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SUPREME COURT REPUBLIC OF ESTONIA Marek Domagala domagala@trybunal. gov.pl 23 November 2018 No.6-1118-623 Answer to your inquiry Dear Marek Domagala Please find the answer to your query on the legal system of the Republic of Estonia and the case law of the Esīonian Supreme Court. 1) Is the fact that the law prescribes only a non-custodial penalty (e,9. a fine) for a particular minor criminal offence of any relevance as regards the admissibįlity or validity of a police officer's arrest (detention) of a person suspected of committing the said criminal offence? Yes, it is. The factthat the law prescribes only a non-custodial penalty for a particular minor criminal offence has relevance regards the admissibility/validity of a police officer's arrest (detention). Pursuant to $ 3 of the Estonian Penal Code offences arę divided into criminal offences and misdemeanours. A criminal offence is an offence which is provided for in the Penal Code and the principal punishment prescribed for which in the case of natural persons is a pecuniary punishment or imprisonment and in thę case of legal persons a pecuniary punishment' A misdemeanour is an offence which is provided for in the Penal Code or another act and the principal punishment prescribed for which is a fine, detention or deprivation of driving privileges. Procedure and basis of detention are different depending on offence (criminal offence or misdemeanour). The Code of Misdemeanour Procedure a. 090 018006/conso provides for the extra-judicial and court procedure for misdemeanours and for execution of the punishments imposed for misdemeanours. l7 Lossi St,50093 Tartu, ESTONIA. Tel +37273.09002.fax+372'130 9003, e-mail: [email protected] www.riigikohus.ee $ 44. Basis and termfor detentįon of person A person with regard to whom there is justified reason to beĮieve that he or she has commįtted a misdemeanour may be detained.fo, up to 48 hours if he or she: 1) attempts to escape; 2) has not been identified,' 3) is likely to contįnue commissįon of misdemeanours; 4) is ĮikeĮy to hįnder or evade the misdemeanour proceedings. The rules for pre-trial procedure and court procedure for criminal offences and the procedure for enforcement of the decisions made in criminal matters are provided in the Code of Criminal Procedure .ril a. .S 2l7. Detentįon of suspect A person shaĮl be detained as a suspect if: l) he or she is 'apprehended įn the act of committing a crįminaĮ offence or immediateĮy thereafter; 2) an eyewitness to ą crįminal offence or a victim įndicates such person as the person who commįtted the crįmįnaĮ offence; j) the evidentiary traces of a criminaĮ offence įndicate that he or she įs the person who commįtted the crimįnal offence. A suspect may be detaįned on the basis of other information referring to a crimįnaĮ offence if: l) he or she attempts to escape; 2) he or she has not been identified; 3) he or she may contįnue to commįt crįminal offences; 4) he or she may abscond crįmįnaĮ proceedings or impede the crįminaĮ proceedings in any other manner. Summary: in the context of misdemeanours detention is admissible/valid when basis ($ 44) and procedure ($ 45 and $ 46) for detention of person have been complied. As procedure and basis of detention are different depending on offence, it is important to distinguish criminal offences and misdemeanours. (2) \ilhat conditions need to be met for the admissibility of a police officer's arrest (detention) of a person suspected of committing a minor criminal offence punishable only by a fine? For the admissibility of a police offtcer's arrest (detention) of a person suspected of committing a minor criminal offence punishable only by a fine the following procedure has to be followed: Code of Misdemeanour Procedure $ 44. Basis and termfor detentįon of person (l) A person with regard to whom there įs justified reoson to belįeve that he or she has commįtted a misdemeanour may be detainedfor up to 48 hours if he or she: I) attempts to escape; 2) has not been identified; 2(s)  3) is Įikely to continue commission of misdemeanours; 4) is likeĮy to hinder or evade the misdemeanour proceedings. (2) Upon detention of a person: t) he or she is taken to the PoĮice and Border Guard Board or the official premįses of a body conducting extra-judicial proceedings who is competent to detaįn persons according to s 45 of this Code or to a poĮice detentįon house; 2) testimony įs įmmediateĮy taken from the person with regard to the commįssion of the mįsdemeanour and a report on the detentįon of the person or a mįsdemeanour report is prepared; 3) the person taken into custody įs įmmedįately taken to a counŅ court for the hearing of the matter if the person has commįtted a misdemeanour and the body conducting extra-judiciaĮ proceedings deems it necessary to impose detentįon, and the corresponding misdemeanour report and other proceduraĮ documents have been prepared concerning the misdemeanour matter. In such case, the person subject to proceedings may fiĮe an objection to the court. (3) Detention commences aS of the moment when the person įs detained. The period of detentįon shaĮl be įncluded įn the term of the