Last week during the 38th Estonian Lawyers' Days, well-known and influential lawyers debated in Tartu over how the ISS utilizes the collection of information in criminal proceedings.

The panel included former ISS Director General Arnold Sinisalu, Chief State Prosecutor Taavi Pern, attorney Oliver Nääs as well as former Supreme Court Justice Eerik Kergandberg.

"Perhaps security is a fundamental right or value that outweighs the protection of other fundamental rights?" asked moderator Tambet Grauberg, a judge at Pärnu County Court.

In order to ensure Estonia's national security, the ISS can secretly gather info as part of the collection of information by means of wire-tapping and other surveillance methods. Authorization for the collection of information is granted by the chair of Tallinn Administrative Court. If the information gathered in the process is to be used as evidence in a criminal case, this may only be done by decision of the prosecutor general.

Collection of information played a significant role in the Port of Tallinn executives corruption case, for example.

"If we start talking like this about how security is greater, and it breaks boundaries, crosses the line, we're going to find ourselves in dire straits," said Kergandberg. He believes that all surveillance violates people's fundamental rights.

 The former Supreme Court justice explained that in a criminal case, information gathered through surveillance may only be used as evidence in court if everything has been done legally. When it comes to information gathered through the ISS' collection of information, no such regulation exists.

He expressed concern that the court doesn't verify compliance with the law, noting that "It has no such requirement."

The fact that the Supreme Court has not found any shortcomings in the regulation of the collection of information doesn't mean that this issue doesn't exist, Kergandberg continued.

"The Supreme Court and Supreme Court justices are also human – a bit lazy," he acknowledged. "This means that of course they don't address all the problems that should be addressed."

Attorney Oliver Nääs agreed that the collection of information and surveillance should be more precisely defined, and highlighted the problems with utilizing the collection of information in criminal proceedings.

"When information is collected in the course of a criminal proceeding, when preparing your defense, you get access to everything that's been collected," he explained. "Not just what's put in the case file – you can go and review all of the information."

Former ISS chief: Security and freedom not incompatible

If the information collected is classified as a state secret, to which certain exceptions apply, then this information is not disclosed to the defense. Nääs says this is a major problem.

"There is certain raw data regarding which the defense cannot issue a statement but which may prove decisive in resolving the matter of a person's guilt," he stressed.

Chief State Prosecutor Taavi Pern responded that such a situation hasn't come up before.

"I really cannot recall a case where a defense attorney has come and said they want to collect additional evidence, that 'I want to hear what other [wiretapped] calls you have,'" he noted. "There may be five calls that exonerate someone."

Nääs, however, said that this situation never having come up before doesn't mean that it won't in the future. He called for legislation to more clearly stipulate when gathering info under the collection of information must be terminated and when the transition should occur to criminal proceedings.

ISS ex-chief Arnold Sinisalu did not agree with either Kergandberg or Nääs' views.

"I understand how crucial human rights are, but sorry, as a former head of a security authority, I have no tears left for those who have voluntarily chosen to work together with Russian special services," he remarked.

Sinisalu explained that the purpose of the collection of information is crime prevention – that Estonia's security authorities stop crimes before they are committed.

"Security and freedom, justice and safety are not incompatible with one another," he said. "I believe they're inextricably linked."

The ex-ISS chief likewise pointed out that the collection of information isn't utilized as much as people might think, noting that in the last 15 years, there have only been some 30 cases where the ISS' collection of information has been used as evidence in criminal proceedings.

Most of these cases have involved various crimes against the state, along with one terrorism and a couple of corruption cases. According to Sinisalu, utilizing info gathered via the collection of information in criminal proceedings is "torture" for investigative authorities.

Pern described how Estonia's prosecutor general carefully considers whether the collection of information is absolutely necessary for a criminal proceeding, and whether the same information could be obtained some other way.

He said he has seen info gathered via the collection of information that would have been extremely difficult to obtain by any other means in the course of an initiated criminal proceeding because the events in question had already taken place. "It's just impossible for this info to reappear," he stressed.

"I wouldn't rule out the prosecutor general possibly looking at info gathered under the collection of information and then saying, 'Let's launch a criminal investigation, but let's gather the evidence some other way,'" the chief state prosecutor acknowledged.

Even so, Kergandberg and Nääs remained of the opinion that the use of information collections needs to be more clearly regulated by law.

One option could be that if questions about the collection of information arise as a criminal case is being debated, then the prosecutor general could personally answer them in court.

"I don't think security authorities are really afraid of the scrutiny and regulations," Sinisalu commented, adding that it just needs to be done calmly and in a balanced way.

"But one should start to be afraid if a politician who has also spoken a little about this comes up with an initiative to remove certain restrictions from security authorities laws about how the collection of information must not harm people's lives, health, property or environment," he warned. "Let's get together then. Let's get regulating."

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