Parmas: Procedural restrictions as gauge of the trustworthiness of power

Prosecutor General Andres Parmas.
Prosecutor General Andres Parmas. Source: Prosecutor's Office.

The offense of breaching a procedural restriction has met with criticism over its alleged nebulousness, alongside fears of serious and fundamental issues in applying the law, writes Prosecutor General Andres Parmas.

Violating a procedural restriction (Estonian: Toimingupiirang) could potentially cover a broad range of activities;* indeed drilling down to a clearer definition forms a part of Parmas' piece, but essentially involve conflicts of interest in officialdom, for instance if a local council deputy owns a street cleaning servicing firm which then runs to win the tender for providing said services in the same municipality.

In some cases, Parmas argues, critics have proposed abolishing wholesale the criminal element of violation of restraining orders. If we take a closer look at these statements, however – that procedural restrictions violations are legally unclear or the application of the criminal aspect is problematic, it transpires that such claims are exaggerated greatly, or are even wholly false.

Agreeing with proposals to completely abolish the offense of violation of a procedural restriction is not viable. The purpose of criminalizing such infringements, in that they represent a worrying manifestation of corruption, give the lie to this. Corruption equates to using a position for personal gain. Traditionally, this has been primarily understood as the taking, giving or facilitation of bribes. However, corruption is far more hydra-headed than simple bribery.

Unfortunately, down the years, corruption activities have become more and more concealed, less blatantly superficial, and as a result, harder to identify or prove. 

The corrupt, and their legal advisors, are not fools, and no one steals in order to get caught. Simply hoping that someone might be caught in the act of taking a cash-stuffed brown paper envelope is clearly an inadequate approach to halting corruption.

In the event of a violation of procedural restrictions, what has happened is that an official has made a decision or action which is favorable in respect of themselves or an individual related to them in some way. 

This behavior advances private interests at the expense of all of us, violates principles of fair competition, threatens economic development, the income earned by society and also national security. 

The purpose of criminalizing violations of procedural restrictions is therefore not to set up bureaucratic barriers hindering the day-to-day work of those engaged in working in the public interest, but to prevent any unfair advantage at the expense of the public purse, even in cases where a corrupt act is even more concealed or complex than a classic bribe might be.

Proponents of the removal of procedural restrictions have overlooked the fact that there has been no significant legal confusion or stalemate relating to the application of the offense of violating these procedural restrictions. 

Since the establishment of the composition [of procedural restrictions], there has been a consistent attempt to scare people with hypothetical scenarios of how, for example, a doctor who treats people, or a teacher who teaches, may face "inhumane" persecution. Furthermore, according to these fears the threat of punishment hangs over the head of every official in case where they have unknowingly made an action or decision favoring a company which a relative owns a small share of.

However, situations like these have not existed in actuality; they have remained extant only as theoretical discussions. Given the abstract nature of legal regulations, theoretical "honey traps" are possible with any regulation, but they have no connection with real life. If someone gets bombarded with stories of the punishing hand of the state lurking around every corner, one should first discuss why tales like these have received air time in the first place. Is the alleged difficulty in understanding the violation of the procedural restriction really at the heart of so many cases, or do those who talk about it have other, ulterior motives? Maybe someone is setting up a defense tactic for a specific case? Or attempting to get rid of an awkward offense?

The regulation of procedural restrictions affects many people in Estonia, since tens of thousands of people perform official public duties in their course of work, but in any case virtually all Estonian residents may encounter or contribute to a violation of activity restrictions. At the same time, over the past five years, there have been 51 such felony cases plus 26 misdemeanor offenses – hardly state persecution of an apocalyptic kind.

Violations of procedural restrictions make up less than a fifth of all corruption crimes, according to the data taken from recent years. For example, in 2022, 165 crimes of corruption were reported, of which 13 represented violations of the procedural restriction, compared with 108 bribery-related crimes over the same period.

Do a dozen reported crimes per year really indicate that every public official ought to be afraid of being under criminal investigation?

There have also been repeated accusations seen to the effect that criminal proceedings relating to procedural restrictions are poor in quality and that the cases are weak and uncertain. 

However, the crime statistics do not bear out such assessments. According to the Ministry of Justice, over the past five years, the Prosecutor's Office has brought charges of violation on procedural restrictions in about 30 criminal cases, of which 25 cases resulted in a court meting out a guilty verdict. In only five cases – or approximately 15 percent – have the accused been fully acquitted. It is true that here, too, one could split hairs, if one so desired, because this percentage of acquittals is significantly higher than the average of of all crimes examined in general proceedings (where the rate of acquittal stands at 7 percent).

However, it needs to be taken into account that corruption crimes are by their very nature concealed and conspiratorial, so there is often no direct evidence of them to hand.

