Legal Regulation of Surveillance de lege lata and de lege ferenda : Constitutional and Criminal Procedural Aspects
1. Surveillance in System of Criminal Procedure: Introduction
1.1. Pre-trial procedure is a universally recognised part of criminal procedure, the aim of which, in most general terms, is by gathering evidence to create presumptions for the judicial resolution of a criminal case. The role of pre-trial procedure in Belgium, France, Spain, Germany, Austria and other states with predominantly inquisitorial system of judicial procedure (thus, also in Estonia) is very important because, as is known, the court may base its decision on the evidence collected in the course of pre-trial procedure. Namely, pursuant to § 206 of the Estonian Criminal Procedure Code (hereinafter CrPC) the court may rely on the evidence gathered in pre-trial procedure on condition that (a) it has been directly examined at the court session, and (b) the direct in-court examination of evidence has been fixed in the record of the court session. *1
The role of pre-trial procedure in common law states and with some concessions also in these states that have introduced certain elements of adversarial judicial procedure into their law (for example, since 1988 in Italy) is different. In these countries, at least not all the materials gathered in the pre-trial proceeding are at the disposal of the judge while he or she is trying the case. The court decision is mostly based only on “what happens” in the court. It would still be inconsiderate to conclude that pre-trial procedure is less important in states with adversarial judicial procedure. Namely, nearly 90 per cent of the criminal cases in these countries are solved by non-trial disposals (plea-bargaining; die Absprache) relying on the materials of pre-trial proceedings at that. Thus, it can be alleged that pre-trial proceedings in criminal procedure carry much weight everywhere and if we tomorrow also want to assert that justice is administered solely by the courts then we should seriously consider before we start to enhance the role of pre-trial procedure even more. But legalisation of the results of surveillance procedures on the evidentiary level undoubtedly means the enhancement of this role.
1.2. Most generally, pre-trial procedure as a whole consists of procedural procedures (filing a request, making procedural decisions, filing a complaint, gathering evidence, guaranteeing the accomplishment of the criminal proceeding) and surveillance procedures. A procedural procedure is characterised by the following features:
(a) the law or other legislative act of lower level explicitly prescribes how a procedure must be carried out *2 ;
(b) a procedure is, in principle, always conducted publicly *3 ;
(c) while conducting a procedure the person whose interests it concerns is really regarded as a subject with the right to have a say.
In gathering evidence and guaranteeing the accomplishment of the criminal proceeding (for example, while taking into custody or compelling to appear) the right to have a say means that the above subject is entitled to be informed of the aim of the procedure as well as to appeal. In the case of procedural requests, complaints and decisions the right to have a say is immanent to them. But a surveillance procedure is carried out secretly, the exact manner of its conduct is always covert and the right to have a say is excluded (which essentially means that the person whom the surveillance procedure concerns is treated as an object of investigation).
In the Soviet theory of criminal procedure (although it can be put more widely – in the classical theory of continental criminal procedure) an understanding prevailed that criminal procedure included only procedural procedures. This means that naturally also Soviet criminal procedure theoreticians acknowledged the existence of so-called operational-surveillance activities (tracing the hiding suspect; using a police-dog at the scene of the crime, etc.) but as these activities were to a greater or lesser extent subject to secrecy and as not much effort was made to guarantee the procedural rights while carrying out these activities then it was hold that the pertinent activities could not be regarded as the criminal proceeding and no evidence could be directly obtained thereby. The main goal of these surveillance procedures was to create preconditions for the collection of evidence, or in other words – to establish the possible source of evidence. In some respects the distinction of surveillance procedures from the criminal proceeding helped psychologically to justify frequent and groundless use of coercive measures in surveillance procedures and state that, as it did not occur in the criminal proceeding the matter was not so serious at all. At the same time it should be mentioned that in theory of criminal procedure the issue of necessity and probability of “lifting” the information gained by surveillance procedures to the evidentiary level has permanently been topical. The police circles have continuously explained that these aspirations are justified by the necessity to fight more effectively against the increasing crime rate. For a long time counter-arguments to these aspirations (such as, the disregard for procedural guarantees, difficulties in the verification of evidence obtained by surveillance procedures, etc.) were acceptable and understandably their role was also strengthened by the atmosphere of the recent decade laying a special emphasis on the human rights. In some countries still certain single surveillance procedures “broke through” to the evidentiary level. Thus, for example, pursuant to the Hungarian criminal procedure, the record of a so-called odorologic observation drawn, in fact, on the basis of the behaviour of a police-dog was considered a piece of evidence. The whole situation changed when it was understood how dangerous organised crime *4 is to the society. Since the end of the 1980s, we can, in principle, talk about a certain social agreement on that in order to deter organised crime the results of surveillance procedures should also be “lifted” to the evidentiary level provided that certain fixed requirements are followed thereat. Thus, in principle, a “direct way” is opened between surveillance and criminal procedural evidencing. At the same time, a tendency apparent in many states reveals that by using the “open way” the police circles try to enhance the importance of surveillance more and more.
