Compensation For Damage Caused In Offence Proceedings Act

Link to law: https://www.riigiteataja.ee/en/eli/ee/Riigikogu/act/522122014001/consolide
Published: 2015-05-01

Compensation for Damage Caused in Offence Proceedings Act

Passed 05.11.2014

Chapter 1 GENERAL PROVISIONS 

§ 1.  Scope of application of Act

(1) This Act provides the bases, extent of and procedure for compensation for damage caused in offence proceedings by a body conducting proceedings.
(2) Unless otherwise provided by law, the provisions of private law concerning compensation for damage shall also apply to compensation for damage caused in offence proceedings in addition to this Act, taking into consideration the specifications for offence proceedings.
(3) The State Liability Act applies to compensation for damage caused in offence proceedings only in the case provided for in this Act.

§ 2.  Person obligated to compensate for damage

(1) The Republic of Estonia through the Ministry of Finance shall compensate for damage caused by a body conducting proceedings in criminal proceedings and misdemeanour proceedings.
(2) Where the body conducting extra-judicial misdemeanour proceedings is a rural municipality or city government, the local government shall compensate for damage caused by the body conducting misdemeanour proceedings.
(3) Damage caused by a body conducting proceedings is deemed to be damage specified in subsection 12 (2) of the State Liability Act.
(4) If the measure which caused damage was applied in international co-operation in criminal proceedings, the damage caused by a body conducting proceedings is deemed to be:
1) damage pursuant to § 5 or 6 of this Act caused in offence proceedings, if the Republic of Estonia is the requesting state;
2) damage pursuant to § 7 of this Act caused in offence proceedings, if the Republic of Estonia is the requested state.

§ 3.  Compensation for damage to third persons

Compensation for damage to third persons shall comply with § 10 of the State Liability Act.

Chapter 2 BASES FOR COMPENSATION FOR DAMAGE 

§ 4.  Right to demand compensation for damage caused in offence proceedings

A person may demand compensation for damage caused to such person in offence proceedings by the body conducting offence on the bases, to the extent and pursuant to the procedure provided for in this Act.

§ 5.  Compensation for damage depending on final outcome of offence proceedings

(1) If a person is acquitted or criminal proceedings are terminated with respect to him or her on the basis of clause 199 (1) 1), 2) or 5) of the Code of Criminal Procedure, he or she may demand compensation for damage in the case it was caused by:
1) taking into custody;
2) detention as a suspect;
3) prohibition on departure from residence;
4) exclusion from office;
5) seizure or confiscation of property;
6) unreasonable time of proceedings.
(2) If misdemeanour proceedings are terminated with respect to a person on the basis of clause 29 (1) 1), 2), 3), 5) or 6) of the Code of Misdemeanour Procedure, he or she may demand compensation for damage in the case it was caused by:
1) his or her detention in misdemeanour proceedings;
2) unreasonable time of proceedings.
(3) If damage was caused to a person in criminal proceedings in the meaning of subsection (1) of this section and after termination of criminal proceedings on the basis of clause 199 (1) 1) of the Code of Criminal Procedure misdemeanour proceedings were commenced with respect to him or her in connection with the same act which were terminated on the basis specified in subsection (2) of this section, the person has the right to demand compensation for damage caused to him or her. If damage was caused to a person in the meaning of subsection (2) of this section and after the termination of misdemeanour proceedings on the basis of clause 29 (1) 4) of the Code of Misdemeanour Procedure criminal proceedings were commenced with respect to him or her in connection with the same act which were terminated on the basis specified in subsection (1) of this section, the person has the right to demand compensation for damage caused to him or her.
(4) In the case of a judgment of conviction, an accused or a person subject to proceedings has the right to demand compensation for damage caused by measures specified in subsection (1) or (2) of this section in the case the measure applied to him or her is significantly more burdensome compared to the punishment imposed to him or her. Furthermore, in the case of a judgment of conviction, a person has the right to demand compensation for damage caused by unreasonable time of proceedings in the case no commutation is granted to him or her regardless of exceeding the reasonable time of proceedings.
(5) If damage was caused to third persons by seizure of property in the meaning of Chapter 7 of the Penal Code, he or she may demand compensation for damage in the case of failure to confiscate property, except if failure to confiscate property is based on subsection 831 (3) of the Penal Code.
(6) If property was confiscated from a person who was not a suspect or accused in criminal proceedings or a person subject to proceedings in misdemeanour proceedings, he or she has the right, if damage was caused, to demand compensation for damage in the case the offence proceedings are terminated on the basis specified in subsection (1) or (2) of this section.

