Supreme Court: State cannot demand telephone communication data

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The Supreme Court decided that telecommunications communications data cannot be requested from companies for criminal investigations as the procedure for storage and use of data in Estonia is in conflict with the law of the European Union.

Storing data unlawfully would also violate the right to privacy guaranteed by the Estonian Constitution, the Supreme Court stated.

Based on the decision of the Criminal Chamber of the Supreme Court, neither the Prosecutor's Office nor the court has the right to make inquiries to communications companies in order to obtain telephone traffic and location data stored in the interests of criminal proceedings under the Electronic Communications Act.

In exceptional cases, only data obtained before the judgment of the Court of Justice in the La Quadrature du Net case of October 6 last year may be used as evidence.

With this decision, the European Court of Justice confirmed that the general and indiscriminate prevention of communications data is contrary to the EU's digital privacy directive, despite the arguments of several Member States, including Estonia. This is despite the conditions for access to the data. Thus, the amendment to the law in the Riigikogu does not provide a solution to the problem either.

The court is of the opinion that from October 7, 2020, the invasion of privacy caused by the use of unlawfully stored data must be considered intentional. The use of data in criminal proceedings is excluded as long as Estonian laws concerning their storage and use have aligned with the European Union law.

The Supreme Court notes that this decision does not concern inquiries into the identity of the telephone user or access to the communications network by surveillance and security authorities under the conditions provided by law. It is also possible for a customer of a communications company to request information about him and send it to law enforcement authorities.

The Chamber is of the opinion that the data obtained on the basis of the permits of the Prosecutor's Office issued before October 7 may be used as evidence under certain conditions.

It is also necessary to analyze whether the harm caused to a person by an unlawful invasion of privacy should be compensated in any way, for example by admitting an infringement, reducing the penalty or reducing the costs of the proceedings.

According to the case-law of the Court of Justice, granting access to retained communications data can be justified in particular by the fight against serious crime. The concept of a serious crime has not been defined in Estonian law so far. According to the Supreme Court, crimes of the first instance can be considered serious.

However, depending on the circumstances, a second-degree crime may also be serious if it is characterized by, for example, repetitiveness, systematic nature, the number of victims and the law foresees a maximum sentence of five years' imprisonment. The Chamber emphasized that the assessment of a crime as serious must be justified on a case-by-case basis.

The Supreme Court said that violations in the use of communications data do not provide grounds for a new review of court judgments that have already entered into force.

Friday's decision of the Supreme Court deals with the criminal case of Helyse Kuusmaa, who has been accused of several thefts, computer fraud and threats against the accused. The county and circuit court found her guilty of the crimes. However, the Supreme Court hearing the complaint of Kuusmaa's lawyer suspected that the use of this data could be in conflict with the EU law.

The Supreme Court finds that the use of communication data was not justified in this criminal case because the Prosecutor's Office requested too much data and did not explain the unavoidable necessity of their use. At the same time, other evidence gathered in the case was enough to prove Kuusmaa's guilt.

Since, in the opinion of the Chamber, the use of communication data unlawfully interfered with Kuusmaa's private life and the state had to compensate €1,403 of legal aid costs.

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Editor: Roberta Vaino

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