A country without a public prosecutor's office is nothing unheard of. The United Kingdom managed without one until 1986. Crimes were investigated by the police and lawyers were hired to present charges in court.

The reason this idea crossed my mind lies in the so-called Isamaa criminal case. I fully agree with those who say the charges brought against Isamaa are incomprehensible and that the entire operation is a direct interference in politics. The interview given by Leading State Prosecutor Taavi Pern to Delfi [in Estonian] and the one given by Prosecutor General Astrid Asi to ERR [in Estonian], did not clarify matters. Instead of concrete explanations, they offered abstract justifications.

What is the Prosecutor's Office combating?

First, we must ask: what exactly is the Prosecutor's Office fighting against? In his interview with Delfi, Leading State Prosecutor Taavi Pern uses Romania as an example to illustrate the dangers of covert political party financing. If we don't know who is funding something, we can't know their motives either.

That's understandable — but in the Isamaa case, nothing has been hidden. We know both where the money came from and how it was used. The danger Taavi Pern refers to simply never existed. Parvel Pruunsild's money is Parvel Pruunsild's money, whether he donates it to a political party or to a nonprofit organization. Justifying the investigation into Isamaa with an example from Romania, where Russian intelligence services allegedly tried to influence elections with money, is misleading and inappropriate.

The law is not some kind of secret language that only a brotherhood of lawyers can understand. Public and transparent actions cannot, by some legal construct, be reclassified as covert. What is public in real life is public in the eyes of the law. To claim otherwise is nonsense.

What constituted the service offered to Isamaa?

Astrid Asi told "Pealtnägija" that the law is very clear: a legal entity is not allowed to donate to a political party and if a donation exceeds €40,000, it constitutes a criminal offense. When it comes to monetary donations, everything is indeed straightforward. If a legal entity transfers €40,000 to a political party, it is breaking the law. But in Isamaa's case, this isn't about a monetary donation — it's about a service.

Whereas for the Prosecutor's Office, a service is the same as an action. The entire three and a half years of activities carried out by NGO Isamaalised have been classified by the Prosecutor's Office as a single service, supposedly accepted as a full package by certain members of Isamaa's leadership. That is simply unbelievable. Over the course of three years, people did a variety of things (including paying a salary to a managing director) and now the Prosecutor's Office comes along and declares that all of it constituted one massive service provided to Isamaa.

No law states that if the activities of a nonprofit organization benefit a political party, then those activities, either in whole or in part, are to be considered a service provided to the party.

Nor does any law offer an objective standard for distinguishing which parts of a nonprofit's activities count as a service and which do not. The idea that all of an NGO's activities can be considered a service is purely a construct invented by state prosecutor Taavi Pern — his personal, subjective interpretation of the law.

Why SALK is no different

In this light, Astrid Asi's claim that the Prosecutor's Office has no information suggesting that the Liberal Citizen Foundation (SALK) provided services exceeding €40,000 to any political party is baseless. In the case of the Isamaalised NGO, the total sum of €110,234 was calculated by counting all of its activities over three and a half years as a single service. During the same period, according to its annual reports, SALK's operating expenses amounted to €752,440.

SALK has publicly acknowledged that its goal ahead of the last Riigikogu elections was to help bring liberal parties — Reform, SDE and Eesti 200 — to power. All three of these parties have admitted to using SALK's services and benefiting from them.

In the case of SALK its main activity was "preparation for the 2023 Riigikogu elections," with the stated goal remaining the same: "to expand the footprint of liberal forces in Estonia." Based on that alone, one could reasonably argue that all of SALK's activities to date have constituted services rendered to liberal parties. Even if the total amount were split evenly among the three parties, each would still have received well over €40,000 worth of benefit.

The same could essentially be said about the Johannes Mihkelson Center, an NGO established to promote social democratic values and whose team includes SDE members; about the Foundation for the Protection of Family and Tradition (SAPTK), which is ideologically aligned with EKRE; and about the Academy of Liberalism, whose listed "academics" are mostly well-known members of the Reform Party. The Prosecutor's Office has offered no explanation as to how Isamaalised NGO's activities differ in any legal sense from those of other ideologically motivated nonprofit organizations.

What the Prosecutor's Office shouldn't do

The fact that the Prosecutor's Office is treating one political party and its affiliated nonprofit differently from others is a serious issue. There are seven political parties in Estonia whose ratings either surpass or come close to the electoral threshold. Gaining a seat in parliament or even winning an election can come down to a few hundred votes. Governments can only be formed in coalition and again, the viability of theoretical coalition combinations can hinge on a very small portion of the electorate.

In other words, Estonia's political landscape is fragile, which makes it critically important that party popularity is not swayed by non-political factors. If one party faces criminal charges as a legal entity just before an election, as could now happen to Isamaa, it could determine not only the winner of the election but also whether the next government will be conservative, liberal or something in between.

Perhaps an even greater problem is that the Prosecutor's Office has taken it upon itself to interpret the actions of political nonprofit organizations. In essence, Taavi Pern announced to everyone last week that from now on, it is up to his judgment, his discretionary decision which activities of which nonprofits and to what extent will be classified as "services" under the Political Parties Act.

