THIRD SECTION
CASE OF SEPPERN v. ESTONIA
(Application no. 31722/22)
 
JUDGMENT
 
Art 6 (criminal) • Fair hearing • Exclusion of applicant’s trial statements as unreliable due to use of evidence obtained unlawfully by means of secret surveillance to test, in cross-examination, the credibility of those statements • Domestic courts provided thorough reasons, why the use of excerpts of intercepted telephone calls was in accordance with domestic law • Reasons neither arbitrary nor manifestly unreasonable • Limited access of the domestic courts to the full transcripts of the intercepted telephone calls a significant procedural safeguard • Applicant able to challenge the use and content of intercepted telephone calls and his arguments were addressed in a thorough and non-arbitrary manner • Use of secret surveillance reports not decisive for the outcome of proceedings • Applicant not deprived of a fair trial
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
16 September 2025
 
FINAL
 
09/02/2026
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Seppern v. Estonia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Ioannis Ktistakis, President,
 Peeter Roosma,
 Lətif Hüseynov,
 Darian Pavli,
 Diana Kovatcheva,
 Úna Ní Raifeartaigh,
 Canòlic Mingorance Cairat, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 31722/22) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Alar Seppern (“the applicant”), on 21 June 2022;
the decision to give notice to the Estonian Government (“the Government”) of the complaint concerning the use of secret surveillance reports in criminal proceedings against the applicant in order to test the credibility of his statements, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 1 July 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The complaint concerns the use of evidence obtained unlawfully by means of secret surveillance in order to test, in the context of cross‑examination, the credibility of the applicant’s statements, with the result that his statements were subsequently excluded on the grounds that they were unreliable. THE FACTS
2. The applicant was born in 1986 and lives in Jõhvi. He was represented by Mr A. Valk, a lawyer practising in Jõhvi. 3. The Government were represented by their Agent, Mr T. Kolk, Representative of Estonia to the European Court of Human Rights. 4. The facts of the case may be summarised as follows. 5. The applicant was suspected of several criminal offences. During the criminal investigation his telephone was wiretapped and his conversations with other persons were recorded (hereinafter also referred to as “secret surveillance”). 6. During a trial hearing on 21 September 2020, the Viru County Court declared inadmissible the material obtained by means of the above-mentioned secret surveillance. The court indicated that the ultima ratio nature of the need to conduct secret surveillance had not been sufficiently reasoned in the case at hand. The court noted that it would provide further reasons in its judgment (see paragraph 9 below). 7. During the applicant’s cross-examination at the trial on 19 October 2020 the Viru County Court – at the request of the prosecutor – agreed to disclose several excerpts of the transcripts from the above-mentioned wiretapped telephone calls in order to assess the credibility of the applicant’s statements. The applicant was offered and accepted the opportunity to explain the inconsistencies between his trial statements and the recorded telephone calls. 8. By a judgment of 19 April 2021 the Viru County Court convicted the applicant of a number of offences (tax evasion, the counterfeiting of documents and the use of those documents, the fraudulent use of important identity documents and fraud) and acquitted him of several others. 9. In that judgment, in the context of reviewing the lawfulness of secret surveillance (jälitustoimingute seaduslikkuse kontroll), the court concluded that the decisions by which the preliminary investigation judge had authorised the wiretapping had not included sufficient reasons as to the ultima ratio nature of that measure. The secret surveillance had thus been in violation of the Code of Criminal Procedure (kriminaalmenetluse seadustik). Consequently, the court declared the evidence obtained by wiretapping inadmissible as evidence (see paragraph 19 below). 10. As regards disclosing excerpts from the transcripts of the intercepted telephone calls in order to assess the credibility of the applicant’s statements (see paragraph 6 above), the Viru County Court reasoned that under Article 289 § 3 of the Code of Criminal Procedure (see paragraph 20 below) such a procedural measure had been lawful despite the fact that the evidence in question – the transcripts of the intercepted telephone calls – had been declared inadmissible. The court noted that according to the explanatory memorandum accompanying the draft law on Article 289 § 3 of the Code of Criminal Procedure, documents or data recordings could be used in order to assess the credibility of witness statements regardless of their admissibility as evidence. The court concluded that the legislature had not intended to limit the range of documents or data recordings used for that purpose only to those that were admissible as evidence. The court also stressed that, in assessing the credibility of witness statements in such a manner, it was not the content of the intercepted telephone calls that was examined, but only whether the witness had given consistent and coherent statements about the relevant circumstances. 