of their imprisonment has been mandated is transmitted to a covert operations authority together with the order.

(4) When a person who has been declared a fugitive is apprehended, they are forcibly brought in to the proceedings authority or to the place where they are to serve their pre-trial custody or their imprisonment, with a corresponding notification being made to the proceedings authority.

§ 140¹. Ascertaining a person’s identity

(1) A proceedings authority may ascertain the identity of a party to proceedings, of a convicted offender, of an expert or of a witness in accordance with the rules provided by § 32 of the Law Enforcement Act.

(2) If ascertaining the identity of a person following the rules mentioned in subsection 1 of this section is impossible or disproportionately difficult, their identity may be ascertained in accordance with the rules provided by § 33 of the Law Enforcement Act.

§ 140². Prohibition of stay

To provide for the performance of a procedural operation, a prohibition of stay may be imposed in respect of a particular place or person following the rules provided by § 44 of the Law Enforcement Act.

§ 141. Suspending the suspect or accused from an official position

(1) The suspect or accused is suspended from their official position on an application of the Prosecutor’s Office by order of the pre-trial investigation judge, or by court order, if:

1) they may commit further criminal offences, should they continue to work in their position;

2) their continuing to work in their position may harm criminal proceedings in the case.

(2) A copy of an order suspending the suspect or accused from their official position is handed to the suspect or accused and to the Head of the institution that employs them.

(3) If the grounds for suspension cease to be present before the statement of charges is sent to court following the rules provided by subsection 3 of § 226 of this Code, the pre-trial investigation judge or the Prosecutor’s Office revokes the suspension by a corresponding order.

§ 141¹. Temporary restraining order

(1) The suspect or accused in proceedings concerning a criminal offence against the person or a criminal offence against a minor may, in order to protect the privacy or other personal rights of a victim and on an application or motion of the Prosecutor’s Office by order of the pre-trial investigation judge or of the court, be prohibited from attending any places determined by the court, from approaching any persons determined by the court or from communicating with such persons.

(1¹) The court may, together with a temporary restraining order and with the consent of the suspect or accused, impose electronic monitoring as provided for by § 75¹ of the Penal Code.

(1²) In a situation of urgency, the restraining order provided for by subsection 1 of this section may be imposed by order of the Prosecutor’s Office and regardless of the victim’s consent. In such a situation, the Prosecutor’s Office notifies the imposition of the restraining order to the court within two working days and the court, having regard to the victim’s consent, decides on the permissibility of the order following the rules provided by subsections 1³−6 of this section.

(1³) The order which is mentioned in subsection 1 of this section and by which a temporary restraining order is imposed and the order which is mentioned in subsection 1² and by which a restraining order is declared permissible may be made as a note on the corresponding application, motion or order of the Prosecutor’s Office.

(2) A temporary restraining order is imposed on the suspect or accused with the consent of the victim.

(3) To make a temporary restraining order, the pre-trial investigation judge acquaints themselves with the criminal file and questions the suspect or accused and, where this is needed, the victim in order to ascertain whether the application for a temporary restraining order is justified. The prosecutor and, should the suspect or accused make the corresponding application or motion, their defence counsel are also summoned before the court or the pre-trial investigation judge and their opinions are heard.

(3¹) The pre-trial investigation judge or the court may organise the participation, in the disposition of the application or motion for imposing a restraining order, of the persons mentioned in subsection 3 of this section by means of a technical solution which complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.

(4) A temporary restraining order states:

1) the reasons for the order;

2) the conditions of the order.

(5) The victim, the Prosecutor’s Office, the suspect, the accused or their defence counsel may, following the rules provided by Chapter 15 of this Code, file an interim appeal against the imposition of a temporary restraining order or against a refusal to impose such an order.

(6) A copy of the temporary restraining order is provided to the suspect or accused and to the victim, and another one is sent to the Police and Border Guard Board. The pre-trial investigation judge or the court also notifies the imposition of the temporary restraining order, without delay, to any other persons who are affected by the order.

§ 141². Verification of continued justification of suspension from an official position or of imposition of a temporary restraining order

(1) The suspect, accused or their defence counsel may, when four months have elapsed following suspension from an official position or imposition of a temporary restraining order, file an application or motion with the pre-trial investigation judge or with the court to verify whether such suspension or imposition continues to be justified, or to vary the conditions of the temporary restraining order. A new application or motion may be filed when four months have elapsed from consideration of the previous one.

(1¹) Where a temporary restraining order restricts the right of the suspect or accused to use their dwelling, the suspect, the accused or their defence counsel may file the application or motion mentioned in subsection 1 of this section when one month has elapsed from the imposition of the order.

