The Ministry of Justice has completed its memo on the possibility of renting out an Estonian prison and is awaiting government discussions on the matter.

"The decision now is whether to officially enter into negotiations on an international agreement on behalf of the Estonian state or not. This is a political choice," Rait Kuuse, deputy secretary general for prisons at the Ministry of Justice, told ERR.

The British government recently decided to address its prison overcrowding issue domestically. However, the Netherlands and Sweden remain interested in the proposal. The next steps, if any, depend partly on legal feasibility.

"From the perspective of the other country, a key issue is what level of control and responsibility they can maintain over their convicted prisoners while they are on foreign soil," Kuuse said, noting that most states would prefer an arrangement that does not sever their jurisdiction over the inmates.

The Ministry of Justice commissioned the Sorainen law firm to assess whether and how Estonia could rent out its prison facilities while applying the legal framework of another country to the inmates housed there. The analysis, completed in early January, concluded that Estonian laws must apply in any Estonian prison.

"If a prison rental agreement were to be established in the future, its rules and implementation would have to align with Estonia's legal framework and remain under our jurisdiction," Kuuse confirmed.

The legal reasoning is based on the Estonian Constitution. Sorainen examined legal precedents governing diplomatic embassies and allied military personnel in Estonia and concluded that these could not be extended to a leased prison facility.

"The idea that a foreign country could carve out a piece of its own territory within our prison is unconstitutional," Kuuse stated. "We have never really considered that option a viable solution."

Prisoner complaints would be handled by Estonian courts

The law firm further analyzed whether an international agreement could stipulate that specific inmates be subject to rules similar to those of their counterparts in their home country.

According to Kuuse, certain conditions could be adjusted to more closely resemble those in the sending country. However, the administration of imprisonment is a core function of the state, similar to sentencing, and cannot be delegated to another entity.

"Everything would be managed by Estonian officials, under the responsibility of Estonian officials and in accordance with our rule of law," Kuuse reiterated.

A key distinction is that, unlike the Netherlands — which has previously offered prison rental services — Estonia's constitution takes precedence over any international agreement.

This means, among other things, that the confidentiality of communications for foreign prisoners must be protected to the same extent as for local inmates.

"In many countries, prison staff have the authority to read all inmate correspondence and listen in on phone calls without a court order as part of criminal proceedings. In Estonia, that is not and will not be permitted, and this must be taken into account," Kuuse explained.

Sorainen also assessed who should handle crimes committed within the rented prison or resolve inmate complaints. The conclusion was clear: Estonia would retain jurisdiction.

"Even for relatively straightforward matters — such as an inmate being dissatisfied with an official's decision or actions — they must have access to legal assistance," Kuuse said, noting that Estonian inmates are quite active in taking legal action when they feel their rights have been violated.

Serving one's time in Estonia could be voluntary

In summary, this means that any foreign country renting prison facilities from Estonia would have to fully submit its inmates to Estonia's legal system, without exceptions. Whether such an arrangement aligns with the legal framework of the sending country is for the other party to determine. According to Rait Kuuse, both the Netherlands and Sweden have reviewed Estonia's legal analysis.

"So far, they have acknowledged the findings. We're not even in formal negotiations yet," Kuuse said. "No one has walked away from the table or said that this issue cannot be discussed. It could become an obstacle, but it's not necessarily a dealbreaker."

A separate question is whether prisoners would even want to be transferred to Estonia.

The Sorainen analysis cites a Council of the European Union framework decision, which allows the transfer of an inmate to another country only with their consent. While international law does provide a few exceptions, most do not apply in the case of prison rentals.

As a result, Sorainen recommends that prisoner consent be made a condition of any prison rental agreement. Kuuse also noted that from a legal standpoint, it would be safer if individuals agreed to serve their sentence in Estonia.

"If the sending country decides to transfer someone against their will, it's likely that such decisions could be challenged in court in their own country, creating additional legal complications," the deputy secretary general explained.

He added that an inmate forced to serve their sentence in Estonia might be less motivated to behave lawfully, which in turn would increase the workload for the prison staff.

Sending country could help with resocialization

Moreover, offering prison services is not just about keeping inmates behind bars. It also involves rehabilitation, which essentially means continuously preparing prisoners for reintegration into society. This includes access to various social programs and opportunities to maintain contact with their loved ones. Equally important is ensuring that inmates can communicate in a language they understand.

Rait Kuuse noted that the importance of rehabilitation depends on who exactly would be transferred to Estonia. Discussions have also included the possibility of housing inmates who, after serving their sentence, would not be allowed to return to the Netherlands or Sweden but would instead be deported to their distant home country. For such individuals, Kuuse said, rehabilitation might not be as much of a priority.

Still, he emphasized that the prison must ensure that inmates have meaningful activities. They should be able to work, study and participate in programs designed to mitigate risks.

"We have discussed with the sending country the possibility of continuing to use their digital solutions for education, various programs and possibly even meetings with their experts — people who speak the inmates' language or better understand their cultural background," Kuuse explained.

Since, according to the Estonian Constitution, public authority can only be exercised by officials loyal to Estonia, foreign inmates would primarily be handled by local prison staff. "Of course, it would be possible for experts or specialists from the sending country to be involved in this work on a daily basis," Kuuse added.

All of these details could be negotiated with the other country. However, before any talks can begin, a political decision is needed.

"Legally, prison rental is possible, the prison service could implement it with certain adjustments and retraining, and financially, it could be quite profitable for the state," the deputy secretary general stressed.

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