Ombudsman urges constitutional review of asset confiscation bill

Confiscating assets without a criminal conviction would seriously affect fundamental rights and requires a thorough constitutional review, acting Chancellor of Justice Olari Koppel has told Estonia’s Justice and Digital Affairs Minister Liisa Pakosta, ERR reported.

The ministry has circulated for consultation a draft bill amending the Penal Code and other laws to implement an EU directive that allows, among other measures, assets to be confiscated without a conviction. Koppel said the draft’s explanatory memorandum does not adequately assess whether the proposed rules comply with Estonia’s Constitution.

He said confiscation is considered a punishment in substance under Supreme Court practice. Confiscation without a conviction therefore strongly affects rights protected by the Constitution, including the presumption of innocence, the right to be present at one’s trial and the protection of property.

The draft says safeguards would make the measures proportionate, including the right to take part in proceedings, use a representative, submit evidence and objections, and challenge a court decision. But Koppel said it does not explain how these safeguards would work if a person has died or is unable to participate because of their health.

Even with a representative or, after a person’s death, their heirs involved in proceedings, they may lack the information or evidence needed to establish where the assets came from, he said. Their participation could therefore be merely formal.

Koppel said the explanatory memorandum should assess each measure’s constitutionality and use concrete examples to explain how people could participate in court proceedings and submit their own evidence. As drafted, he said, it explains why the measures are needed but not how they could be applied in practice while respecting fundamental rights.

He also questioned a proposal to do away with a catalogue of offences and extend confiscation to all crimes committed for financial gain. The possibility of confiscating all of a person’s assets in such cases goes too far and raises doubts about proportionality, Koppel said. He suggested retaining the catalogue for extended confiscation, while expanding it if necessary.

Koppel added that the EU directive provides for confiscation without a conviction only in cases involving offences that may generate significant economic benefit.