Legalisation of surveillance procedures has resulted in rather essential changes in criminal care as the whole. In order to describe these new tendencies let us refer, for example, to Professor Renzo Orlandi from the University of Camerino (Italy). First of all, he stresses that for some time already the discussions of criminal jurists have revealed a conviction that - because of the newest developments in the fight against organised crime – the crucial issues of the fight against organised crime are resolved mainly at the level of criminal procedure (consequently, by the criminal court) and not at the level of substantial criminal law.
First of all, R. Orlandi points out that with regard to organised crime the beginning of the activities of the police and prosecutor's office at the stage of preliminary investigation and the scope of these activities are neither directed at the act qualified by the elements of crime nor at the concrete offender. It rather seems that the investigation focuses only partially on actions and persons that have criminal procedural relevancy. In the investigation of many organised crime cases the knowledge of preliminary investigation institutions that actions as well as persons under investigation are not relevant to criminal procedure, attracts attention. This can be explained by the fact that organised crime is inseparably connected with normal social and economic life. And therefore criminal law cannot offer the institution responsible for the conduct of preliminary investigation certain fixed limits within which it should fight against organised crime. The result is that the institution conducting preliminary investigation, and not criminal law, itself establishes the permissible limits to criminal procedural activities. In short, it can be said that we face a situation in which criminal procedure pertaining to organised crime as compared to regular criminal procedure runs a considerably different course. *5 Let us add that Albin Eser while summarising his article on the developments of European criminal procedure observes that if in regular criminal procedure the importance of the rule of law has increased then in connection with the activities aimed at dealing with organised crime the police have gained more power. *6
2. Legal Regulation of Surveillance
2.1. Understandably, emancipation of surveillance procedures brought forward a question of their legal regulation. *7 The Surveillance Act (hereafter SA) was passed in the Republic of Estonia on 22 February 1994 (RT I 1994, 16, 290), whereby two decisions of the Constitutional Review Panel of the Supreme Court of 12 January 1994 expedited the passage of the law (unfortunately at the cost of the quality of the law). In short, these decisions declared a considerable part of the former regulation on surveillance unconstitutional. Let us just mention that the provision prescribing that the warrant for the conduct of a surveillance procedure had to be issued by the justice of the Supreme Court appointed by the Chief Justice of the Supreme Court, was also declared unconstitutional.
2.2. At the present moment, after various revisions the system of lawful surveillance activities can be characterised as follows.
2.2.1. Only activities carried out by (a) surveillance authorities (the Security Police Administration, the Police Administration, the Border Guard Administration, the Headquarters of the Defence Forces, the Enforcement Board) and (b) persons involved in secret co-operation as provided for in §14 of the SA are considered surveillance activities. Thereby only the Security Police Administration and the Police Administration are entitled to conduct specific and exceptional procedures (see: 2.2.3–2.2.5). If the other surveillance authorities want to carry out the latter procedures they must file corresponding requests with the Security Police Administration. If any other institution or private person conducts a surveillance procedure it is deemed unlawful and in this case, depending on concrete circumstances, the pertinent person may be pursuant to § 1331 of the Criminal Code (hereafter the CrC) prosecuted for an unlawful surveillance procedure.
