6.  Details concerning the applicants can be found in the Appendix.
7.  The facts of the case, as submitted by the parties, may be summarised as follows.
8.  From 2 September 2004 until 2 January 2005 secret surveillance activities were carried out with respect to the third applicant in the context of ongoing criminal proceedings. The proceedings were later terminated without the applicant being prosecuted. On 4 December 2006 the information obtained via the secret surveillance in those proceedings was put in the surveillance file (jälitusprotokoll) of the criminal proceedings under review in the present case.
9.  The criminal proceedings under review in the instant case were instituted on 18 August 2005 without the applicants being informed of the proceedings. Those proceedings concerned suspicions of high‑level corruption as regards the exchange of plots of land in conservation areas for plots in areas where development was permitted.
10.  Between 23 August 2005 and 11 October 2006 the Internal Security Service (Kaitsepolitsei) carried out various surveillance activities in respect of the first applicant, the second applicant and the third applicant (with respect to the third applicant, the surveillance activities commenced on 16 December 2005). The third applicant was also acting as a member of the supervisory board of the two applicant companies at the material time. In the course of those activities, communications between the fourth applicant and the persons under surveillance were covertly intercepted and listened to.
11.  The surveillance activities were based on authorisation decisions issued by either a prosecutor (forty-four authorisations altogether in respect of covert observation and requests for communication data) or by a preliminary investigation judge (twenty-one authorisations altogether in respect of covert listening in on conversations and the interception of communications).
12.  The authorisation decisions issued by (different) preliminary investigation judges provided general reasons as to why the judges considered the secret surveillance necessary. As an example, one authorisation read as follows: “The judge has acquainted himself with the material gathered during the criminal proceedings and is convinced that the prosecutor’s application is justified. The Code of Criminal Procedure allows for evidence to be gathered by means of secret surveillance. Considering the gravity of the offence, the interests of protecting the legal order, and the fact that gathering evidence by other procedural means is either impossible or especially complicated, then, in the interests of elucidating the truth, the application is perfectly justified and lawful.” The other authorisations by preliminary investigation judges included variations of the same wording, occasionally also including references such as “when public officials abuse their position, it damages their credibility in the eyes of society and damages the State’s reputation” and “[t]his offence belongs to the category of offences relating to office. ... Considering that ..., this type of offence is difficult to discover and prove, and [such offences] hamper the legal rights of all people”. The relevant prosecutors’ decisions contained no reasoning at all.
13.  In addition to surveillance activities, during the pre-trial proceedings, there were various queries, inspections, and home and office searches; (forensic) expert reports were ordered, requests for documents were made to various persons, and the material received was examined. Between 3 October 2006 and 12 November 2007, 202 persons (witnesses and suspects) were interviewed, some of them repeatedly. Between 17 March 2008 and 24 March 2008 the prosecutor’s office invited the applicants to inspect a copy of the criminal file (comprising 191 volumes altogether). The applicants’ representatives submitted different applications concerning the time they needed to inspect the files, ranging between six and ten months. By an order of the Office of the Prosecutor General of 13 May 2008, the applicants were given until 3 November 2008 to inspect the criminal file. Their representatives (except the first applicant’s counsel) submitted requests to the Office of the Prosecutor General, asking it to remove the material which the prosecution did not intend to rely on from the criminal file, and to specify which evidence was intended to prove which facts. The Office of the Prosecutor General dismissed those requests, explaining that the applicants had been presented with all the material gathered during the pre-trial proceedings so that they could assess which material was relevant from the perspective of defence rights.
14.  During the pre-trial proceedings, the second applicant discovered a surveillance device in his office on 25 September 2005. On 3 October 2006 the offices of the third applicant, the second applicant company and the first applicant were searched, and on 20 September 2007 the premises of the first applicant company were searched. On 16 October 2007 the fourth applicant was questioned as a suspect.
15.  As two of the accused – the fourth applicant and E.T. – were members of the Riigikogu (the Estonian Parliament) at the time the pre-trial proceedings were completed, the consent of a majority of the Members of Parliament had to be obtained to lift their immunity and bring charges against them. The Office of the Prosecutor General initiated the relevant procedure on 12 December 2008, and Parliament gave its consent on 24 March 2009.
16.  Altogether, the pre-trial proceedings lasted three and a half years and ended on 31 March 2009 when the statement of charges against the applicants was submitted to the trial court. None of the applicants claimed that there had been periods of inactivity or other significant interruptions as regards the pre-trial proceedings.