Since all parties have their own affiliated organizations and ideological allies, this effectively puts every party on a leash held by Prosecutor Pern. He has, in practice, reserved for himself the power to adjust the political ratings of any party at any time. All it would take is to pull up the activity report of a politically active nonprofit and start interpreting.

Prosecutorial interpretations in place of the law

The most fundamental principle of criminal law is that crimes must be defined in the law with such clarity that any reasonable person, through reasonable effort, can understand what is punishable and what is not.

When prosecution is no longer based on the letter of the law but rather on a prosecutor's innovative interpretation, criminal liability becomes unpredictable. And when liability becomes unpredictable, people are afraid to act and society stalls. In a country where political nonprofits fear criminal prosecution for acting according to their best judgment, democracy cannot thrive — it is destined to stagnate.

The problem is all the more serious because "service," as interpreted under the Political Parties Act, is not the only vague term that the Prosecutor's Office is attempting to define through criminal proceedings. The offense known as "violation of procedural restrictions," under Section 300¹ of the Penal Code, allows officials to be punished for making transactions with a "related person." But who qualifies as a related person is not defined anywhere. That will only become clear later — during criminal proceedings.

The article on influence peddling, Section 298¹, refers to the "use of influence" but never clarifies what constitutes influence or what counts as using it. In the so-called Porto Franco case, for example, it was concluded that the secretary general of the Center Party wielded influence over the party's board member who also served as the mayor of Tallinn. Because a businessman asked the secretary general to speak with the mayor, a crime was deemed to have been committed.

But what if the businessman had paid a Center Party–affiliated lobbyist like Janek Mäggi according to a price list, or a socially influential attorney like Allar Jõks? Would Mr. Mäggi or Mr. Jõks have also been prosecuted? We don't know — because the difference between paid lobbying or legal negotiation services and criminal trading in influence is entirely up to prosecutorial discretion.

Even the central concept of "official" in cases of professional misconduct is unpredictable. While the law refers to an official as someone with decision-making authority, case law has extended criminal liability to individuals who lack such authority themselves but are deemed capable of "substantively influencing" decisions.

In the so-called Kersti Kracht case, the Prosecutor's Office, for example, argues that a political adviser to the Minister of Finance has the ability to "substantively influence" decisions made by both the government and the Riigikogu. The prosecutor's message is clear: any official who participates in drafting legislation is potentially a substantive influencer of decisions and may, at the discretion of the Prosecutor's Office, face charges for some form of official misconduct.

I argue that vague legal definitions, combined with an overzealous and out-of-touch Prosecutor's Office, have created a climate of fear in which civil servants and entrepreneurs no longer even dare to speak freely — let alone act. With the criminal proceedings against Isamaa, the aim is also to silence political nonprofit organizations.

The problem with the Prosecutor's Office

The Estonian Prosecutor's Office faces two major problems: lack of accountability and a closed career system. The idealization of independence has led to a situation where the Prosecutor's Office has become virtually unaccountable.

The claim that prosecutors are subject to judicial oversight is fundamentally incorrect. A court only examines a specific charge based on the materials presented in a given case. It never evaluates whether the prosecutor was right or wrong to bring that case to court. Nor does a court comment on whether initiating proceedings was justified, and it certainly cannot compel the Prosecutor's Office to bring charges.

Follow-up on prosecutorial decisions is an entirely internal matter, and when something is handled only internally, it often means it's not handled at all. When was the last time you heard the Prosecutor's Office admit that it was a mistake to bring charges that later collapsed in court or that a decision to drop a case had been the wrong call? Have you ever heard the Prosecutor's Office, in the past ten years, concede that it made an error? This belief in their own infallibility is a sign of a lack of internal checks and balances.

The problem with the career system is that it encourages upward mobility only from within — from assistant prosecutor to chief prosecutor. With the exception of the prosecutor general, the next tier of leadership has always consisted of career prosecutors — often people who have done nothing else in their lives but work as prosecutors. They are generally competent individuals, but they have never looked at a case from the perspective of the defense, let alone had any personal, experience-based understanding of how business operates or how politics is conducted.

What to do?

The idea proposed at the beginning of this article — to abolish the Prosecutor's Office entirely — may indeed be too radical and, considering attorney fees, would likely end up being too costly for the state. However, the elimination of the Office of the Prosecutor General deserves serious consideration. The district prosecutor's offices would remain in place and report directly to the minister of justice. This is how the federal prosecutor system is structured in the United States, for example. In Estonia, a similar model already exists for the prison system, where the Ministry of Justice's Department of Prisons, headed by a deputy secretary general, oversees administration and supervision.

What would change? First and foremost, the minister of justice would become a clear figure of political accountability. That, in turn, would create the conditions for establishing effective internal oversight and would encourage the promotion of individuals who have a real understanding of life and society.

I believe without exaggeration that what is currently happening around Isamaa represents the most serious crisis of democracy in post-independence Estonia. Under Prosecutor Pern's leadership, we are moving backward — toward the very place we fought to escape in 1991. I hope Estonia's political leaders will have the courage to stop this process.

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