punishment pursuant to the procedure provided for in subsectįon 68 (2) of the PenqĮ Code. (4) If įt becomes evįdent that the detentįon of a person is not justified, he or she shaĮĮ be released immediateĮy' (5) If a person įs not detained on the bases provided for in subsectįon (1) of this sectįon, the time of interrogation of the person or performance of any other proceduraļ act with regard to hįm or her įs not deemed to be detention of the person. (6) The provisions of subsections 35] (2) to (4) of the Code of Crimįnal Procedure shaĮĮ not appĮy to detentįon of a person. $ 45. Persons entįtled to apply detention Q rhe foĮĮowing officiaĮs of the bodįes conducting extra-judicial proceedings have the right to appĮy detention onpersons onthe bases andpursuant to the procedure providedfor in $ 44 of this Code: 1) police oficers or oficials of the Tax and Customs Board competent to supervise over customs ĮegisĮation,' 2) officiaĮs competent to conduct supervision over cįvįĮ aviation safeŅ, marįtįme Safety, railway SafeŅ or railway traffic; 3) envįronmental supervision fficįaĮs conducting supervision over hunting, fishing or forestry. 4) prison officers įn the case of misdemeanours prescribed įn subsection 325 (1) of the Penal Code. (2) An official of a body conducting extra-judiciaĮ proceedings who does not have the right to detaįn persons may submit a request to the Police and Border Guard Board for invoĮving a poĮice oficer įn the detention of a person on the bases provided for įn subsection 44 (]) of thįs Code. The poĮice officer shall detain the person įn the presence of the official of the body conducting extra-judiciaĮ proceedings who submitted the corresponding request. 3(s) $ 46. Report on detention of person (1) A report shaĮĮ be prepared on the detention of a person on the bases provided for in subsectįon 44 (]) of this Code. A report on the detentįon of the person shaĮl not be prepared if a mįsdemeanour report is prepared upon detentįon of the person and the information prescribed įn subsectįon 69 (4) of this Code įs entered in the misdemeanour report. (2) A report on the detention ofa person shaĮl set out: I) the pĮace and date of the proceduraĮ act; 2) the name of the body conducting extra-judicial proceedings and the position, given name and surname of the officiaĮ of the body who prepared the report; 3) the position, given name and surname of the poĮice oficer who participated įn the detention of the person,' 4) the given name and surname of the person subject to proceedings; 5) the duratįon of and basis for the detentįon together wįth a reference to subsectįon 44 (]) of this Code; 6) the place, date and tįme of the detention; 7) the Įegal assessment of the misdemeanour; 8) explanation of the rights and obĮigations of the person subject to proceedings pursuant to $ I9 of this Code; 9) a description of the cĮothes and footwear of the person detained and information concerning vįsibĮe heaĮth damage ; l0) a Įist ofthe objects seizedfrom the person upon detentįon, and the characteristicfeatures of the objects; 1I) the petįtįons and requests of the person detained; I2) the provįsįon of proceduraĮ Įaw on the basis ofwhich the procedural act was performed. (3) A report shaļĮ be signed by the person who prepared the report and by the poĮice oficer who participated in the detentįon. The person subject to proceedings shall sign the report, certifying that he or she has examined the report and the rights and obĮigations provided for in S 19 of this Code have been explained to him or her. If the person subject to proceedings refuses to sign the report' a corresponding entry shaĮl be made įn the report. (4) At the request ofa person subject to proceedings, at Įeast one person ofhis or her choice shaĮĮ be notified of his or her location. If the person detaįned is a minor, a parent or the guardian or curator of the mįnor and the socįal servįces department shaĻĮ be immediately notified o.f the detentįon. (3) Is it admissible for a police officer to arrest (detain) a foreigner (temporarily staying in the territory of Estonia) who is suspected of committing a minor criminal offence punishable only by a fine, due to the risk that the foreigner will leave the territory of Estonia before s/he pays the fine? Basis for detention of person are provided in $ 44 of the Code of Misdemeanour Procedure. Only the fact, that a person, suspected of committing a minor criminal offence punishable only by a fine, is foreigner, is irrelevant when evaluating basis for detention. 4(s) $ 44. Basis and termfor detentįon of person A person with regard to whom there is justified reason to beĮieve that he or she has commįtted a mįsdemeanour may be detaįnedfor up to 48 hours if he or she: 1) attempts to escape; 2) has not been identified,' 3) is ĮikeĮy to contįnue commissįon of misdemeanours; 4) is likely to hinder or evade the misdemeanour proceedings. (a) Is there any case law of the Estonian Supreme Court within the scope of the above matters? Unfortunately, there is no case law of the Estonian Supreme Court in these matters. With kind regards Andraš Tšitškan Head of the legal information and judicial training department Supreme Court of Estonia s(s)