Kari Käsper, Marianne Meiorg
2011 brought on several important changes in the right to respect for one’s private and family life, home and correspondence. However, most of these developments have not yet reached the final stages. Several of the draft acts that were initiated may change substantially before Riigikogu will approve them. Most significant change occurred in the field of surveillance activities. In 2011 a new regulation significantly amending the current rules was adopted, the act amending the new regulation which postponed the date of entry into force of the act was adopted and the act amending the act that amends the new regulation was initiated, as it was decided that the regulation passed in the beginning of 2011 had not been in consistence with the Constitution. The draft act enabling sexual offenders to receive treatment as an alternative to a portion of their imprisonment and the draft act specifying the regulation of short and long term visiting of prisoners had a less complicated history. In addition to the amendments that have already been initiated, it was found as a result of the analysis of the Data Protection Inspectorate that the act needs specifying and that the Data Protection Inspectorate’s independence needs a more firm basis.
Political and legislative developments
Probably the most discussed topic in 2011 was the amendment of the regulation on surveillance activities. Updating of this regulation began a few years ago and on 17 February 2011 Riigikogu finally passed the act amending the Code of Criminal Procedure and other acts. As is always the case with extensive amendments to acts of law, the purpose of the amendments was to generally tidy and to modernise the system of surveillance activities. Surveillance Act was dissolved and everything to do with surveillance activities was gathered into a single act – the Code of Criminal Procedure. Previously the provisions on surveillance activities had been divided between the Surveillance Act (surveillance activities carried out outside of criminal procedures) and the Code of Criminal Procedure (surveillance activities carried out for the purpose of gathering evidence in a criminal procedure). The amendments primarily intended the regulation to be updated and specified. The amendments were widely criticised, among others by the Chancellor of Justice; and the Ministry of Justice formed a working group which initiated a thorough analysis of the regulation of surveillance activities.
On June 2nd Riigikogu decided to initiate the new amendment of the regulation in order to bring it into accordance with the Constitution, primarily based on the proposals of the Chancellor of Justice. The amendment that was passed in the beginning of 2011 was to come into force on 1 January 2012, but as it became clear that an improved version would not be ready by that time,  Riigikogu passed an act on 8 December 2011 deferring the date of coming into force of the act – until 1 January 2013. At the same time the Ministry of Justice prepared a new draft act amending the acts and in the beginning of 2012, on February 2nd the government approved of this version.
Surveillance activities present one of the most intense breaches of human rights as they have a direct effect on the person’s dignity. In a situation where the person is under surveillance and not notified of it he becomes an “object of the authority of the state” and is completely defenceless against “violations committed against him”. In addition to dignity, which is the basis of all human rights and freedoms, the surveillance activities also have a direct contact with the right to inviolability of private life (Constitution § 26), inviolability of home (Constitution § 33) and to confidentiality of messages (Constitution § 43). From the point of view of European Court of Human Rights (ECHR) any surveillance activity is permitted “only insofar as it is necessary for the protection of democratic institutions”. The state has to set up a guarantee system, which would preclude misuse of powers and arbitrary action upon initiating and during the surveillance activities. ECHR has emphasised on several instances how important a clear and particularly specific regulation on surveillance activities is. Danger of state’s arbitrary action in such a covertly carried out activity is obvious.
An accurate and unequivocal regulation provides the necessary information about the cases when state authority may carry out surveillance activities. The practice of ECHR sets minimal requirements, which would have to be guaranteed in a national regulation. There must be provisions on:
- the circle of persons and the catalogue of offences, which warrant initiation and carrying out of surveillance activities – it has to be a serious crime,
- requirement of a suspicion of a specific substantiated crime – gathering information of a general nature is not allowed,
- ultima ratio as a preclusion for initiating surveillance activities, which means that combating a criminal offence or finding out the truth is not possible in any other way – the requirement of necessity is even more important than formal bases for initiating the surveillance activity, because if necessity cannot be proved, even the existence of the formal basis may render surveillance activities unlawful,
- time limit and stringent procedural requirements, including about compiling protocols, forwarding, use and storing information, precautions to be taken, and destroying records, especially in cases where charges have been dropped or the person has been acquitted,
- independent and efficient monitoring of activities of the executive power at the stage of giving the license for surveillance activities as well as during the activities and completion of the activities.
