RAIT MARUSTE ⟩ There have been problems at the prosecutor's office for a long time already

Photo: Urmas Luik

• In many countries, the minister of justice also holds the office of the state prosecutor general.
• The head of the field, that is the minister of justice, must be sufficiently informed.
• The prosecutor's office is not an independent state authority.

I am prompted to write by the media and commentators' surprisingly vague, if not to say mistaken, understanding of the role of the prosecutor's office and the ministry as well as state authorities in a democratic rule of law. This is forcing me to repeat the fundamentals of the separation of powers and their activities, former Supreme Court justice Rait Maruste writes.

When commenting on the strained relations between the minister of justice and the prosecutor general in the media, the shortcomings of the parties in their work have been pointed out. It has also been claimed that the minister of justice violated the separation of powers. The media as well as several thinkers have begun to suspect that the minister has unacceptably interfered in the activities of the prosecutor's office.

Regarding the justification of the mutual and media accusations, it is still necessary to «look within». However, I was prompted to write by the media and commentators' surprisingly vague, if not to say mistaken, understanding of the role of the prosecutor's office and the ministry as well as state authorities in a democratic rule of law. This is forcing me to repeat the fundamentals of the separation of powers and their activities.

The multiple roles of the minister of justice

In the circumstances of Estonia's 30-year history of modern statehood and constitutional order, it is strange to claim that this is a violation of the separation of powers. This is erroneous and does not understand the nature of the democratic rule of law. Such an understanding is either dilettantish, does not understand the structure of Estonian statehood, or is influenced by the Soviet-era understanding of the status and role of the prosecutor's office, or a mixture of both.

In general terms, the classic democratic organization of power, which is also the basis of the Constitution of the Republic of Estonia in force today, consists of three independent state powers: legislative, executive and judicial. They are built on the principle of mutual balance and control.

According to the separation of powers, the legislator (parliament), elected by the people, decides which acts are violations of the law, what the punitive measures are, and by whom and how the violations are processed. The task of the executive branch, and in this context in particular the Ministry of Justice, the Ministry of the Interior and the prosecutor's office, is to ensure the legal order. Whether the legal order is ensured according to the procedure prescribed in the Constitution and laws is assessed by a third state power, i.e. an impartial and independent court.

Our Constitution does not even mention the prosecutor's office, let alone give it the status of an independent state power. According to the modern democratic rule of law, the prosecutor's office as an institution can be considered as an executive power, which, as a rule, is part of the Ministry of Justice. Investigation and (state) prosecution of crimes, investigative proceedings and the presentation of the result to the court and the defense of it there is a function of the executive branch.

In many common law countries, it is common for the minister of justice, in addition to being the government's leading legal advisor, to also be the attorney general. It is a matter of practical organization whether the functions of the minister of justice and the prosecutor general are, so to say, two-in-one, or whether they perform them separately, as in Estonia. In other words, both being subdivisions of one branch of the executive power, the Ministry of Justice.

While the minister of justice is legitimized by the Riigikogu, the prosecutor general is appointed by the Government of the Republic, and the appointer -- the government -- also bears responsibility for its decision. The minister of justice has a political mandate to organize and be responsible for their area of administration.

Estonia's solution is a reasonable legal theoretical and practical decision of the creators of the Constitution. In the circumstances at the time, this could have been motivated, in addition to the aforementioned, by the desire to curtail the practice of the Soviet system, where the prosecutor's office was a state within a state that was subordinate to the prosecutor's office of the USSR and the Communist Party of the Soviet Union (CPSU), and which was locally controlled and managed by the department of administrative bodies of the Central Committee of the Estonian Communist Party.

The problems are obvious

Neither the prosecutor's office nor any other authority in the field of law enforcement is an independent state authority. Claiming that the head of the justice sector, i.e. the minister of justice, does not have the right to ask for and receive information about what is happening in their area of administration is unfounded and incomprehensible.

The head of the field, i.e. the minister of justice, must be adequately informed in order to plan the government's legal policy and decisions accordingly. Exhaustive and reasoned explanations and assessments to the people's representative -- the Riigikogu -- are also unthinkable without adequate information.

The rule of law cannot function if the minister (and the government) finds out about things through social or commercial media or through insiders. Essentially, this means getting information ex-post, often also in a distorted form due to either incompetence or bias.

Therefore, obtaining information and explanations from the relevant executive authorities is fully justified and necessary. It is a matter of governance culture and good practices to keep asking for information and explanations separate from micromanaging and interfering in the operational activities of subordinate institutions. The question of whether this has happened is expected to be answered by the undertaken inspection, i.e. the management audit.

It has been obvious for a long time that there are problems at the prosecutor's office. Both with the management of proceedings, procedural economy and observing the reasonable time of proceedings. This has caused discontent among the public and is also reflected by the internal tensions in the system that have reached the media. The most well-known individual examples of the problems that can be highlighted are the endlessly protracted cases of Tallinna Sadam and Porto Franco, or the soap opera-like human relations within the law enforcement agencies of Tartu.

The case of Kajar Lember

The sour cherry on top of the cake of problems is Kajar Lember's court case, where nearly 10 years and hundreds of thousands of euros of state money and the empty work of officials culminated in an acquittal of a 10-euro haircut as charges of corruption. Based on my experience, I can confirm that in the Strasbourg Court of Human Rights it would be very likely to find a violation of Article 6 of the ECHR, that is, to find a violation of the condition of reasonable time for proceedings and to award fair compensation. If this happens, the Estonian taxpayer will have to pay for this as well.

It is clear that the quick mediatization of the matter in an environment of accumulated tensions, conflicting opinions and the opinions of outside experts will not bring a solution. Therefore, the management audit initiated by the minister of justice is a necessary and adequate measure to clarify the situation and, if necessary, implement remedies. In the end, the one responsible in this situation is the government, which not only has the right, but also the duty to fix things and restore the efficiency of the system and the trust of the people.