REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: Spanish Functions: Fiscal de la Fiscalía Provincial de Madrid Length of service: 20 years Identification of the exchange Hosting jurisdiction/institution: Office of the General Prosecutor City: Tallinn Country: Estonia Dates of the exchange: 18 th to 29 th January Type of exchange: one to one exchange X group exchange General exchange specialized exchange (please specify : ) Authorization of publication I undersigned hereby authorize the publication of this report and/or summary on the website of the. In Madrid On April 29, 2010 Signature / (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 REPORT The Criminal procedure in Estonia came into force July 1, The Office of the Prosecutor General contains: Prosecution Department, Internal Control Department, Offences against State and International Legal Cooperation Department. The Prosecution Department is divided into four districts (Northern, Southern, Western, and Viru), and every district deals with different departments: Offences against persons and Drug crimes, Juvenile Crimes, Economic crimes and Corruption, General Crimes. The distributions of tasks in the prosecutor s office are as follows: - The Prosecutor General directs the activities of the Prosecutor s Office at national level ; - Chief State Prosecutors control the Prosecutor s Offices work in the field of criminal procedure by managing the respective departments; - State Prosecutors deal with cross-border, international and advanced level priority crimes: - District Prosecutor s Offices are administered by a Chief Prosecutor; - Departments of the District Prosecutor s Office are managed by Senior Prosecutors; - Special Prosecutors work in district prosecutor s offices and deal in a project based manner with specific crimes; - District Prosecutors deal with so called ordinary crime in the region; - Assistant Prosecutors have the same powers as prosecutors, except for the right to participate independently in adversarial procedures. So there are 193 Prosecutors in Estonia. The Agents in the Chain of Criminal Justice are: Police Board (Prefectures, Central Criminal Police), Security Police Board, Board of Border Guard, Customs- and Tax Board, General Staff of the Defence Forces, Competition Board, and Investigation authority with limited rights. The Prosecutor s Office leads the pre-trial proceeding ensuring the legality and effectiveness of it and represents public prosecution in court. Prosecutors decide: - whether the police must start criminal proceedings or to initiate these proceedings himself/herself; - in what manner and how much evidence must be gathered; - whether to apply any sanctions; - whether to close a criminal case or send it to the court; - in which form the criminal case must be processed in the court. The above- mentioned tasks of prosecutors show that they are not mere controllers and passive monitors in criminal proceedings but their active supervisor. Sending a criminal matter to the Court, there are: A) simplified procedure: -accelerated procedure;

3 -compromise procedure (plea bargaining); -imperative procedure; -fast procedure (48 hours procedure); B) Adversarial procedure. One prosecutor run the case from the lowest Court to the Supreme Court. The Criminal procedure contains the following principal activities: investigation of crime, presentation of prosecution and determining whether the person has committed the crime in an oral and public trial. The Estonian system has the following procedure: inquisitorial pre-trial procedure, accusatorial court procedure, legality principle- rule, opportunity principle-exception. There are some fundamental principles, which are : 1) the presumption of innocence ; in dubio pro reo, right of silence, 2) Exception- reversed burden of proof, 3) Right to a fair trial, 4) The principles of immediacy and oralitiy,5) The prosecutor is the head of pre-trial. In practice, however, the police deal with most cases without prior consultation with the prosecutor, 6) In priority cases the prosecutor is involved from the very beginning, 7) Prosecutor General has the right to issue guidelines, 8) Prosecutor s role consists in protecting the rights of the defendant. The Estonian system surveillance activities are divided into 2 categories: 1. - Pre-criminal procedural (pro-active): aimed at prevention when the notions of a criminal act are not known yet Criminal procedural (re-active): when information about a crime is available and that has to be carried out in cooperation with the prosecutor and with the permission of the judge of pre- trial investigation. There is freedom of proof of evidence, as any matter which is relevant may in principle be used as evidence and court may give to any piece of evidence the weight it feels that it deserves. The admissibility of illegally obtained evidence depends on the seriousness of the crime and seriousness of the violation of law. Hearsay evidence is admissible, only if the source of the evidence cannot be questioned at trial. Once the prosecutor receives the file from the police, he has the power to decide how to proceed: -Opportunity principle (minor, minor guilt and of not public interest, lack of proportionality of punishment, mediation, foreign citizens or in foreign states, co-operation of the accused). -Summary procedure will be applied: at the request of the accused and with the consent of the Prosecutor s Office, and on the basis of the materials of the criminal file without summoning the witnesses or experts. It shall not be applied: in the case of a criminal offence for which life imprisonment is prescribed as punishment, when several persons are accused and at least one of