It is natural in a rule of law system that a court resolves in favor of the accused all doubts which the Prosecutor's Office has not been able to completely eliminate during the court proceedings.  This means a state with a balanced legal system will never achieve a 100 percent conviction rate via adversarial court proceedings, because the court makes the judgment.

In three of the five fully acquitted decisions mentioned above, the crime was not, in the court's opinion, proven. In one case, the court was of the opinion that, in addition to a lack of evidence, there was no risk of corruption inherent in the acts in question, while in one case there was a dispute over the definition of what constitutes an official. 

Undoubtedly, the last two acquitted cases are instructive for both the police and the Prosecutor's Office, in understanding how to assess the circumstances more adequately in the future, when criminal proceedings are initiated or charges are filed later. However, it is not viable to draw a general conclusion about poor practice just based on these two individual cases. Jurisprudence does not in any way confirm the charge that accusations are made frequently, and that guilty decisions are not usually made as a result of these accusations.

The ambiguity of the concept of a related person, i.e. one who can still be considered a person related to the official, has also been pointed out as a problem in the discussion of the violation of the procedural restriction. For example, it has been argued that the original intention of the legislator was to consider only blood relatives and those involved in joint business ventures. 

However, the 2012 explanatory memorandum attached to the Anti-corruption Act is convincing that even then natural and legal persons, whose condition or activity significantly and directly affects the official, or vice versa, were considered related persons even at that time, since, even in the latter case, it cannot be easy to disburse one's official duties impartially. 

Influence is not defined in the law. But the law provides for, in addition to economic dependence, which according to the authors of the draft viable, inter alia, in the relationships involving a landlord or an employer, as well as, for example, an incomplete obligation under to the Law of Obligations Act - which can also constitute a debt of honor.

The court also analyzed the concept of a related person in the context of a 2021 decision of the Tartu Circuit Court (1-19-6293), in which it thoroughly outlined which connections indicate that persons are related, in a legal sense.

 In its ruling, the court's criminal division found that, while the anti-corruption statute is highly abstract in relation to substantial and direct influence, it does not cross a threshold that would run counter to the Constitution. 

The court also stated that the spheres of life related to the performance of public duties are complex and highly multifaceted, meaning that when evaluating the difference between what is permissible and impermissible behavior, one must keep in mind the legislator's desire to avoid an action against a person related to them.

A discussion on how to make the provisions for violation of the action restriction clearer, and also how to be proactive about possible hypothetical problems, would thus be very welcome. The Ministry of Justice has received proposals to amend the anti-corruption law, from both the Prosecutor's Office and from others who run into this issue, where solutions have been proposed to create clarity, also in relation to procedural restrictions.

The Anti-corruption Act should be supplemented with the position already expressed in judicial practice, whereby the interest affecting an official must be significant. In such cases, it would be clear that any private interest does not constitute a violation of the procedural restriction per se; only an interest with a decisive meaning would do so. For instance, if an official arranges for a cycle lane to be repaired and, in addition to the desire to develop cycle traffic in the city, he or she would also personally feel good about riding his or her bike on this lane, this would certainly not constitute a violation of the procedural restriction.

Consideration of whether it is necessary whatsoever to implement the violation of a procedural restriction via other threats of corruption is also required. Thus far, a procedural restriction has never been incorporated solely with reference to this provision. For the sake of legal clarity, only some other threat of corruption could be deleted from the law. It is precisely such very broad-based definitions which engender fear and uncertainty as to which cases are certainly those to which procedural restrictions apply. 

Ultimately, it is important to debunk one more misconception one can find via the media. This is that, among the amendments to the anti-corruption law planned by the Ministry of Justice, there is not a single proposal that, based on the principle of the retroactive force of a lighter punishment, could in any way affect the cases relating to procedural restrictions which are currently under preliminary investigation or are already being discussed in court.

Furthermore, even at the level of theoretical mind games, on the basis of such amendments, none of the cases of violation of the procedural limitations that have reached a guilty verdict in recent years could have found a different solution. The implementation of the state's criminal policy within the framework of the criminal offense of violating procedural restrictions stands with two feet planted firmly on the ground, and takes into account societal expectations.


*Transparency Estonia (Korruptsioonivaba Eesti) has several examples of cases which might be seen as a conflict of interest, in other words a violation of procedural restrictions. Readers can decide for themselves whether the following cases would, based on current statute law, infringe procedural restrictions, or not (the split is roughly 50:50 between those which do and those which don't) and check their answers on the Transparency Estonia site here.

- A bailiff sells the assets of debtors to his or her close relatives.

- A rural municipality mayor's son-in-law participates in a procurement organized by the same rural municipality.

- An official belonging to a grant scheme's lead committee participates in a project's implementation.

- A management board member of a municipal-owned company leases a car from his or her spouse's father, on behalf of the company.

- A city council member participates in a bidding for the lowest price.

Editor: Andrew Whyte, Mirjam Mäekivi

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