Opinion: Prosecutor General on criminal proceedings and public interest
A common criticism of the Estonian legal system, directly linked to the role of the Prosecutor General, is that the conviction rate is so high (ie. 99% of cases) that something is broken, and individuals can't feel any trust in the courts. This can even reach to the extent that in some cases people are reluctant to have anything to do with the legal system even when they have a legitimate grievance or could be pivotal in ensuring justice is done.
The current Prosecutor General, Lavly Perling, lays out how the legal system should work, especially in relation to the media, and covering three main themes: the truth, people and fair conduct of court proceedings. She starts with a look at how the role of Prosecutor General and its relations with the media developed in the early period of Estonian independence.
''Have you ever drawn lots, not knowing but guessing the cards? And when you find these cards within a story of the other, you have to choose either 'yes' or 'no' ''… These are the first lines of Kristiina Ehin's song ''A waltz of fate''.
Many prosecutors have experienced this very feeling when in the early 21st century, the Prosecutor's Office in Estonia became responsible for communication in pre-trial criminal proceedings. Having no idea how the media functions, and remembering anecdotes from the '90s, when the reporting of crimes to the public was actually a Police duty, suddenly, it had become paramount to decide which direction to take.
Major changes took place back when prosecutors started directing pre-trial proceedings. In that respect, the legislator predictably considered prosecutors to be a bridge between the operational police and the independent courts of justice, who fulfill an open state obligation and supply the public with information in such a way that ensures fair conduct of court proceedings.
First, the Prosecutor's Office had to think over what the available options were to communicate with the public and then, to find the most appropriate ones in the context of our legal system and society. Surely journalists here remember the time when we answered all questions primarily with one and the same statement 'we cannot provide any information for the purpose of criminal proceedings'.
A lot of water has since gone under the bridge. Not that we can claimed to have reached the highest level in communication with the public today, but at least we have defined the principles we need to rely on. This is quite a different question than how we can manage things in our day-to-day practice, but there are three clear rules for us: we have to tell the truth, we have to ensure fair conduct of court proceedings, and we have to protect all parties in proceedings.
Proceeding from the open state principle, the Prosecutor's Office is obliged to report issues of disclosure which are a justified right, interest and necessity of people. In our communication, we are guided by an objective to inspire trust between the Estonian people and the legal system. This is both a possibility and an obligation to assure the people that in hard times, when a crime has been committed, the state will come to the rescue.
Just a small part of our communication is undoubtedly aimed at spreading the word about who a prosecutor is, what the Prosecutor's Office's tasks are, and how and why prosecutors are doing their work in order to let young lawyers know and to make up their mind about entering the prosecutor's profession.
But on top of that, our role is also to make people who hesitate about reporting a known crime feel encouraged and confident to do so.
Nevertheless, these three key words are: the truth, people and fair conduct of court proceedings, so, let's have a closer look at them.
The state has to communicate with its people and to tell the truth. If whatever negative event engulfs the society (a murder, an accident, a corruption or a spying scandal), it will be regularly accompanied by criminal proceedings to find out what has happened, to collect evidence and to present this to the court for the purpose of justice.
However, criminal proceedings are typically a so-called by-product, since a society is not interested in criminal proceedings as such but in an event that has triggered the proceedings.
It must be taken into account that procedural acts of criminal proceedings do not occur in closed environments and prior to commencing procedural acts, a certain amount of people are usually already aware of the event's circumstances.
Thus, it happens for the Prosecutor's Office now and then unpleasantly rapidly when the media starts covering the issue because of an event, not criminal proceedings. In its turn, the media has to inform people if it is still safe to walk the streets after shooting, what consequences may a serious traffic accident have or if a high-level official suspected of a bribe could be still trusted.
Or otherwise. The fact that the Prosecutor's Office has not disclosed information about an issue does not mean the issue is not being covered. The Estonian press is free of prohibitions and constraints whatsoever. Other experts or outside parties just share, instead of the Prosecutor's Office, the information known to them in their own sight, and therefore the point is whether to let the issue go uncommented-upon by the state or whether to instead consider it obligatory for the state to tell the truth and to clarify the issue.
Fair conduct of court proceedings
Due to the obligation to tell the truth, the Prosecutor's Office tends to be somewhat economical with words while carrying out proceedings, since the truth is not yet known at the commencement of and during proceedings, and any incorrect information could bring discredit on the state. On top of that, in a state governed by the rule of law, a final decision has to be pronounced by court.
Besides an obligation to tell the truth, fair conduct of court proceedings is not less important in a state governed by the rule of law. Due to this precise reason, an obligation and a right to share information was imposed on prosecutors who cannot deem their job completed upon apprehension or bringing suspicion on any individuals.
