Article „Wire-tapping of communication between attorney and client is unacceptable“ by attorney-at-law Marko Pilv
The Estonian daily Eesti Päevaleht and Online portal Delfi on 9 December 2016 published an article „Wire-tapping of communication between attorney and client is unacceptable“ by attorney-at-law Marko Pilv.
In Estonia there were once again news disclosed about a certain criminal case (regarding a well-known Estonian politician) where it became evident that investigation authorities had conducted surveillance activities with regard to attorney, by documenting his meeting with the client and observing the attorney also during the meeting. Unfortunately the truth is that the number of such cases in which the communication between attorney and his client has been documented during surveillance activities and included in the case files, is much higher than meets the eyes of the general public. It is not common and prevailing practice but the problem clearly exists.
Obviously such exchange of information may include very important information with regard to a criminal proceeding. Even if court is declaring some evidence inadmissible, this does not change the fact that the respective information can be used in the proceeding (for example, in planning other procedural acts, forming the procedural tactics, etc.). The extent of advantage of the prosecutor’s office depends on the actual value of the received information.
To summarize the article, if investigation authorities have obtained access to information which they should not have access to, they are basically not risking with anything because in the worst case scenario the court shall declare the evidence inadmissible or illegal upon making the court judgement. At the same time, by surveillance or wire-tapping the authorities have become aware of certain information that might be useful at a later stage of the proceeding. Thus, in the current situation there is more to win than to lose from the surveillance or wire-tapping of the communication between attorney and his client, and this is unacceptable in the rule of law.
The valid regulation definitely needs a revision with this regard. First of all it is necessary to eliminate all possibilities for investigation authorities to observe the communication between the attorney and client. Secondly there should be clear regulation and actual liability for illegal/prohibited surveillance activities similarly to the illegal activities of average persons.
The full article in Estonian can be read here.