(2) The pre-trial investigation judge or the court considers the application or motion within five days following its receipt. The prosecutor, suspect or accused and, on an application or motion of the suspect or accused, their defence counsel, are summoned before the pre-trial investigation judge or the court. When verifying whether a temporary restraining order remains justified, the victim is also summoned.

(2¹) When disposing of the application or motion, the pre-trial investigation judge or the court may arrange participation of persons mentioned in subsection 2 of this section by means of a technical solution which complies with the requirements mentioned in clause 1 of subsection 2 of § 69 of this Code.

(3) The application or motion is disposed of by a court order. The order is not subject to contestation, except where it varies the conditions of a temporary restraining order.

§ 141³. Varying or setting aside a temporary restraining order on an application or motion of the victim and of the Prosecutor’s Office

(1) On a corresponding application or motion of the victim or on a corresponding application or motion of the Prosecutor’s Office and with the consent of the victim, the pre-trial investigation judge or the court may vary the conditions of a temporary restraining order or set the order aside.

(2) To make an order varying the conditions of, or setting aside, a temporary restraining order, the pre-trial investigation judge or the court acquaint themselves with the criminal file and question the suspect or accused and the victim to ascertain whether the application or motion is justified. The prosecutor, victim, suspect or accused and, on an application or motion of the suspect or accused, their defence counsel, are summoned before the pre-trial investigation judge or the court.

(3) A copy of an order varying the conditions of, or setting aside, a temporary restraining order is provided to the suspect or accused, to the victim and to any other person whom the restraining order affects.

§ 141⁴. Interim protection of pecuniary claims

(1) Where there is a reasonable suspicion that a criminal offence has been committed, property may be attached following the rules provided by § 142 of this Code – or applying any other measures of interim relief provided by § 378 of the Code of Civil Procedure – for interim protection of a confiscation, a substitutional confiscation, a civil court claim, a statement of a public-law claim, a pecuniary penalty or a forfeiture of property if there is reason to believe that failure to take such measures in order to protect a claim of the victim, a confiscation, a substitutional confiscation, a pecuniary penalty or a forfeiture of property may complicate execution of the judicial disposition in the case or render it impossible.

(2) The rules provided by § 142 of this Code are followed when imposing a measure for interim protection of a court claim.

(3) When selecting an interim measure to protect a pecuniary claim, consideration must be given to the principle that the measure to be imposed should only burden the suspect, accused, civil defendant or a third party to a degree that may be considered reasonable in the circumstances. Where an interim measure is imposed to protect a monetary claim, the amount of the claim must be taken into account.

(4) To protect a pecuniary claim, the court may impose several interim measures at the same time.

§ 142. Attachment of property

(1) The objective of attachment of property is to ensure interim protection of a civil court claim, of a statement of a public-law claim, of confiscation or substitutional confiscation, of a pecuniary penalty or of a forfeiture of property. ‘Attachment of property’ means recording the details of the property of the suspect, accused, convicted offender, civil defendant or third party, or of the property that is the subject matter of a money laundering or terrorist financing scheme, and preventing any transfer of such property.

(2) Property is attached on an application of the Prosecutor’s Office by order of the pre-trial investigation judge or of the court, having regard to the exception mentioned in subsection 3 of this section.

(2¹) The attachment of property held in an account with a credit or financial institution consists in setting a restriction on using the account such that during the time the restriction applies the credit or financial institution does not, to the extent of the property attached, execute debiting instructions in respect of that account.

(3) In situations of urgency, property may be attached by order of the Prosecutor’s Office. The attachment must be notified to the pre-trial investigation judge within the next 24 hours and the judge must decide, by order and without delay, but not later than 72 hours after learning of the attachment, whether to grant or refuse a corresponding authorisation. If the judge refuses to grant the authorisation, the attachment is released immediately.

(4) Where property is attached to ensure interim protection of a civil court claim, the attachment is based on the extent of the harm caused by the criminal offence.

(5) An order on attachment of property is presented without delay to the person whose property has been attached, or to a full-age member of their family or, where the property of a legal person has been attached, to the person’s representative, and their signed acknowledgement on the order – stating that the order has been presented to them – is obtained. Where obtaining such an acknowledgement is not possible, the order is transmitted to the person whose property has been attached or to a representative of the legal person who owns the property. Where property is seized in the course of a procedural operation and the required person or representative is not present, participation of a municipal representative must be arranged.