A prosecutor must be capable of thinking far ahead and be sure about the wisdom of every bit of information shared so as not to damage criminal proceedings. Being in the public spotlight, a prosecutor is not speculating, assuming, nor assessing evidence nor convicting anybody prior to a court judgment.
The Prosecutor's Office is spreading the word through its prosecutors, who are responsible for what they are saying in terms of court proceedings. It is certainly possible to occasionally fault prosecutors for extreme and even ridiculous laconicism; however, this is often driven by a fear of damaging criminal proceedings.
Alongside an obligation to tell the truth and to ensure fair conduct of court proceedings, the third interrelated principle is an obligation to protect each party in proceedings. No matter how evident is the truth and how more or less disclosed information might damage criminal proceedings, it is inadmissible to break a person-oriented principle.
It does not matter that a shooter is known and that there are enough eye-witnesses, but if this refers to a minor, the Prosecutor's Office will not disclose the shooter's name through thick and thin of biting remarks.
In case of sexual offences, a victim's name must be never disclosed to the public.
Having undertaken the above obligations we expect from our partners that if a person dies as a result of an accident, the bereaved family must be the first to know it from authorised and competent people and certainly not from the media. People who get engaged in criminal proceedings and who fulfill their civil duty to the state by giving testimony, are entitled to privacy, protection of personal data and respect. These people and their personal data must be protected, even if it arouses resistance with the press.
Both an accused person and a suspect must be protected as well. It is natural that in their case, protection always means presumption of innocence and assessment of proportionality of public interest with due account for a specific person, a crime and a stage of proceedings. The observance of the above principles is evidenced by the outcomes of the respective court trials with no bad faith or lack of proportionality on the part of the Prosecutor's Office ascertained. Allowing forthe existence of some marginal cases in respect of which it may be reasonably questioned if it was indeed in the public interest to disclose some videos or pictures, nevertheless it can be still assured that commitments to guarantee presumption of innocence, to tell the truth and to conduct fair court proceedings have not been neglected.
It is natural that communication is accompanied by criticism. For example, I hear this question over and over again: "how is it possible and why should the Prosecutor's Office's truth be heard prior to a court judgement?" Or "why does the Prosecutor's Office reveal too much, thus violating the presumption of innocence, and how it is possible at all to guarantee fair conduct of court proceedings if all the information is disclosed in a press release''.
I put it another way: the Prosecutor's Office as a whole, and prosecutors in particular, abide by the aforementioned principles with a detailed analysis of each separate case. All too often, criticism is an emotion-driven evaluation of a situation in case of high public interests.
Do we make mistakes? Still, it is wrong to generalise on the basis of individual cases. Just a gentle reminder that every year, about 27,000 registered crimes are committed in Estonia, about 10,000 cases are pending and, as of today, there are 5,600 suspects in Estonia.
It's not uncommon to hear opinions that if things are so well with us, why then at times an adversarial procedure which comes within the courtroom, looks like having a start in the media as well. Just after disclosure of a case to the public. Go figure who is to blame?
The Prosecutor's Office is ready to partly admit its fault since when the media covers purely false and bad-faith manipulations and accusations, it is difficult to keep silent and not to have a say. Otherwise, the media consumer, who is shaping at that an opinion about the legal system, may think it to be correct.
If lies are constantly repeated that in Estonia there is a one percent rate of acquittal in judgements, that there is no rule of law, that everyone is observed and pursued everywhere and at any time and that the Prosecutor's Office hands out criminal files by the back door, then it will not take a lot of believing to believe it.
Believing the above leads to a collapse in confidence towards the state and to a situation when a domestic violence victim, an honest businessman or a witness of a corruption case may not recourse to the state out of mistrust and thus have no aid. Therefore, it is extremely important to continually clarify and explain the underlying reasons for the state's behaviour. Honestly, directly and with dignity.
The purpose of this article is not to somehow prove that communication related to criminal proceedings in Estonia is all well and good. However, we have no cause for unease in that respect when compared with the international context. It would merely be a shame to make such sweeping statements. By monitoring the international media developments, it becomes clear that Prosecutor's Offices elsewhere are reporting about proceedings in compliance with two Western principles: openness inherent to a democratic state and presumption of innocence. There is enough space for related public discussions in Estonia, yet, after all, a Prosecutor's Office "hot button" should not prevail over the reasons why the Prosecutor's Office is spreading the word: because someone has been murdered, an accident has taken place, public money has been stolen etc.
So, I would like to conclude again with Kristiina Ehin, whose song has been quoted above and which has the following lines suitable to sum up the expressed ideas: "It's rather 'yes' than 'no'.
Lavly Perling became Prosecutor General in October 2014 for a term of five years. She had previously been head of the Viru District Public Prosecutor's Office, the Chief Prosecutor of the Northern District Prosecutor's Office, and head of the the prosecution department of the Public Prosecutor's Office.
Editor: Andrew Whyte
Source: Office of the Prosecutor General