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.