Interview: Finnish Prosecutor General Raija Toiviainen in Tallinn
Who Estonia's next prosecutor general will be is still up in the air at the time of writing, as current incumbent Lavly Perling comes to the end of her first five-year term. In Finland, the appointment has no such shelf-life.
Finnish Prosecutor General Raija Toiviainen was in Tallinn last month, for the 18th conference of prosecutors general and directors of public prosecutions of the Baltic Sea States. This hosted representatives from all three Baltic States, Norway, Sweden, Denmark, Russia, Poland and Germany as well as Finland, with challenges their offices and law enforcement agencies face all on the table.
Perhaps not surprisingly given recent events, cybercrime and money laundering were burning issues, but environmental topics also featured.
Raija Toiviainen was kind enough to take time out of her packed schedule to let us know what was going on in these and other areas, as well as some of the other similarities and differences between her role and her Estonian counterpart's.
A natural starting point was her career path. Did she always have the role in mind?
"I carried out the normal studies and training on the bench from the beginning, but I realized very early on that I was interested in judiciary work as opposed to the private sector, where I worked for a short time."
"I did 'real' prosecution work in the beginning, when I was the operating prosecutor, but then I wanted to move to the judge's side of the table. I was quite sure I'd go further down the judge's path, but I got a call from the ministry of justice and worked there for a couple of years, which was very useful because it's quite a wide branch of that field of law, especially in international law, both civil and criminal, became more familiar to me, especially the procedure law – this meant I became familiar with the cooperation between foreign countries, which is very important for example with criminal cases."
"The prosecutor general's office was established during that time and they needed a lawyer who knew something about international cooperation and law, and I put in an application, then I was made a state prosecutor, and now I'm here."
"But I didn't have some sort of master plan. I have had such great opportunities to do great work and positions, cooperation both at home and internationally, which broadened my mind and has been a great benefit to me in every stage of my career."
"I can honestly say that all of my career has been so fascinating – the matters I have been involved in have been challenging and very interesting, and my colleagues, other lawyers who were working with me, were also very nice, which is important. If you have this positive environment it helps a lot for you to like your work. I very much liked working as a judge, but also the opportunity to work on an international level."
"I was never based in other countries – I was head of the international unit of the Finnish prosecution service so I visited, had meetings, seminars and the legal cooperation with the relevant bodies, and Estonia was one of these countries of course."
"Today we have been talking about money laundering, cybercrime and also environmental crimes, since all countries here are surrounding the Baltic and so have the joint interest in fighting against those types of crimes – pollution, waste issues. Waste disposal is big business between countries, for instance a company goes from one country to take the garbage and exports it to another where there is still space to bury it – but you need cooperation with the countries if there happens to be a group of people doing this illegally and hiding their activities."
"We have to follow the mutual legal assistance rules, which we very much talked about at the conference because we need those direct contacts to specialists in other countries. In this environmental area we have a special group from each of our nations, who have created manuals on legislation, those specializations which each country may have, and of course a contact point, so you can find out the right person when you need assistance."
Other topics still to be discussed at the conference after we had met included the fight against mobile organized crime – i.e. criminal gangs stealing movables from one country and taking them to another.
There must be some differences between the prosecutor general's, if not role, then situation, in Estonia, when compared with Finland.
Finnish prosecutor general not a political appointment
An obvious starting point is the politicized nature of the role in Estonia. Current Prosecutor General Lavly Perling, while supported by the prime minister and the justice minister, has faced opposition from the coalition Conservative People's Party of Estonia (EKRE) which has said it doesn't want her term to be renewed. At the same time, the ultimate decision lies with the justice minister, Raivo Aeg. EKRE has not named a possible replacement, but has stuck to the line that Perling should not have another stint, principally because it cites her being married to the Deputy Director General of the Internal Security Service (ISS) as a sticking point.
The impasse has continued as Aeg has said that putting the matter to a vote within the government or parliament was not a decision for him to make. Nonetheless the saga points to the political nature of the role and its candidates in Estonia, while in Finland, little could be further from the truth.
"According to our constitution and the relevant act of national prosecutor authority, the prosecutor general's role in Finland is independent (as covered in section 2 of the Act on the National Prosecution Authority 2019. Finland's prosecutor authority was very recently reformed – ed).
But do politicians in Finland any case express their opinion on the suitability of a candidate or incumbent head prosecutor, as they have been doing in Estonia?
"Publicly, never. They do not discuss these things. When I was nominated, there was no discussion publicly among the political parties, so far as I know."
Another key difference is that the Estonian prosecutor general is appointed for five year terms, which can be extended if there is sufficient support. In Finland, however, the post is indefinite until reaching retirement age, or wishing to step down earlier, Raija says.