Independent and efficient monitoring plays an essential role in carrying out surveillance activities and preventing possible arbitrary actions of state authority. If in other cases it is enough to grant the person the right to turn to court then in case of surveillance activities it isn’t enough as the person may not be aware that his or her rights are being breached and therefore cannot take any steps to protect him or herself. Therefore ,the monitoring should take place in initiating phases and during the surveillance activity without the person’s knowledge. The ECHR has considered the combined effect of various monitoring systems during the surveillance activities to be important, including the “inclusion and monitoring carried out by the police monitoring commission, the Chancellor of Justice, the parliament’s ombudsman and the legal affairs committee of the parliament.” The emphasis is usually placed on the monitoring by the court at the last stage of surveillance activities when the surveillance has been concluded and the person has been notified of it. Yet it has been emphasised in specialist literature that there is also a need for an authorisation of a court upon initiating the surveillance activities.
The current regulation as well as the regulation proposed as draft act both emphasise the principle of necessity upon planning the surveillance activities. At the same time, the formal basis for carrying out surveillance activities has received some criticism. Possibly the most scandalous aspect about the new draft act is that the query of ownership and the itemized calls overview from the communications companies has been omitted from the list altogether and is therefore outside procedural guarantees that have been placed on surveillance activities. The catalogue of crimes that allows initiation of surveillance activities has also been criticised. Even though the draft act under discussion at the moment has shortened the list in comparison to the earlier version Estonian Bar Association still insists that the catalogues contains “necessary elements of a criminal offence which gathering evidence about through surveillance activities are not justified.” Dispute was caused by the fact that the surveillance activities may be carried out “about preparation of a crime”; the Supreme Court found that the list should be restricted to only those offences where preparation itself is punishable. The Ministry of Justice found that the surveillance activities should be allowed also when the preparation is not an offence and if “the purpose is to gather additional information, which would later enable starting criminal proceedings.” Also the circle of persons who the surveillance activities may be initiated about, has come under serious criticism. The current version of the draft act enables surveillance activities about persons other than suspects and victims who do not have anything to do with the particular criminal proceedings.
In addition to several problems in regulation regarding monitoring, including the possibility of using one surveillance activity’s results in several criminal proceedings, the greatest problem was said to be the limited nature of monitoring and the judicial control. The Estonian Bar Association praised the improvement of judicial control in the stage of granting permission for surveillance activities. On the other hand, the requirement of authorisation of the Prosecutor’s office upon initiating the surveillance activities, whereas all other activities require court’s authorisation, was regarded as unfounded. The Supreme Court criticised monitoring over surveillance activities saying that the planned emphasis on Prosecutor’s office will bring about “too great a concentration of authority” to the executive power and that might not be in accordance with the principle of separation of powers. The Ministry of Justice replied to the Bar Association’s criticism saying that the ministry did not see a problem, however, the criticism from the Supreme Court received no substantial reply at all. The greatest attention has been afforded to monitoring after the surveillance activities have been carried out.
The proceedings of the Chancellor of Justice, which was one of the reasons the already adopted amendment was reconfigured, centred primarily on the monitoring in the post surveillance activities phase. The Chancellor of Justice was particularly worried about the faulty regulation on non-notification of the surveillance activities. Since notifying the person of the surveillance activities when they have ended is the prerequisite for judicial a posteriori monitoring – the person can only turn to court if he is aware of the fact his rights may have been infringed – this nuance is one of the most important about regulation on surveillance activities. One of the most problematic aspects in this field is monitoring over non-notification of the surveillance activities. The new draft act has significantly improved on monitoring over non-notification of surveillance activities as it has in addition to the initial control of the Prosecutor’s office also been made subject to the final control of the court. Theoretically it is still possible to conceal the surveillance activity from the person indefinitely, which still poses a problem in the opinion of the bar association and the Chancellor of Justice.
The new draft act has been approved by the government, but it is yet to go through Riigikogu proceedings. It may still change significantly and it is impossible to predict in which incarnation or if at all it will be passed. Therefore, a more particular assessment about the current regulation (as it is about to be amended) as well as the forthcoming amendments (as it is not yet known which incarnation will be passed) should be refrained from at the moment. However, the processing of the draft act should be kept an eye on as it is a regulation, which affects particularly intimate aspects of persons’ lives.
