Posts Tagged European Court of Human Rights

In Estonia, new draft legislation would allow journalists to be incarcerated for up to one year for protecting their sources. Protection of journalists’ sources is clearly stated in European Human rights practice. This does, apparently, not prevent new attempts to hamper this particular and crucial part of press freedom.

UPDATE 18/2/2010: Expert in European freedom of expression visits Estonia.

Should the Act be adopted in the given form in the Riigikogu, investigating the mischief of public authorities and public officials would become very complicated for journalists. Much easier, obviously, to write about topics which do not entail the looming breach of source protection for the journalist.

In the summer 2008, Minister of Justice Rein Lang formed a “working group on media freedom legislation”, which went unnoticed by the public. The Ministry remained silent as to the group’s duties.

In November 2009, the representative of the Ministry of Justice proclaimed at a seminar of the Estonian Newspaper Association that following the European example, Estonian journalists too would have their right to protect their sources.

Rein Lang evidently states the opposite. The draft legislation, signed by the Minister, lists over 50 exceptions which oblige journalists to disclose their source to the police, the Prosecutor’s Office and the court. Upon failure to do so, one can be punished with a fine that equals up to 500 daily salaries. Or even face a year in jail, which today seems quite unbelievable. But, if this punishment is not intended to be used, why include it in the law?

After 2004, the press hasn’t been requested to disclose their sources in Estonia. It was then that the Tallinn police brought charges against Eesti Päevaleht reporter Sergo Selder in order to find out the name of the waiter who spat on a cutlet.

During the interrogation, Selder had to endure the policeman’s threats, and was also photographed against the mug-shot background like a prisoner. The investigation was concluded when the Prosecutor’s Office stepped in.

If Lang’s draft legislation had been adopted last year, the silence of the Estonian journalists could have entailed their prosecution and conviction. At the moment, The Code of Ethics of the Estonian Press obliges a journalist to protect confidential information sources.

The Estonian Parliament Riigikogu will start the discussions about the new draft legislation most likely in near future.

The below text was sent to me by Eesti Ekspress reporter Tarmo Vahter, who published it last autumn.

Estonia’s Minister of Justice Threatens to Imprison Journalists

In Estonia, new draft legislation would allow journalists to be incarcerated for up to one year for keeping their sources from the authorities.

Tarmo Vahter, Weekly newspaper Eesti Ekspress, October 19, 2009

My second and thus far last questioning happened a year ago in the basement of the Public Prosecutor’s Office.

On Wismari Street lies Estonia’s most state-of-the-art subterranean proceeding rooms for category-A witnesses / persons to be heard. Mine was numbered 001.

The interior of the room comprised a corner desk, computer and three chairs. One of the walls was probably even see-through from the other side. Like in American police series; so that the colleagues of the interrogator could remain invisible while observing what goes on inside.

Maybe spy Herman Simm, who had been arrested a few weeks earlier, was giving testimony regarding his crimes next door. His ranting could, in any case, not be heard. The interrogator was a special investigator of the Public Prosecutor’s Office. Five years my junior, a tall intelligent-looking man in his early thirties.

He began by apologising profoundly for having to interrogate a journalist. He even stressed that he would not demand punishment in case I remained silent.

I was, after all, a witness, and during interrogations witnesses are supposed to answer questions. I promised that I would definitely not lie.

The interrogator’s first question was: “What do you know about the data regarding criminal matter No. 06700000067 reaching the employees of Eesti Ekspress?”

Of course I knew, because it concerned the so-called Rävala puiestee case, which led to the prosecution of the former Minister of the Environment, Villu Reiljan, for accepting gratuities. Upon investigating the crime, the Security Police had tapped the phone calls of the prominent persons. These transcripts were included in the criminal case file as material evidence. The court proceedings over Reiljan are still under way; therefore the file is publicly unavailable to journalists.

Thanks to confidential sources, my colleague Sulev Vedler and I managed to become partially acquainted with the stenographs. We learned dirty details regarding some members of the Estonian elite, e.g., sworn advocate Daisy Tauk.

Tauk had warned her client Aivo Pärn about the “tail” attached by the Public Prosecutor’s Office. How she came to learn about the “tail” has remained a mystery. A politically sensitive story, considering that Tauk is living with Juhan Parts, the Minister of Economic Affairs and Communication.

The Code of Ethics of the Estonian Press obliges a journalist to protect confidential information sources. This is what I told the interrogator.

Just in case, I added that I would contemplate disclosure of the source if the resolution of a very dangerous crime depended on it. The leaking of sworn advocate Tauk’s phone calls did not, in my opinion, constitute significant damage to the Republic of Estonia or its people.

The interrogator quickly tapped in my answer and presented the next question. Did the Ekspress source work for the Public Prosecutor’s Office?

“I am unable to answer this question due to reasons provided in my previous answer.”

The interrogator repeated the question in five different ways, each time changing the possible employer of the source. My reply remained the same.

The interrogator then printed the minutes of the interrogation on the spot and gave it to me for review. I found no mistakes and signed it.

I spent a total of ten minutes in the basement of the Public Prosecutor’s Office.

In 1996, I was questioned by an investigator of the Central Bureau of Investigation for over three hours with regard to the so-called tape scandal. That was toilsome, but also comical. The late-middle-aged lady didn’t even know how to spell the word “interview”, which I had to spell out to her letter by letter.