2.2.2 According to the law, a surveillance procedure may be both public and secret (§2 of the SA). The publicity of a surveillance procedure seems still rather a fiction and, as we have mentioned above, surveillance procedures are primarily and essentially secret. In this respect § 5(1) of the SA providing that “surveillance activities are based on the combination of the principles of legality, publicity and secrecy” seems really demagogic. The provision reads well but is not very credible.
2.2.3. Subtypes of surveillance procedures are the following:
2.2.4. Surveillance procedures are lawful only if carried out in the cases prescribed by the SA (§ 2(1)). Stemming from §§3 and 9 of the SA it can be alleged that these “prescribed cases” are the following:
One can quite easily notice that the last two fields of surveillance are not so tightly connected with the criminal proceeding. In connection with that the following question has, inter alia, arisen: would not it be necessary to “out-filter” purely criminal procedural surveillance procedures and insert the “filtrate” in the CrPC?
2.2.5. Surveillance is lawful only in case it is carried out pursuant to the procedure prescribed by the SA. We can say that a surveillance procedure has been conducted pursuant to the procedure prescribed by the SA if the following three groups of requirements are met.
220.127.116.11. Requirements applying to any surveillance procedure:
18.104.22.168. Additional requirements applying to specific and exceptional procedures:
Let us point out hereby that under the exhaustive list embodied in the SA, the following procedures are considered specific ones: secret gathering of information; secret gathering of comparative material (samples of writings, fingerprints, etc.); secret observation and primary examination of documents and objects; surveillance and at last - secret identification of the person. Exceptional procedures include secret entering into dwellings, other real or personal properties under someone’s control, data-bases, places of employment, also motor-vehicles with the aim of gathering and recording information, and the instalment of pertinent technical devices therein; monitoring the mail; interception and recording of telephone or other commonly used technical communications; and at last the apprehension of the offender or the imitation of the crime with the aim of detecting the crime. A peculiarity of exceptional procedures as compared to specific ones lies in the fact that the former either directly restrict the fundamental rights or provoke to commit an offence (the imitation of the crime!) and this is the reason why the court’s permission for the conduct of these procedures is necessary.
22.214.171.124. Additional requirements applying to exceptional procedures:
3. Surveillance and Evidencing
3.1. Subsection 16(3) of the SA provides that the CrPC regulates the use of information obtained by a surveillance procedure as a piece of evidence in the criminal case. But §16(4) of the SA fixes that the use of the above information as a piece of evidence in the criminal case may not generally entail the disclosure of secret information or persons who participated and were involved in the surveillance procedure. Subsection 16(3) of the SA caused the amendment of §48(2) of the CrPC providing that factual information established with the help of “a photograph, film, audio-, video- or other recording of information, document or object” may be regarded as a piece of evidence. The legislator did not consider it necessary to elucidate the provision more explicitly. Therefore it can be said that the subsequently described conditions allowing to consider the information gathered by surveillance procedures a piece of evidence have been shaped by both judicial practice and theory of criminal procedure.
3.2. Thus, in order to use the information gathered by a surveillance procedure as a piece of evidence in the criminal proceeding, the following conditions must be met.