Similarly, the draft act concerns extremely delicate aspects, which propose treatment (the so-called chemical castration) as an alternative for a part of imprisonment of sexual offenders. According to the explanatory memorandum the draft act is based on the analysis compiled in 2009, which explores various treatment options and the international practice. It is a new draft act, which was approved by the government on 2 February 2012 and similarly to regulation on surveillance activities may significantly change during the course of Riigikogu proceedings. It can still be considered a positive development. Turning to treatment depends directly of the agreement of the person, but unlike the earlier arrangement is compensated for by the state. The amendment assures that the person is not just punished, but that his or her disability is actively dealt with, thereby increasing the possibility that he or she will be able to control his/her disability upon release and integrate into society. From the point of view of inviolability of private life the proceedings, which result in the person being referred to treatment and distinctly voluntary nature of treatment are crucial, as the result of the treatment has a great effect on the person’s physical functions.
The ministry of Justice is also planning to make changes in regulation of protection of personal data. As a result of the analysis several problem areas were identified in the area of application, the definition of personal data, the rights of the data subject and above all processing of personal data without the agreement of the data subject. The Ministry of Justice has therefore suggested specifying the corresponding rules. As a separate problem the data entered into the register during a criminal investigation (such as DNA and fingerprints) was also mentioned.
The third initiative for an amendment, which has an effect on inviolability of private and family life, is at an even earlier stage than the previous ones. The draft act amending the Imprisonment Act, the Probation Supervision Act and the Penal Code was sent for coordination round on 27 December 2011. As the purpose of the draft the explanatory note states act solving the problems that have occurred in practice, the amendments to the Imprisonment Act are especially important here. These have, above all, to do with personal belongings of prisoners and the illegal property as well as short and long term visits with prisoners.
The Constitutional Review Chamber of the Supreme Court passed a judgment on regulation of long term visits with prisoners in 2011, which also influences the amendment that was initiated at the end of 2011. Tallinn Circuit Court turned to the Constitutional Review Chamber of the Supreme Court with its judgment no. 3-09-1840 of 30 September 2010 as it had declared § 94(1) of the Imprisonment Act to be partially in contradiction of the Constitution. This provision enables the prisoner short term visits with his or her spouse, but it does not allow for long term visits. The Chamber of the Supreme Court did not agree with the circuit court. It found in its judgment no. 3-4-1-9-10 of 4 April 2011 that even though it was a limitation on long term visits, the intense interference with inviolability of family life in a preliminary investigation prison was justified. Up until coming into effect of the judgment of conviction it has been established keeping in mind the purposes of “evasion of criminal procedure and continuous execution of offences”. After coming into effect of the conviction, but before bearing the status of the punished, the denial of long term visits is also justified. It is necessary for the purpose of “public order of the prison and the protection of rights and freedoms of others, also for combating offences”. This is the case because “generally the time period between the judgment of conviction and coming into effect of the conviction and enforcement of the punishment is not too long.” In both cases there are other options for communicating with the family.
The proposed draft making the coordination round in December of 2011 would significantly specify the regulation on short and long term visits. The positive fact is that the prison has to reason its decisions for denying the visits. Although some specification is needed for the amendment to § 24, which states that the visit may be refused on the grounds of questionable nature of the “reputation of the visitor”. This wording is somewhat vague and may bring about several interpretations.
Statistics and surveys
Liina Kanger and Eve Rohtments have analysed the data protection regulation currently in force in Estonia in the light of the practice of European Court of Justice published in an article of the Journal of the Estonian parliament and have come to the conclusion that Estonia has not sufficiently specified and provided content for the rules stated in the Data Protection Directive. They also come to the conclusion that the independence of the Data Protection Inspectorate should be guaranteed and that it should stand outside the control of all ministries “in the economic and organisational meaning, as well as being personally independent”. This analysis is worth agreeing with. Directive 95/46 as a flexible target norm, which allows Member States to specify it with suitable measures, cannot be as effective as expected if the Member State utilises the same level of specificity in its acts of law as the directive itself.