Interestingly, in Estonia, while the Chancellor of Justice and the Courts are dealt with in Chapters XII and XIII of the constitution, the office of the Prosecutor General's role does not appear in the constitution.
A separate act, the Prosecutor's Office Act 1998, deals with this, and provides for the Prosecutor General, currently Lavly Perling as noted, to be appointed by the government on the justice minister's proposal (currently Raivo Aeg as noted) following consideration of the Riigikogu's opinion, via its legal affairs committee, thus making the role naturally more political.
Raija adds that that whereas in Estonia, prosecutor investigations are led by the prosecutor's office, in Finland they are led by law enforcement authorities, in conjunction with the prosecutor.
In other words, in this aspect the police in Estonia are more subordinate to the prosecutor's office, which as we have seen is arguably a more political role too.
The role of the Finnish prosecutor general
What about the role in general – what does this involve, and is it one of the cornerstones of a democratic state?
"In Finland, the prosecutor general's status reflects the status of all prosecutors in the country. We are one of the cornerstones of the rule of law and principles in the country. That is why we are very important actors in the democracy but also why we must be very far from politics."
"The position is very stable and strong in Finland. We do not have these worries that any outside actor could influence the prosecution service; in fact we have enshrined in law that no political party or other body might give instructions to the prosecution service."
"Of course we get the funds from the state budget, and the justice ministry is the governmental body we are under in the administrative sense, but even at that level they are not able to set out such goals to us which could influence the direction of the prosecution service. I could say therefore that it is truly independent in Finland."
The prosecutor general is appointed by the president – currently Sauli Niinistö – serves as the supreme prosecutor and supervisor of prosecutors, according to the relevant law, principally to guide and direct their activities and secure their effectiveness, uniformity and other administrative areas, as well as coordination with law enforcement agencies and international cooperation.
There are five more levels of prosecutor after the prosecutor general, and criminal cases are assigned to prosecutors in line with expediency and impartiality considerations – more than one prosecutor may be assigned to the same criminal case, and the prosecutor general has the powers to put prosecutors on standby outside of normal working hours.
There are four districts, North, South, East and West, along with the more autonomous Åland/Ahvenamaa islands, which have their own district.
Both countries' prosecutors general are women
Nonetheless, one similarity between the prosecutor general role in Finland and Estonia is that they are both women, as is the Chancellor of Justice, in Estonia, Ülle Mädise. Surely this must be a good sign?
"I'm very happy that women have also reached these high level positions of course. I don't have the statistics but quite a few women are in these positions now – Lavly and I were the only prosecutor generals attending today's conference, but those from Iceland and Sweden, not present today, are also women."
While we may have an image of Finland, as a Scandinavian country, being particularly egalitarian, we would be wrong to assume that a woman prosecutor general had happened there before.
"I'm the first even in Finland. In law enforcement positions too, there still aren't women in the very highest positions, but on the other hand more and more law students are women today, so this is changing. Across Europe, most of our colleagues are still men, but Ireland is one exception – Claire Loftus. The Attorney General in the U.S. has in the past been a woman too (twice – Janet Reno and Loretta Lynch-ed.).
The issue of domestic violence is one which Raija and her office takes very seriously. A recent case in Estonia involved domestic allegations appearing in the media regarding a former government minister, who then had to stand down after a day in office. A prosecutor's office investigation was opened the next day, Apr. 30, though the individual's wife rejects the allegations to date. Is this trial by media the best way of doing things – possibly a good question for the media itself in fact – and what happens if the alleged victim of domestic violence denies all, surely something which happens all too often?
"Years ago we changed the law in Finland. Earlier, the public prosecutor was not permitted to bring charges for domestic violence offense unless the injured party had reported the offense for the bringing of charges or unless very important public interest requires that charges be brought. Today, the bringing of charges is the decision of the prosecutor. Also, the Istanbul Convention ( a Council of Europe Convention on preventing and combating violence against women and domestic violence) says very straight up that this is something society should take care of, meaning the prosecutor must follow it up."
"We try to pay a lot of attention to the issue and take it very seriously, with even specialized prosecutors in the field. It can often be the case that we read it in the newspaper first, but the investigation is led by law enforcement authorities first and foremost – though we can give orders to safeguard the main investigation."
What is hate speech?
Raija has also made hate speech, and combating it, a key concern. But what is hate speech exactly? We had unfortunately just had a violent attack in the Finnish town of Kuopio a couple of days before out interview – did this involve hate speech.
"This latest case in Kuopio was not linked to hate speech as far as I know; it involved a quite quiet young man who had no criminal history, but we don't know the background yet – he is still in hospital - and there were no reports of him engaging in hate speech at the time of the attack."
"Hate speech is not simply insulting someone. It's quite a complicated topic and difficult to clearly define.
