Estonia plans to work with other European Union countries to amend legislation to allow assets obtained through criminal activity to be confiscated even without a criminal conviction.
It was about six years ago that the Supreme Court ruled to permanently terminate criminal proceedings against Edgar Savisaar who had been accused of corruption. The court found that Savisaar was so seriously ill that even if convicted, he would be unable to serve a sentence.
Similarly, no one was convicted in the lengthy Port of Tallinn corruption trial. In that case, the court ruled that the alleged corruption offenses had passed the statute of limitations.
Under a plan agreed upon by European Union member states, it would in the future be possible to confiscate assets belonging to individuals or companies even without a criminal conviction, provided a court determines that the assets are of criminal origin.
This would be possible, for example, if a suspect becomes seriously ill, evades proceedings or the statute of limitations on the offense has expired.
So far, only a small proportion of criminal proceeds have been successfully confiscated, both in Estonia and across Europe more broadly. In large-scale fraud cases, for example, it may be possible to clearly establish that assets were obtained illegally, while proving the precise role of each participant is more difficult.
"If these assets were obtained through criminal activity, terminating the proceedings would essentially mean that the criminal proceeds would remain in the hands of those who committed the offenses, allowing them to profit from their crimes. The process involves proving where the assets came from and establishing that they are of criminal origin, meaning they were obtained as a result of a crime. Once that has been proven, the assets can be confiscated," explained Andreas Kangur, head of the Penal Law and Procedure Division at the Ministry of Justice and Digital Affairs.
The European Convention on Human Rights states that everyone charged with a criminal offense is presumed innocent until proven guilty according to law. The same principle is enshrined in Estonia's Constitution.
Kangur also emphasized that confiscating criminal assets in this way must not involve labeling someone a criminal, even implicitly.
"The European Court of Human Rights has ruled on such cases and found that, as long as someone is not explicitly labeled a criminal, confiscation without a criminal conviction does not violate the presumption of innocence under the European Convention on Human Rights," Kangur said.
Chief State Prosecutor Alar Lehesmets said that confiscating assets without a criminal conviction is far from unprecedented.
"Many European countries have had such measures in place for a long time, including the Netherlands, Belgium and France. Sweden has had a similar provision for several years. Estonia is by no means breaking new ground here. On the contrary, we are actually lagging behind and are only now taking steps to combat crime that more progressive countries have already taken," Lehesmets said.
Estonia is therefore moving in step with other European Union member states in adopting the so-called asset recovery and confiscation directive. In fact, Estonia is already running behind schedule, as member states agreed to adopt the legislation by the end of November.
"Drafting this legislation has not been easy for us. Some of the measures that, as I understand it, have become fairly widely accepted in many European countries still seem quite radical to us," Kangur said.
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