Banks, Estonia, EU – Baltic States, Financial Services, Legislation

As a result of the extensive data leak in the criminal proceeding opened in 2017 to check on suspicions of money laundering at the Estonian branch of Danske Bank A/S, an unprecedented situation has arisen, which has called into question the fundamental principles of criminal proceeding appropriate for a country of rule of law, a representative for Magnusson said.

"Today, we filed a request with the Office of the Prosecutor General for the termination of the criminal proceeding, and simultaneously a report of a criminal offense for a criminal proceeding to be opened to identify the persons who illegally leaked files containing information of the pretrial investigation of the criminal case to the Italian media publication l'Espresso," sworn advocate Martin Hirvoja, attorney for two of the suspects in the Danske proceeding, said.

"The trial has been effectively taken to the media against the will of the persons involved and illegally, which is why also the defense is compelled, differently from usual practice and in an exceptional manner, to handle the problem concerning the criminal proceeding publicly," he said. 

In the period from Sept. 22 to Oct. 2, 2020, materials of the Danske pretrial investigation were published in very large amounts in several Estonian media publications. It appears from the newspaper articles published that probably the entire criminal file has been leaked. Leaking of materials of a pretrial investigation to such extent is unprecedented in Estonia's existing legal practice. Earlier leaks, according to our knowledge, have been to do with individual fragments or documents, Hirvoja said.  

Due to the data leak, it is not possible to fulfill the requirements applicable to an adversarial judicial procedure, the law office finds.

It pointed out that it is a fundamental principle of the adversarial procedure that the judge handling the case must not see the file of the pretrial investigation before a sitting of the court. Whether a piece of evidence gathered by the prosecutor's office in the pretrial investigation is appropriate and acceptable in court under law is decided only in the course of examination by the court, and in most cases separately for each individual piece of evidence. 

In the present case the criminal file has been made available via the media to all Estonian judges in all tiers of court. Hence there is not a single judge left who could handle the Danske criminal case in accordance with the requirements of the law. It is no longer possible to rectify said fault within a reasonable amount of time. Also, it is no longer possible to ensure compliance with the requirement of the law that witnesses, before giving testimony in court, must not know about the testimony given by other witnesses, nor the other documents examined in court. 

Therefore it is not possible to fulfill most of the requirements concerning judicial proceedings set out in the Code of Criminal Procedure's division on judicial examination. Also, the right of the suspects to the presumption of innocence has been seriously undermined. 

Together with the application for the termination of criminal proceedings, the defense also filed a report of a criminal offense for a criminal proceeding to be opened based on the section of the penal code which sets out imprisonment for up to five years for the illegal disclosure of materials of a pretrial investigation, in order for the prosecutor's office to find out who committed said act. Since the investigation file has not been presented to the suspects, it is ruled out that some private individual may have leaked the materials, the law office said.