According to Finnish penal code it is defined as ethnic agitation: "A person who makes available to the public or otherwise spreads among the public or keeps available for the public information, an expression of opinion or another message where a certain group is threatened, defamed or insulted on the basis of its race, skin color, birth status, national or ethnic origin, religion or belief, sexual orientation or disability or a comparable basis, shall be sentenced for ethnic agitation."
It's up to the prosecutor to ascertain what constitutes public, but for example around 20 persons gathered together can create a 'public', so if that number or more people were in this room and you started to engage in agitation, it could qualify."
"Another strand is that this must be broadcast – this can include the gathered group, but also obviously social media counts nowadays, as does using a megaphone in an outdoor location, or a situation where people are streaming to the internet."
"And the other dimension is that it should be attacking a particular group – so insulting or threatening remarks on a person's sexual orientation, religion, skin color, birth status, disability and other aspects would make it hate speech."
But is this not just free speech?
"You can of course criticize very strongly anything and everything that happens in a society. But a politician for instance should not be allowed either to insult someone along the lines of religions, skin color etc. Unfortunately this has happened in Finland a few times, but in those cases the politicians have been sentenced – mostly to large fines."
"There is thus also a handrail for politicians, something I strongly wanted to retain firmly so they have to follow that. If you allow this hate speech, then at the same time you restrict some groups' freedom of speech, and silence them, curtail their opportunity to go anywhere or say anything."
"If one is arguing that I can say what I like due to freedom of speech issues, they don't understand that the cost of that is that they restrict others freedom of speech, or general freedoms and liberties, so it's a balance."
"Hate speech as a phenomenon is nothing new but with all the new tools like social media and so on it is now on another plane compared with the past."
Conference live issues: Money laundering and cybercrime
Finally, the conference covered two live topics in Estonia and affecting its relations with its neighbors, including Finland, cybercrime, and money laundering. Of course both topics are too vast to get a full treatment here, but what is the prosecutor general's overall view of the state of play at present?
"Cybercrime a common worry. One aspect to it is it has become a part of everyday life and thus shouldn't be shrouded in mystique. But what is important to remember is we should be trained, as with law enforcement agencies, better than we have been before, including of course judges and prosecutors."
"Cybercrime is terrible in the sense that the data goes so quickly from country to country and into the cloud; how can this be obtained as evidence or retained – this makes cooperation and improved legislation all the more important as this is a global issue.
"We cooperate with Estonia as we are members of the same international treaties and conventions. We have to follow mutual legal assistance rules in obtaining date, and as noted earlier we need quick assistance contact points here in order to do that."
"We used to have liaison officers here in Tallinn, going both ways, though we have wound that up, as the main aim was to study the legal system of each others' countries to get a better picture of how our systems work. As we have so much business, including on a criminal level unfortunately, this was necessary."
Money laundering has been at the forefront of the news for months in Estonia, with the Danske and Swedbank cases. What can be learned from these and other incidents?
"I'm not familiar with those cases but money laundering is a huge issue which we have to very heavily combat. We need to establish where the perpetrators have benefited from their criminal activities; freezing the money and getting it back from the culprits is the main thing. It is important that the law enforcement authorities in particular can follow the money. I always point out to law enforcement agencies when they establish the group of investigators and prosecutors that someone should be able to follow the money and quickly freeze it where necessary, and then retrieve it."
"We still have a lot to do on this score, because finding the evidence of what the basic crime is is very challenging for authorities and we need to do a lot of cooperation if there is an international case. This is of course related to cyber issues as it's just the click of a button. We have not yet reached that goal but the ultimate goal is to combat this type of crime more.
"We should pay a lot of attention to money laundering matters, as a way we could really make an impact is to take the money back, maybe using more surveillance as well, but also when we recognize when some kind of crime happened, who could this benefit and how much and where, in order to cut down on guesswork."
"Bitcoin and cyber currencies were a big topic at today's discussions, and there are new ones being invented all the time. The perpetrators often do not even know each other in these cases. But we have to follow the law, and have to use the legal channels, which unfortunately takes more time than they take to actually carry out the crime."
"Europol (the European Union Agency for Law Enforcement Cooperation-ed.) and Eurojust (an EU agency dealing with judicial co-operation in criminal matters among agencies of the member states-ed.) boast a lot of experience. But then comes the question of those third states who are not in the EU and probably not party to any of these international treaties and conventions; how do we get the data from those."
"So far as Estonia and Finland go, the issue is the type that neighbors always have. Establishing a company in one place and doing business in another, for instance, is a big deal between the two countries And we have these drug cases too, though the number of mobile property crime groups have diminished – people who quickly come to another company and steal property, are a couple of hours in the country and the head of the criminal organization is far away – has reduced; though it still exists it is not such a problem with Estonians nowadays."
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Editor: Andrew Whyte