Estonia already restricting communications data use in criminal proceedings

The Supreme Court in Tartu.
The Supreme Court in Tartu. Source: Silver Gutmann/riigikohus

With the amendment to the law that came into force at the beginning of this year, the state has already restricted the use of communications data in criminal proceedings, and is investigating ways to regulate that use even more precisely, based on a European Court of Justice (ECJ) ruling.

Justice ministry criminal policy Deputy Secretary General Markus Kärner told ETV news show "Aktuaalne kaamera" (AK) Wednesday that: "Following the [Supreme Court] judgment last summer, the Riigikogu passed an amendment to the law in December 2021 whereby communications data may only be used in criminal proceedings on the granting of the permission by a court court.

"Previously, this could be done, in some cases, with the permission of the prosecutor's office," Kärner added.

"An alteration has also been made whereby only communication data which companies retain for commercial purposes can be utilized. The amendment also restricts the scope of crimes for which the request for communication data is permitted. These changes came into force on January 1," Kärner continued.

The Supreme Court ruled in June 2021 that data that telecoms companies are required to retain may not be requested in the investigation of criminal offenses, since the procedure for the storage and use of data in force in Estonia was in conflict with EU law. 

Requiring data be stored unlawfully would also violate the right to privacy guaranteed by the Estonian Constitution, the Supreme Court ruled.

On Tuesday, the European Court of Justice ruled (ECJ) that the mere retention of communications data for the purpose of combating crime is contrary to EU law, AK reported.

Legal scholar Paloma Krõõt Tupay says that the ECJ decision of the European Court of Justice is based on the fact that the collection of communications data without a specific purpose is contrary to the protection of human privacy. 

"The aim is to prevent a situation where a person feels that the state is watching them 24/7," Tupay told AK.

Markus Kärner said the justice ministry and the interior ministry are working closely together, to further amend the regulation on the retention of communications data: "In order to clarify the existing law, so that it takes greater account of the views of the court of justice".

"As a result of the discussions, a draft of the draft has been completed as of today," Kärner added.

However, given the criteria developed in ECJ case law, it is difficult to find a solution which could be implemented in practice but at the same time ensure both the protection of national security, especially in a significantly changed security situation and the possibility of solving serious crimes, he said. "Without the use of communications data, this is much more difficult, and the state has an obligation not only to protect people's privacy, but also to ensure that serious crimes such as killings, terrorism or cyber crime are detected and brought to justice. Unfortunately, yesterday's ECJ ruling did not make it clear in this regard what form a workable solution might take," Kärner said.

A number of other references for a preliminary ruling pending before the ECJ include those relating to Bulgaria and to Germany, which both concern both the storage and the use of communications data.

EU member states should cooperate more, Paloma Krõõt Tupay said, as many people have had problems with the collection of communication data. 

She said: "However, it is expected that EU Member States will have to find common criteria on which to base decisions and not to wait for the individual decisions coming piecemeal from the ECJ."

The ECJ ruled on Tuesday that an Irish court which had asked for a preliminary ruling inquiring whether and under what conditions electronic communications service providers were subject to a general obligation to retain traffic and location data in accordance with EU law. 

In addition, the Irish court asked whether, in a situation where a domestic legislation has been found to be contrary to EU law, a national court may limit the temporal effects of that finding, since that could be detrimental to the public interest.

State prosecutor Taavi Pern says that in the current situation, means of [electronic] communication are often used in the course of committing a crime.

There are also criminal cases in court whose communications data were collected before October 2020, he added, the significance of that date being that it: "Is the date by which the Supreme Court considered the collection of communications data using the former methods to be permissible, while the other component is made up of criminal investigation swhich have reached court or are on their way to court, where communications data has been collected since last year's Supreme Court ruling."


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Editor: Andrew Whyte

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