Health data: can the police request it without consent?

Police requests for health data highlighted a problem raised by NAMM attorney-at-law Sander Potisepp. The question was not only whether the police may request health data in criminal proceedings. The main question was whether this is done with the person’s consent, under court supervision or on another clearly understandable legal basis.

Postimees wrote that the police had left the public with the impression that people’s health data was requested only with their permission. Sander noticed a contradiction in this and pointed out that the practice may be broader. After his intervention, the police had to admit that health data had also been requested without the person’s consent.

Health data is not ordinary procedural information. It can reveal a person’s illnesses, treatment, addictions, mental health condition and other highly personal matters. Its use must therefore be exceptional, justified and capable of later review.

The question raised by Sander is important for everyone, not only for people who are suspects or witnesses in a criminal case. If a state authority can request sensitive data simply by making a query, people must have certainty that this power is not used too broadly.

A practical problem is also that a person may not know who viewed their health data and why. This issue shows why data protection is not only a technical matter. It is a matter of fundamental rights. When the state uses a person’s health data, control must be stronger than in the case of an ordinary document or registry entry.

Read more from Postimees.

Work accidents, employee rights and compensation for damage

A work accident should be recorded even if the injury initially seems minor or notifying the employer feels uncomfortable. NAMM attorney Simone Eelmaa and the firm’s founder Küllike Namm wrote in Põhjarannik about work accidents, occupational safety, employee rights and employer liability.

The article discusses what to do if an accident happens at work, the injury at first appears insignificant, notifying the employer seems difficult, or the employee fears that recording the incident may cause trouble. These are precisely the situations in which decisions are often made whose consequences become apparent only later, when the health damage worsens, work ability decreases, or a dispute arises over whether the injury was connected to work.

What should you do immediately after a work accident?

Law Firm NAMM recommends acting quickly and thoughtfully in the event of a work accident. The employee should notify the employer or direct manager of the incident as soon as possible and, where possible, do so in writing.

If the injury requires medical assistance, the doctor should be told honestly that the accident happened while performing work duties. It is also worth writing down what happened, when and where it happened, what work was being done, what work equipment was used, who was present, and whether there may have been shortcomings in work organisation, instruction or work equipment.

Which evidence should be kept?

It is important to keep photographs, messages, emails, medical documents and witness contact details. These may later be decisive if it becomes necessary to prove the circumstances of the work accident, the employer’s possible liability or the damage suffered by the employee.

Recording a work accident is not the employee “creating a problem”. It is a way to protect one’s health, income and rights. If the incident remains undocumented, it may later be significantly more difficult for the employee to claim compensation for medical expenses, loss of income, reduced work ability or other damage.

Is the employer always liable?

For an employer, occupational safety does not mean merely having written instructions. A safe working environment requires actual risk assessment, substantive instruction, suitable work equipment, supervision and readiness to stop work if continuing the work endangers a person’s life or health.

If an accident nevertheless occurs, honest and accurate documentation is in the interests of both parties. It is often assumed that if the employee has breached occupational safety rules, the employer is automatically released from liability. That is not the case. The employer is released from liability only if the employer had ensured occupational safety, suitable work equipment and the necessary preparation, and the accident occurred independently of those measures.

Question: can reporting a work accident harm the employee?

Answer: reporting a work accident is not an accusation against the employer, but a necessary step to record what happened. If the accident remains undocumented, it may later be much more difficult to prove that the health damage was caused by work.

When should legal advice be sought?

If the circumstances of the work accident are unclear, the employer does not wish to register the incident, or the employee does not know how to protect their rights, it is worth seeking legal advice as early as possible. Early advice helps avoid a situation where the necessary evidence disappears and the employee bears alone a risk that may in fact be connected to insufficient occupational safety or the employer’s failure to fulfil its obligations.

The article can be read in Põhjarannik (in Estonian).

Can foreign evidence be trusted blindly?

The ANOM case shows that, in certain situations, evidence received from foreign countries should be treated with greater caution. ANOM phones created by the FBI appeared to users to be a secure means of communication, but in reality the messages came under the control of law enforcement authorities. The impact of this operation also reached Estonian criminal cases. In Estonia, charges were brought against 28 people in total.

NAMM attorneys have pointed out that such evidence must not be trusted blindly. The value of evidence does not depend only on the content of the messages. It is equally important to know how those messages reached the state, who authorised this and whether the entire process was in line with the protection of fundamental rights.

The Supreme Court of Estonia has found that ANOM evidence can be used in Estonia. In the view of NAMM attorneys, however, this does not end the debate about how thoroughly a court must examine the background of foreign evidence. Simone Eelmaa, Sander Potisepp and Kristjan Tuul wrote about this in more detail in Eesti Ekspress.

