Top court: Bill seeking to expand EDF surveillance rights unconstitutional

President Kersti Kaljulaid.
President Kersti Kaljulaid. Source: Priit Mürk/ERR

The Supreme Court of Estonia ruled on Thursday that a bill seeking to amend the Estonian Defence Forces Organisation Act is unconstitutional, as the bill does not establish efficient control over whether or not the people with regard to whom cover surveillance has been conducted by the Estonian Defence Forces (EDF) are notified of the act.

The Supreme Court disagreed, however, with the president's second complaint alleging the unconstitutionality of the bill.

On March 7, President Kersti Kaljulaid decided not to promulgate a bill of amendments to the Estonian Defence Forces Organisation Act adopted by the previous Riigikogu on February 20, which would have granted the EDF the right to covertly check personal data in the database of the state, a municipality or another person in public or private law, use concealment of one's own person and other undercover agent methods, as well as conduct clandestine surveillance of a person, in urgent cases necessitated by the interests of the protection of the security of the area of the EDF, in order to find out about serious danger and protect against it.

The current Riigikogu passed the bill in unchanged form again on May 29, and the head of state decided for the second time not to promulgate it and instead seek that the Supreme Court declare it unconstitutional.

While the bill would have limited cover surveillance of persons to 24 hours, according to the president, granting the EDF such a right would be disproportionate and incompatible with the objective of the Constitution and the role of defense forces in a democratic society. The EDF as an institution performing national defense tasks should not be granted powers to internally and covertly process data during peacetime ⁠— powers which have been granted to security and law enforcement agencies such as the Internal Security Service and the Police and Border Guard Board (PPA). Granting the EDF powers to conduct clandestine surveillance of people may result in the violation of constitutional rights, such as the right to the protection of privacy and family life, home and communications.

Doesn't agree on all points

The Supreme Court ruled in the president's favor and declared the bill unconstitutional; however, it did not agree with all of her complaints alleging the unconstitutionality of the bill.

The court said that the bill infringes on the right to privacy by seeking to grant the EDF the right to clandestinely check personal data in databases, conduct covert surveillance and use the concealment of one's own person and other undercover agent methods. Taking into account the prerequisites for the application of these techniques and the related procedural guarantees and control options, however, the Supreme Court deemed the contested powers to be constitutional.

What the Supreme Court regarded as violating the Constitution was the lack of efficient control over whether or not a decision by the EDF not to inform the person of a covert surveillance action taken against them is justified. Pursuant to the Estonian Defence Forces Organisation Act, the EDF shall notify a person whose fundamental rights are restricted of the measures used in and the circumstances relating to the restriction of fundamental rights immediately provided doing so does not endanger the aim of the restriction. The law does not grant the EDF the right to make a definitive decision not to inform the person; instead, it imposes on it an obligation to consistently weigh whether conditionally not informing the person is justified.

The Supreme Court said that legislation regulating the EDF's surveillance activities should establish efficient procedural guarantees similar to those set out in the Code of Criminal Procedure in this context, in order to eliminate the possibility of the person against whom surveillance is conducted arbitrarily not being informed of the EDF having processed their data. Guaranteeing this right is a prerequisite for the person to be able to protect their rights in court, and also functions as a measure preventing executive powers from intervening too readily or in an unlawful manner.

Legislators have multiple options for establishing constitutional regulation over assessing if not informing an individual of surveillance activities conducted against them is justified or not. What must be taken into account is that the more extensive the interference with an individual's fundamental rights in relation to the covert processing of their personal data, the more specific and efficient procedural guarantees are needed.

While the Supreme Court declared the contested bill of amendments unconstitutional, it said that the covert collection and processing of personal data may be necessary for the effective defense of domestic and external peace. The court added that the Constitution does not prohibit tasking the EDF to a limited extent with ensuring domestic peace across the state, nor does it prohibit granting the EDF powers to covertly collect and process personal data if the extent of the interference is balanced by sufficient control measures and procedural guarantees.


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Editor: Aili Vahtla

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