Published on 2 March 2026
THIRD SECTION
Applications nos. 14711/25 and 14712/25
Gert RAAL against Estonia
and Margus REUDOLPH against Estonia
both lodged on 8 May 2025
communicated on 12 February 2026
SUBJECT MATTER OF THE CASE
The applications concern the secret surveillance of the applicants’ communication via ANOM encrypted devices, and the use of that data in the criminal proceedings against them.
The applicants were initially suspected of unlawful handling of large quantities of narcotic drugs and of money laundering. During the criminal investigation against them, the Estonian prosecutor lodged a request for legal assistance with the authorities of the Unites States of America in order to obtain the content of the communications to and from the ANOM devices linked to the applicants as well as the related metadata. The United States’ authorities provided the information sought (hereinafter “ANOM evidence”).
While the Harju County Court, relying on the ANOM evidence which it found admissible, convicted the applicants on 1 November 2023 of drug offences, the Tallinn Court of Appeal partially quashed that decision.
The Tallinn Court of Appeal noted that the applicants had not denied using the ANOM devices and that the ANOM evidence had been either “weighty” or sole evidence against them in the criminal case at hand. It added that the applicants had not challenged the reliability (usaldusväärsus) of the ANOM evidence. However, given what was known (or unknown) about the ANOM operation launched by the FBI and the manner that the ANOM evidence had been obtained, the court found, interpreting Article 65 of the Code of Criminal Procedure, that it could not be reassured (as it was impossible to verify) that the collection of the ANOM evidence had been in accordance with the “fundamental principles of the Estonian criminal procedure” (kooskõlas Eesti kriminaalmenetluse põhimõtetega). Consequently, the ANOM evidence had to be excluded from the criminal proceedings against the applicants.
On 16 January 2025 the Supreme Court quashed the appellate court’s judgment and convicted the applicants of the drug offences. The Supreme Court considered that the use of the ANOM evidence was in accordance with Article 65 of the Code of Criminal Procedure. That provision permitted relying on evidence obtained in a foreign State in accordance with the law of that State, provided that the procedural measure undertaken to obtain the evidence were not incompatible with the fundamental principles of Estonian criminal procedure.
The Supreme Court considered that a presumption of lawfulness (seaduslikkuse eeldus) applied with regard to the States with which Estonia had concluded international agreements and had thereby expressed mutual trust. The Supreme Court noted that the United States’ authorities had assured Estonian counterparts that the ANOM evidence had been obtained lawfully. Furthermore, while the exact State which had hosted the server where the copies of the ANOM communication data had been held was unknown, it was a European Union Member State which was also a party to the Convention and thus presumably upheld the same fundamental values as Estonia.
As for whether the ANOM operation had complied with the fundamental principles of Estonian criminal procedure, the Supreme Court explained that this assessment could not be equated with determining whether the provisions of the Code of Criminal Procedure had been followed. Criminal procedures in different States varied and the gathering of evidence in other States did not need to comply with the Estonian the Code of Criminal Procedure. Nonetheless, procedural actions analogous to those used for the collection of the ANOM evidence could also be found in the Estonian legal order. The fact that the case file at hand did not contain information about which authorisations and by whom had been issued in a foreign State was not decisive. The Supreme Court also noted that the ANOM operation had not entailed mass collection of non-personalised (isikustamata) evidence. Data was only collected regarding persons who had voluntarily decided to use encrypted ANOM devices which had been marketed specifically to criminal organisations. There was no evidence that the Unites States’ authorities had intentionally bypassed the fundamental rights guarantees or had breached the criminal procedure law of that State. Nor was there evidence that Estonian authorities had engaged a foreign State in order to intentionally evade domestic regulations. Nothing indicated that the ANOM evidence had been gathered on the initiative of the Estonian authorities or with their participation. In conclusion, it could not be ascertained that the fundamental principles of the of the Estonian criminal procedure had been violated. The ANOM evidence was thus admissible. The Supreme Court also noted that the applicants had not raised doubts about the reliability of the ANOM evidence.
After lodging their applications, the applicants submitted further materials to the Court concerning the communication between the Unites States’ and Lithuanian authorities about hosting the server where the encrypted messages exchanged via ANOM were to be stored and about obtaining authorisations from the Lithuanian courts, in response to the legal assistance requests from the Unites States, to provide copies of the data stored in the said server.
The applicants, noting that the interference with the right to respect for private life and correspondence had to be subject to a fair decision-making procedure and indicating that the authorities of several States had processed the ANOM communication data, complain under Article 8 of the Convention about (mass) secret surveillance activities (jälitustoimingud; (massi)jälitus)). In particular, they complain that there had been no (personalised) suspicion against them before their communications were intercepted (pealtkuulamine) and that they had had no possibility of establishing whether the interception had been authorised nor verifying any of the modalities of such (possible) authorisation. The declarations by the United States’ authorities that such authorisations had existed and that the surveillance activities had been lawful under the Unites States law as well as under the law of the third (unidentified) State were merely declaratory and unverifiable. The applicants also complain that the impugned secret surveillance activities and the exchange of the related data had not been foreseeable because the Mutual Legal Assistance Treaty between Estonia and the United States did not regulate it.
The applicants also complain, invoking Article 6 § 1 of the Convention, about the breach of their fair trial rights. More specifically, they indicated that they had not had access to the decisions authorising secret surveillance activities; they could not question the persons involved in the matter (asjaga seotud menetlejad); given the nature of the ANOM operation, they had been prevented from lodging any substantive objections to it or to the admissibility of evidence collected through that operation; the domestic courts could not assess the lawfulness of the secret surveillance activities. Overall, the procedure of obtaining the ANOM evidence had not been fair as the ANOM operation had been set up with the aim of bypassing European laws and procedural guarantees. The applicants also complain about the quality the ANOM evidence, stating that they had not been provided with any proof certifying the authenticity of that evidence.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private life or correspondence, within the meaning of Article 8 § 1 of the Convention (compare Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, §§ 495-496, 25 May 2021)?
The parties are invited to clarify specific acts or omissions which Estonia may be held responsible for that constitute an interference with the applicants’ rights under Article 8 of the Convention in the present case.
2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?
3. In view of the use of the ANOM evidence in the criminal proceedings against the applicants, did they have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention (compare Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§ 302-303, 310-313, 315-323; 344‑345, 26 September 2023)?