The Supreme Court of Estonia has repeatedly said that just because some evidence was obtained by bending procedural rules it does not mean that it should be simply discarded. Maybe the offence was minor or the crime very serious, maybe the evidence would have been on file even if no rules had been broken – there are a lot of different factors to take into account.

However, when it comes to the use of communications data collected at the behest of the state, there is no room for maneuver. In the summer of 2021, the Supreme Court recalled a European Court of Justice ruling from a year earlier, which said that an order of this type to collect data was wrong in principle.

Therefore, the Supreme Court also announced that, as of October 7, 2020, the use of such data should be considered a deliberate and substantial interference with privacy. This means that it cannot be used as evidence in criminal proceedings.

Erkki Hirsnik, president of the Criminal Chamber of the Tartu District Court, said there was nothing revolutionary about the decision to ban the use of communications data in the case of Priit Humala and Parvel Pruunsild. "There was no other way in which this decision could have been taken," said Hirsnik.

Communications data planned to be used in dozens of criminal cases

For the prosecution, however, the district court's decision was an important wake-up call. Since mid-September, they have stopped asking communications companies for data, and the results of the move are already being seen.

On the morning of September 20, some car owners in Tartu discovered that their vehicles had disappeared overnight. A couple of weeks earlier, communications companies would have been approached to find out which phones were in the area at critical moments. However, on this occasion, the thieves' electronic tracks may have been lost completely.

But this is only part of the problem. After the 2021 ruling, the use of communications data in criminal proceedings has declined significantly, and in many cases the data requested is used purely for background work. Nevertheless, in many cases, it is still important evidence.

"I would guess that there are a few dozen or so cases where the data from a communications company has been formalized into a record," said Chief State Prosecutor Taavi Pern. "We have between 70 and 80 criminal cases a year in which a protocol of the data from the telecoms operator is part of the evidence."

The question now facing the Prosecutor's Office is whether it is still worth going to court with this type of evidence, or whether it needs to think again in ongoing proceedings.

"In the current situation, if the prosecution is going to use communications data somewhere, I don't see any way that this evidence can be relied on," said Erkki Hirsnik. "In my estimation, at the moment, this margin of appreciation has been reduced to zero. It cannot be used," he reiterated.

Pern: We have only used data collected for commercial purposes

However, Taavi Pern said that discussions within the Prosecutor's Office were still ongoing. This does not mean that the prosecution is unable to interpret the Supreme Court's ruling. On the contrary, Pern said that the type of data that the state orders telecoms operators to keep for a year has not been requested by the prosecution since June 2021.

"I can't confirm that we have asked for the data on the basis of the provision you cite," Pern said. "We have indicated in our own requests that we would like to obtain from the operators data retained for commercial purposes."

In other words, the Electronic Communications Act outlines a long list of data, ranging from which mast coverage area each phone in Estonia is connected to, to who called whom and for how long. The law also states that communications companies must retain this data for a year. However, Pern confirmed that the Prosecutor's Office has not relied on this list for over three years.

"We have used this data in good faith that if we have requested data to be kept for commercial purposes and our request has been answered, then that's what it is," Pern reiterated.

"I think it's kind of a smoke-screening exercise, because the communications service providers will still give out all the data that they have," Parvel Pruunsild's defense lawyer, Paul Keres, said in response.

Remarkably, according to Pern, the prosecution has never failed with its requests for data. In other words, it has never been the case that when the Prosecutor's Office asks for nine months of call logs from a phone, the communications company replies that they have only kept three months for commercial purposes. The same goes for location data. Everything requested has always been obtained. This gives the impression that telecoms companies would have at least as large a database of their users without state coercion.

Scheme devised with help of Riigikogu's Legal Affairs Committee

The means of obtaining communications data described by Pern is not an invention of the prosecution. In fact, it was already recognized in 2021 that the Supreme Court's ruling would jeopardize a whole series of ongoing and future criminal proceedings.

The law was thus amended only to the extent that, in the future, permission from the court had to obtained in order to request the data. However, there was nothing to be done regarding the illegal collection of data.

That is why, at the last minute, the Riigikogu's Legal Affairs Committee wrote into the explanatory memorandum of the draft law that in future only data held by the telecoms operator, irrespective of the obligation imposed by law, could be requested. Why this was not written into the law remains unclear.

So for years, the Prosecutor's Office walked a narrow line created by the explanatory memorandum, until the Pruunsild-Humala case overturned it.

Pern confirmed that even when appealing the recent district court ruling, the prosecution tried to emphasize that the data requested as evidence had not been stored illegally, but had been kept by the company of its own free will. The Supreme Court upheld the district court's decision.

"We don't really know what the reason was for the dismissal of this appeal against the order," said Pern. "Whether it was an unequivocal disagreement with the district court or simply a failure to recognize the need for it, we don't know."

Communications data still likely to come into court as evidence

Therefore, Pern believes that for criminal cases that are still pending, it is not necessary to exclude all communications data that has already been formalized into evidence.

"This is an issue that has already been addressed to the prosecution leadership and we will certainly take a position on it," he said, adding that each case will most likely be considered according to its own merits.

Pern pointed out that in some cases, communications data is just one piece of evidence among many. "There we may be able to say that in fact the same information is repeatable or reproducible on the basis of other evidence. There are certainly proceedings however, where the request for communications data has been vital," he added.

So, there is still a lot more to be heard in court about communications data. "Since we don't really have such a clear case law of the Supreme Court for this situation, I wouldn't rule out the fact that it is expedient to let the courts assess the situation and put in their own code of conduct in place in the Prosecutor's Office following a black and white assessment of it by the courts," Pern said.

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