In the Parbus case, Ekspress wasn’t interrogated at all

The search for the leak of the Daisy Tauk phone calls ended fruitlessly. Leaks of such a calibre are actually rather rare in Estonia. Meanwhile, Postimees scored with Rein Kilk’s tapped phone call about the so-called “cash-spilling”, which could only have originated from the file of the so-called land exchange criminal case.

Then, Sulev got lucky again. He obtained information regarding the Ivo Parbus criminal case from a well-informed source. Sulev was thus able to write about how some members of the Estonian Centre Party cadged gratuities from real estate developers in Tallinn. The received money enabled a comfortable lifestyle and support for the publishing of the party newspaper Kesknädal.

Shortly after reading Ekspress, the Public Prosecutor’s Office commenced criminal proceedings in order to find Sulev’s source. The investigation was executed by the leading Public Prosecutor Alar Kirs personally.

Among those interrogated was Taavi Aas, the Deputy Mayor of the City of Tallinn. At least one witness told the interrogator about their contact with Sulev and me. We were not summoned for interrogation.

Clever people work at the Public Prosecutor’s Office. They probably guessed that we would hardly disclose our sources.

The police searched for a waiter who spat on a cutlet

The Penal Code allows punishing a witness who refuses to give testimony with a fine or with up to one year in jail. Why did nothing happen to Sulev or me?

The reason is the European Convention on Human Rights, which protects everybody’s right to freedom of expression and has been signed by Estonia. The European Court of Human Rights in Strasbourg strictly monitors the enforcement of the Convention.

The judges of Strasbourg do not prohibit nation states from searching for those who leak information, however, they allow for the pressuring of journalists in exceptional cases only.

After 2004, the press hasn’t been requested to disclose their sources in Estonia either. It was then that the Tallinn police brought charges against Eesti Päevaleht reporter Sergo Selder in order to find out the name of the waiter who spat on a cutlet.

During the interrogation, Selder had to endure the policeman’s threats, and was also photographed against the mug-shot background like a prisoner. The investigation was concluded when the Prosecutor’s Office stepped in.

Ever since, journalists and the Republic of Estonia have endured a marriage of reason, characteristic to bored couples. The authorities despised the information leaks, but didn’t break source protection by force. The grudge accumulated, however.

Last summer, Minister of Justice Rein Lang formed a “working group on media freedom legislation”, which went unnoticed by the public. The Ministry remained silent as to the group’s duties.

Only a few weeks ago, the representative of the Ministry of Justice proclaimed at a seminar of the Estonian Newspaper Association that following the European example, Estonian journalists would also have their right to source protection!

Rein Lang actually wishes the opposite. The draft legislation, signed by the Minister, lists over 50 exceptions which oblige journalists to disclose their source to the police, the Prosecutor’s Office and the court. Upon failure to do so, one can be punished with a fine that equals up to 500 daily salaries. Or even face a year in jail, which today seems quite unbelievable. But, if this punishment is not intended to be used, why include it in the law?

In the list, I immediately recognised the section of the Penal Code pursuant to which they searched for the information regarding Tauk and Parbus reaching the editorial board of Ekspress. If Lang’s draft legislation had been adopted last year, the silence by Sulev and me could have entailed our prosecution and conviction.

At worst, we could have been in jail for up to one year regarding the Tauk case. After release, Sulev would have been put right back to jail like an old criminal – this time for the Parbus case. Of course, we could have appealed to the European Court of Human Rights and demanded hefty compensation from the Republic of Estonia in the case of victory.

GoBus secrets awaiting leaker

Lang characterises the impact of his draft legislation as “extensive”. He is right. Should the Act be adopted in the given form in the Riigikogu, investigating the mischief of public authorities and public officials would become very complicated for journalists. It is easier to write about topics which do not entail the looming breach of source protection for the journalist.

Let us take, for example, the section prohibiting disclosure of information on closed court trials. The court is presently trying the former county governor of Valga County, Georg Trashanov, and GoBus. The indictment implies that the bus businessmen gave the county governor a bribe of over EEK 100 000 in order to get favourable line contracts from the state.

GoBus is no random company; they have connections with the political elite. Although the administration of justice in usually public in Estonia, the court is deliberating a large part of the GoBus trial behind closed doors. The official reason is the protection of the business secrets of the bus company, which seems far-fetched.

It would be nice if there were someone from the inner circle bold enough to spill the GoBus secrets to Ekspress. The people have a right to know the truth about such significant matters. If necessary, Sulev and I will endure another interrogation in the basement of the Public Prosecutor’s Office in the name of source protection.

Sidebar

Hiding a source would be equal to remaining silent about a murder

According to the draft legislation of the Estonian Ministry of Justice, a journalist would be put in jail for up to a year if protecting their source in the investigation of more than 50 types of crimes.

• Crimes with at least an 8-year imprisonment

Genocide. Piracy. Hijacking of aircraft. Murder. Large-scale drug trafficking. Theft by participation of criminal organisation. Robbery. Treason. Espionage. Terrorism. Repeated accepting and giving of bribes. Revenue stamp counterfeiting. Money laundering. And much more.

• Leaking-related crimes

Violation of confidentiality of messages. Violation of the obligation to maintain the confidentiality of secrets which have become known during the course of professional activities. Unlawful disclosure of sensitive personal data. Disclosure of state secrets and classified foreign information. Disclosure of state secrets and classified foreign information out of negligence. Transmission of internal information. Unlawful disclosure of data regarding pre-trial procedure of a criminal matter and data regarding surveillance proceeding. Violation of obligation to maintain confidentiality of secrets.

Source: Ministry of Justice