The circuit court overturned the county court's judgment based on circumstances presented in the prosecution's application being insufficient to confidently conclude that the prosecution would have had grounds to deny permission had it been consulted.

The Prosecutor's Office failed to elaborate on how the publication of the article harmed administration of justice in this particular case, the circuit court found.

At the same time, it is the position of the court that the prosecution needs to be consulted before proceedings data can be published.

The Harju County Court on April 14 fined Eesti Ekspress journalists Sulev Vedler, Tarmo Vahter and publisher AS Ekspress Meedia €1,000 each for disclosing information in an article published on March 25, according to which suspicions of money laundering had been brought against the former board of Swedbank. The prosecution had not shared the information with the public before and was not notified of intent to publish the article.

The journalists and publisher challenged the ruling.

The circuit court agreed with the prosecution and the first instance court in that the Code of Criminal Procedure provides that the definition of a person not party to proceedings, subject to being fined by the prosecution, covers anyone who lacks a connection to criminal proceedings. "Had the legislator sought to exclude journalists/publications from the circle of persons who cannot be fined for disclosing pretrial proceedings data, the exception should be clearly phrased. Therefore, the current phrasing of the legal norm prescribes treating all other persons in possession of pretrial information as persons not party to proceedings," the court explained.

The court also agreed with the prosecution's argument that premature disclosure of pretrial information can seriously impact collection of evidence. "It could endanger administration of justice and violate fundamental constitutional rights. Premature disclosure of potential suspects could cause persons who previously believed they were not under scrutiny to destroy evidence or that they will not be handed suspicions at all after being labeled a suspect in the press. Therefore, the prosecution and county court correctly interpreted the law in that authorization from the prosecution is absolutely needed before pretrial materials can be published."

Court: Journalistic freedom limited but within constitutional confines

The court added that while this does infringe on journalistic freedom, the restriction is constitutional.

The circuit court emphasized that even though journalistic freedom is protected under the Constitution, its spirit does not suggest it should be preferred over other freedoms also provided by the Constitution. "It is the position of the circuit court that the restriction on disclosing information provided by section 214 of the Code of Criminal Procedure is in accordance with the second sentence of section 45 of the Constitution that allows journalistic freedom to be restricted, among other things, in the interests of administration of justice," the court found.

Having to seek authorization from the prosecution cannot be equated to undue infringement of journalistic freedom. To balance the restriction on press freedom and avoid the prosecution refusing authorization without reason, the law allows any decision by the prosecution not to allow publication to be challenged with the preliminary investigation judge.

In this case, the appellants did not seek the prosecution's authorization to publish pretrial proceedings information. Even though the circuit court finds such a permit to be necessary based on the spirit and scope of the law, fine decisions need to be based on whether it was necessary in light of the circumstances of this particular case.

"Because publishing the article on suspicions of money laundering at Swedbank AS served the goal of informing the public, there are no grounds to conclude the publishers should be fined simply for covering the topic. Publication of the suspects' names infringes on their rights, while it needs to be kept in mind that the possible period of money laundering had been previously covered in the news. The article only suggested the executives had been handed suspicions in connection with their work at the bank. It is difficult to find reasons why suspicions associated with the work of executives (or politicians or officials) should not be covered. The article did not touch on the personal lives of the people in question," the court remarked.

The court also noted that any request that seeks to fine journalists should clearly demonstrate how and to whom information was disclosed. If the prosecution finds that information was disclosed without authorization and too soon through the express.ee website, only the publication and not its journalists can be fined.

The judgment can be challenged in the Supreme Court inside 15 days.

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