Sa, 28.01.2023
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Special rules for allied offenders

Oliver Kund
, reporter
Special rules for allied offenders
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Photo: Kaitsevägi

The British marine who struck an assistant police officer in Tallinn last year is the first allied soldier in whose case Estonia decided not to implement its laws. The decision is tied to guarantees in allied soldiers' contracts, and the public prosecutor's office has completed a set of guidelines for dealing with relevant cases in the future.

„We will surrender our jurisdiction in a lot of cases,“ Attorney General Lavly Perling said with a measure of concern. This means that should allied soldiers break the law in Estonia, they will generally be tried in their home country and according to its laws.

Let it be said that Perling's concern is not due to allies being prone to offenses or the risk of them going unpunished.

A soldier's guarantee

Procedures that are applicable in cases where allied soldiers commit offenses are regulated by the NATO Status of Forces Agreement (SOFA). Estonia also has special agreements with two members – Germany and USA – that lay down an even clearer procedure. A lot of items in these agreements function as guarantees for soldiers.

„To put it simply, they do have preferential right, which is how it should be,“ Perling said. „It is important for Estonia to be able to explain why we surrender evidence or why accused will not be tried for serious offenses in Estonia in certain cases.“

Public prosecutor Piret Paukštys explained that allied soldiers and civilian personnel in Estonia are under two simultaneous jurisdictions.

Allied countries have preferential right concerning offenses that take place inside their armed forces: for example when a soldier attacks a fellow serviceman or woman or destroys their country's property.

Also crimes committed in the line of duty. However, when the victim is the Estonian state, citizen, or a person residing in Estonia, Estonia has priority of jurisdiction.

While the police can conduct proceedings and collect evidence if already on the scene, evidence needs to be surrendered to the offender's home country later should it have first jurisdictional right.

Agreements tend to favor going outside of Estonian jurisdiction. Allies can simply ask for jurisdiction to be surrendered.

Paukštys said that she perceives a problem in the fact that allied soldiers who commit offenses generally spend a short time in Estonia. „Perhaps they're here for six months after which they're gone. However, a person has to be present for procedural acts and to be prosecuted here. It might be more practical to hand these things over in some cases,“ she said.

In cases where the injured party is from Estonia, the latter must have dealings with a foreign country and attend court sittings there. Here lies the core of the prosecution's concern: how to make sure interests of victims are always protected?

„I would proceed based on the victim's interests,“ Paukštys recommended. For example in cases where victims have a financial claim against an allied soldier, prosecutors should refuse to surrender jurisdiction.

If the aforesaid concerns the NATO SOFA agreement that regulates the presence of British, French, Danish, and Spanish soldiers currently in Estonia, rules are even more slanted toward contributing countries in the case of Germany and the United States.

Right to be reclaimed

Estonia signed a corresponding agreement with Germany in 2007 and with the U.S. in January this year.

Both agreements include a promise by Estonia not to process offenses by allied soldiers even in cases where the SOFA agreement would warrant it. Estonia will automatically surrender jurisdiction and hand over the investigation.

For example, in cases where a U.S. soldier causes a traffic accident in which people get hurt in Estonia, the matter will be heard by a U.S. court-martial.

„Yes, we surrender jurisdiction automatically; however, we have the possibility of taking it back in special cases within 21 days,“ head of the legal department of the defense ministry Kalle Kirss explained.

This right would not be exercised in case of traffic accidents or battery but would apply to severe offenses against persons, like murder and rape.

„We do not have the right to take back jurisdiction concerning offenses committed in the line of duty. There the U.S. has exclusive jurisdiction,“ Kirss said. Whether the offender was performing service tasks when the crime was committed is for their local commander to determine.

Reclamation of property damage is also different under SOFA rules. Damage caused to the Estonian Defense Forces by allied armed forces in the course of performing service tasks will not be reclaimed. Other damage to state property will not be reclaimed if the damage is below $1,400. Damage caused to third persons in the line of duty will be compensated by the Estonian Defense Forces.

Even though these conditions might seem quite one-sided, Kirss said they have their reasons. The idea of SOFA is to protect soldiers in countries punishments of which might be disproportionally severe compared to the soldier's home country. Estonia has similar agreements in place in various conflict zones.

When the U.S. ratified the SOFA agreement decades ago, the Congress made it clear mutual additional agreements would be needed to protect American soldiers. The first such agreement was signed between USA and the Netherlands in the 1960s. Today USA has similar agreements in place with Poland, Germany, Italy, and the three Baltic countries.

Kirss said that the agreement signed on January 9 was not irreciprocal as the Americans met Estonia half way in several areas. The country adopted the obligation to preserve Estonia's national environment during training activities as well as pay for transport of soldiers to be tried in Estonia. Kirss said there is no reason to fear victims' interests going unprotected. „I believe we should not worry overmuch. People who commit crimes will be punished through the court-martials system,“ Kirss said.