17.  From May 2009 onwards the Harju County Court heard the case over a total of ninety-two hearing days. During that time, numerous witnesses were heard: eighty witnesses requested by the prosecution, twenty-eight witnesses requested by the defence, and two people summoned by the court as experts. In May 2009 dates for hearings in November and December 2009 and January, February, April, May and June 2010 were scheduled. Further dates were scheduled in February 2010 (for dates in September and October 2010), in June 2010 (for dates in December 2010 and February and April 2011), in April 2011 (for dates in October, November and December 2011), in November 2011 (for dates in December 2011 and January, February, April and May 2012), in December 2011 (for dates in January and February 2012), and in February 2012 (for dates in March 2012). At the request of some representatives, hearings were not scheduled to take place more than three days a week. The court also took into account the representatives’ wishes that hearings not be scheduled too far in advance, as they were simultaneously involved in other criminal proceedings and therefore not always available. At the end of each hearing day, considering the evidence that was to be examined the following day, the court determined which of the accused and their representatives should appear at court the following day. This allowed persons who were not concerned by such evidence not to attend the particular hearing. Occasionally, hearings had to be rescheduled owing to illness or owing to other personal circumstances of either the accused or their representatives. In November 2009 the court noted that there was a risk that the proceedings might take too long, and decided that the number of witnesses to be heard each day must be increased.
18.  An application was made to separate the first applicant’s case from the case against two other accused (including E.T.), but the representatives of the second and the fourth applicants objected to the first applicant’s case being separated in this way. They submitted that the cases were closely linked, and argued that separating the cases would hinder defence rights and force them to attend other parallel proceedings at the same time. The court dismissed the application to separate the case, referring to the need to guarantee the defence rights of the other accused.
19.  By a judgment of 19 June 2012 the Harju County Court acquitted the applicants of the charges against them. The proceedings before the first-instance court lasted approximately three years and three months. The court found that the surveillance activities had been unlawful and that all the evidence collected by such activities was inadmissible. It did not address the question of whether or not the secret surveillance authorisations in the case had been sufficiently reasoned at the time they had been issued.
20.  The Office of the Prosecutor General appealed to the Court of Appeal on 4 July 2012. Among other things, it challenged the first-instance court’s assessment of the lawfulness of the surveillance activities.
21.  On 13 July 2012 the Tallinn Court of Appeal invited the applicants to notify it of suitable dates in October, November and December 2012, so that hearings could be scheduled. As no dates suitable for everyone could be found out of the dates proposed by the applicants’ representatives, the court invited them to propose new dates for 2013. On 17 August 2012 the dates were set for January and February 2013. In the meantime, the Court of Appeal had also granted an application by the prosecutor for a review of the lawfulness of the surveillance activities. It asked for the surveillance files, including all the prosecutors’ and preliminary investigation judges’ decisions authorising the secret surveillance, to be sent to it.
22.  The Court of Appeal convicted the applicants by a judgment of 19 June 2013. After examining the surveillance files, the court found that the prosecutors’ applications for authorisation of secret surveillance had contained sufficient information to assess the need for such activities. It considered that the surveillance activities had been lawful and the evidence thereby obtained admissible. In convicting the first and the second applicant companies, the court relied on Article 14 of the Penal Code (see paragraph 56 below) and found that the third applicant had acted in the interests of the two companies.
23.  Between 17 and 19 July 2013 all of the applicants lodged appeals on points of law with the Supreme Court.
24.  On 17 December 2013 the Supreme Court granted the applicants leave to appeal. On 22 January 2014 it gave the parties a deadline of 19 March 2014 to submit their observations. In the meantime, the Supreme Court had asked for the surveillance files to be forwarded to it. On 10 April 2014 it was decided that the case would be transferred to the full panel of the Criminal Chamber, and the parties were given an additional deadline of 28 May 2014 to submit their observations.
25.  On 30 June 2014 the Supreme Court delivered its judgment in the applicants’ criminal case (no. 3‑1‑1‑14‑14). It considered the evidence gathered by means of secret surveillance to be admissible. In substance, it upheld the applicants’ conviction.
26.  In assessing whether the length of the proceedings had been reasonable, the Supreme Court relied on the criteria established in the Court’s case-law.
27.  As for the period to be taken into account, the Supreme Court considered that the relevant period had not necessarily started running from the date when the first steps in the criminal proceedings had been taken, but rather when the applicants could be considered to be subject to a “charge”, or when they had been otherwise substantially affected by actions taken by the prosecuting authorities. The Supreme Court did not agree that the relevant period should be calculated from the date when the first secret surveillance activities had been carried out with respect to the applicants. This also applied to the third applicant and the applicant companies, who had suggested that the start date of the surveillance activities – carried out as of 2 September 2004 with respect to the third applicant in different criminal proceedings which were later terminated – should be taken as a starting point (see paragraph 8 above).