The Data Protection Inspectorate carried out several instances of monitoring in 2011. The most important of them was the checking of the registers duplicating population registers in local governments. It yielded that half of the local governments that were monitored kept an alternative local register in addition to the national population register, as the national register was either too clumsy to use or the access to it was too complicated.
As is customary, in 2011 the Data Protection Inspectorate published several nonbinding guidelines on rules of data protection, which help to somewhat alleviate the problem of non-specificity of the act. Advisory guidelines on protection of personal data in employment relationships and on use of electronic contact information in direct marketing were published.
Police and Border Guard set up a web constable (following the example of Finland) on 1 June 2011 in order to counsel people on the internet and in social media (such as Facebook and Rate).
Essential public discussions
One of the topics in data protection that was covered in media was that officials often illegally use the population register for their personal needs and to satisfy their curiosity. The topics that have caused a lot of discussion in other European states – Google Streetview or body scanners in airports – have not sparked public debate in Estonia. Body scanners are not used in airports in Estonia.
Several changes took place in the field of inviolability of private and family life of various different spheres. The particularity of this human right is that each breach may potentially play an essential part in the person’s life. It is therefore essential that all legislative, political and judicial amendments were as cautious as possible and have been considered, taking various possibilities into account. The most worrying, from the point of view of human rights, is the renewal of the regulation on surveillance activities, which has been through a lot already, but is still to yield a result that everyone would be pleased with. Hopefully this does not turn out to be another amendment that is passed in Riigikogu only to end up at Supreme Court a few years later, where it is declared to be in contradiction of the Constitution, as was the case with post-sentence preventive detention.
- Take into account the relevant comments, which aim to increase the protection of human rights and not merely to depart from convenience of the executive power, upon renewal of surveillance activities’ regulation.
- Upon establishing treatment as an alternative for imprisonment of sexual offender guarantee that the treatment is strictly on a voluntary basis and accompanied by an effective psychiatric treatment.
- Review the regulation on personal data and guarantee that it is in accordance with the requirements of European Union, including the obligation to provide specific and clear standards.
- Specify the provisions on short and long term visits upon amending the Imprisonment Act and other relevant acts to rule out possibility of different interpretations.
 RT I, 21.03.2011, 2.
 Kriminaalmenetluse seadustiku ja teiste seaduste muutmise seaduse eelnõu seletuskiri [explanatory memorandum to the draft act amending the Code of Criminal Procedure and other acts]. Available at: http://www.riigikogu.ee/?page=pub_file&op=emsplain&content_type=application/msword&file_id=328662&file_name=Kriminaalmenetluse..seletuskir%20(287)i.doc&file_size=142848&mnsensk=286+SE&fd=2011-05-16, p 1. Hirvoja, Martin (2011). Õiguspoliitika arengutest ja justiitsministeeriumi rollist selles [developments of legal policy and the role of Ministry of Justice]. Available at: http://www.just.ee/orb.aw/class=file/action=preview/id=53346/%D5iguspoliitika+arengutest+ja+JMi+rollist+selles.pdf. 22.01.2012, p 15.
 RT I 2003, 27, 166 … RT I, 29.12.2011, 1.
 Hirvoja, p 15.
 Kriminaalmenetluse seadustiku ja teiste seaduste muutmise seaduse eelnõu seletuskiri.
 Chancellor Justice, Ettepanek nr 12 jälitustoimingust teavitamise ja selle kontrolli kohta [Proposal no. 12 on notification of surveillance activities and monitoring of surveillance activities]. 17.05.2011. Available at: http://oiguskantsler.ee/sites/default/files/field_document2/6iguskantsleri_ettepanek_nr_12_riigikogule_jalitustoimingust_teavitamine_ja_kontroll.pdf.
 Kriminaalmenetluse seadustiku ja teiste seaduste muutmise seaduse eelnõu seletuskiri.
 RT I, 22.12.2011, 3.
 Agenda item no. 1 „Kriminaalmenetluse seadustiku muutmise ja sellega seonduvalt teiste seaduste muutmise seaduse“ eelnõu [draft act amending the Code of Criminal Procedure and other associated acts]. Minutes of a parliament’s sitting. 2.02.2012. Available at: https://dhs.riigikantselei.ee/avalikteave.nsf/documents/NT001826C2?open.