Sander Potisepp also explained the practical side of the ANOM dispute on the ERR programme Pealtnägija. His explanation showed why, for defence lawyers, it is not enough merely to know that the evidence comes from a foreign country and was obtained through a request for legal assistance. The defence must be able to understand the actual chain of data collection and whether it can be substantively reviewed in court. This is what makes the ANOM case an important example for future disputes over digital evidence as well. Watch more on Pealtnägija.

The broader question remains the same. International cooperation is necessary in criminal cases, but it must not become a way to use evidence in Estonia where there is no real control over how it was collected.

Can a child’s flight compensation claim be assigned without court permission?

As a rule, a court’s permission is not needed to assign a child’s flight compensation claim. The Supreme Court explained that a parent may assign, on the child’s behalf, a flight compensation claim arising under EU Regulation No 261/2004 to a claims recovery provider if the agreement does not put the child’s assets at serious risk.

What was the dispute about?

Flagito OÜ claimed a total of 32,300 euros in compensation from air carrier SmartLynx Airlines for delayed flights of 72 passengers. Some of the claims concerned children, whose compensation claims had been assigned by their parents to the claims recovery provider. The airline argued that, under the Family Law Act, the parents should first have asked the court for permission, because the provider charges a 30% fee that reduces the child’s assets.

What did the Supreme Court say?

The Supreme Court did not agree with the airline. Court permission is needed for agreements that may have a significant and long-term effect on a child’s assets. Under Regulation No 261/2004, flight compensation is a fixed claim, usually 250 to 600 euros. If a parent assigns the claim so that the child’s compensation can actually be collected, this may be in the child’s interests even if the service provider keeps part of the amount as its fee.

What does this mean for parents?

A parent does not have to go to court for every smaller fixed compensation claim before assigning it. It is still important to check whether the agreement is reasonable for the child: if the service fee is disproportionately high or the agreement creates another financial risk, the situation may be different.

Q&A: can a child’s claim be assigned without court permission?

As a rule, yes. The Supreme Court found that the ordinary collection of flight compensation is not an agreement that automatically requires court permission.

The practical takeaway is simple: a child’s right to flight compensation should not be left unused just because the claim is small or the airline disputes it. A parent may choose a claims recovery service but should keep the agreement terms and make sure the service is in the child’s interests.

Retention of communications data needs clearer limits

Communications data can give as sensitive a picture of a person’s private life as the content of a message. NAMM attorneys Sander Potisepp and Kristjan Tuul wrote in ERR that the state has not sufficiently brought the rules on communications data retention into line with the case law of the Court of Justice of the European Union and the Supreme Court of Estonia.

Communications data shows who a person communicates with, where they move and what their habits are. The Court of Justice of the European Union has explained in several judgments that collecting everyone’s data without distinction is not compatible with the protection of fundamental rights. In the lawyers’ view, the same principle has been postponed in Estonian law for too long.

What does this mean for a person?

If communications data is retained about everyone just in case, it affects not only suspects but every phone and internet user. The question is not whether the state may use data to investigate serious crime. The question is whether data may be collected in advance about everyone.

What should the law specify?

The law should clearly state for the investigation of which serious crimes communications data may be used, whose data is retained and who authorises access to the data. General and unlimited collection gives certainty neither to the person nor to the investigative authority, because evidence collected under unclear rules may later become unusable in court.

Can communications data be used in criminal proceedings? Yes, but its use must be lawful, justified and reviewable. The investigation of a serious crime does not automatically justify the blanket retention of everyone’s data.

Read more from ERR or Postimees.

Semilarski case showed uncertainty in conflict restriction rules

A conflict restriction must be understandable to a public official before their conduct is assessed as a criminal matter. Oliver Nääs and Sander Potisepp wrote in Tartu Postimees, based on the Valvo Semilarski case, that regulation related to conflict restrictions needs the legislator’s attention.

In Semilarski’s criminal case, one of the issues disputed was when an official’s decision may be connected to the interests of the official or of a company related to the official. Tartu Circuit Court annulled part of the conviction and found that directing two immovable properties to auction could not be regarded as decisions made in relation to a company connected to Semilarski.

Why is this important?

Anti-corruption rules must prevent conflicts of interest, but they must also be sufficiently clear. If a person in public service cannot understand before making a decision whether they must withdraw, there is a risk that criminal liability will depend on a later interpretation.

What should be done in practice?

An official should seek advice before making a decision where a possible conflict of interest exists and document why they participate or withdraw. At the same time, it is the legislator’s task to formulate conflict restrictions so that they are understandable outside the courtroom as well.

Question and answer

Is every conflict of interest a crime? No. A conflict of interest may require withdrawal or an administrative solution, but criminal liability requires a clear legal basis and a proven breach.

Read more from Tartu Postimees.