Estonian ministry not planning to restrict use of communications data

  • 2021-05-04
  • BNS/TBT Staff

TALLINN - The right to grant requests for the use of communications data criminal proceeding will be transferred from the prosecutor's office to courts, according to a bill recently finalized in the Ministry of Justice; however, the draft legislation does not limit the list of criminal offenses in  case of which doing so is permitted, Postimees reports. 

At the start of March, the European Court of Justice decided that the prosecutor's office is not an independent authority and as such should not be permitted to grant authorizations for retrieving communications data. While such permissions are at present granted by the prosecutor's office, the  right will be transferred to courts when the bill of amendments steps into effect. Communications companies must preserve said data for one year.

"The bill only concerns which body grants this authorization. The solution would be to only enable courts to grant permission for using communications data in Estonia," Minister of Justice Maris Lauri said.

The bill by the Ministry of Justice does not limit the list of criminal offenses in relation to which mobile data can be retrieved. The law will only be amended to include a section according to which the severity of the crime and breach of personal rights must be taken into consideration when granting said permission. The section does not specify the level of severity of the crimes or elaborate on what constitutes an impermissible breach of fundamental rights. 

The case in which a preliminary ruling was sought by the Estonian Supreme Court from the European Court of Justice, however, concerned a minor theft in which the police had collected evidence using mobile data on an offender who had caused some 4,000 euros' worth of damages.

Lauri said that the Ministry of Justice will await the Supreme Court decision in the said case, which should be delivered in May.

"We cannot categorize some people as terrorists whose communications data we collect and others as non-terrorists whose data is not collected," Lauri said. 

"The rulings by the European Court of Justice are not clear, they are inconsistent, which is why the bill does not list the criminal offenses in relation to which requesting communications data is permitted," she added.

Chairman of the Estonian Bar Association Jaanus Tehver told Postimees that according to the decision of the European Court of Justice, Estonia is subject to the obligation of defining by law proceedings in which seeking access to communications data is permitted. He opined that the wording of the bill is not sufficient for protecting people's fundamental rights.

The bill also says that all mobile positioning data collected under the currently valid law is legitimate and can be used for prosecution in court.

Chairman of the legal affairs committee of the Estonian parliament Jaanus Karilaid said that the committee would discuss the matter with Lauri, Prosecutor General Andres Parmas and lawyers on Tuesday. 

"The rights of the prosecutor's office are being reduced and the role of courts is increasing, in this regard the bill is headed in the right direction," Karilaid said. "At present, no one is happy with the situation, perhaps just the prosecutor's office, the powers of which are overly extensive. We are now seeking a better balance of powers, particularly in the light of the decision of the European Court of Justice."

"The prosecutor's office currently grants close to 3,000 permissions each year for the use of communications data. Preliminary investigation judges handle some 4,000 cases per year, which means that their volume of work will nearly double. By way of exception, the prosecutor's office will continuously be able to grant said permissions also in the future; however, in such cases the authorizations must subsequently be approved by the court.