(6) Where this is needed, the expert or specialist witness who participated in the procedural operation ascertains the value of attached property on the spot.

(7) Attached property is seized or entrusted for safekeeping to a bailee. Property is entrusted to the bailee under a bailment contract. The bailee is to ensure preservation of the property and is cautioned that any unauthorised use or disposal of or intentional damage to the property carries a criminal sanction.

(8) To attach an item of immovable property, the pre-trial investigation judge transmits an attachment order to the Land Registry Department of Tartu District Court for a note restraining disposition of the property to be recorded in the Land Register.

(9) To attach a movable or a right recorded in a public register, the Prosecutor’s Office presents the attachment order to the relevant public register or, to attach a registered security, to the Central Securities Depository.

(10) Attachment is not available in respect of property that is provided for by law as exempt from being levied upon under an enforceable title.

(11) Where the grounds for attachment of property or cease to apply before the completion of pre-trial proceedings, the Prosecutor’s Office or pre-trial investigation judge releases the attachment by an order. An attachment of immovable property is released by an order of the pre-trial investigation judge.

§ 143. Report of attachment of property

(1) A report of attachment of property states:

1) the common names and characteristics of the objects attached and their number, volume or weight and value;

2) a list of the property attached or entrusted into the custody of a bailee;

3) the absence of attachable property – where there is no such property.

(2) A list of attached property may be appended to the report of attachment of property, in which case a corresponding note is made in the report. In such a situation, the particulars listed in clause 1 of subsection 1 of this section are not stated in the report.

§ 143¹. Additional restrictions that may be imposed on a person subjected to a restriction of personal liberty

(1) If there is sufficient reason to think that the suspect or accused who has been committed in custody, or who is serving a term of imprisonment or a short-term custodial sentence, may, in the custodial institution, continue the commission of criminal offences or, by their actions, interfere with the conduct of criminal proceedings in the case, the Prosecutor’s Office or the court may make an order to relocate them, or to isolate them completely from other persons who have been committed in custody or who are serving such a term or sentence. The Prosecutor’s Office or the court may also, by order, restrict or completely disallow the following with regard to such a suspect or accused:

1) the right to short or long-term visits;

2) the right to correspondence and to using the telephone;

3) the right to a short-term prison leave;

4) the right to be taken out of the prison under supervision or to be released from prison.

(2) The order states:

1) the name of the suspect or accused;

2) the reasons and extent of the relocation or of the restriction of rights;

3) the period for which the relocation or restrictions have been imposed.

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

(4) The restriction mentioned in clause 1 of subsection 2 of this section does not extend to correspondence and the use of the telephone for communication with public authorities, municipalities and their officials, as well as with the defence counsel.

§ 144. Language of procedural documents

(1) A procedural document is issued in the Estonian language. Where a procedural document has been issued in another language, a translation into Estonian is appended to it.

(2) In criminal proceedings terminated by the investigative authority or the Prosecutor’s Office, a translation into the Estonian language of procedural documents issued in another language is provided at the direction of the Prosecutor’s Office or on the application of a party to proceedings.

§ 145. Order

(1) An order (in this translation, also ‘warrant’) is:

1) a ruling by a proceedings authority on a procedural issue, issued in writing and substantiated;

1¹) a ruling terminating criminal proceedings, made in accordance with the rules provided by subsection 1¹ of § 206 of this Code;

1²) in a situation provided for by this Code, a ruling on a procedural issue, made as a note on the underlying application, without setting out its reasons;

1³) an expert assessment order made in a situation provided for by this Code, which omits to state its reasons;

2) a ruling on a procedural issue which is made following the rules provided by § 137 of this Code to dispose of an individual issue in judicial proceedings and which is entered in the record of the trial or hearing, without setting out its substantiation.

(2) The introduction of a substantiated order states:

1) the date and place of its issue;

2) the position title and name of the person issuing the order;

3) the title of the criminal case: the number of the case and the legal designation of the criminal offence or the name of the suspect or accused.

(3) The body of a substantiated order states:

1) the reasons for the order;

2) the legal basis for the order in procedural law.

(4) The final part of a substantiated order states the ruling made to dispose of the criminal case or of an individual issue in such a case.

(4¹) The court may add, to an order by which a party to proceedings is required to pay an amount of money to the Republic of Estonia under a claim which has not arisen from participation of the State or of any of its administrative bodies in judicial proceedings as a party to those proceedings, in a separate document, the particulars required to pay the claim.

(4²) A list of the particulars required to pay the claim mentioned in subsection 4¹ of this section and the technical requirements for stating these are enacted by a regulation of the Minister in charge of the policy sector.