4 the accused does not consent to the application of alternative proceedings, o when the punishment to be imposed on the accused shall be reduced by one-third. - Plea bargaining, shall not be applied : to criminal offences in the first degree for which the lightest punishment is prescribed as at least four years imprisonment or the most severe punishment is prescribed as life imprisonment ; the accused, his o her counsel or the Prosecutor s Office does not consent to the application of settlement ; several persons are accused and at least one of the accused does not consent to the application of settlement ; the victim or the civil defendant does not consent to the application of settlement proceedings. - Order procedure or Strafbefehl, will be applied: when subject of proof is explicit, in criminal offence in the second degree, and shall not be applied if the suspect is a minor. -Speedy procedure, will be applied: in a criminal offence in the second degree ; when the subject of proof is explicit ; and when all necessary evidence is gathered. The request to court is submitted within 48 hours from the immediate interrogation of the suspect after the crime or from the arrest of the suspect. - Full trial: based on the indictment. The prosecutor has the chance to change or to supplement the indictment before the end of the trial, and in case of important changes, a new indictment has to be formulated. In case the indictment is not legally correct and this causes the impossibility of clarifying the circumstances, then the accused has to be acquitted- hence the court may not send the case back for continuation of pre-trial procedure. The prosecutor s waival of indictment is the basis for acquittal. The participation in full trial has the principle of orality and immediacy, there s a cross examination of witnesses, and a video conference can be used. The History of Organized Crime in Estonia, is as follows: 1990 s in Estonia a new economic system, with more money, but is still being a weak state, with a weak legal system. The consequences are: new types of crime; organised group developed and fighted; the typical crimes are blackmails, murders, and it appears drugs. There are 5 Prosecutor Offices and 5 types of organized crime. In Tallinn they deal with money, anonymous, and there are a lot of groups. In the East Part of Estonia (Virumaa), there are very aggressive and violent groups, and a lot of drugs. In the West and South Parts of Estonia there have drugs, and local criminal groups. Nowadays the Organized Crime can be founded in Estonia and Out of Estonia. Illegal income is the priority. The typical crimes are drug crimes, money laundering, IT-crimes, and some especial economic crimes. To fight against organized crime are: -Police: Central Criminal Police; and Special departments in Prefectures. -Prosecutors Office: Special Prosecutors, and State Prosecutors. -Legislation: life imprisonment for drug crimes, and special law for mafia. -Administrative possibilities: Priorities between ministries, Targets and criminal profit-planning of activities.

5 Police and Border Guard Board are divided into four territorial units: North Prefecture (Area 10%; Inhabitants 38%), East Prefecture (Area 16%, Inhabitants 18%), West Prefecture (Area 38%, Inhabitants 18%), South Prefecture (Area 36%, Inhabitants 26%). Coordination Bureau is entrusted with: -The analysis of legal order. -Elaboration of development and activity strategies. -Coordination of cooperation between different subject fields. -Ensuring of balanced police development and availability and quality of police services. -Arrangement and coordination of the development and implementation of information and communication technology. -Coordination of international cooperation. The field of border guard I is: -Planning of border administration. -Arrangement of asylum proceedings at border points. -Organisation and coordination of detection, combating and prevention of illegal immigration. -Participation in international joint operations and civil missions. -Organisation of misdemeanour proceedings. -Coordination of return issues. -Organisation of international cooperation in sea pollution and sea and fight rescue operations. -Ensuring of legal regime of the economic zone. The field of border guard II is: -Ensuring of preparedness for search and rescue operations and their performance in sea areas and performance of flight rescue operations on land, including ensuring of preparedness for search and rescue work for air policing conducted by NATO units and the performance of legal duties of a receiving country. -Performance of search and rescue operations, including detection and elimination of sea pollution. -Organisation of operational-related and response-binding flight activities. The field of criminal police is: -Fight against international organised crime. -Arrangement of witness protection. -Prevention of money laundering and terrorist financing. -Proceeding of surveillance and pre-trial investigation of criminal matters. -Performance of duties of national contact points of Interpol and Europol. -Performance of duties as the central agency responsible for international police cooperation and information exchange in terms of the Schengen Convention and as a central agency responsible for the national part of Schengen Information System. -Protection of the President of the Republic and other persons. The field of law enforcement police is: -Prevention of offences.

