The Chancellor of Justice submitted an application to the Supreme Court to declare invalid the provision of the Code of Criminal Procedure Implementation Act which excludes regular judicial control on postponement of notification of person concerned about secret surveillance activities carried out before 2013. The provision is unconstitutional because the legal order does not provide sufficient and systematic monitoring over the notification of surveillance activities conducted in previous years.
The Chancellor analyzed in the frame of constitutional review the principles and procedures of informing the person concerned about secret surveillance activities already in 2011. The Parliament then agreed to the chancellor’s proposal to bring the notification procedure and control over the postponement of notification into the conformity with the constitution.
From the beginning of 2013, a new procedure of surveillance activities entered into force. New procedure requires the Prosecutor’s Office, after one year of expiry date of the authorized secret surveillance activities, to apply for permission to postpone informing about the surveillance activities from the preliminary investigation judge. Along with the new procedure, also the provision of the Code of Criminal Procedure Implementation Act took into effect specifying that above described judicial control does not apply to the surveillance activities carried out before 2013.
Having assessed the new legal situation, the Chancellor of Justice found that the Parliament has only partially complied with his proposal, and the implementing provisions are still contrary to the Constitution in regard to which the provisions do not provide an effective and systematic monitoring system to the postponement of notification of surveillance activities conducted before current year. "In fact, the law allows leaving the person concerned without any notification about the surveillance activities completed earlier years and the court as independent and impartial assessor cannot supervise the legality of the postponement of notification," explained Mr Indrek Teder. In his opinion the legislator should have adopt a transition regulation that would ensure more efficient and systematic monitoring system over the postponement of notification about surveillance activities that bring about serious violations of fundamental rights made before 2013.
Mr Teder added that with collecting, using and preserving personal data during the secret surveillance activities the state strongly intervenes into the privacy sphere of a person and can violate his/her several constitutional rights and freedoms. “According to the Constitution everyone has the right to obtain information and personal data concerning them preserved by the public authorities. The notification of such secretly carried out and rights infringing state activities, creates an opportunity for the person to use necessary judicial remedies to protect his/her rights, f. ex. turn to the court in order to verify whether his/her fundamental rights and freedoms had been violated during the surveillance activities or processing of his/her personal data,” said Mr Indrek Teder. The notification about secret surveillance activities after the lapse of the need of restriction to access the collected data is also a necessary tool to prevent the use of unjustified surveillance activities. “Impartial and independent monitoring is important because not notifying about surveillance activities associates with the continued infringement of fundamental rights and risk of arbitrariness of public power”, he said.