3.2.1. The pertinent information must be obtained by a lawful surveillance procedure, which means that a surveillance procedure was carried out:
3.2.2. According to § 48(2) of the CrPC, the information gathered by a lawful surveillance procedure must be materialised in the form of a photograph, film, audio-, video- or other recording, document or object. Thereby it can evidently be alleged that if we have to deal with a document that has been obtained as a result of a surveillance procedure then this is also a piece of evidence per se and no additional procedural steps must be taken. This means that just the content of the document should reveal the connection of the document with the criminal case and, consequently, the evidentiary meaning of the document in the criminal case. But if a lawful surveillance procedure results in a technical recording of information (for example, a photograph taken in the course of surveillance) or an object (for example, a sum of money delivered while imitating a bribery offence), then the mere recording or object might not reveal its connection with the criminal case and consequently the connection must be additionally established. Naturally this is not an easy task because, let us remind, “the use of information gathered by a surveillance procedure as a piece of evidence must not generally entail the disclosure of persons who participated or were involved in surveillance”. This means that generally a person who has directly carried out the surveillance procedure cannot take any official steps to legitimise his or her activity and clarify its essence. In such a situation it is apparently unavoidable that the connection between the result of the surveillance procedure and the criminal case is established by an official of the surveillance authority who “can come to light”. Relying on the analogy of criminal procedure law, this official should draw a protocol on the results of the surveillance procedure which:
3.2.3. A question could be raised whether in addition to a document also the obtaining of so-called classical evidence may be the result of a surveillance procedure. In the case of the material evidence the answer could evidently be even affirmative. I cannot find counter-arguments to the emergence of material evidence if, for example, in the course of secret entering into the dwelling an individualised object constituting the object of a certain crime is seized and later observed, photographed, ascertained as the material evidence and added to the criminal case. True, in this case the object became the material evidence not only as the result of a surveillance procedure. As for the statements given by an “undercover agent” and expert opinion formed on the basis of surveillance information, they are not considered evidence in our criminal procedure.
4. Problems Arisen in Connection with Implementation of SA that Need to be Resolved
For the present moment Estonian law enforcement authorities are of a considerably unanimous opinion that because of the arisen problems many aspects of surveillance should be analysed and re-interpreted.
4.1. Foremost, while preparing the new draft of the CrPC a question has arisen whether the presently valid SA should be incorporated in it. On the one hand, it would be undoubtedly natural that all these activities the result of which may be evidence were regulated “within the same covers”. In the case of such resolution the legislator would probably pay more attention to the constitutional guarantees required for the lawful conduct of surveillance procedures. At the same time, various circumstances rather make me object to the pertinent incorporation. Firstly, surveillance is not merely a criminal procedural phenomenon and, consequently, by incorporating it into the CrPC we would face the situation where essentially uniform surveillance activities should be regulated by two legislative acts. It can be assumed that such regulative splitting of surveillance would also paralyse to some extent the optimum civil control over it. Secondly, a number of conditions established in the SA for the conduct of surveillance procedures (the existence of the file on surveillance, a written and grounded decision of the pertinent official for the commencement of a surveillance procedure and others) would perhaps be too detailed for the regulative level of the CrPC. Consequently, the relevant incorporation would entail the passage of a legislative act of lower level (for example, guidelines) offering a more detailed regulation of criminal procedural surveillance procedures. I also dare to hope that maybe an independent law on surveillance procedures inhibits their excesses in criminal procedure and, thus, guarantees the real effect of the ultima ratio principle. But naturally the aforesaid does not mean that the presently valid SA should not be revised.
4.2. I am of the opinion that similarly to regulations of various other European states the Estonian SA could also provide that all exceptional procedures (thus, differently from the presently valid legislation, including also the imitation of the crime) are permitted if they help to prevent or detect the crime punishable with at least four years imprisonment or if we have to deal with so-called catalogue-crimes enumerated in the law. Following the Italian model (see: § 266 of the Italian Criminal Procedure Code) this catalogue could contain malfeasance; offences related to narcotic drugs and psychotropic substances; offences related to weapons and explosives; offences related to smuggling; offences related to computer- and data-processing; offences related to insult, defamation, threat or harassment by using a means of communication at that.
4.3. Relying also on the opinion of practitioners, it can be stated that the system of specific and exceptional surveillance procedures would deserve thorough revision and supplementation.
4.3.1. This means, first of all, that it is necessary to define or at least try to describe more explicitly what one or the other surveillance procedure may consist of. For example, the valid regulation enables to consider the person secretly identified if a surveillance agent claims on the basis of a photograph in his or her pocket that the person walking in the street is the one sought after. The formulation of the first exceptional procedure seems especially problematic. Namely, Clause 12(2)1) of the SA provides that the law allows entering into dwellings, other buildings, etc. only for the instalment of necessary technical devices. Questionable is why information may not be gathered directly on the spot by this exceptional procedure, without installing the corresponding devices. Let us also mention that pursuant to the widespread understanding of the surveillance practice, it is not allowed to enter into the dwelling for the removal of the already installed technical devices.
