Madise: Accused under surveillance must be able to confer with counsel ({{contentCtrl.commentsTotal}})

Ankle monitor. Photo is illustrative.
Ankle monitor. Photo is illustrative. Source: Rene Kundla/ERR

In a letter sent to the Minister of Justice Raivo Aeg (Isamaa), the Chancellor of Justice Ülle Madise has proposed to clarify the regulation on electronic surveillance so that a probationer would be permitted to confer with their counsel if necessary.

The justice chancellor was requested by an attorney at law to analyze whether the regulation "Enforcement and execution of electronic surveillance" laid down on the basis of the Code of Criminal Procedure by the minister is in accordance with the Estonian Constitution.

The regulation states that a probationer submitted to electronic surveillance cannot commute to their lawyer. According to the chancellor, this regulation is contrary to Article 224: materials in the case of which a prosecutor's office has prohibited the making of copies shall be presented by the counsel only in his or her office premises or custodial institutions.

"According to the current regulation, the accused or the probationer has no chance to consult these materials which means this regulation contradicts the principles of the rights of defence," Madise remarked.

As laid down in Article 21 of the constitution, a person suspected of a criminal offence must be promptly given an opportunity to choose a counsel and to confer with him or her, Madise added. Article 21 of the constitution is a basic right that can only be restricted in order to protect other basic rights or values derived from the constitution.

Madise also referred to article 13 of the constitution stating that everyone is entitled to protection by the government and of the law and that the law protects everyone from arbitrary exercise of governmental authority. The latter could be caused by inadequate regulation, according to the chancellor.

"I hereby propose clarifying Article 8 of the regulation to include an option for a probationer to confer with their counsel if necessary," the chancellor said.

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Editor: Anders Nõmm

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