§ 6.  Compensation for damage in case of review

(1) If a person is granted commutation, a person is acquitted or criminal proceedings are terminated with respect to him or her on the basis of clause 199 (1) 1), 2) or 5) of the Code of Criminal Procedure as a result of a new hearing of the criminal matter resumed due to review, the person may demand compensation for damage which was caused by previous punishment.
(2) If a person is granted commutation or misdemeanour proceedings are terminated with respect to him or her on the basis of clause 29 (1) 1), 2), 3), 5) or 6) of the Code of Misdemeanour Procedure as a result of new hearing of the misdemeanour proceedings resumed due to review, the person may demand compensation for damage which was caused by previous punishment.
(3) The provisions of subsection (1) of this section also apply if other sanctions in the meaning of Chapter 7 of the Penal Code were applied to a person by a decision annulled due to review.

§ 7.  Compensation for damage regardless of final outcome of offence proceedings

(1) If a body conducting proceedings is at fault of violating procedural law and thereby causes damage to a person, the person has the right to demand compensation for such damage regardless of the final outcome of the offence proceedings by which the damage was caused to the person.
(2) A body conducting proceedings is released from liability if the body proves that the body is not at fault in causing the damage.
(3) If the damage specified in subsection (1) of this section is caused by a court, the state is liable pursuant to the State Liability Act.
(4) A person has the right to demand compensation for damage caused to him or her by compulsory placement in a medical institution on the basis of the Code of Criminal Procedure, if the court ruling on his or her placement in a medical institution is annulled.

§ 8.  Circumstances precluding compensation for damage

(1) A person shall have no right to demand compensation for damage if:
1) he or she is acquitted or offence proceedings are terminated with respect to him or her because he or she was not guilty of commission of an unlawful act in the meaning of Division 3 of Chapter 2 of the Penal Code, except upon compensation for damage on the basis of § 7 of this Act;
2) he or she intentionally or negligently caused the application of the measure having caused damage, including by failure to disclose circumstances constituting the basis for review, falsely admitted guilt, absconded from the proceedings, violated the obligation arising from the preventive measure not to leave the residence without a permission, or was hiding;
3) unreasonable time of proceedings was due to the person who suffered damage or his or her defence counsel.
(2) In exceptional circumstances, a person may also demand compensation for damage in the case the bases provided for in subsection (1) of this section exist and failure to compensate for damage would be excessively burdensome for the person. In such case, the amount of the compensation to be paid to the person may be reduced.

Chapter 3 SPECIFICATIONS FOR EXTENT OF COMPENSATION FOR DAMAGE 

§ 9.  Extent of compensation for damage

(1) Unless otherwise provided for in this Act, determination of the amount of compensation shall be based on subsection 13 (1) of the State Liability Act, taking into consideration the specifications of offence proceedings.
(2) A body conducting proceedings may change the amount of compensation provided for in this Chapter, if such compensation is unfair, taking into consideration relevant facts of individual cases and legitimate interests.

§ 10.  Compensation for proprietary damage

(1) Damage caused by seizure or confiscation of bank accounts or money shall be compensated for on the basis of § 5 or § 6 of this Act in the maximum amount which corresponds to the interest calculated on the amount of money seized or deprived at the rate of six percent per year. The same limit shall apply in the case of refunding the amount of money paid or collected as a fine or pecuniary punishment or fine to the extent of assets.
(2) Proprietary damage is compensated for on the basis of § 5 or § 6 of this Act in the maximum amount for which the last average quarterly gross wages announced by the Statistics Estonia on the month preceding the submission of the claim are multiplied by 48.