4.3.2. Considering the fact that the role of databases has become more important, the cross-use of databases as an independent exceptional procedure should be introduced and specifically regulated. This would mean an insertion of a new section into the SA, for example, in the following wording:
126.96.36.199. Section 121 . Cross-use of Databases
(1) The cross-use of databases is an exceptional surveillance procedure which means secret entering into databases and comparing delicate and indelicate personal data with data stored in other databases with the aim to prevent or detect the crime.
(2) In order to guarantee the cross-use of databases, the holder of the databases must isolate the pertinent data from his or her database and forward it to the authority conducting the exceptional procedure (i.e. to the responsible person in the meaning of the Personal Data Protection Act – E.K.) pursuant to the conditions stipulated in §13 of this Act.
(3) If the isolation of necessary cross-use data from the database is technically complicated or too expensive, the holder of the database shall forward to the authority conducting the exceptional procedure also other data stored in the database the use of which in the surveillance procedure is forbidden.
(4) At the request of the authority conducting the cross-use of databases, the holder of the database must assist the authority in its surveillance procedure.
(5) If delicate personal data is processed in the course of cross-use of databases, the authority conducting the exceptional procedure shall immediately notify the Data Protection Inspectorate thereof.
4.3.3. Without going into details, let us mention that a question whether the SA should provide for the possibility to use undercover agents deserves a separate analysis. According to the German paradigm of criminal procedure, an undercover agent is a police officer who with the aim of investigating certain circumstances of the crime enters under a modified identity into the social life and participates in it for a longer period of time. In order to get into the spirit of the criminal milieu and obtain information from it, the status of an undercover agent may undoubtedly be extremely advantageous. Problems arise if it is, for example, suggested that the undercover agent’s written survey should be lifted to the evidentiary level although actually there is almost no possibility to control the credibility of the information.
4.4. Another question inseparable from the latter problem and deserving undoubtedly a separate analysis is whether, and if “yes” then how the evidential outcome of the information obtained by a surveillance procedure could (should) be altered. First of all, I would like to mention that in my opinion it is rather questionable if the information gathered by surveillance procedures and the witness’s statements were considered to be of the similar quality. The danger is foremost in the axiom fixed in § 16(4) of the SA pursuant to which “the use of information gathered by a surveillance procedure as a piece of evidence must not generally entail the disclosure of persons who participated or were involved in it”. Consequently, the attribution of quality similar to the witness’s statements to the information obtained by surveillance procedures would generally mean that the survey written by the pertinent undercover agent is read in the court without any possibility to control the information and its source. At the same time I do not exclude that if the surveillance authority exceptionally allows the person who has carried out the surveillance procedure to appear in the trial then he or she could be considered the witness also with regard to these circumstances of which he or she became aware of in the course of the surveillance procedure. Stemming from the aforesaid I think that the CrPC (thus, not the SA) should contain a section with the following probable title and content:
4.4.1. Section Z. Information Obtained by Surveillance
(1) A photograph, film and any other technical recording of information as well as an out-print of the cross-use of databases obtained by surveillance procedures is considered a piece of evidence if this information has been obtained pursuant to the procedure provided for in the SA and the obtaining of information is fixed in the protocol drawn by the surveillance authority.
(2) The protocol of the results of a surveillance procedure fixes:
whether the surveillance procedure was carried out on the initiative of the surveillance authority or on the basis of the surveillance task;
the date when the warrant for the conduct of the exceptional procedure was issued, also whether the warrant was issued in the regular manner or the exceptional procedure was declared justified posteriorly;
the time and place of the surveillance procedure;
the person with regard to whom surveillance was conducted;
the connection of the surveillance information with the criminal event;
technical parameters for guaranteeing the identification of recordings or the out-print of the cross-use of databases obtained by the surveillance procedure and measures taken for safeguarding their security.