28.  Against that background, the Supreme Court considered that the beginning of the relevant time period should be determined as follows: 25 September 2005 for the second applicant (when he had discovered a surveillance device in his office); 3 October 2006 for the first applicant (when his office had been searched); 3 October 2006 for the second applicant company and the third applicant, in relation to certain criminal incidents (when the premises of the company, including the office of the third applicant, had been searched); 20 September 2007 for the first applicant company and the third applicant, in relation to other criminal incidents (when the premises of the company had been searched); and 16 October 2007 for the fourth applicant (when he had been questioned as a suspect).
29.  The proceedings ended on 30 June 2014 when the Supreme Court judgment was adopted and became final. This meant that the criminal proceedings had lasted: eight years, nine months and five days with respect to the second applicant; seven years, eight months and twenty-eight days with respect to the first applicant, the second applicant company and the third applicant (in relation to certain criminal incidents); six years, nine months and eleven days with respect to the first applicant company and the third applicant (in relation to other criminal incidents); and six years, eight months and twenty-one days with respect to the fourth applicant.
30.  When assessing whether the proceedings had been excessively long, the Supreme Court firstly observed that the case had been rather complex as regards the issues of law, and very complex from an evidentiary perspective. Nine persons had been accused, two of whom had been Members of Parliament whose immunity had had to be lifted (see paragraph 15 above). Complex schemes had been used to commit the offences in question, and the activities of the accused had involved a high level of conspiracy. This had made the collection of evidence concerning the offences difficult and the analysis of the (circumstancial) evidence time-consuming. Numerous witnesses had been heard during the pre-trial proceedings and in court (see paragraphs 13 and 17 above). The proceedings before the court of first instance had entailed hearings over the course of ninety-two days, and this also indicated how many questions had needed to be addressed and how complex the questions had been.
31.  Secondly, the Supreme Court stated that there had been no delays during the pre-trial and trial stage of the proceedings. Rather, the lower courts had attempted to guarantee that the proceedings would not last an excessively long time. Some procedural flexibility had been lost due to the fact that the first-instance court had allowed the accused who had not been directly concerned by particular questions and evidence to be absent from the hearings altogether (see paragraph 17 above). At the same time, this had alleviated the effect of the proceedings on the accused, and had therefore been justified. The Supreme Court admitted that the organisation of the court hearings at first instance (not planning hearings sufficiently far in advance and not deciding on procedural matters quickly enough, thus allowing for long disputes between the parties), the volume and structure of the criminal file, and the presentation of the statement of charges (which had entailed unnecessary repetition and the structure of which had been illogical to some extent) might have added to the duration of the proceedings. However, the court noted that the defence representatives had opposed hearings being planned in advance, and in that regard they too had to be considered responsible. Furthermore, although it might have been reasonable for the prosecution to remove some of the material from the criminal file, the Supreme Court also considered that it had been for the defence representatives and not for the prosecution to decide whether some of the evidence in the criminal file was relevant from the perspective of the defence. The presentation of the statement of charges had not hindered defence rights either. As for separating the criminal case of E.T. from the rest of the criminal proceedings (see paragraph 79 below), the Supreme Court considered that this had related to only one of the charges against the third applicant and the first applicant company, and the latter’s counsel had not objected to the separation. Accordingly, the decision not to separate the case of E.T. from the rest of the proceedings could not be considered justified. In conclusion, the Supreme Court found that although some time might have been lost owing to the above-mentioned issues, the overall loss of time had been relatively insignificant in the context of the total duration of the proceedings.
32.  Thirdly, the Supreme Court considered that the applicants had not prolonged the proceedings. In that regard, it noted that the defence representatives could not have been expected to preventively clear their timetables for possible appeal hearings in autumn 2012. Therefore, the fact that, at the appeal stage, hearings had only taken place six months after the Court of Appeal had started planning the relevant dates (see paragraph 21 above) could not be held against the applicants. Although the applicants could not be reproached for the fact that hearings had had to be cancelled or adjourned owing to their health and other personal reasons (see paragraph 17 above), such delays could not be attributed to the State either.
33.  The Supreme Court admitted that the impact of the proceedings on the applicants had undoubtedly been serious, especially given the significant public interest in the case. At the same time, the court considered that other than the two months and nineteen days that the second applicant had spent in detention, and the two days when the first applicant had been under arrest, the applicants had not been detained. Moreover, on 17 February 2010 the first-instance court had annulled a restriction imposed on the first, the second and the third applicants not to leave their place of residence.
34.  Assessing all those circumstances, the Supreme Court found that the proceedings, although close to being excessively lengthy, had still been concluded within a reasonable time.
