The Constitution grants members of parliament broad parliamentary immunity, and lifting it requires a vote by other members of parliament. In the case of Tõnis Mölder, his colleagues decided against lifting his immunity. Not only the prosecutor's office, but also many other intelligent people felt that something very bad had happened. From the Chancellor of Justice's perspective, is there anything wrong with members of parliament deciding to vote differently than the public or the prosecutor's office expects?

It is likely that Tõnis Mölder's situation is indeed worse now, because the criminal proceedings did not end with that decision. In 2014, an amendment was made that makes it completely pointless for the Chancellor of Justice to return the prosecutor's request back to the prosecutor's office — such a proposal must in any case be submitted to parliament. In reality, a parliamentary decision not to lift immunity does not help the person; on the contrary, it harms them. The statute of limitations is suspended — this was added to the law — which means that as soon as the person is no longer a member of parliament, they will still be taken to court.

Twelve years ago, members of parliament themselves decided to give the prosecutor's office more authority in matters of parliamentary immunity and to reduce their own rights?

Yes, and also to reduce the powers of the Chancellor of Justice, whose options were curtailed in 2011 as well. At that time, the explicit ability to assess the prospects of a case was removed — for example, the question of whether it makes sense to spend enormous resources on some minor matter that has caused no harm whatsoever. Similarly, the ability to consider whether there might be ulterior motives — namely, that proceedings are being used simply to damage or exhaust someone. Parliament made these changes.

At the same time, I completely agree that if the Constitution says that a parliamentary vote is required, it does not follow that members are allowed to vote only one way. If that were the case, the vote would have no meaning at all.

Let's set aside Tõnis Mölder. In today's Eesti Ekspress, members of different parliamentary factions talk more broadly about the power of law enforcement agencies. Perhaps parliament and elected representatives should not transfer so many of their powers to officials?

This has again been parliament's own choice — for example, creating the current system of expense reimbursements, which is one area from which suspicions and accusations of fraud have arisen.

For a long time, the practice was that if a member submitted a receipt that was not quite correct, or it was found that the expense should not be reimbursed with taxpayer money, the member simply had to pay it back. The media would make it public. Most likely, the person felt embarrassed, paid it back, and that was that. Now this is increasingly being handled as a criminal matter, and at the same time the definitions of crimes in the background have become more and more unclear.

When the Constitution was drafted in 1992, the idea was that a crime is something that the majority of people can understand to be a crime. Someone has been seriously harmed, someone has been killed, robbed naked, drugs have been sold to a child — these are acts we all understand to be terrible. A conviction for such an act follows a person essentially for life; it is a very serious matter. At that time, corruption was also understood in a concrete way: giving or taking bribes, or abusing one's official position to gain personal benefit or to cause harm to someone else.

Over the years, however, a whole array of provisions has been added where, even with the best will in the world, it is hard to understand whether a person will be accused or not. This has seriously hampered the activities of local council members and, more broadly, of more successful people in society.

I would remind you of 1992, when the Constitution was approved by referendum. The idea was to achieve a free society, where no one has to fear their own state, and where everyone can be sure that if a crime that is truly harmful, dangerous, and awful is committed, the state will sort it out. Doubts are interpreted in favor of the suspect, but if it is unequivocally proven that someone committed a crime, they are punished. What must not happen is a situation where a person has to fear that they meant well, did not intend harm, gained no benefit, no one suffered harm — and yet it is still a crime.

Are you saying that when someone sees a police car or a police officer on the street, they should not flinch?

Yes, and fortunately, I believe that this is still the case today. At least for me, it is a source of pride to see police officers of the Republic of Estonia. In my opinion, they are very professional officials. There are always individual violators, but internal control systems or the Internal Security Service catch them — there is one matter ongoing even now. But in general, when I see our police and border guard officers at work, I think they are well educated and very professional.

At the same time, in Madis Hindre's piece in today's Eesti Ekspress, representatives of practically all parliamentary factions say they are not sure whether their phone calls are being monitored. To be safe, they are cautious in their messaging. In reality, they are afraid of the police — and they are members of parliament, not ordinary citizens.

If that fear stems from the fact that real crimes have been committed — acts where public money has indeed been squandered, obtained by fraud, drugs have been trafficked, or something similar — then there is reason to be afraid, and those people should be caught. But I understand your question to be about the realization that the provisions of the Penal Code enacted by parliament itself are very broad.

It may well be the case that because you are someone's conversation partner, or because a well-meaning person has filed a crime report against you, your communications are intercepted to find out what is going on. In addition, members of parliament, as far as I know, are concerned about the extensive use of so-called "incidental findings" from wiretapping to initiate new criminal proceedings.