 Eesti Vabariigi Põhiseadus: kommenteeritud väljaanne [Constitution of the Republic of Estonia: commented version], Juura, 2008, p 113.
 Eesti Vabariigi Põhiseadus, p 239.
 Eesti Vabariigi Põhiseadus, p 239, 292, 332.
 European Court of Human Rights in 6 September 1978 judgment Klass and others v. Germany. Application no. 5029/71, 2 August 1984 judgment Malone v. United Kingdom. Application no. 8691/79, 24 April 1990 judgment Kruslin v. France. Application no. 11801/85, para 33. Also see Põhiseaduse kommenteeritud väljaanne, p 362; Maruste, Rait (2004). Konstitutsionalism ning põhiõiguste- ja vabaduste kaitse [Constitutionalism and protection of fundamental rights and freedoms]. Tallinn 2004, pages 392, 489, 535.
 Malone judgment. Also see Maruste, p 434.
 For example Malone, Kruslin, Klass, and 26 March 1987 judgment Leander v. Sweden. Application no. 9248/81. Also see Taavi Annus, Riigiõigus [Constitutional law]. Tallinn 2006, p 310; Põhiseaduse kommenteeritud väljaanne, pages 332, 362. Maruste, pages 392, 489.
 Maruste, p 535; Põhiseaduse kommenteeritud väljaanne, p 292.
 Maruste, pages 292, 392.
 Leander. Maruste, p 435.
 Maruste, pages 292, 392, 487.
 Põhiseaduse kommenteeritud väljaanne, pages 332, 239.
 Estonian Bar Association. KrMS ja teiste seaduste muutmise seaduse eelnõu seletuskiri [explanatory memorandum to the draft act amending the Code of Criminal Procedure and other associated acts], Appendix 4 (from now on referred to as Estonian Bar Association 2011a), point 1; Estonian Association of Information Technology and Telecommunications. KrMS ja teiste seaduste muutmise seaduse eelnõu seletuskiri, Appendix 4, point 1, 4-5; Chancellor of Justice. KrMS ja teiste seaduste muutmise seaduse eelnõu seletuskiri, Appendix 4. (from now on refferred to as Chancellor of Justice 2011a), points 5-6; Ministry of Economic Affairs and Communications; KrMS ja teiste seaduste muutmise seaduse eelnõu seletuskiri, Appendix 4, point 1. Also see Salu, M (2011) „Vaher: pealtkuulamine on liiga lihtsaks tehtud“ [Vaher: wire tapping has been made too easy]. 9.04.2011. Available at: http://www.postimees.ee/416748/vaher-pealtkuulamine-on-liiga-lihtsaks-tehtud/.
 Estonian Bar Association. Eesti Advokatuuri nimel arvamus kriminaalmenetluse seadustikule [The opinion to the Code of Criminal Procedure in the name of Estonian Bar Association]. 27.12.2011. Available at: http://eelnoud.valitsus.ee/main#lyIpDm7V. (from now of referred to as Estonian Bar Association 2011b), p 2; Estonian Bar Association 2011a, point 3.
 Supreme Court. KrMS ja teiste seaduste muutmise seaduse eelnõu seletuskiri [explanatory memorandum to thee draft act amending the Code of Criminal Procedure and other acts], Appendix 4 (from now on referred to as Supreme Court 2011a), point 2.4.
 Supreme Court. Riigikohtu arvamus kriminaalmenetluse seadustikule [Supreme Court’s opinion on the Code of Criminal Procedure]. 13.01.2012. Available at: http://eelnoud.valitsus.ee/main#lyIpDm7V. (from now on referred to as Supreme Court 2011b) Punkt 2.4, Supreme Court 2011a, point 7; Chancellor of Justice, point 10.
 Supreme Court 2011b, point 2.4, Supreme Court 2011a, point 6.
 Supreme Court 2011b, point 3. Supreme Court 2011a, point 9; Estonian Bar Association 2011b, p 3; Estonian Bar Association 2011a, point 6.
 Estonian Bar Association 2011b, p 1-3.
 Supreme Court 2011b, point 2.5.
 Supreme Court 2011a, point 7.
 Chancellor of Justice (2011). 12th Riigikogu shorthand notes for the 1st session. 2.06.2011. Available at: http://www.riigikogu.ee/?op=steno&stcommand=stenogramm&date=1306998300. (from now of referred to as Chancellor of Justice 2011b).
