CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 12 November 2024   THIRD SECTION Application no. 37626/23 Gerli MUTSO against Estonia lodged on 11 October 2023 communicated on 23 October 2024 SUBJECT MATTER OF THE CASE The applicant’s complaint concerns the question whether she was properly informed of her right to remain silent and not to self-incriminate before revealing the usernames and passwords of her electronic devices during a criminal investigation against her. The applicant was suspected of activities against the Republic of Estonia and of a drug offence. In the course of the investigation, she was arrested as a suspect and her home was searched. During the search she revealed her usernames and passwords of her electronic devices and email and social media accounts to the investigators. She was subsequently convicted. The court relied, inter alia , on information, obtained form the applicant’s cell phone, from her e-mail and social media accounts and from messaging applications used by her. In her appeal on points of law the applicant complained that she had not been properly informed of her right to remain silent before she had handed over her usernames and passwords, and asked the evidence thereby obtained to be set aside. The Supreme Court found that the applicant had been given a print-out of her procedural rights ( õiguste deklaratsioon ) prior to the search, and her rights and obligations had been introduced to her. She had thereafter revealed her usernames and passwords to the investigators. The Supreme Court explained that the rights that the applicant had been informed of included the “right to refuse to give statements” ( õigus keelduda ütluste andmisest ). She had also been informed that her defence lawyer could advise her in making the decision on whether to remain silent or not. Therefore, she ought to have understood that she had not been obliged to reveal her usernames and passwords. The access to evidence had thus been lawful. The applicant complains under Article 6 § 1 of the Convention that she had not been properly informed of her right to remain silent and not to self-incriminate, stating that she did not and could not have understood that “right to refuse to give statements” (in such wording) had also included the right to refuse to reveal usernames and passwords. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charge(s) against her, in accordance with Article   6 §   1 of the Convention? In particular, does the right to remain silent and not to self-incriminate extend to cover the obtaining from the applicant the usernames and passwords of her electronic devices, which allow further access to those devices? Was the applicant in the present case subjected to some form of coercion or compulsion or were there any other elements which impinged on the “voluntariness” of the disclosure of those usernames and passwords? In this connection, what is the relevance of the applicant’s argument that she could not have understood from the manner of introduction of her procedural rights that the right “not to give statements” covered the right not to disclose the usernames and passwords of her electronic devices? If the right to remain silent and not to self-incriminate extends to cover the circumstances of the present case, was Article 6 § 1 of the Convention violated in the case at hand?   2.     The parties are invited to submit the copies of the report of the applicant’s arrest as a suspect ( kahtlustatavana kinnipidamise protokoll ) and of the report of the search in the applicant’s home ( läbiotsimisprotokoll ).   3.     The applicant is invited to specify which exact electronic devices (or accounts) and which usernames and passwords her complaint concerns.