(5) When drawing up an order, any additional requirements established concerning its content are observed.

(6) Where it is provided for by this Code, a substantiated order is presented to the party or parties to proceedings, their rights and obligations are explained to them and signed acknowledgement is obtained from them regarding such explanation.

(7) An order made by a proceedings authority in a criminal case which the authority is conducting is mandatory for all persons.

§ 146. Report of an investigative or other procedural operation

(1) A report to reflect the conditions, course and results of an investigative or other procedural operation is filed in typewritten or word-processed form or in clearly legible handwriting. Where this is needed, the assistance of a record taker is employed.

(2) The introduction of the report states:

1) the date and place of the investigative or other procedural operation;

2) the position title and name of the person filing the report;

3) the number of the criminal case and the title of the investigative or other procedural operation;

4) in situations provided for by law, a reference to the order under which the investigative or other procedural operation was carried out;

5) the procedural status of the person subject to the investigative or other procedural operation, the person’s name, their residence or seat, address, the connection number of their means of communication or e-mail address;

6) the procedural status, name, residence or seat and address of any other person who participated in the investigative or other procedural operation;

7) the time of commencement and of conclusion of the investigative or other procedural operation, and other particulars;

8) the lead-in to the investigative or other procedural operation according to § 8 of this Code;

9) the legal basis of the investigative or other procedural operation in procedural law.

(3) Where a witness who provides a statement in the course of the investigative operation is at least fourteen years of age, it is stated in the introduction to the report that they have been cautioned with respect to criminal liability incurred, under the Penal Code, by a refusal to provide a statement or give testimony without a statutory basis for refusal or by giving a knowingly false statement or knowingly false testimony.

(4) In the introductory part of the report, signed acknowledgement is obtained from the party to proceedings concerning an explanation having been provided to them of their rights and obligations.

(5) The body of the report records:

1) the course and results of the investigative or other procedural operation with the degree of detail required for evidentiary purposes, observing any additional requirements provided for by this Code regarding the substance of procedural operations;

2) the use of any technical equipment.

(6) The final part of the report states:

1) the common names of any objects seized in the course of the investigative or other procedural operation and the manner in which they have been packaged;

2) presentation of the report to the persons who participated in the investigative or other procedural operation;

3) any annexes to the report.

(7) Where conclusions whose comprehension requires specialised knowledge are stated in the report, the report sets out the method of reaching such conclusions and the particulars of the person who formulated the conclusions that are based on such knowledge.

(8) Where a witness participating in a procedural operation does so under a fictitious name, a copy is made of the report of such an operation, in which no other personal data besides the fictitious name are stated, and which the witness is not asked to sign. The original of the report is placed in the envelope that is mentioned in subsection 4 of § 67 of this Code and that is kept separately from the criminal file.

§ 147. Record taker

When recording the conditions, course and results of a procedural operation, an investigative authority or the Prosecutor’s Office may use the assistance of a record taker.

§ 148. Annex to the report of an investigative or other procedural operation

(1) Where this is necessary, in addition to setting out evidentiary information in the report of an investigative or other procedural operation, such information may be recorded in the form of a photograph, footage, an audio or video recording, a drawing or in any other illustrative manner.

(2) A photograph, drawing and any other illustrative material is included in the criminal file together with the report, while footage and audio or video recordings are packaged and kept with the materials of the criminal case.

§ 149. Photograph

(1) The conditions, course and results of an investigative or other procedural operation are recorded by means of photography if this is considered necessary by the official of the investigative authority or if the obligation to do so is provided for by this Code.

(2) If a negative has been used in making a photographic print, the negative is annexed to the report of the investigative or other procedural operation.

(3) A digital photograph is set out in the report of the procedural operation or as an annex to such a report, and preserved in the form of a computer file in the eFile system. A digital photograph may also be produced of single frames of a video recording.

§ 150. Footage and an audio or video recording

(1) Footage may be shot of an investigative or other procedural operation, or of a complete part of such an operation, or the operation may be audio or video recorded. This must be notified to any participating witness or party to proceedings before commencement of the operation.

(2) The information required by subsections 2 and 3 of § 146 of this Code is stated at the beginning of any audio or video recording. When the investigative or other procedural operation has been completed, the recording is presented to the participants for listening or viewing.

(3) Based on the audio or video recording of an investigative or other procedural operation, a report is filed concerning that operation following the rules provided by this Code.

(4) An audio or video recording is included in the criminal file. Subsequent rectification of such a recording is not allowed.