11. The Viru County Court stated that the applicant had not been able to credibly explain the inconsistencies between his statements during cross‑examination and the intercepted conversations. His trial statements were therefore excluded as unreliable. 12. Both the applicant and the prosecutor appealed against the Viru County Court’s judgment. 13. On 12 January 2022 the Tartu Court of Appeal partially quashed and partially upheld the first-instance judgment. It overturned the applicant’s acquittal in respect of two counts of incitement to counterfeit documents and convicted him of those offences. 14. In response to the applicant’s argument that the use of the intercepted phone calls in order to assess the credibility of his statements had been unlawful, the appellate court held that the use of those transcripts had been in accordance with law. The court acknowledged that, from a psychological point of view, the applicant had not been entirely wrong in asserting that judges could be subconsciously influenced by the information brought to their attention by such a juxtaposition of trial statements with earlier recordings. Indeed, the human brain was not capable of “erasing” knowledge with a simple command. However, that did not mean that the measure described in Article 289 § 3 was impermissible. Were it otherwise, the procedural measure provided for in Article 289 § 3, and in Article 289 § 1 concerning disclosing a witness’s pre-trial statements in order to assess the credibility of his or her trial statement, could never be resorted to, as in either of those situations the judge would become aware of the fact that the person had previously claimed something else compared to what he or she said during a trial hearing. The appellate court further asserted that Article 289 § 3 did not have to explicitly state that the documents or data recordings could be used in that context irrespective of their admissibility as evidence. 15. On 18 April 2022 the Supreme Court refused to examine the applicant’s appeal on points of law. 16. As regards the offences of which the applicant was convicted, the transcripts of the intercepted telephone calls were used to assess the credibility of his trial statements with respect to three charges (tax evasion, counterfeiting documents and two counts of incitement to counterfeit documents), and his trial testimony was excluded in the above-mentioned manner. 17. As regards the first count of incitement to counterfeit documents, the domestic courts relied on information from a bank, witness statements and an excerpt from the commercial register. As regards the second count of incitement to counterfeit documents, the domestic courts relied on an expert report on handwriting, witness statements and the applicant’s own statements (in so far as they had not been excluded as unreliable). In respect of tax evasion, the courts relied on several witness statements, a number of evidence inspection reports (asitõendi vaatlusprotokoll) and a report on the employment registry inquiry. With respect to the above offences the courts assessed the facts of the case against their overall context, including from the perspective of real-life plausibility (eluline usutavus) and took into account the respective roles which the applicant and certain other persons had played in relation to the involved companies. 18. Regarding offence of counterfeiting documents, the courts relied on information about entries in relevant registers, declarations related to a certain company linked to the applicant, information obtained through cross-border legal cooperation, search reports, information obtained from a telecommunication service provider, and the fact that a certain V.S. had been dead by the time the relevant entries had been made using his ID card and that certain of his belongings had been found in the applicant’s possession. The courts also took into account the amount of information that must have been known to the person using V.S.’s ID card after his death and the ownership and management structure of the companies involved. It was also noted that the modified entries in the tax declarations had exclusively served the interests of the applicant and his partner. On the basis of the evidence as a whole, the appellate court added that it had not been shown that V.S. had actually held any real managerial role in the company in question and that he had rather been the applicant’s “front man” (variisik). RELEVANT LEGAL FRAMEWORK
 The Code of Criminal Procedure
19. Article 1261 §§ 2 and 4 provide as follows:
Article 1261. General conditions for conducting surveillance activities
 “... (2) Surveillance activities are permitted on the grounds laid down in this Code provided it is not possible to gather the data by means of other operations or to collect evidence by means of other procedural operations, or provided such gathering or collection is not possible at the time, or is materially complicated, or may prejudice the interests of the relevant criminal proceedings.
... (4) Information obtained by means of surveillance activities constitutes evidence, provided that the requirements of the law have been observed when applying for authorisation for the surveillance activity, when granting authorisation and when conducting the operation.
...”
20. Article 289 §§ 1 and 3 provide as follows:
 
