Thousands of pieces of evidence could disappear from criminal cases

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Selection of judge's gavels (photo is illustrative). Source: Silver Gutmann/Supreme Court

A European Court of Justice preliminary ruling from Tuesday could have a huge effect on the Estonian judicial system. Masses of evidence might prove inadmissible in thousands of criminal processes, including the major trials of Hirv and Gammer and Porto Franco where communications data has been used as evidence and basis for collecting evidence.

The European Court of Justice ruled on Tuesday that recent criminal practice in Estonia is not in accordance with EU law in several aspects. Estonia has for years obligated all mobile services operators to record everyone's cell phone data – virtually everything except content of calls.

Who called who, when, how often and using which devices, as well as the location of the person placing the call and the recipient. Additional data, such as the location of owners of devices, who they met etc. has also been recorded. The law obligates service providers to store the data for a period of one year.

This data has been relatively easy to access in criminal proceedings to be used as evidence or as basis for finding new evidence, such as securing an electronic surveillance permit. Access to data is currently authorized by the Prosecutor's Office.

The role of the prosecution is quite extensive when it comes to the admissibility of various procedural acts. For example, permits for searching someone's home in criminal proceedings are issued by the prosecution. Searching the premises of someone not associated with criminal offenses requires a permit from the court.

The Court of Justice ruled on Tuesday that people's communications data should not be accessed at random when looking to solve whichever type of crime. The court emphasized that communications data should not be stored indiscriminately and that it is only acceptable when fighting serious crime or preventing major public threats.

The European court also found that access to and use of such data should be decided by the courts or independent administrative institutions. That is not the case in Estonia as the Prosecutor's Office is in charge of proceedings and represents public prosecution. Therefore, the Prosecutor's Office cannot be fully independent when issuing permits irrespective of in-house work processes.

The ruling is preliminary at this time and was sought by the Estonian Supreme Court for a particular decision. While the Supreme Court will take some time before ruling, its conclusion cannot differ from that of the Court of Justice to any notable degree.

Lawyers say legal landscape looking at major change

Attorneys said that a new interpretation of the admissibility of communications data could result in considerable change on the Estonian judicial landscape. "Things just got more difficult for the prosecution and police and improved when it comes to basic rights," sworn lawyer Paul Keres said.

He added that the preliminary ruling affects two cases he is currently working on. "One is the Port of Tallinn case and the other has not been in the public eye," Keres said.

Hypothetically, the Court of Justice ruling could affect all ongoing trials where communications data has been used, said sworn lawyer Oliver Nääs who is tied to the Hirv and Gammer and Porto Franco criminal cases.

Estonia's Prosecutor General Andres Parmas said that a total of around 1,000 cases could be affected. "Collection of such data is quite commonplace in criminal proceedings," he said.

Defenders could theoretically have evidence that is based solely on communications data – meetings or calls –thrown out. This kind of evidence could end up inadmissible when it comes to rulings and punishments. Nääs said that removing such aspects of proceedings could be quite a clear consequence.

Another group of evidence covers things collected in the course of proceedings for which a permit has been issued based on communications data. There will also be new grounds for challenging such evidence in the future. This kind of evidence could be upheld in situations where it could have been obtained in other ways or in cases where communications data was not the main path leading to it.

"Courts will have to look at surveillance permits in a new light and determine whether they could have been issued without communications data," Oliver Nääs said.

"All of these cases – Hirv and Gammer, Porto Franco, Semilarski, Vavrenjuk – are such where surveillance permits are based more or less on communications data, relevant analysis and conclusions," Nääs explained.

"Different solutions are possible here. We have Semilarski at one end of the spectrum, where the first surveillance permit was issued almost exclusively based on communications data analysis, and then we have Hirv and Gammer at the other where an undercover officer and other kinds of information were used to secure the first permit.  It will depend on particular cases to what extent this issue will be raised and how surveillance permits will be reevaluated," the sworn lawyer added.

Should the Court of Justice preliminary ruling lead to evidence being thrown out in many cases, Paul Keres says it will largely be the result of the prosecution's actions. "Defense attorneys have been criticizing the prosecution for its lighthearted treatment of communications data and violation of persons' fundamental rights for over a decade. The Supreme Court has also hinted at it and gone beyond that in some cases. The European Court of Human Rights has been especially critical," Keres said.

It will also be possible to challenge all manner of proceedings permits issued by the Prosecutor's Office that now come off as unlawful in light of the Court of Justice ruling. However, the rate of success of efforts to remove evidence remains unclear today.

Whatever the case, lawyers agree that the Court of Justice's interpretation is a clear message to Estonia that the law needs to be changed and the current situation where the prosecution issues various permits for proceedings ended with relevant decisions handed over to courts.

Ministry: certain proceedings need to move from the prosecution to courts

The Ministry of Justice agrees, even though the Court of Justice ruling concerns permits that are connected to communications data. Adviser at the ministry's penal law and proceedings department Markko Künnapu said that the preliminary ruling clearly shows that some actions need to be moved from the prosecution to the courts.

Künnapu said that the ministry has considered the need in the past and even though draft legislation does not exist yet, it should not take long to draw up.

Prosecutor General Andres Parmas said he also regards such a move to be likely. "It is probable that the role of preliminary investigation judges will become more important that will bring increased red tape and require additional resources in criminal proceedings."

Ministry not in a hurry to amend collection of data practices

As concerns other shortcomings – mass collection of communications data and its widespread use in criminal proceedings – the ministry is not in a hurry to introduce changes. Künnapu said that the ministry plans to wait for the Supreme Court's ruling and analyze the situation then, including by looking at the reaction of defense attorneys and courts.

It is feared that courts could be overwhelmed by applications for exclusion of evidence, while no such avalanche has occurred in the past despite corresponding fears having existed before. The ministry is also interested to see what the courts will decide in cases where evidence based on communications data is contested.

The Prosecutor's Office feels that storing communications data for a period of one year is absolutely necessary. "How could it be any other way. It has been suggested that data should only be stored in connection with serious crime, meaning only in case of persons who have committed serious crimes or pose a threat to the state, while there is no way to tell in advance who might be dangerous or could have committed grievous offenses. Collecting and storing communications data for a certain period of time is the only possible solution. What matters is that this data can only be used under certain circumstances. The question has been raised by several EU member states today and lacks a comprehensive answer or solution," Parmas said.

The European Court of Justice has found in the past that mass collection of data should not take place. The court finds the practice should be limited. The Ministry of Justice is not rushing into decisions here and plans to analyze this matter at length, Markko Künnapu said, adding that several EU member states are collecting and storing communications data.

The Supreme Court has not ruled yet and will soon set a date by which additional positions need to be presented by sides to the appeal. The court will have to rule inside 30 days of that date, while it can take another 60 days to write up its decision.

"I deem it possible to solve this matter by Midsummer's Day at the latest and can give you no more accurate forecast," said Saale Laos, chair of the Supreme Court's Criminal Chamber.

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Editor: Marcus Turovski

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