While there may have been a violation of the law in Finance Minister Keit Pentus-Rosimannus' (Reform) nomination to the European Court of Auditors (ECA), the processes' legal correctness can only be verified by initiating criminal proceedings, writes Professor Jaan Ginter, legal scholar at the University of Tartu.
Ginter, a professor of criminology and former dean of the Faculty of Law at Tartu University, told ERR's radio news that: "We don't know much about the procedure [to nominate Pentus-Rosimannus] at the moment, but [a violation of the law] cannot be excluded, since the decision was clearly prepared at the Ministry of Finance."
"And since Pentus-Rosimannus is known as the Minister of Finance, it is possible that she was involved in this preparation of the decision. If she did take part in that preparation, then if you take a look at how the Supreme Court has interpreted the section [of the Estonian Penal Code] on the violation of the restriction of actions, then in such a case, it could really constitute a crime," Professor Ginter went on.
With reference to the fact that, according to the Minister of Finance, her participation was limited to submitting her resume, while the rest of the work was conducted by ministry officials, Ginter stated that if that was the case, then nothing directly criminal had transpired. "However, the problem is that we don't know exactly all the steps involved in the preparation of this decision," added the legal scholar.
When asked whether the finance minister's passivity, when she delayed in her search for candidates for the ECA position could also be seen as an attempt on her part to influence the process, Ginter replied: "Well, essentially there is nothing directly criminal in the fact that she was inactive. But if you look at the background to this, it also – clearly – indicates that she evidently wanted to be nominated, and since she wasn't looking for anyone else, to find out if there was a better candidate, it shows that there was interest there. But it doesn't mean that he influenced the preparation of this decision."
Criminal proceedings would clarify the situation
As to what should be done to clarify the situation, Ginter suggested the initiation of a criminal case.
"From a purely formal legal point of view, the best thing would be for the prosecutor's office to initiate a criminal case and, within the framework of this criminal case, question all the officials at the Ministry of Finance who were involved in the preparation of this decision."
"If clear answers are received as to whose orders they were following in carrying out this action or the other, and if none of those orders came from the Minister of Finance – which must include the qualification that if someone else did give the order, that had not been at the Minister of Finance's behest, to start dealing with it, then we can rest assured that no crime has taken place," Ginter continued.
"There is no other option by which we could arrive at the conviction that no official had been given any instructions, either by Pentus-Rosimannus herself, or by any individual she supervises, for the preparation of this proposal. There is no other way to rule out that there had been such involvement," the professor continued.
Ginter conceded that the initiation of criminal proceedings has a self-incriminatory effect on Estonian society, but he emphasized that proceedings would not be initiated against Pentus-Rosimannus, but instead in respect of the incident as it took place, in order to ascertain whether or not there could have been anything criminal within the nomination process.
"Nonetheless, it is clear that this would have a clearly negative effect on Keit Pentus-Rosimannus as regard public opinion," Ginter went on.
Just over a week ago, the government approved Pentus-Rosimannus as next Estonian representative at the ECA, replacing Juhan Parts, whose term ends on December 31.
Reform and the Social Democrats endorsed the finance minister's nomination; Isamaa opposed it.
Over the next few days two former state prosecutors, Steven Hristo Evestus and Norman Aas both questioned the validity of the process which had led to Pentus-Rosimannus' nomination, specifically the extent to which she had been involved in her own nomination.
A fissure between two different pieces of legislation means that while a minister, or any other official, cannot nominate themselves for a post, the ECA representative nominee must be submitted by the finance minister.
A workaround whereby Rural Affairs Minister Urmas Kruuse (Reform) nominated Pentus-Rosimannus in her stead, while standard practice at face value – ministers deputize for one another when the incumbent is away for any reason, as Pentus-Rosimannus was, at an EU finance ministers' meeting, at the time – has not absolved her of involvement in the former prosecutors' opinions.
The sitting State Proscecutor, Andres Parmas, was unavailable for comment on the matter, while a representative of his office refrained from expressing a formulated stance on the issue when quizzed by ERR.
State Secretary Taimar Peterkop and Auditor General Janar Holm have both publicly stated that nothing untoward took place in the nomination process, from a procedural or regulations perspective, while any political aspects to the episode are beyond their remit to comment on.
Center Party leader and Riigikogu Speaker Jüri Ratas has said that Reform had made his party aware of their desire that Pentus-Rosimannus take the ECA post, back when the two parties were in office together (January 2021-June 2022).
Reform MEP Andrus Ansip has said that Isamaa is holding out as it wishes to retain the ECA position for one of its own (Juhan Parts is an Isamaa member).
Editor: Andrew Whyte, Mait Ots