(5) The video recording of their interview or examination or of another investigative or other procedural operation in which they participated is not presented to a witness of less than 14 years of age. Where the witness is less than 18 years of age, a decision may be made not to present such a recording to them.

§ 151. Drawing

(1) A drawing may be appended to a report in order to illustrate the conditions, course and results of the investigative operation and to clarify and supplement the substance of the report.

(2) A reference is made on the drawing to the report of the investigative operation, and the time of making the report is stated.

(3) The drawing is signed by the proceedings authority. Where the drawing was made by a specialist witness or a person subjected to the investigative operation, its truth and accuracy is also attested by the signature of the person in question.

(4) Where this is necessary, the proceedings authority also obtains signed attestation of a drawing’s truth and accuracy from any other person who participated in the investigative operation.

§ 152. Presenting the report of an investigative or other procedural operation

(1) The report of an investigative or other procedural operation is handed – for reading – to the person subjected to the operation and to any other persons who participated in that operation, or is read out, if the person in question so requests, and a corresponding note is made in the report.

(2) Where a person who acquaints themselves with the report of an investigative or other procedural operation makes any representations concerning the conditions, course and results the operation, or concerning the report, or makes an application to rectify the report, or any other application, such a representation or application is recorded in that report.

(3) A copy of the report of a search or of an attachment of property is handed to the person subjected to the corresponding operation or to a full-age member of their family or, if the person is a legal entity or a State or municipal authority, to the person’s representative who participated in the procedural operation. Where none of the aforementioned was present, a copy of the report is handed to a representative of the relevant municipal authority.

(4) The report is signed by the proceedings authority, by any specialist witness, by any person subjected to the operation and by any person who participated in the operation.

(5) If a person mentioned in subsection 4 of this section refuses to sign the report or if they are unable to do so due to a physical disability, a note concerning the refusal and the reasons for the refusal, or concerning the impossibility of their signing, is made in the report and attested to by an official of the investigative authority.

(6) The report that was filed based on the video recording of an interview with a witness of less than 14 years of age, or on the video recording of another investigative or procedural operation, is not presented to such a witness. A decision may be made not to present such a report also to a witness of less than 18 years of age.

§ 153. Summary of pre-trial proceedings

(1) The summary of pre-trial proceedings states:

1) the date and place of its filing;

2) the position title and name of the official of the investigative authority;

3) the title of the criminal case;

4) the suspect’s name, residence or seat and address as well as personal identification number (or, where the suspect does not possess one, their date of birth) and their citizenship, education, native language and employer or educational institution;

5) any previous convictions of the suspect;

6) any compliance enforcement measures imposed on the suspect, and their duration;

7) facts of the subject matter of evidence that are listed in clause 1 of § 62 of this Code and that were ascertained in pre-trial proceedings,;

8) a list of the evidence;

9) a list of items of physical evidence and of any recordings, and particulars concerning their location;

10) information concerning any objects attached as an interim measure to achieve a confiscation;

11) information concerning any civil court claims or notices of public-law claims and concerning any interim protection measures regarding such claims;

12) information concerning proceeds of the criminal offence;

13) a list of the data recorded in the ABIS Database and the National Offence Proceedings Database of Biometrics.

(2) A summary of pre-trial proceedings is signed and dated by an official of the investigative authority.

§ 154. Statement of charges

(1) The introductory part of the statement of charges states:

1) the date and place of its issue;

2) the position title and name of the prosecutor;

3) the title of the criminal case;

4) the name, residence or seat and address of the accused, the accused’s personal identification number or, if they do not possess one, their date of birth, citizenship, education, native language and employer or educational institution;

5) any previous convictions of the accused.

(2) The body of the statement of charges states:

1) the facts of the criminal offence;

2) the type and extent of the harm caused by the criminal offence;

3) information concerning any property that was obtained by the criminal offence;

3¹) any mitigating and aggravating circumstances;

3²) information on whether the victim has filed the application or motion provided for by clause 2 or clause 4 of subsection 5 of § 38 of this Code or expressed the opinion provided for by clause 5 of that subsection;

4) evidence to prove the facts on which the charges are based, pointing out, regarding each item of evidence, which fact the prosecution intends to prove by that item;

5) information concerning any compliance enforcement measures imposed on the accused, any varying of those measures and the measures that are currently applicable;

5¹) where the accused is a citizen of a foreign State, information concerning the possibility of imposing expulsion as an ancillary sanction according to the provisions of § 54 of the Penal Code;

6) information concerning circumstances based on which a forfeiture of property has been assessed in the case or concerning circumstances that serve as grounds for a confiscation;

8) information concerning circumstances which serve as an indication for ordering the accused to undertake a course of addiction treatment for drug addicts or a course of complex treatment for sex offenders;

9) information concerning any children and property of the accused that are in need of supervision;

10) information concerning any items of physical evidence and any other objects seized as part of criminal proceedings in the case;

11) particulars concerning the costs of the criminal case;

12) a list of the data recorded in the ABIS Database and the National Offence Proceedings Database of Biometrics;

13) information concerning appointment of a probation officer.