§ 11.  Compensation for non-proprietary damage

(1) A natural person is compensated for non-proprietary damage on the basis of § 5 or § 6 of this Act only if the person was deprived of liberty in offence proceedings or his or her right to reasonable time of proceedings was violated.
(2) A natural person is compensated for non-proprietary damage on the basis of § 7 of this Act only if the person was deprived of liberty; he or she was tortured or treated inhumanly or degradingly; damage was caused to his or her health, inviolability of his or her home or private life was violated; confidentiality of his or her messages was violated or his or her honour or good name was damaged in offence proceedings. Fault of a body conducting proceedings does not constitute a prerequisite for compensation for non-proprietary damage if the person was tortured or he or she was treated inhumanly or degradingly by violation of procedural law
(3) Arise of non-proprietary damage is presumed. Non-proprietary damage is compensated for in money to the extent in which it cannot be remedied by other means, including by admission of mistake and apology.
(4) In the case of deprivation of liberty, non-proprietary damage is compensated for on the basis of a daily rate per each commenced calendar day during which the person was deprived of liberty. The amount of the daily rate is the last average quarterly gross wages announced by the Statistics Estonia on the month preceding the submission of the claim which is divided by 30.
(5) In the case of unreasonable time of proceedings, compensation for non-proprietary damage for each delayed year is the last average quarterly gross wages announced by the Statistics Estonia on the month preceding the submission of the claim.

Chapter 4 PROCEEDINGS FOR COMPENSATION FOR DAMAGE 

Division 1 Application for Compensation for Damage 

§ 12.  Application for compensation for damage

Damage is compensated for on the basis of a written application of the person who suffered damage. An application shall set out:
1) the applicant's name, personal identification code or in the absence thereof the date of birth or registry code, address, telecommunications numbers and bank account number;
2) the name, address and telecommunications numbers of the applicant's representative or defence counsel, if the applicant has a representative or defence counsel;
3) the amount of the damage caused and of the compensation;
4) in the case compensation is demanded for non-proprietary damage, and in the case it is impossible or unreasonably difficult for the applicant to determine the amount of proprietary damage, the applicant has the right not to indicate the amount of compensation in the application and request fair compensation;
5) the measure by which the damage was caused;
6) content of the measure, name, date, number of the document issued for the application of the measure and the official or body conducting proceedings who issued or applied it, if the submission of the specified data is possible;
7) the factual reasons for the application;
8) the evidence which confirms the facts asserted by the applicant, including specific reference as to which evidentiary item is to support which fact;
9) when the applicant learned of the order or decision on the basis of which his or her right to demand compensation for damage arose, or of the damage caused;
10) list on annexes to the application.

§ 13.  Refusal to review application and appeal

(1) If an application or appeal does not conform to the requirements and has deficiencies which can be eliminated, a body conducting proceedings shall set a reasonable term for elimination of the deficiencies. The body conducting proceedings shall explain that upon failure to eliminate the deficiencies by the due date the body conducting proceedings may refuse to review the application or appeal and return it, if the deficiency impedes the review of the application or appeal.
(2) If an application or appeal is submitted after the expiry of the term, it shall include a petition for restoration of the term and the reasons why the term was allowed to expire. A body conducting proceedings shall return the application or appeal without reviewing it if the term for submitting thereof has expired and is not restored.
(3) If a person clearly has no right to demand compensation for damage, review of the application or appeal may be refused.
(4) An applicant shall be notified of refusal to review an application or appeal. The refusal to review an application or appeal must be reasoned in writing.

Division 2 Procedure for Compensation for Damage in Pre-trial Proceedings and Extra-judicial Misdemeanour Proceedings 

§ 14.  Application for compensation for damage in pre-trial and extra-judicial proceedings

(1) If a Prosecutor's Office, investigative body or body conducting extra-judicial proceedings prepares an order on the basis of which a person acquires the right to demand compensation for damage according § 5 or § 6 of this Act, it shall explain the procedure for application for compensation provided for in this Act to the entitled person.
(2) A person submits an application for compensation for damage on the basis of §§ 5, 6 or 7 of this Act in criminal proceedings to a Prosecutor's Office and in misdemeanour proceedings to a body conducting extra-judicial proceedings.
(3) A person submits an application for compensation for any damage on the basis of § 5 or § 6 of this Act within six months as of the day when he or she became aware or should have become aware of an order of a Prosecutor's Office, investigative body or body conducting extra-judicial proceedings on the basis of which he or she acquired the right to demand compensation for damage.
(4) A person submits an application for compensation for damage on the basis of § 7 of this Act within three years as of the day when he or she became aware or should have become aware of damage but, regardless of whether or not he or she was aware, not later than within ten years as of causing of damage or the event which caused it.

