Lawyers: Prosecutor's office riding roughshod over ECJ data stance

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European Court of Justice headquarters in Luxembourg. Source: eiuc.org

Lawyers have hit out at a prosecutor's office practice of issuing authorizations for the use of phone and other communications logs and data in criminal proceedings, despite what they say is a clear statement from European Court of Justice (ECJ) to the effect that only courts of law should give permission for issuing data.

Even Estonia's own Supreme Court has been clear in highlighting that domestic law may not impede the full functioning of EU law, the lawyers say.

The prosecutor's office and district prosecutors direct Police and Border Guard Board (PPA) investigations, and also, as in other jurisdictions, prosecute criminal cases in the courts.

Sworn advocate Oliver Nääs says that the prosecutor's office and prosecutors themselves are knowingly violating legislative acts valid in Estonia, as an EU member state.

Lawyer: Prosecutor's office hindering rule of law on this issue

Nääs told BNS that: "The stance of the prosecutor's office is rather worrying from the aspect of ensuring the protection of fundamental rights and the rule of law. In commenting on one's activity, one is also misleading the public by trying to divert attention from the main arguments of the decision C-746/18 made recently by the ECJ with regard to the prosecutor's office of Estonia."

Prosecutor General Andres Parmas meanwhile said that: "While the ECJ has given its assessment that the prosecutor's office should not issue authorizations for retrieving communications data, we must draw attention to the fact that what evidence is permitted to be used in criminal proceedings in Estonia does not fall within the scope of EU law."

Parmas added that the current system was required in prosecuting crimes.

"If the prosecutor's office were to discontinue issuing such authorizations, it would not be possible to use communications data for the resolving of any crime at the moment," he said.

Oliver Nääs said however that the situation that has evolved is one where communications data should not in fact be used for the investigation of crimes, as Estonia's domestic law does not set out issuing such data in a manner consistent with EU law. 

Chief prosecutor: Estonian courts can decide whether to accept evidence or not

Parmas for his part says it is down to courts in Estonia to decide whether they accept evidence.

Parmas said: "When criminal elements are ascertained, it is our task to open a criminal proceeding to establish the truth in its framework. This means establishing the potential incriminating and justifying circumstances with regard to all the parties concerned, which sometimes can be done only by using phone logs. As long as Estonian laws say that the authorization for the use of communications data in a criminal proceeding can be given by the prosecutor's office, we will continue the current practice."

Criminal proceedings follow an extremely regulated procedure and the prosecutor's office acts in accordance with valid laws, he added, and each step taken by law enforcement can be challenged in court, he said..

Lawyer: Access to communications data only acceptable for most serious crimes, terror threats etc.

Another lawyer, sworn advocate Sander Potisepp, said that law enforcement institutions should gain access to communications data only to combat serious crime and serious threats to public security, and even then, this should not be the decision of the prosecutor's office.

The office is also dodging the question, he says, in claiming that under current domestic law, the prosecutor's office alone has the authority to order the retrieval of communications data during pretrial proceedings.

Andres Parmas said that any hindrances to establishing the facts of criminal proceedings are worrying, and that moreover: "All the offenses set forth as criminal offenses under Estonian law are also serious crimes in the meaning of EU law."

Sander Potisepp said that not only the ECJ but also the Supreme Court of Estonia was being ignored – the latter has ruled that an administrative authority must also itself refrain from the application of a domestic legislative act which contradicts EU law.

Oliver Nääs has represented several high profile people in corruption cases, including Edgar Savisaar, former Tallinn mayor, while Sander Potisepp recently represented Kersti Kracht, former finance ministry adviser.

Andres Parmas became prosecutor general in early 2020.

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Editor: Andrew Whyte

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