What procedure must be followed in the case of detention in an immigration context?
You may be detained by either the Police and Border Guard Board or the Estonian Internal Security Service.
The Police, Border Guard Board and the Estonian Internal Security Service
The Police and Border Guard Board or the Estonian Internal Security Service may detain you for up to 48 hours without the authorization of the administrative court. Police and Border Guard Board or the Estonian Internal Security Service shall release you immediately if the basis for detention has ceased to exist or the expulsion is pointless. If it is necessary to detain you on the basis of Obligation to Leave and Prohibition to Entry Act for longer than 48 hours, the Police and Border Guard Board or the Estonian Internal Security Service shall apply for authorization from the administrative court for detention of the person to be expelled (you) and placement in the detention centre for up to two months.
Documentation of detention
A regulation of the Government of Estonia “The Procedure of Documentation of Detention of a person” stipulates the requirements for documenting a detention. When you are detained, the Police and Border Guard Board or Estonian Internal Security Service must write up a detention protocol.
If detention lasts less than three hours, no firearms or special equipment are used by the Police and Border Guard Board or Estonian Internal Security Service towards the person and the person does not require drawing up the protocol, the Police and Border Guard Board or Estonian Internal Security Service may leave the detention form not protocolled, while maintaining at least detained person´s first name and surname, personal ID code (in absence of it date and place of birth), the date and time of and legal basis for the detention.
Detention protocol
Detention protocol will contain at least the following information:
- the name of the institution and the first name, surname and a signature of a person who conducted the detention
- detained person´s first name and surname, ID code (in absence of it date and place of birth)
- the legal and factual basis as well as considerations of detention
- date, time and place of detention
- explaining the rights to the detained person
- information on whether the legal representative of the detained minor or incapacitated person is aware of the detention and explanation when and how the legal representative was informed. In case informing was not possible, then the reasoning why legal representative was not informed
- the list of deposited items from the detained person during the security check, reason and the place of deposition and where the deposited items are located
- requests and applications of the detained person
- signature of the official who protocolled
- date and time of the release of the detained person
- first name and surname as well as signature of the official who released the detained person
- an indication of whether the detained person was identified on the basis of a document (marking the title, number of the document, name of the institution who issued the document and when), based on the detained person´s or witness’s testimony, or by other means
- whether direct coercion was used, what was used, the reason and duration of using it, and the information of the official who applied direct coercion
An application to obtain permission to detain you is submitted by the Police and Border Guard Board or the Estonian Internal Security Service in writing and together with the reasons for the application as well as with the evidentiary items and explanations specified in the law and required for determination of the matter. The court may require supplementary evidentiary items and explanations to be submitted.
Everyone whose rights and freedoms have been violated has the right of recourse to the courts. You have the right to appeal the decision to detain you to the court. Read more about the appeal.
Judge
Your extended detention may be needed in order to prepare all the necessary documents for returning you to your country. In such a case Police and Border Guard Board or the Estonian Internal Security Service shall apply for authorization from the administrative court for detention but the decision whether or not you should be detained will be made by a judge.
Length of detention
- The judge may decide to keep you detained, but for up to 2 months.
- If you continuously fail to comply with the obligation to co-operate or the obtaining of the documents, which are necessary for the return, from the receiving state or transit state is delayed, at the request of the Police and Border Guard Board the administrative court shall extend the term of your detention in the detention centre by two months at a time but for no longer than 18 months as of the day of your detention.
Basic rights
You have certain important rights in the procedure before the judge. Read more about your basic rights.
Decision
The judge has a duty to issue a well-reasoned decision, explaining why it is still necessary to keep you detained. The reasons must be based on your individual situation. Court hears the application and decides the grant of permission without delay in a written ruling made by a single judge in simplified proceedings. The matter must be heard in the court session. The ruling is delivered to the participants of the proceedings unless the law provides otherwise. The ruling enters into force on delivery to the applicant for permission (refusal to accept the court ruling will not mean that the ruling will not enter into force).
Appeal
If you believe that your rights, such as the right to present your views, were violated in court, and that your detention is unlawful you have the right to appeal this to a higher Court. The decision must contain information about the place and deadline for the appeal.
Compensation
According to article 25 of the Constitution of the Republic of Estonia everyone is entitled to compensation for intangible as well as tangible harm that he or she has suffered because of the unlawful actions of any person. You also have the right to claim financial compensation for non-patrimonial damage upon wrongful deprivation of liberty. Read more about compensation.
What human rights violation may there be?
If lawful procedures were not followed during the detention process, it may result in the violation of the right to liberty and security of a person.