In other words, authorities may be checking whether someone is trying to pressure officials into making a decision favorable to a company — or they may be intercepting parliament itself, which, of course, they must do — but then something else emerges, such as someone evading taxes or committing some other offense. New proceedings are then launched on that basis, and sometimes the chain becomes quite long. This is one thing that certainly worries members of parliament.

Politicians also fear that when prosecutors go to court, they include in the evidence — literally pages upon pages — transcripts of people's private conversations, which are either presented or even read aloud in court. In Tartu, there was a concrete example where private conversations irrelevant to the case were read out in court.

At least from an outside perspective, and apparently for many politicians as well, the impression remained that these were not evidence, but a sort of unofficial punishment: if you do not suit us and we have charged you, then your conversations will be read aloud in court. Journalists come, listen, and several outlets publish those conversations. Even if a person is completely honest and has nothing to hide, this is extraordinarily unpleasant.

Yes — especially if you yourself are not suspected of anything, but simply happened to be the conversation partner of a suspect. You might be talking about personal matters or making an ill-considered joke.

It is undoubtedly very unpleasant to hear this in the courtroom — and even worse to read it in the newspapers — where it remains forever.

Is this legal?

Unfortunately, courts have in many cases considered this to be legal.

Parliament has it within its power to steer criminal procedure and the definitions of crimes back to where they were at the time the Constitution was adopted — specifically in the sense that things should be clear. A crime is a very serious act, and in such cases the harshest measures should indeed be applied, and criminals should be tracked down using modern technological means. It cannot be the case that criminals use the most advanced tools while police are not allowed to use them. But all of this must be permitted only when it truly concerns a crime.

Question: Let us assume that a person is indeed a criminal, and at a later stage it is definitively established that they are guilty, for example, of theft or accepting bribes. Even then, is there any reason to read out in court their conversations with their spouse, which have nothing whatsoever to do with the crime?

It would not be appropriate for me to assess a judge's actions here, but I will concede that in professional discussions I have explained that this should not be the case. Even if a person is a criminal, they have a right to the inviolability of family life when we are talking about family members. A spouse or children who trusted that conversation and spoke about matters they do not wish to see made public are not guilty of anything. They are essentially punished for the fact that one of their family members is a criminal.

In my opinion, third parties, including family members, should in the future be better protected wherever possible.

I am certainly not someone who says that parliament should pass a separate law for every single issue, but it probably should, in many cases, return to earlier versions of laws and make them narrower?

I would always recommend moving forward, because there are also areas where greater authority for surveillance should be granted.

What should that look like in practice?

We are talking precisely about technological solutions and the use of existing information to track down criminals. But there are several different issues intertwined here.

If acts are defined as crimes whose criminal nature a normal person cannot understand — where you can end up being a criminal even though you did not intend harm, did not do anything bad, did not fail to do something good, did not gain any benefit, and no one suffered harm — then that problem must be resolved first. Such "crimes" should not exist.

An example: violation of conflict-of-interest rules?

Yes, that is one example.

But there are others as well?

In my opinion, yes.

This is precisely where parliament should take the existing law and make it narrower.

That is something I have recommended considering. Members of parliament fear that if wiretapping permission is obtained for someone, and an MP happens to be a conversation partner, a situation may arise where their computer is seized and, during a search, it is discovered that they misused expense reimbursements. Even if all other suspicions are weak or disappear, it is possible to build a criminal case based on misuse of expenses. At some point, a shift occurred: for a long time it was "pay it back and face public shame"; now it is criminal proceedings.

One can also construct an example where a person — whether an MP, an ordinary citizen, or an official — is investigated in criminal proceedings for suspected violation of conflict-of-interest rules, and their mobile device is thoroughly examined. No evidence is found that the person intended to violate those rules. However, a video is found showing the person filming themselves driving 210 km per hour on a highway. That is a criminal offense, and based on the video a new criminal proceeding is initiated.

I fear there are quite a few people in Estonia who would say that this is right — there must be order. If you discover that there is no order somewhere, you should intervene immediately. I do not think it is that straightforward.

I would like to say a word in defense of the prosecutor's office: prosecutors are obliged to follow the law. If there are circumstances indicating a crime, they must initiate proceedings. The prosecutor's office is very often criticized even when they do not initiate proceedings for some reason—and we receive plenty of such complaints as well.

In conclusion, I would say that the first thing to think through is what a crime actually is. As was appropriate at the time the Constitution was adopted and remains appropriate in a free society, a crime should be an act whose criminal nature is easily understandable. And if crimes are limited to those very serious, dangerous, and grave acts, then the best tools must be available to identify their perpetrators. Since any system can become corrupt or make mistakes, there must also be very strong external oversight.

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