(3) The final part of a statement of charges states:

1) the name of the accused;

2) the substance of the charges;

3) the legal designation of the criminal offence according to the relevant section, subsection and clause of the Penal Code.

(4) The statement of charges is signed and dated by the prosecutor.

§ 154¹. Civil court claim

(1) The civil court claim is filed in writing and states:

1) the name, address and other contact details of the person filing it;

2) the name of the accused or civil defendant against whom the claim is filed. Until they are shown the criminal file, a victim may decide not to state, in the claim, the name of the accused or of the civil defendant. In such a situation, the victim must supplement the claim with the corresponding information within the time limit provided by subsection 1 of § 225 or clause 4 of § 240 of this Code;

3) in specific terms, the relief sought by the party filing the claim;

4) the factual circumstances on which the filer’s claim is based;

5) evidence to prove the circumstances on which the claim is based and on which the victim intends to rely regardless of the body of evidence to be offered by the Prosecutor’s Office, if the party filing the claim is not the Prosecutor’s Office. Where a claim is filed by the Prosecutor’s Office under subsections 3¹, 3² or 3³ of § 38¹ of this Code, such a claim states the evidence that is to be used to prove the circumstances on which the claim is based and that the Prosecutor’s Office intends to rely on.

(2) In a claim for compensation for non-pecuniary harm, the amount of the compensation claimed may be left unspecified and fair compensation at the discretion of the court may be sought as relief.

§ 154². Statement of the public-law claim

A statement of a public-law claim is filed in writing and states:

1) the person filing the statement, their address and other contact details;

2) the name of the accused or defendant against whom the statement is filed;

3) in specific terms, the relief sought by the person filing the statement;

4) the substantive-law grounds for the claim filed by the statement and its legal and factual reasons;

5) evidence to prove the facts on which the claim is based, upon which the victim intends to rely, regardless of the body of evidence offered by the Prosecutor’s Office, if the party filing the statement is not the Prosecutor’s Office. Where the statement is filed by the Prosecutor’s Office under subsections 3¹, 3² or 3³ of § 38¹ of this Code, the civil court claim sets out the evidence that is to be used to prove the circumstances on which the relief is based and that the Prosecutor’s Office intends to rely on.

§ 155. Record of the trial or hearing

(1) The record of the trial or hearing before the court of first instance or of the hearing before the circuit court of appeal is a procedural document which is filed in typewritten or word-processed form and in which a record taker, in their own words or as a summary dictated by the judge, records the conditions and course of the trial or hearing of the criminal case.

(1¹) A record does not need to be created at the trial or hearing that is conducted under a simplified procedure, in the matter of enforcing a judicial disposition or in order to proclaim a judgment, provided a video or audio recording is made of the trial or hearing. Where, in the trial or hearing which was conducted under the abridged procedure and at which no record was created, the accused provided testimony and a notice of appeal or an appeal is filed in the case, the court creates the record based on the recording.

(2) The record of a trial or hearing states:

1) the date and place of the trial or hearing and the time of its commencement and end;

2) the name of the court and the composition of the panel of judges;

3) the names of the parties to judicial proceedings, of the record taker, and of any translators or interpreters and of experts;

4) the title of the criminal case tried or heard;

6) the titles of any operations performed by the court, in chronological order;

7) in an adversarial examination, the questions put to the person being examined by the parties to judicial proceedings and the person’s testimony;

8) any representations, motions or applications and the results of their disposition;

9) the titles of any orders made at the trial or hearing;

10) the relief applied for by the parties in their concluding statements;

11) the relief applied for by the accused in their final statement;

12) whether the judgment or order was made in the deliberation room;

13) pronouncement of the judgment or order and explanation of the rules and the time limit for appeal.

(2¹) A judicial record taker makes a record of the trial or hearing without interrupting its smooth progress.

(2²) Where a trial or hearing was audio or video recorded, the corresponding recording constitutes an integral part of its record. If what is reflected in such a record derogates from the recording, the recording prevails.

(3) The record is signed and dated by the presiding judge and the judicial record taker.

