Norman Aas, who was prosecutor general 2005-2014 and is now a partner with law firm Sorainen, said that: "The mere fact that the Supreme Court is discussing this issue is certainly a very important precedent in Estonia legally and in the context of press freedom and criminal proceedings," referring to the case whereby two journalists with investigative publication Eesti Ekspress were fined €1,000 apiece after revealing pre-trial information in an article concerning alleged money laundering at Swedbank.

"After all, the [current] legal provision has been in force for almost 20 years, but it has never been discussed in the higher court in this form," he went on, referring to a section of the Penal Code which the prosecutor's office referred to earlier this week in relation to the case.

Aas said he is glad the prosecutor's office challenged the decision, noting that seniority is given to precedent, particularly with regard to criminal cases, when it results from Supreme Court decisions rather than from the lower courts.

A related issue is leaks from the prosecutor's office itself – the source of the recent and other pre-trial information which reached the media – and Aas said that during his time as prosecutor general at least, such leaks were a serious issue, particularly with regard to criminal proceedings.

The prosecutor's office most certainly has the right and duty to protect procedural data, he noted.

As to whether the expectation of more serious restrictions on the media is more widespread in the prosecutor's office, Aas said that such positions are generally formulated during collegial meetings, and these decisions certainly reflect a broader consensus in the prosecutor's office.

The prosecutor's office has, with the benefit of hindsight, changed its interpretation of the provision in the Penal Code over time, something which it undoubtedly has the right to do, he added.

"When I worked at the prosecutor's office myself, we did not see any scope for applying this provision to journalists, and in fact, if I'm not mistaken, in one of the previous cases, the prosecutor's office also stated a position that they do not have the competence to restrict the activities of journalists. But this was discussed by a lower court, and it is positive that it will get the attention of the top court," he went on.

The prosecutor's office had also complained about public broadcaster ERR reporting on its Supreme Court appeal on the matter, on Tuesday.

In this case, bureaucracy likely won out, Aas added.

"Since the request was stamped "for official use" yet it was now made public, the prosecution's reaction in this regard could only be that they disapprove of that happening," he said. 

The Supreme Court, however, should not be influenced unduly one way or another by the public and media discourse on the topic, he said, regardless of the arguments use."

The article in question was published in late March, while the first tier Harju County Court fined the two journalists, Tarmo Vahter and Sulev Vedler, along with Ekspress Meedia itself, €1,000 each.

The news that this had happened became public in May, just one day after Estonia had re-attained its place in the top five of the Reporters Without Borders (RSF) rankings, after around a decade's absence. This added poignancy to the heated debate about media freedoms which ensued.

Mid-June, the second tier Tallinn District Court annulled the fines, though left in place the principle of journalists and publications having to obtain permission from the prosecutor's office prior to disclosing pre-trial information, with arguments for doing so including that the public information could prejudice a case if, for instance, an individual was unaware they were a suspect in the investigation and case up until that point (the money laundering allegations referred to several former Swedbank managers).

Earlier this week, State Prosecutor Sigrid Nurm issued the request to the Supreme Court referenced above and asking the re-imposition of the fines.

FSA chief: State institutions should not be able to dictate to the press

Meanwhile, Kilvar Kessler, who is chief of the Financial Supervisory Authority (Finantsinspektsioon), said that the issue is with the source of the leak, and not the messenger, i.e. Ekspress Meedia and the two journalists, in this case.

 However, the focus of the furor has reached the point where they are trying to deal with the one party in society whose main task is to ensure transparency, i.e. the media.

Kessler concurred that Supreme Court precedent was on a par with legislation, and that it was inevitable that the court must now decide how to interpret the Penal Code on this matter exactly.

The fact that, one way or another, the matter will be settled once and for all, is a very positive thing, he added.

He said: "My own opinion, and not that of the FSA, is that we should not deal with the messenger, but with these two things: The source of the problem, i.e. the leaks of the material, and the norms of the law. If this brings an undesirable consequence in society, the law must also be revised."

"In the case of criminal cases, as an analogy, one should ask how the matter became public from that place."

"In one way or another, the decision of the Supreme Court is equivalent to such a revision of the law," he continued.

Kessler drew a parallel with his own organization – whose documentation is not normally made public but sometimes have been, arguably in some cases putting Estonia's financial soundness on the line.

Even then, however, journalists should not be dictated to on when and what to publish or not publish, during the course of a decision-making process, he said.

"It is one of the characteristics of a free society that neither the state nor its authorities can always control everything that gets published in the press," he said. "Why? Precisely to ensure the functioning of a free democratic society."

In the Eesti Ekspress case, Swedbank itself had announced to the Tallinn Stock Exchange the day before the story published that the prosecutor's office had several of the bank's managers under suspicion in relation to money laundering activities, while several former bankers had confirmed to the newspaper that they had been notified of their status as suspects, the paper says.

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

The relevant section of the Penal Code, § 214 (3), referred to by the prosecutor's office in fact mostly pertains to extortion.

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