Article 289. Assessing the credibility of witnesses
“(1) In order to assess the credibility of witness testimony, the court may, at the request of a party to judicial proceedings, during adversarial examination, order that any statements made by the witness during pre-trial proceedings be disclosed if those statements contradict the testimony given during cross-examination.
... (3) To assess witness credibility, any other document or record of information containing a previous statement by the witness that contradicts the testimony given during cross-examination may also be disclosed during the examination.
...”
21. Article 293 § 1 provides that the accused is examined in court in accordance with § 2862 and §§ 288–2891 of the Code of Criminal Procedure. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22. The applicant complained that his right to a fair trial, as provided for in Article 6 § 1 of the Convention, had been violated owing to the fact that the domestic courts had relied on unlawfully intercepted telephone calls in order to declare his statements at trial unreliable as evidence. The relevant parts of Article 6 § 1 of the Convention read as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
23. The Government, referring to the arguments they raised on the merits (see paragraphs 28-33 below), contended that the complaint was manifestly ill-founded. 24. The applicant disagreed. 25. The Court finds that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
26. The applicant argued that in the present case the secret surveillance reports had been obtained in violation of domestic law. In accordance with Article 1261 § 4 of the Code of Criminal Procedure those reports had been declared inadmissible as evidence. That domestic rule for the exclusion of unlawfully obtained evidence was to be seen as absolute. That is to say, the evidence in question should have been excluded from the criminal proceedings as a whole and should not have been used in any manner. In the present case the domestic courts had violated that exclusionary rule in their application of Article 289 § 3 of the Code of Criminal Procedure. The interpretation of the provision in question should not lead to a conclusion that unlawfully obtained evidence – while generally inadmissible – was nonetheless admissible in some respect. There was no previous case-law of the domestic courts, notably the Supreme Court, where Article 289 § 3 of the Code of Criminal Procedure had been interpreted in the same manner as in the present case. 27. The applicant further argued that the use of unlawfully obtained secret surveillance reports against him had rendered the criminal proceedings as a whole unfair. He asserted that the evidence in question had had a direct impact on his conviction and sentencing. The courts had used this unlawfully obtained evidence either to exclude other evidence which would have weighed in his favour (his own statements) or had based their findings directly on the unlawful evidence. He also pointed to a specific example where in the context of one charge concerning the counterfeiting of documents the appellate court had, in his opinion, established facts directly on the basis of the secret surveillance report (notably in finding that he had used V.S. as a “front man” (variisik) and had had V.S.’s ID card in his possession). (b)   The Government
28. The Government, in response to the applicant’s argument (see paragraph 26 above), maintained that making use of the secret surveillance reports in the context of Article 289 § 3 of the Code of Criminal Procedure, despite those reports being inadmissible as evidence, had been in accordance with domestic law. The Government admitted that it had been the first time that the question about the correct interpretation of that Article in such a specific situation had arisen in practice. However, the Government referred to the domestic courts’ comprehensive reasoning, which could not be considered arbitrary. According to the Government the applicant was merely attempting to reopen the dispute concerning the correct interpretation and application of domestic law. 29. Moreover, the Government stressed that under Article 289 § 3 of the Code of Criminal Procedure the objective of disclosing documents and data recordings was not to create new evidence, but rather to exclude unreliable (including false) evidence. The disclosed documents and records of information in the present case had not been evidence in their own right and had not been assessed as such. 30. The applicant had not been convicted on the basis of the unlawfully obtained secret surveillance reports. The courts had not relied on them directly in order to prove any aspect of the case. The reports had merely been used to exclude as unreliable some of the statements the applicant had made at the trial. However, given the otherwise sufficient, substantial and consistent body of evidence and the fact that the applicant’s own statements had not been corroborated by other evidence, the applicant would have been convicted even if his statements had not been excluded. 31. In the case at hand, the full transcripts of the applicant’s telephone calls (as contained in the secret surveillance reports) had never reached the domestic courts, since the Viru County Court had declared them inadmissible as evidence. The Viru County Court had reached that decision on the basis of the prosecutor’s authorisation requests and the preliminary investigation judge’s decision to authorise secret surveillance, that is to say without seeing the content of the secret surveillance reports. The prosecutor had later used the reports at a hearing in order to read out certain limited phrases from them in response to some of the applicant’s trial statements. Those phrases were entered into the court record and remained accessible to the courts only via that record. The prosecutor had not submitted the reports to the courts after that. 32. The applicant had been able to challenge the admissibility of the evidence obtained by means of secret surveillance. He had done so successfully. In that connection, the Government pointed out that the secret surveillance reports had been found to be inadmissible as evidence owing to the insufficient reasoning of the underlying authorisation requests and decisions rather than, for example, the fact of being obtained through any form of ill-treatment. 33. The applicant had also been able to contest the use of the secret surveillance reports in the context of Article 289 § 3 of the Code of Criminal Procedure. He had availed himself of that opportunity and the domestic courts had given due consideration to his arguments. The domestic courts’ approach to the evidence and the conclusions drawn from that evidence had not been flagrantly or manifestly arbitrary. No doubts arose in respect of the authenticity, accuracy or reliability of those reports.

Outcome for Article 6: no_violation