Notice of freezing and confiscation orders in accordance with the Regulation (UE) 2018/1805

Part 1. Registry requirements

1. What is the procedure to lodge or present these judicial orders in the Land Register? Particularly electronic.

Judicial orders are submitted to Land Register via electronical vironment called Immovables Portal or by e-mail.

2. Possibility of registering these orders in the event that who appears as the owner of a property according to the land registry («A») is a different person from the defendant (or person «B») who is issued a freezing or confiscation order against

The judgement is registered but the registrar probably will make refusing decision. The defendant person should be the owner of the property. It depends of the judgement content and circumstances if there is a need for clarification or a the consent of the person concerned.

According to the The Code of Criminal Procedure

In relation to the mutual recognition of attachment orders or confiscation orders of a Member State of the European Union, the provisions of this Code apply insofar as Regulation (EU) 2018/1805 of the European Parliament and of the Council on the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, pp. 1–38) does not provide otherwise.

Recognising, executing, and transmitting an attachment order
(1) Competence to deal with and execute an attachment order transmitted to Estonia by means of a freezing certificate under Regulation (EU) 2018/1805 of the European Parliament and of the Council is vested in the Prosecutor’s Office; competence to recognise such an order is vested in the courts. The Prosecutor’s Office may direct an investigative authority to execute an attachment order.
(2) When recognising an attachment order transmitted by means of a freezing certificate, the attachment of property according to the rules provided by § 142 of this Code is decided by a court order. Competence to recognise an attachment order and to order the attachment of property is vested in Harju District Court. In a situation of urgency, the attachment of property may be ordered by the Prosecutor’s Office according to the rules provided by subsection 3 of § 142 of this Code.
(3) The Prosecutor’s Office notifies the competent authority of the requesting Member State of having recognised and executed an attachment order, of having decided not to recognise and not to execute such an order, of postponing its execution or of the impossibility of its execution.
(4) When it has executed an attachment order, the Prosecutor’s Office notifies the fact that the order has been recognised and executed to any persons that are known to it to be affected by that order. Any appeals against a court order that served as the basis for recognition or any complaints against the actions of an investigative authority in relation to the execution of the order are filed, according to the rules provided by subsection 2 of § 387 of this Code and within ten days following reception of the order, with the district court that serves the area in which the contested order was made or the contested procedural operation performed. The court may dispose of such an appeal by written procedure.
(5) In pre-trial proceedings, competence to issue a freezing certificate required to transmit an attachment order, and to transmit such a certificate, is vested in the Prosecutor’s Office; in proceedings before the court, that competence is vested in the court.
[RT I, 29.12.2020, 1 – entry into force 08.01.2021]

Recognising, executing, and transmitting a confiscation order
(1) Competence to deal with a confiscation order transmitted to Estonia by means of a confiscation certificate under Regulation (EU) 2018/1805 of the European Parliament and of the Council is vested in the Ministry of Justice; competence to recognise such an order and to impose measures of interim protection with a view to its execution is vested in the courts. Execution of a confiscation order takes place according to the rules provided by Chapter 18 of his Code.
(2) When recognising a confiscation order transmitted by means of a confiscation certificate, the confiscation of property is decided by a court order. Competence to recognise a confiscation order and to order the confiscation of property is vested in the court that serves the locality of residence of the person whose property is the subject matter of the order or, where there is no such residence, in Harju District Court. The execution of a confiscation order is decided on in written procedure unless the defense counsel of the convicted offender, or a third party or their representative makes a motion for an oral procedure. A judicial hearing held to decide on the recognition and execution of a confiscation order is attended by the prosecutor, the defense counsel for the convicted offender and the third party or their representative.
(3) The court transmits its order together with information concerning execution of the confiscation order to the Ministry of Justice, which notifies the competent authority of the requesting Member State of having recognised and executed the order, of having decided not to recognise and not to execute it, of postponing its execution or of the impossibility of its execution.
(4) When it has recognised an attachment order, the court notifies its recognition to any persons that the court knows to be affected by the order. Any appeals against a court order that served as a basis for recognition are filed, according to the rules provided by subsection 2 of § 387 of this Code and within ten days following reception of the order, with the district court that serves the area in which the contested order was made or the contested procedural operation performed. The court may dispose of such an appeal in written procedure.
(5) Competence to transmit a confiscation order by means of a confiscation certificate is vested in the district court that entered the first judicial disposition in the given criminal case. The court draws up and transmits a confiscation certificate of its own motion or on an application of the Prosecutor’s Office.

3. Type and duration of the registration of these orders

• A freezing order and a confiscation order are not considered different, the same registration or notice includes both.
• A freezing order may lead to a provisional or temporary registration or notice and also to registrations for an indefinite period.
• A confiscation order may lead to a provisional or temporary registration or notice and also to registrations for an indefinite period.
• In these cases, the judicial orders corresponding to opening procedures lead to a provisional or temporary registration or a -registration for an indefinite period of time, depending on the judicial decision.
• In these cases, the judicial orders corresponding to opening procedures lead to a provisional or temporary registration or a registration for an indefinite period of time, in accordance with the criteria of the land register system.

Part 2. Registry effects

1. Effects of the freezing order once registered

• A warning to third parties
• Prohibition of disposal: the owner is not allowed to sell, mortgage or carry out any other act of disposal on the property. The order blocks any possible registration.
• Limitation of the power of the disposal of the owner: the owner may carry out some acts of disposition on his/her own, without judicial authorization.
• It involves the possibility of a forced sale of the property.
• It involves the possibility of auctioning the property.

2. Effects of the confiscation order once registered

• A warning to third parties
• Prohibition of disposal: the owner is not allowed to sell, mortgage or carry out any other act of disposal on the property. The order blocks any possible registration.
• Limitation of the power of the disposal of the owner: the owner may carry out some acts of disposition on his/her own, without judicial authorization.
• It involves the possibility of a forced sale of the property.
• It involves the possibility of auctioning the property.

3. What is the registry proceeding and moment in which the opening procedures of freezing or confiscation are applied for registration?

When recognising an attachment order transmitted by means of a freezing certificate, the attachment of property is decided by a court order. Competence to recognise an attachment order and to order the attachment of property is vested in Harju District Court.
When recognising a confiscation order transmitted by means of a confiscation certificate, the confiscation of property is decided by a court order. Competence to recognise a confiscation order and to order the confiscation of property is vested in the court that serves the locality of residence of the person whose property is the subject matter of the order or, where there is no such residence, in Harju District Court.
The Court forwards the court order to the Land Registry and the registrar enters the notation concerning prohibition for the complete or partial prohibition of the disposal of ownership or restricted real right.

4. What are the executing authorities of these orders in this national system and what is the role of the land registers?

Competence to deal with and execute an attachment order transmitted to Estonia by means of a freezing certificate under Regulation (EU) 2018/1805 of the European Parliament and of the Council is vested in the Prosecutor’s Office; competence to recognise such an order is vested in the courts. Competence to recognise an attachment order and to order the attachment of property is vested in Harju District Court.
Competence to deal with a confiscation order transmitted to Estonia by means of a confiscation certificate under Regulation (EU) 2018/1805 of the European Parliament and of the Council is vested in the Ministry of Justice; competence to recognise such an order and to impose measures of interim protection with a view to its execution is vested in the courts.
The Land Registry executes the court order if there is a resolution for the notation concerning prohibition.

Part 3. National land registry experience

These judicial orders are very frequent. The registrars have not encountered these kind of judicial orders yet.