§ 156. Audio and video recording of a trial or hearing

(1) Trials and hearings are audio recorded. The court may also video record a trial or hearing or any of its stages.

(2) Where a trial or hearing or an operation performed by the court is audio or video recorded, the court may use the recording for the purpose of adding to and specifying the record of the corresponding proceedings before the court.

(3) Rectification of an audio or video recording is not allowed.

(4) A decision may be made not to record a trial or hearing if:

1) it comes to light before or in the course of the trial or hearing that recording is technically impossible and if the court is convinced that holding the trial or hearing without recording it is expedient and in line with the interests of the parties to judicial proceedings;

2) the trial or hearing is held outside the court’s premises;

3) the hearing is held to pronounce the court’s disposition in a case;

4) it is a hearing of the Supreme Court.

(5) Trials or hearings are audio or video recorded in the digital form.

§ 156¹. Acquainting oneself with the recording of a trial or hearing and with the record of judicial proceedings

(1) The parties to judicial proceedings have a right to receive a copy of the record of such proceedings and, where an audio recording has been made of those proceedings, of such a recording.

(2) The court notifies the parties to judicial proceedings of the time of signing the record of such proceedings and, without delay, transmits the record, after it has been signed, by electronic means to the prosecutor and to other parties to judicial proceedings who have notified their e-mail addresses to the court. The parties may also acquaint themselves with the record in the court’s office.

(3) On a motion of a party to judicial proceedings, the court makes a signed record of the trial or hearing accessible to the parties to judicial proceedings not later than when three days have elapsed after the day of the trial or hearing.

(4) A copy of an audio recording of the trial or hearing is issued by the court’s office on a digital data medium or by electronic means within three days following the filing of the corresponding application. A copy of the audio recording of the trial or hearing is made accessible to the prosecutor through the eFile system.

(5) Where a video recording was made of the trial or hearing, the court presents – on an application of a party to judicial proceedings – such a recording to the party in court within three days following the making of the application.

(6) A copy of the record or recording of a trial or hearing to which – in its entirety or in part – the public was not allowed access is issued by the court only if this does not jeopardise the interests mentioned in subsection 1 of § 12 of this Code. The court makes it possible for a party to judicial proceedings to acquaint themselves with such a recording or record in court.

(7) The fee to be charged for making a copy of the audio recording mentioned in subsection 1 of this section, in the amount of up to five euros, and the rules for its payment, are enacted by a regulation of the Minister in charge of the policy sector.

(8) A statutory fee, in the amount provided by subsection 1 of § 61 of the Statutory Fees Act, is paid for a copy of the record mentioned in subsection 1 of this section.

§ 156². Making procedural documents available in judicial proceedings

(1) The court, without delay and through the eFile system, makes all procedural documents of any proceedings before it available to the parties to judicial proceedings, regardless of how such documents are served on those parties.

(2) The Minister in charge of the policy sector may, by regulation, enact detailed requirements for making procedural documents available through a procedural document information system.

(3) Where the person has not accepted the procedural document within the time limit enacted under subsection 4 of this section, their access to the following information systems and databases that have been interfaced with the information systems prescribed for service of the document is temporarily restricted:

1) Electronic Land Register;

2) eFile system;

3) Electronic Commercial Register.

(4) The minister in charge of the policy sector enacts a time limit for electronic acceptance of the document in the information system mentioned in subsection 3 of this section.

§ 157. Judicial record taker

(1) A judicial record taker is an officer of the court whose task is to make the technical arrangements to prepare a trial or hearing, to arrange its audio or video recording where this is prescribed by law or where the court so directs, and to make a record of the conditions, course and results of the trial or hearing.

(2) A judicial record taker is required to recuse themselves from criminal proceedings on the grounds provided by subsections 1 and 6 of § 49 of this Code.

(3) If a judicial record taker has not recused themselves on the grounds provided by subsections 1 and 6 of § 49 of this Code, the prosecutor, accused, defence counsel, victim or civil defendant may file a motion to recuse the record taker. The motion is disposed of following the rules prescribed in subsection 6 of § 59 of this Code.

§ 158. Motion to rectify the record of a trial or hearing

(1) Within three days following the signing of the record of the trial or hearing, the parties to judicial proceedings may file a motion to rectify the record.

(2) The motion is considered by the judge or presiding judge who convenes a case management hearing for the purpose if this is needed. If the judge or presiding judge agrees with the motion, they rectify the record accordingly; the truth and accuracy of the rectifications is certified by the judge or presiding judge and the judicial hearing clerk.

