At the start of this month, Paul Keres, partner at the Levin law firm and a sworn advocate, submitted an official request to the Ministry of the Interior to initiate administrative oversight over the ISS, known in Estonian as Kapo.
In his view the agency often fails to notify individuals whose conversations have been bugged.

In that request, Keres cited the court case of businessman Parvel Pruunsild and the problems revealed on the legality of surveillance operations as conducted by the ISS, as well as a failure to fulfill notification obligations related to surveilled calls.

Keres requested the ministry determine the extent of the violation of the Code of Criminal Procedure, including the number and identity of individuals who have not been informed of a significant infringement of their fundamental rights. He also asked the ministry to clarify the reasons for the violations and the responsible officials.

Keres called for, as part of the oversight decision, the ministry to declare the ISS' failure to comply with the law as unlawful and to issue a directive to eliminate the violations.

The Ministry of the Interior responded to Keres by saying that it would not initiate administrative oversight over the ISS.

According to the ministry, Keres's submission does not specify exactly how the Constitution of the Republic of Estonia was infringed.

The ministry stated that one condition for notifying third parties of a surveillance operation is a significant infringement of their family and private life (The ministry underlined the word "significant" in its response – ed.).

The ministry wrote: "While the restriction of the confidentiality of communication infringes on a person's fundamental rights and freedoms, this does not mean that every intercepted private conversation entails a significant infringement of the inviolability of family or private life. Since the term 'significant' is a legal concept undefined in the Code of Criminal Procedure, its interpretation is left to the discretion of the authority conducting the procedure."

"The significance of an infringement is assessed in the context of the surveillance activity as a whole, not based on individual calls," the ministry noted.

"The significance of the infringement depends primarily on the intensity of interference with an individual's rights, not on whether the surveilled conversation was used as evidence in criminal proceedings or on the fact that the person was not a suspect or accused in the proceedings," the response went on.

The ministry added that although Tartu County Court acquitted Pruunsild, court proceedings are still ongoing with him and so initiating administrative oversight would pose a risk of interfering in an ongoing legal process, which makes starting oversight at this time neither appropriate nor justified.

The ministry noted that its minister still retains the possibility of initiating administrative oversight under the law if circumstances warrant it.

Keres: Ministry's justifications are pure demagoguery

According to Keres, the interior ministry is trying to shift the obligation of oversight away from itself and to narrowly tie the request to the Pruunsild case, though the violation likely affects tens of thousands of people.

"The Ministry of the Interior's response is full of demagoguery and simply represents an attempt to shirk its oversight responsibility," Keres commented.

Keres noted that although the application highlighted a broader problem of how the state violates its citizens' fundamental rights through surveillance, Interior Minister Igor Taro (Eesti 200) had tried to reduce the request to a single criminal case, Keres said, by so doing claiming that the proceedings are still ongoing. "But this matter is not, and has never been, only about the criminal case of Parvel Pruunsild, and likely affects tens of thousands of people across the country," Keres said.

"In my opinion, the interior minister's response convincingly demonstrates that there is no civil oversight over surveillance agencies in Estonia, nor will there be unless something changes drastically. The last minister who tried to exercise civil oversight over the prosecutor's office, as we recall, was removed from office and faced criminal proceedings," he added, referring to former justice minister Kalle Laanet (Reform).

Keres outlined that the Code of Criminal Procedure sets a specific obligation for surveillance agencies to notify individuals whose privacy has been significantly infringed through surveillance.

"I read from this response that the interior minister has somehow invented a category where wiretapping calls is not considered a 'significant' intrusion into a person's private life. I'm hearing such an idea for the first time," he said, adding in jest: "If the minister really thinks that way, maybe he wouldn't even mind if the entire public could constantly watch what goes on in his home, through surveillance cameras."

The lawyer said that a distinction must be made between the types of surveillance activities that security agencies are permitted to carry out.

"Some surveillance activities are such that they may not result in a significant infringement of private life. For example, this could be the case when covert monitoring is being carried on the street and a certain person's movements are being recorded, and then one, two, three, or four unrelated individuals briefly pass by, in front of the camera. Indeed, in such cases, the ISS or Central Criminal Police are not obligated to notify those individuals who just momentarily appeared on camera," Keres explained.

Cases where phone calls are intercepted and stored in the agencies' data repositories are always a "significant" interference with the inviolability of private life, the lawyer argued.

"I found out from a colleague what kind of case our surveillance agencies consider insignificant interference in private life. For example, they didn't consider it significant when multiple calls between a suspect and his ex-wife were recorded then their shared dinner was filmed," Keres went on. "What the Ministry of the Interior is telling us is wholly absurd."

Keres stressed that the meaning of the word "significant" is not vague in this context.

"For example, bugging calls, covert surveillance, and other such actions where an individual's private life is genuinely exposed to surveillance officials, viewed or listened to, and recorded – that is a 'significant' intrusion into private life," said Keres. "In my opinion, there is no alternative interpretation here."

Keres said that the problem arises when surveillance agencies consider a different interpretation as viable.

"The result is that there are tens of thousands of people in Estonia who have been wiretapped but know nothing about that. In my opinion, this is a serious problem," Keres said.

The interior minister's remark that individuals whose phone conversations have been surveilled can file a complaint comes across as grotesquely comedic, he added.

"I would really like to know how it is possible for someone who has been secretly monitored, but doesn't know about it, to file a complaint about not being notified."

Keres stressed that his request is tied to a broader issue than the Pruunsild case, and, using that case as a justification not to start oversight is, in his opinion, a contrived excuse.

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