Published on 27 March 2023

THIRD SECTION

Application no. 31722/22 Alar SEPPERN against Estonia lodged on 21 June 2022 communicated on 10 March 2023

SUBJECT MATTER OF THE CASE

The complaint concerns the use of evidence obtained via secret surveillance in order to test, in the context of cross-examination, the credibility of the applicant’s statements, and to subsequently render his statements inadmissible as unreliable.

In the criminal trial against the applicant the Harju County Court declared the evidence obtained by way of secretly tapping the applicant’s phone inadmissible. The court reasoned that the decisions by which the preliminary investigation judge had authorised the phone tapping had not been sufficiently reasoned and had thus been in violation of Code of Criminal Procedure. However, during the applicant’s cross-examination, the trial court – at the request of the prosecutor – agreed to publish excerpts from the intercepted phone calls in order to verify the credibility of the applicant’s statements. The Harju County Court and subsequently the Tallinn Court of Appeal reasoned that under the Code of Criminal Procedure such a procedural step had been lawful despite the fact that the concerned evidence (i.e., records of the intercepted calls) had previously been declared inadmissible. As the applicant was not able to credibly explain the inconsistencies between his cross-examination statements and the intercepted conversations, his statements were set aside as unreliable and – based on the evidence before the courts (which excluded the intercepted call records) – he was convicted. The Supreme Court refused to examine his appeal on points of law.

The applicant complains that relying on the intercepted phone calls in order to declare his cross-examination statements unreliable as evidence violated his right to a fair trial under Article 6 § 1 of the Convention.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, in view of the domestic courts relying on the applicant’s intercepted call records despite having previously declared them inadmissible as evidence due to them having been obtained in breach of the Code of Criminal Procedure?