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Justice chancellor: MEP's concerns over penal code's constitutionality unfounded

Ülle Madise at the Riigikogu.
Ülle Madise at the Riigikogu. Source: Riigikogu Office.

The content and implementation of a section of the Estonian Penal Code relating to covert activities running counter to national interests does not conflict with the Constitution, Chancellor of Justice Ülle Madise says.

The justice chancellor made her recent remarks in response to an appeal from MEP Yana Toom.

Toom had cited § 234 (2) of the Penal Code, which provides for criminal liability relating to intelligence activities directed against the Republic of Estonia, or for support of the same.

Actions running counter to the security of the Republic of Estonia, in the understanding of § 234 (2) include the collection, storage, transmission, transfer, alteration or damage of information or items by a foreign intelligence or security officer, or by a person acting in the interest of same or on their behalf.

These are considered crimes, in the context of the penal code.

Yana Toom has been providing financial assistance by way of legal aid to several pro-Russian activists, some of whom have been deported from Estonia.

Chancellor of Justice Madise, in her reply to Toom, stated that: "Having familiarized myself with the arguments presented in your statement, relevant legal provisions and court rulings, I find that there is no basis for contesting the constitutionality of § 234 (2) of the Penal Code."

The Chancellor of Justice surmised that Toom essentially desires an assessment of the views expressed in a Supreme Court's decision in relation to § 234 (2) of the Penal Code.

Yana Toom. Source: Kairit Leibold/ERR

Madise reminded the MEP that, according to the Constitution, only a court can pass judgement, and that court must do so in accordance with the Constitution and all legislation.

"The competence of the office of chancellor of justice is determined by the Constitution and by the Chancellor of Justice Act. The law does not allow the chancellor of justice to supervise a court's substantive dispensation of justice, or to deal with matters pursuant to which a judgment has entered into force. Consequently, the chancellor of justice cannot evaluate court decisions," Madise went on.

The Supreme Court recently made a decision June 23, 2023 court decision in case No. 1 21-5633) which found that § 234 (2) does not disproportionately restrict the freedom of speech guaranteed by the constitution and does not contradict the principle of legal clarity, along with an explanation of its ruling.

Madise noted this, adding that national security carries with it such a weighty constitutional value that it provides a legitimate basis for limiting otherwise fundamental rights, even as this aim is not stated in a specific provision of the constitution, Madise said, paraphrasing the Supreme Court line.

Madise also said that § 234 (2) of the Penal Code does not criminalize the receiving of or collecting freely available information (including public information).

Only activities aimed at or supporting intelligence, ie. covert, activities counter to the integrity of the Republic of Estonia can constitute a crime in this understanding, Madise noted.

Analogues can be found in criminal law, Madise wrote, for instance with the gifting or lending of money, property or items.

While this is generally perfectly permissible, it becomes a crime, in this case bribery, when funds or property are given to an official, or such a gift is facilitated, with the aim of obtaining a desired benefit in return, in the official or professional sphere.

Yana Toom MEP had appealed to the Chancellor of Justice to establish whether § 234 (2) of the Penal Code and its implementation run in accordance with the Constitution.

Toom herself had found that an amendment to that section of the Penal Code on the part of the courts may be in conflict with the Constitution.

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Editor: Andrew Whyte, Urmet Kook

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