 Chancellor of Justice 2011b .
 Estonian Bar Association 2011b, p 3. Estonian Bar Association 2011a, point 7. Chancellor of Justice 2011b .
 175 SE I Kriminaalmenetluse seadustiku muutmise ja sellega seonduvalt teiste seaduste muutmise seaduse eelnõu [draft act amending the Code of Criminal Procedure and the associated acts]. Available at: http://www.riigikogu.ee/?page=pub_file&op=emsplain&content_type=application/msword&file_id=1474084&file_name=175%20kriminaamenetluse%20jt%20muutm.doc&file_size=169472&mnsent=175+SE&fd=06.03.2012. Office of the Chancellor of Justice. Õiguskantsler: jälitustoimingust teavitamine peab toimuma vastavalt põhiseadusele ja vajab süsteemset järelevalvet [Chancellor of Justice: notification of surveillance activities has to correspond to the Constitution and needs systematic monitoring]. Press release. 17.05.2011. Available at: http://oiguskantsler.ee/et/oiguskantsler/suhted-avalikkusega/pressiteated/oiguskantsler-jalitustoimingust-teavitamine-peab.
 Karistusseadustiku, kriminaalmenetluse seadustiku, psühhiaatrilise abi seaduse, karistusregistri seaduse, kriminaalhooldusseaduse ja tervishoiuteenuste korraldamise seaduse muutmise seaduse eelnõu seletuskiri [explanatory memorandum to the draft act amending the Penal Code, the Code of Criminal Procedure, Mental Health Act, Punishment Register Act, Probation Supervision Act and the Health Care Services Organisation Act]. Available at: http://eelnoud.valitsus.ee/main#yFnuhmy0, p 1.
 Karistusseadustiku, kriminaalmenetluse seadustiku, psühhiaatrilise abi seaduse, karistusregistri seaduse, kriminaalhooldusseaduse ja tervishoiuteenuste korraldamise seaduse muutmise seaduse eelnõu. Available at: http://eelnoud.valitsus.ee/main#yFnuhmy0.
 Hirvoja, p 21.
 Constitutional Review Chamber of the Supreme Court judgment no. 3-4-1-9-10 (4.04.2011), para 68.
 Ibid, para 82.
 Kanger, L. and Rohtmets, E. (2011) „Eesti andmekaitse Euroopa Kohtu praktika peeglis“ [Estonian data protection in the view of ECtHR practice]. Journal of the Estonian parliament 23, 2011. Available at: http://www.riigikogu.ee/rito/index.php?id=14437&op=archive2.
 Similar approach in Estonia can be noted with the Equal Treatment Act, which also adopts the general wording of the directives on the minimum level, without additional content stemming from the local circumstances.
 Data Protection Inspectorate (2011). Rahvastikuregistrit dubleerivate registrite kontrollid kohalikes omavalitsustes [Registers duplicating population registers in local governments]. Available at: http://www.aki.ee/download/1873/Dubleerivate%20registrite%20seire.pdf.
 Data Protection Inspectorate (2011). Isikuandmete töötlemine töösuhetes. Abistav juhendmaterjal. [Processing personal data in employment relationships. Advisory guidelines.] Available at: http://www.aki.ee/download/1818/Isikuandmed%20töösuhetes%20juhendmaterjal%20LÕPLIK.pdf.
 Data Protection Inspectorate (2011). Elektrooniliste kontaktandmete kasutamine otseturunduses. Abistav juhis. [Use of electronic contact information in direct marketing. Advisory guidelines.] Available at: http://www.aki.ee/download/2025/Elektrooniliste%20kontaktandmete%20kasutamine%20otseturustuses.pdf.
 Police and Border Guard (2011). „Veebikonstaabel annab internetis nõu.“ [Web constable giving advice on the internet] Available at: http://www.politsei.ee/veebikonstaabel/.
 Filippov, M. (2011) „Ametnikud kasutavad rahvastikuregistrit kui Google’it“ [Officials use population register as if it was Google]. Postimees.ee. 18.09.2011. Available at: http://www.postimees.ee/566788/ametnikud-kasutavad-rahvastikuregistrit-kui-google-it/.