Supreme Court nullifies fine issued to diplomat over classified information

Clyde Kull.
Clyde Kull. Source: Anette Parksepp/ERR

The Supreme Court ruled Tuesday to annul a €400 fine imposed on former diplomat Clyde Kull, in respect of violations of the requirements relating to the safeguarding of classified state information, on the grounds that the alleged misdemeanor took place in Estonia's embassy in Paris, France. The embassy is not, the Supreme Court ruled, Estonian soil.

In May 2021, the Ministry of Foreign Affairs' diplomatic security department held an inspection of the Paris embassy in the course of which three classified documents were removed from Kull's office, at a time when he was still working as Estonia's Ambassador to France.

Kull was charged with breaching the safeguarding requirements in relation to the documents, dating at least back to August 2019, and in so doing generating the risk that their contents might become public or available to persons who did not have the necessary clearance.

The Internal Security Service (ISS) imposed the €400 fine on Kull in relation to this alleged violation of the requirements for safeguarding state secrets.

Kull contested this decision at court, but the first-tier county court did not overrule or amend the decision.

However, the Supreme Court's criminal panel on Tuesday decided to wind up the misdemeanor proceedings in relation to Kull, arguing that an Estonian embassy located in a foreign country is not Estonian territory, meaning a person cannot be punished for a misdemeanor under Estonian law if it was committed there.

The Supreme Court stressed that this principle applies only to misdemeanor offenses and not to more serious offenses – if an Estonian citizen commits a crime abroad, it is possible they can be held culpable under Estonian law also, in those cases.

At the same time, the Supreme Court found that the obligation to protect sensitive, classified and confidential state information is not confined to the territory of Estonia, and if an individual has clearance to access such information, he or she must fulfill the requirements for its protection, regardless of his or her location. 

While it is not always viable to act in respect to a violation of these requirements under criminal law, a violator can be held responsible, for example, via a disciplinary procedure, or his or her access clearance can be declared void.

Considering how crucial protecting state secrets and classified foreign information is, the Supreme Court said, there may still be a loophole in terms of penalization in the current law, hence why, according to the Supreme Court, the legislator could consider supplementing the Penal Code.

The ISS, known also by its Estonian acronym, Kapo, had also initially accused Kull of violating the requirements for preserving classified documents at his residence and had punished him with an additional €600 fine in respect of this.

However, the county court did opt to terminate these proceedings on the grounds of expediency, arguing that Kull's guilt in the matter had not been great, while there was no public interest relating to the proceedings, either.

This aspect of the county court's decision was not challenged by the Tartu-based Supreme Court.

In a written statement issued to ERR on Tuesday, Kull said that he was pleased with the Supreme Court decision which had gone in his favor and which ruled that the allegations regarding the violation of state secrets made against him in May 2021 were unfounded.

"However, it is worth noting that the Supreme Court did not address the main argument of my complaint. Namely, that the search of my locked office at the Paris embassy was carried out without any legal basis," Kull went on.


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Editor: Andrew Whyte, Alexander Krjukov

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