Prosecutor challenges annulment of fines at heart of media freedoms furor

Prosecutor's Office crest.
Prosecutor's Office crest. Source: Siim Lõvi /ERR

A State Prosecutor has appealed to the Supreme Court to annul a court ruling which lifted fines on two journalists who had authored an online article which divulged pre-trial information in relation to a high-profile money laundering case. The State Prosecutor finds that the journalists and the publication they worked for had violated the Penal Code.

State Prosecutor Sigrid Nurm has submitted a petition to the Supreme Court aimed at overruling a second-tier Tallinn Circuit Court decision from June 14 and reinstating a first-tier Harju County Court ruling from exactly two months earlier, which fined two journalist and the publication they work for, investigative weekly Eesti Ekspress, €1,000 each.

State Prosecutor Nurm finds that the Tallinn Circuit Court, in interpreting §214 of the Penal Code (which deals with extortion - ed.), had made non-statutory requirements a precondition for fining. For this reason, the overturning of the Harju County Court ruling was illegal, she said.

The case follows an article in March which revealed details of a pre-trial procedure in respect of a money laundering case linked to former managers at Swedbank.

The prosecutor's office finds that journalists working for a publication owned by a large media concern should not be treated from those who work for smaller outfits.

"In that case, there would be unequal treatment for freelance journalists who publish their stories on any blog they manage, since we would not be able to talk about fining the website and thus they would only be liable as natural persons." Nurm went on.

The circuit court had ruled that both the county court and the prosecutor's office did not indicate how the disclosure of specific information would endanger or damage the ongoing Swedbank criminal proceedings, a ruling which the prosecutor's office does not agree with.

A bar on the disclosure of information gathered in criminal proceedings would relate to the risk of harm to the proceedings, while this risk need not be certain and proven, but only one which cannot be disclosed in great detail. In the current case, such a risk exists, the prosecutor's office finds.

"The views expressed in the prosecutor's memorandum to journalists on how the disclosure of truthful information can make it impossible to prove the facts in court, and thus render litigation and the administration of justice non-viable. This is a very real risk, but it is virtually impossible to foresee."

"The submission of an article for public availability on the Internet shall be deemed to be a violation of §214 (3) of the Penal Code if the journalists do not have the permission of the Prosecutor's Office with regard to the information concerning the pre-trial proceedings."

The prosecutor noted that for a story to appear online, a journalist must present an outline of the article, which would likely then be reviewed by their editor and others

"The court also gives an example of the conversation between journalists at meetings and in the editorial office," the State Prosecutor went on.

At the same time, the arguments presented by the circuit court are contradictory and incomprehensible, the prosecutor's office finds, as it referred to making the data of a criminal matter available to a third, non-procedural person, meaning disclosure through an online platform cannot exclude the liability of journalists within the meaning of § 214 (3) of the Penal Code.

This section of the code provides for fines on persons outside the proceedings, a category of persons which should be interpreted in a board sense.

Conversely, the circuit court took the opposite view, Nurm said, namely that, in the opinion of the prosecutor's office, the public was informed of the facts of the pre-trial criminal case too early, by publishing the procedural data without permission, and as this took place via an online platform, the circuit court ruled that only the media publication were culpable, and not the journalists.

State prosecutor Sigrdi Nurm. Source: Sergei Stepanov/ERR

The prosecutor's office does not agree with the circuit court's arguments regarding the group of persons for whom a fine may be imposed for disclosure of information. 

The Prosecutor's Office also does not agree with the decision of the circuit court that the Prosecutor's Office had not indicated how the information published by the journalists endangered the criminal proceedings ,and the identification of the threat to the criminal proceedings as a prerequisite for imposing a fine.

The fact that the journalists in question and the media they report to had twice been directed by the prosecutor's office in relation to violations regarding the disclosure of unauthorized pre-trial information, but nonetheless continued with similar activities, was not insignificant, the prosecutor's office added.

The precondition for application can therefore in no way require the Prosecutor's Office to disclose in detail the danger to criminal proceedings the disclosure of information entailed, as the fine order is notified to persons violating § 214 of the Penal Code and its working methods, which would make further proceedings virtually impossible and would cause even greater damage than the publication of data already published, the office continues.

The State Prosecutor thus requests the Supreme Court to annul the ruling of the circuit court of June 14 and to enforce the ruling of the county court of April 14 which imposed a fine of €1,000 on Sulev Vedler, a fine of €1,000 on Tarmo Vahter and a fine of €1,000 on AS Ekspress Meedia

News of the fines appeared in the media just one day after Estonia had re-attained fourth place in media freedom rankings as per Reporters Without Borders (RSF) around a decade after it had first placed so highly, and led to pushback over the perceived curbing of the same media freedoms.

While the circuit court ruling annulled the fines, it established the principle that journalists should obtain prosecutor's office permission to disclose pre-trial information.

Chief Justice Villu Kõve on Tuesday said that the matter should be revisited.


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Editor: Andrew Whyte

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