4.5. In my opinion it should also be seriously considered whether it is correct that only one judge, and a judge of an administrative court at that, is vested with the right to authorise exceptional surveillance procedures. At the same time I confess that this questionableness proceeds from the fact that, as far as I know, there is no analogy to such resolution in the world. Let us just mention that probably the result of the monopolistic position of the pertinent judge is that too often surveillance procedures are just carried out by a so-called posterior sanction of the judge.
4.6. On the basis of the world practice of surveillance regulation, additional steps should be taken in order to guarantee the constitutional rights of these persons about whom the surveillance information has been gathered. These rights could be guaranteed, for example, in the following way.
4.6.1. Firstly, by inserting a new clause into §16 of the SA:
Clause 16 21 ). The documentation of processing of personal data and registration of processing of delicate personal data used in surveillance is conducted pursuant to the procedure provided by the Personal Data Protection Act.
4.6.2. Secondly, by supplementing §16 of the SA:
Section 163 . The Obligation to Notify the Person of the Information Obtained by Surveillance
(1) A surveillance authority shall immediately notify the person with regard to whom the surveillance procedure was carried out (the suspect or accused or other persons whose privacy was violated by the surveillance procedure) of the pertinent procedure if the notification cannot any more prejudice the accomplishment of the goals of the criminal proceeding, public and personal security, also the possible use of the subject of the surveillance procedure in subsequent surveillance procedures.
(2) The persons with regard to whom the surveillance procedure was carried out have the possibility, if they wish, to get familiar with the corresponding surveillance documents as well as recordings.
4.7. In conclusion I would like to allege that in my opinion § 14(6) of the SA should be once again amended. Namely, pursuant to the original version of this section it was forbidden to ask members of the Riigikogu and rural municipality and city councils, judges, prosecutors, defence counsels and clerics as well as officials elected and appointed by the Riigikogu to co-operate in surveillance procedures. I would not like to dwell on the deeply ethic background of the pertinent section, let me just mention that evidently this section, inter alia, had to back § 16(5) of the SA. The latter prescribed that it was forbidden for the surveillance authorities and persons who participated in surveillance procedures to use the surveillance information in the interests of political parties and socio-political associations or for discrimination. The text of §14(6) of the SA became an object of vivid public discussion after the 17 June 1997 decision of the Criminal Panel of the Supreme Court in M.M. case (bribery – § 165(1) of the CrC). The decision held that the recording of the conversation between the judge A.K. and defence counsel M.M. infringed the relevant section of the SA and therefore it was not possible to use the recording as a piece of evidence. The legislator reacted to the vivid discussions with the new enactment of §14(6) of the SA which reads as follows: “Members of the Riigikogu and rural municipality and city councils, judges, prosecutors, defence counsels and clerics as well as officials elected and appointed by the Riigikogu may, by the written permission of the Chief Judge of the Tallinn Administrative Court or of an administrative judge of the same court appointed by the Chief Judge, cooperate temporarily in the criminal proceeding for the accomplishment of single surveillance activities only in case they are participants or witnesses in the same criminal case.” I am of the opinion that the legislator amended the provision hastily when it took the decision of the Supreme Court as the only basis for the amendment without trying to specify what the co-operation in and a mere attendance at surveillance procedures mean. I think that it is, in principle, improper that the valid wording of § 14(6) of the SA actually enables to ask a defence counsel to intercept the telephones, judge to monitor secretly and parliamentarian to enter secretly into someone’s dwelling. The Estonian Bar expressed its absolutely grounded and negative attitude towards the pertinent amendment stressing that the amendment jeopardises the confidential relationship with the clients so inevitable for the defence counsel’s work.
Therefore, I consider that as there is no better version of this provision, the text of §14(6) of the SA should be reworded, for example, in the following way: “Members of the Riigikogu and rural municipality and city councils, judges, prosecutors, defence counsels and clerics as well as officials elected and appointed by the Riigikogu may not be asked to co-operate in the imitation of the crime unless the previous criminal attack was directed at them or their close persons.”