35.  The Supreme Court noted that secret surveillance interfered with people’s right to privacy, and that the principle of ultima ratio served the purpose of ensuring the proportionality of such interference.
36.  The Supreme Court then addressed the preliminary investigation judges’ decisions authorising the surveillance activities. Firstly, it noted that, in accordance with Article 145 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik, hereinafter “the CCrP”, see paragraph 49 below) all court decisions, including decisions authorising secret surveillance activities, had to be reasoned. That meant that, in accordance with Article 110 § 1 of the CCrP (see paragraph 45 below), authorisation decisions had to contain reasoning as to why the issuing court found that there was probable cause to believe that an offence had been committed, and why it was impossible, or especially complicated, to collect evidence by other means (the principle of ultima ratio). That reasoning could not be merely declaratory. The necessary reasoning could, however, rely on general criminological knowledge, for example knowledge concerning the nature of organised crime, the high level of conspiracy involved in the case in question, a presumed lack of witnesses willing to give statements, and so on. In any event, the reasoning had to be linked to the evidence in that particular case. Owing to time pressure and the likely fragmentary nature of information available at the time, the duty to provide reasons was less extensive when authorising secret surveillance than when deciding to convict a person.
37.  The Supreme Court then noted that the preliminary investigation judges’ decisions (see paragraph 12 above) had not complied with the requirement of being reasoned. However, the lack of reasoning did not amount to a lack of authorisation, and did not mean that the surveillance activities had been conducted arbitrarily and beyond judicial control. This was so because the investigating authority was not competent to assess the adequacy of reasoning. It had the right to rely on the operative part of a decision authorising surveillance activities. Therefore, the failure to give proper reasons for a decision authorising surveillance activities did not result in the inadmissibility of evidence thereby collected. The Supreme Court reasoned that it was not only during the authorisation stage that the ultima ratio nature of the secret surveillance measures could be examined. In fact, regardless of the existence of earlier decisions authorising surveillance activities, courts subsequently hearing a criminal case also had an obligation to examine whether the substantive conditions for granting the authorisation decisions had been fulfilled at the time the decisions had been issued. If necessary, the courts could then declare the evidence thereby obtained inadmissible. A lack of requisite reasoning in an initial authorisation decision required the subsequent examination to be conducted with special diligence.
38.  The Supreme Court went on to note that it had directly examined the material in the surveillance file, including the prosecutors’ applications for authorisation of surveillance activities. Based on that material, it had concluded that the substantive conditions for authorising surveillance activities had been fulfilled at the time the authorisation decisions had been issued. The Supreme Court was convinced that at that time there had been probable cause to believe that offences had been committed, and that it had been impossible to collect evidence by other means to verify that suspicion. In support of its findings, the Supreme Court referred to the nature of the crimes and the high level of conspiracy involved, and considered that it was unlikely that written or electronic evidence could have been collected or that witnesses could have been found without the proceedings being jeopardised.
39.  With regard to the reasoning in the prosecutors’ decisions to authorise surveillance activities, the Supreme Court observed that, despite the requirement – deriving from Article 145 of the CCrP – that such decisions also had to be reasoned, they contained only an operative part and no reasoning at all. It then reiterated its position outlined above regarding the decisions issued by a preliminary investigation judge authorising surveillance activities. The Supreme Court concluded that the conditions set out in Article 110 of the CCrP had been fulfilled at the time the decisions had been issued.
40.  As the third applicant had raised the question of the compatibility of the regulation of secret surveillance with the Constitution and the Convention, the Supreme Court – also acting as a constitutional review court – analysed the regulation of the CCrP (the limitations as regards offences in respect of which secret surveillance could be conducted, the principle of foreseeability, and the permitted duration of surveillance). It found that the relevant regulation was constitutional. The Supreme Court also concluded that, in the particular circumstances of the case, the duration of the surveillance activities with respect to the second and the third applicants had not been excessively lengthy.
41.  Judge Kergandberg addressed the requirement to provide reasons for decisions authorising secret surveillance. He found that the Supreme Court had altered its earlier practice by “if not 180 degrees, then 160 degrees” by accepting that the lack of reasoning in the relevant decisions could not be equated to a lack of authorisation. Up until that judgment, it had been established case-law that, in accordance with Article 111 of the CCrP, violating the ultima ratio principle when issuing secret surveillance authorisations also inevitably meant that the evidence thereby obtained was inadmissible. In the instant case, the Supreme Court had distinguished between “granting authorisation for secret surveillance activities” and “obtaining evidence via secret surveillance activities”, and had stated that a violation of law during the authorisation stage could not affect the admissibility of evidence.