§ 15.  Adjudication of application by Prosecutor's Office and body conducting extra-judicial proceedings

(1) A Prosecutor's Office or body conducting extra-judicial proceedings adjudicates an application within two months as of the submission thereof as required. If a matter is especially extensive or complicated, this term may be extended by an order by one month.
(2) If termination of criminal proceedings is contested pursuant to the procedure provided for in §§ 207 and 208 of the Code of Criminal Procedure, a Prosecutor's Office shall suspend the proceeding of the application submitted on the basis of § 5 or § 6 of this Act until the entry into force of the decision on termination of the criminal proceedings.
(3) A Prosecutor's Office or body conducting extra-judicial proceedings may, by an order:
1) dismiss an application;
2) satisfy an application in part and determine compensation to a person to the extent in which the application is satisfied, or
3) satisfy an application and determine compensation according to the application.

§ 16.  Proceeding of appeal by Office of the Prosecutor General

(1) If a Prosecutor's Office dismisses an application in part or in full or refuses to review it, a person may submit a written appeal against the order of a Prosecutor's Office to the Office of the Prosecutor General within 30 days as of the day when he or she became aware or should have become aware of the contested order. If a Prosecutor's Office fails to adjudicate an application during the term, a person may submit a written complaint to the Office of the Prosecutor General within 30 days as of the day when the Prosecutor's Office should have adjudicated the application.
(2) The Office of the Prosecutor General shall adjudicate an application within two months as of the submission thereof as required. If a matter is especially extensive or complicated, this term may be extended by an order by one month.
(3) The Office of the Prosecutor General may, by an order:
1) dismiss the appeal;
2) satisfy the appeal in part and determine compensation to a person to the extent in which the appeal is satisfied;
3) satisfy the appeal and determine compensation according to the application;
4) annul the order of the Prosecutor's Office by which the satisfaction of the application was dismissed.

§ 17.  Hearing of appeals by county court

(1) If the Office of the Prosecutor General or a body conducting extra-judicial proceedings dismisses an application in part or in full or refuses to review it or fails to adjudicate it during the term, a person may submit a written appeal against the order of the Office of the Prosecutor General or a body conducting extra-judicial proceedings to a county court in whose territorial jurisdiction the order issued on the basis of § 5 or § 6 of this Act was prepared or in whose territorial jurisdiction damage was caused in the meaning of § 7 of this Act.
(2) A complaint shall be submitted within 30 days as of the day when the person became aware or should have become aware of the order contested. In the case of failure to adjudicate an application during the term, an appeal shall be submitted within 30 days as of the day when respectively the Office of the Prosecutor General or a body conducting extra-judicial proceedings should have adjudicated the application.
(3) A county court may, by a ruling:
1) dismiss the appeal;
2) satisfy the appeal in part and determine compensation to a person to the extent in which the appeal is satisfied;
3) satisfy the appeal and determine compensation according to the application;
4) annul the order of the Prosecutor's Office by which the satisfaction of the application was dismissed.
(4) An appeal against a ruling of a county court may be submitted to a circuit court pursuant to the procedure provided for in Chapter 15 of the Code of Criminal Procedure. An appeal against court ruling shall be submitted within 30 days as of the day when the person became aware or should have become aware of the ruling contested.

Division 3 Procedure for Compensation for Damage in Court Proceedings 

§ 18.  Compensation for damage in offence proceedings by county court

(1) During criminal proceedings or misdemeanour proceedings, a person submits an application for compensation for damage to a court. The application is submitted in the proceedings conducted by a county court until the completion of examination by court.
(2) A court decides on compensation for damage by a ruling or judgment.

§ 19.  Contestation of decision of county court

(1) A judgment on compensation for damage made by a county court in criminal proceedings may be contested pursuant to Chapter 11 or 15 of the Code of Criminal Procedure.
(2) If a county court heard a misdemeanour matter on the basis of Chapter 11 of the Code of Misdemeanour Procedure, the judgment of the county court on compensation for damage may be contested in a circuit court pursuant to Chapter 13 or 16 of the Code of Misdemeanour Procedure. If a county court heard a misdemeanour matter on the basis of Chapter 12 of the Code of Misdemeanour Procedure, the judgment of the county court on compensation for damage may be contested in the Supreme Court pursuant to Chapter 14 or 16 of the Code of Misdemeanour Procedure.
(3) A ruling of a county court on compensation for damage may be contested in criminal proceedings pursuant to Chapter 15 of the Code of Criminal Procedure and in misdemeanour proceedings pursuant to Chapter 16 of the Code of Misdemeanour Procedure.