6 -Organisation of traffic safety and traffic supervision. -Arrangement of misdemeanour proceedings. -Organisation of crisis management-related activities. -Issue of documents and activity licences pursuant to procedure established by specific laws. -Arrangement of execution of detention and arrest of persons. -The arrangement of guarding and protection of objects assigned by the Government of the Republic. Finally, field of citizenship and migration is: -Arrangement of citizenship matters. -Development and issue of personal identification documents. -Arrangement of free movement of persons and labour force. -Arrangement of migration matters. -Arrangement of matters of international protection. -Arrangement of visa issues. -Arrangement of matters related with the return of persons. -Organisation of migration supervision. -Arrangement and coordination of misdemeanour proceedings. -Arrangement of court representation in civil matters. SUMMARY Estonian Prosecutor s Office The Prosecutor s Office is a government agency within the area of the Ministry of Justice, which: -participates in the planning of surveillance necessary to combat and detect criminal offences; - directs pre-trial criminal procedure and ensures the legality efficiency thereof; - represent public prosecution in court. The Prosecutor s Office is divided into the Public Prosecutor s Office and 4 district prosecutor s offices: -Southern District Prosecutor s Office; -Western District Prosecutor s Office; -Viru District Prosecutor s Office; -Northern District Prosecutor s Office

7 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. Office of the Prosecutor General, where we had several meetings on different topics: the Prosecutor Office in Estonia, the Pre-trial and trial procedure in Estonia, the International legal cooperation in criminal matters, and Offences against State; Meeting in the Police and Border Guard Board; Meeting in the Harju County Court, Tour in the Court House, and visiting the court session; Meeting in the Northern District Prosecutors Office: Economic crimes department, and Juvenile crimes department; Meeting in the Customs and Tax Board; Meeting in the Southern District Prosecutors Office; Meeting in the Supreme Court of Estonia; Meeting in the Western District Prosecutors Office, Haapsalu Department; Meeting in the Rummu prison; Meeting in the Viru District Prosecutors Office; Meeting in the Viru prison; Meeting in the Central Criminal Police; Meeting in the Western District Prosecutors Office, Pärnu Department. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning The hosting institution was the office of the Prosecutor General that has a prosecution department, an internal control department, an international legal department, and deals with offences against state. The Prosecutor General directs the activities of the Prosecutor s Office at national level. III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. Two aspects were particularly interesting: 1.- The fact that the Estonian Prosecutor is leading the investigation of criminal cases, unlike in Spain where there are judges who are responsible for the investigation of criminal cases, although in direct relationship with the prosecutor who is assigned to this court. 2- The possibility for them to be able to apply the principle of opportunity. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. The similarities are that is a hierarchical system, where the General Prosecutor gives guidelines, with similar procedures.

8 The differences are that the prosecutors carry out the investigation of the criminal cases. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. I have the opportunity to attend a lecture on International Legal Cooperation in Criminal Matters: The central authority for international co-operation in criminal procedure is the Ministry of Justice. Courts, Prosecutors Offices, the Police- and Border Guard Board, Security Police Board, Central Criminal Police, police prefectures, the Tax and Customs Board, Competition Board and the Headquarters of the Defence Forces are the judicial authorities competent to international co-operation in criminal procedure to the extent provided by law. The International co-operation in criminal proceedings is to: - Extradition of persons to foreign states. - Mutual assistance between states in criminal matters. - Execution of the judgments of foreign courts. - Taking over and transfer of criminal proceedings commenced. - Co-operation with the International Court. - Surrender of persons to member states of the European Union. - Execution in the European Union of orders freezing property or evidence. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? I had the possibility to get to know the particularities of the Estonian Procedure. It is useful as I intend to build up an international approach and focus in my professional practice, which would be really hard to do without these exchange programs. VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How? In my view the Exchange Programme was to my total satisfaction.