Independent MP Tõnis Mölder has been handed a suspicion of soliciting a bribe, agreeing to accept a bribe and committing fraud as a public official. At the end of March, Chancellor of Justice Ülle Madise agreed to the prosecutor's proposal to lift Mölder's parliamentary immunity and allow criminal proceedings against him to continue.

Mölder, however, argues that his defense rights have been violated during the proceedings. On Thursday, he sent an address to fellow members of the Riigikogu outlining his positions and citing, as one example, the extensive use during the pre-trial investigation of data analysis obtained from telecommunications companies — data the use of which the Supreme Court has prohibited since 2021.

Mölder told ERR that, in addition to his own communications data, the analysis covered mutual communications over an extended period among 12 current and former members of the Riigikogu, as well as three former ministers who are now either members of parliament or local government figures.

"Communications data means a broad extract of a specific person's phone records, examining over a certain period — in my case more than half a year — which calls come in and go out, which numbers send and receive messages and which cell towers I am connected to, in other words my location coordinates at given moments," Mölder explained.

He added that such information, combined with a six-month movement trajectory, provides a detailed picture of a person and constitutes a highly intrusive measure in terms of privacy.

"My main criticism is that already in 2021, the Supreme Court repeatedly drew the prosecutor's attention to the fact that communications data may not be used in criminal cases, because its mass retention by telecommunications companies is contrary to EU law," Mölder said.

Mölder noted that the Supreme Court most recently issued another clear position on the same issue in March and it is unclear why he must once again argue with the Prosecutor's Office over a matter on which the court has already ruled that it must not be done.

According to Mölder, the problem is that communications data measures can be carried out relatively easily with respect to members of the Riigikogu and do not require special procedures such as surveillance measures. However, while individuals are generally later informed about the latter, they never learn about communications data monitoring — except in cases where they are formally suspected and the relevant extracts are included among the evidence.

This is how the information about the analysis of communications data reached Mölder. As part of standard procedure, he was given access in February last year to the evidence and materials collected during the criminal investigation, which included a protocol from the Estonian Internal Security Service (ISS) concerning data obtained from a telecommunications company. According to the document, the requests covered the period from December 24, 2021 to May 16, 2022.

The document lists Mölder's most frequent contacts, including, for example, current and former MPs Jaanus Karilaid, Andre Hanimägi and Marek Jürgenson.

Mölder also raised several other criticisms of the Prosecutor's Office, which he says amount to violations of his defense rights. Overall, the aim of his address to fellow lawmakers is to ensure that the legal framework governing criminal procedure is reviewed, so that proceedings remain proportionate, respect defense rights and do not — through their length and intensity — effectively become a form of punishment for the suspect.

Prosecutor's Office to review relevant evidence

Public relations adviser at the Prosecutor's Office Kauri Sinkevicius said that when it comes to evidence involving communications data, they rely on the latest ruling of the Supreme Court, according to which data retained for commercial purposes may be used as evidence in criminal cases, provided that its retention for this purpose is demonstrated to the court.

"Prosecutors will reassess communications data–related evidence in ongoing cases in light of the ruling and will follow the Supreme Court's guidelines when presenting evidence," Sinkevicius confirmed.

According to a 2021 ruling by the Court of Justice of the European Union, the mass retention of communications data constitutes a violation of human rights.

The same position was taken in 2021 by the Estonian Supreme Court, which found that telecommunications companies may not be required, for the purposes of criminal investigations, to provide telephone data that they are obliged by law to retain for one year, as Estonia's system of blanket data retention and use is contrary to European Union law. However, the legal provision requiring telecom companies to retain such data has not yet been amended in Estonia.

On March 20 this year, the Supreme Court issued a ruling in a case concerning a breach of procedural restrictions, agreeing with a circuit court decision that protocols containing telephone data obtained from telecommunications companies may not be used as evidence in criminal proceedings.

At the same time, telecommunications companies also retain data for commercial purposes, such as billing and resolving customer disputes. The Supreme Court's Criminal Chamber has noted that the use of such data in criminal proceedings is not, in principle, excluded.

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