§ 159. Judgment

(1) The judgment is a judicial disposition that is rendered in the name of the Republic of Estonia and that decides the criminal case on its merits.

(2) When drawing up a judgment, §§ 311–314 of this Code are observed.

(3) The court may add, to a judgment by which a party to proceedings is required to pay an amount of money to the Republic of Estonia under a claim which has not arisen from participation of the State or of an administrative body of the State in judicial proceedings as a party to those proceedings, in a separate document, the particulars required to pay the claim.

(4) A list of the particulars required to fulfil a claim mentioned in subsection 3 of this section and the technical requirements for formalising these are enacted by a regulation of the Minister in charge of the policy sector.

§ 160. Recreating a document

(1) Where a procedural or other document of relevance for disposing of the criminal case is destroyed, lost or removed and it is not possible to restore it, a judicially or notarially certified copy of such a document is deemed to be equivalent to the original document.

(2) Where it is not possible to replace a procedural document with a certified copy, the document is recreated based on a draft of that document, if such a draft exists. A recreated procedural document is deemed to be valid if the proceedings authority who originally drew up the document in question attests, by their signature, that the recreated document corresponds to the original one.

§ 160¹. Criminal file

(1) ‘Criminal file’ means the set of documents collected in the criminal case.

(2) The court keeps a court file on every criminal case that it deals with; all procedural documents and any other documents related to the case are included in the file in chronological order. Where this is prescribed by law, other objects related to the case are kept with the file.

(3) The court file is kept as a body of written documents.

(4) The criminal file and the court file may also be kept, in part or in their entirety, in the digital form.

(5) Where the court file is kept in the digital form, paper documents are scanned and saved in the eFile system under the relevant case. The system automatically records the time of saving the document and the particulars of the person saving it. Documents saved in the system are equivalent to paper documents. Any paper documents that do not have to be returned are destroyed or, where this is needed, are kept at the proceedings authority who saved it to the file kept in the digital form.

(5¹) Where the case file is kept in paper form, any digital documents are printed out and placed in the file. The proceedings authority certifies the truth of the printed copy and of its correspondence to the digital document by their signature.

(6) The time and the rules to govern transition to mandatory keeping of case files in the digital form, as well as the technical requirements for the keeping of digital case files, for acquainting oneself with such files and for preserving electronic documents are enacted by a regulation of the Minister in charge of the policy sector.

(7) Detailed requirements for the preservation, destruction and archiving of digital case files and of the paper documents provided for by subsection 5 of this section, as well as for acquainting oneself with archived case files and procedural documents are enacted by a regulation of the Minister in charge of the policy sector.

§ 160². Transmission of digital documents

(1) Unless otherwise provided by this Code, any digital applications, motions, complaints, appeals and other documents in criminal proceedings are transmitted directly, through the eFile system or through another designated system. A digital document that has been transmitted directly is imported into the eFile system by the proceedings authority.

(3) Unless a valid reason is present for filing a procedural document in another form, any applications, appeals and other documents to be filed with a proceedings authority are filed by attorneys, notaries, enforcement agents, trustees in bankruptcy and State or municipal authorities in electronic form.

§ 160³. Requirements for documents

(1) The requirements for criminal files and the model form of the statement of defence are enacted by the Minister in charge of the policy sector.

(1¹) The model forms of documents of pre-trial procedure in criminal cases are established by the Prosecutor General by guidelines issued to the Prosecutor’s Office and to investigative authorities under subsection 5 of § 213 of this Code.

(2) The rules for the formulation, transmission and preservation of documents signed digitally in criminal proceedings and of other digital documents are enacted by the Minister in charge of the policy sector.

(3) Where the case file is kept in the digital form, the requirements contained in this Code concerning the creation, issue, transmission and preservation of documents are applied in accordance with the need to keep the file in the digital form.

(4) Where this Code provides for the document to be signed, any other reproducible certification provided by the signer is deemed equivalent to the signing, provided the person providing the certification and the time of certification can be established.

§ 160⁴. Taking notes from and obtaining a copy of a document

(1) If, under this Code, a person has a right to acquaint themselves with a procedural document, they are, unless otherwise regulated by this Code, allowed to take notes from such a document and, for a charge, to obtain a copy of the document.

(2) In the interests of criminal proceedings, the Prosecutor’s Office may, by reasoned order and for a specified period of time, restrict the right to take notes from and to obtain a copy of a document.

(3) A statutory fee, in the amount provided by subsection 1 of § 61 of the Statutory Fees Act, is paid for a copy mentioned in subsection 1 of this section.