§ 20.  Contestation of decision of circuit court

(1) A judgment on compensation for damage made by a circuit court in criminal proceedings may be contested pursuant to Chapter 12 or 15 of the Code of Criminal Procedure.
(2) A judgment on compensation for damage made by a circuit court in misdemeanour proceedings may be contested pursuant to Chapter 14 or 16 of the Code of Misdemeanour Procedure.
(3) A ruling of a circuit court on compensation for damage may be contested in criminal proceedings pursuant to Chapter 15 of the Code of Criminal Procedure and in misdemeanour proceedings pursuant to Chapter 16 of the Code of Misdemeanour Procedure.

§ 21.  Submission of application after county court proceedings

(1) If a person failed, with good reason, to submit an application for compensation for damage to a county court in criminal proceedings, he or she may submit it after the pronouncement of the decision of the county court pursuant to Chapter 11 or 15 of the Code of Criminal Procedure to a circuit court.
(2) If a person failed, with good reason, to submit an application to a county court which heard the misdemeanour matter pursuant to Chapter 11 of the Code of Misdemeanour Procedure, he or she may submit it after the pronouncement of the decision of the county court pursuant to Chapter 13 or 16 of the Code of Misdemeanour Procedure to a circuit court.
(3) The application specified in subsections (1) and (2) of this section may be submitted within six months after the pronouncement of the decision of the county court.
(4) If a person failed, with good reason, to submit an application to a circuit court or the existence of the basis for the claim for compensation for damage became evident only in cassation proceedings and the person failed, with good reason, to submit an application to the Supreme Court, the application may be submitted to a Prosecutor's Office or a body conducting extra-judicial proceedings. An application shall be submitted within six months as of the entry into force of the decision of the circuit court or Supreme Court. The adjudication of the application shall comply with the provisions of Division 2 of Chapter 4 of this Act.

Chapter 5 COMPENSATION FOR DAMAGE IN RESUMED CRIMINAL PROCEEDINGS 

§ 22.  Recourse to compensation for damage

(1) If criminal proceedings are resumed with respect to a person who suffered damage in connection with the same criminal offence, his or her right to compensation shall expire on the basis of § 5 or § 6 of this Act this Act.
(2) If compensation has been paid, the body conducting the resumed criminal proceedings shall have recourse to it, except in the case the body conducting proceedings makes a decision on the basis of which the person would acquire the right to demand compensation for damage.

Chapter 6 IMPLEMENTING PROVISIONS 

§ 23.  Implementation of Act

(1) An application shall be submitted for compensation for damage caused by offence proceedings commenced prior to entry into force of this Act but not terminated on the basis and pursuant to the procedure provided for in this Act.
(2) An application submitted prior to the entry into force of this Act for compensation for damage caused to a person by the state by unjust deprivation of liberty is reviewed on the basis and pursuant to the procedure valid prior to the entry into force of this Act.
(3) If this Act prescribes compensation for damage caused in offence proceedings in the case which is not prescribed in the Compensation for Damage Caused by State to Person by Unjust Deprivation of Liberty Act, this Act shall apply retroactively.
(4) An application shall be submitted for compensation for damage specified in subsection (3) of this Act to a Prosecutor's Office or a body conducting extra-judicial proceedings. The application shall be submitted during the term prescribed in the Code of Administrative Court Procedure for submission of compensation actions, but not later than within three years as of the entry into force of this Act. The adjudication of the application shall comply with the provisions of Division 2 of Chapter 4 of this Act.
(5) An administrative, circuit court and the Supreme Court adjudicate appeals about compensation for damage on the bases provided for in this Act only if an administrative court has accepted the appeal about compensation for damage.
§ 24.  Omitted from this translation

§ 25.  Repeal of Compensation for Damage Caused by State to Person by Unjust Deprivation of Liberty Act

Compensation for Damage Caused by State to Person by Unjust Deprivation of Liberty Act is repealed.
§ 26. – § 28.Omitted from this translation

§ 29.  Entry into force of Act

This Act enters into force on 01 May 2015.
Eiki Nestor
President of the Riigikogu
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