At the request of the Ministry of Justice, we analysed the constitutionality of leasing Estonian prisons to foreign countries. The aim of the analysis was to determine whether it is possible to lease prisons to foreign countries so that prisoners serve their sentences in Estonia under foreign law, but the prison staff consists of Estonian officials who are subordinate to the foreign country in question.
The analysis concluded that prison sentences in Estonia can only be carried out within the framework of the Estonian constitution. For example, contact between the prisoner and their relatives and the protection of message confidentiality must be ensured to the extent stipulated by the constitution. However, exceptions to the current prison law can be made through international agreements.
The Estonian state must be responsible for the prisoners present in the country
According to the constitution, if foreign prisoners are brought to Estonia it cannot be the case that only foreign law applies to them and the Estonian state does not take responsibility for their detention. However, prisoners can be brought to Estonia through the recognition of a foreign court decision or another similar mechanism whereby the prisoners are placed under the authority of the Estonian state, which can also be temporary.
Foreign prisoners serving their sentences in Estonia do not have to be subject to exactly the same rules as Estonian prisoners. Nonetheless, all differences in this respect must be in accordance with the Estonian constitution. Disputes related to the execution of imprisonment must ultimately be subject to Estonian courts.
The state cannot delegate its core functions
According to the Supreme Court, conducting criminal proceedings and imposing sentences are core functions of the state that cannot be fully transferred to private individuals or other countries.
The execution of sentences, including the supervision of prisoners, the protection of their rights[WM1] , and rehabilitation, also belongs among the core functions of the state. Therefore, the execution of sentences for foreign prisoners in Estonia cannot be delegated to another country – i.e. cannot be carried out formally on Estonian territory under the laws of another country.
Although international agreements may provide for exceptions in appointing foreign nationals, officials supervising imprisonment must be employed by the Estonian state and loyal to the Estonian state. In the case of prison leasing, Estonia must ensure supervision over the carrying out of the imprisonment based on both Estonian law and international acts.
It is advisable that the prisoner should also agree to come to Estonia
Several aspects must be considered when bringing prisoners to Estonia. According to the constitution, contact between the prisoner and relatives must be ensured; the distance associated with serving a sentence in another country reduces the possibility of meeting and thereby restricts the right to private and family life. To avoid negative court precedents, obtaining the prisoner’s consent to serve the sentence in an Estonian prison is advisable.
The ultimate goal of imprisonment is the reintegration of prisoners into society and preparation for release. To achieve this, cooperation with another country can be undertaken.
Our client team
The project manager for the analysis was senior associate Sandra Mikli. Partners Allar Jõks, Norman Aas, and senior associate Ulrika Paavle also participated in preparing it.
