BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ANDREYEV v. ESTONIA
(Application
no. 48132/07)
JUDGMENT
STRASBOURG
22
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Andreyev v.
Estonia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48132/07) against the Republic
of Estonia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergei Andreyev (“the
applicant”), on 30 October 2007.
- The
applicant, who had been granted legal aid, was represented by Mr R.
Käbi, a lawyer practising in Tallinn. The Estonian Government
(“the Government”) were represented by their Agent, Ms M.
Kuurberg, of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that he had been deprived of his
right to appeal to the Supreme Court because of the omissions of the
lawyer who had been appointed for him.
- On
8 March 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- The
Russian Government, having been informed by the Registrar of their
right to intervene (Article 36 § 1 of the Convention), indicated
that they did not intend to do so.
- On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was assigned to the newly composed First Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lived in Narva until his arrest. He is
currently serving a prison sentence.
A. Criminal proceedings against the applicant
- The
Viru County Court convicted the applicant of repeated rape, between
2001 and 2005, of his minor daughter, and sentenced him to nine
years’ imprisonment. As summary proceedings had been applied,
the sentence was reduced by one third. The operative part of the
judgment was delivered at a hearing on 3 November 2006. After
the applicant had informed the County Court of his intention to
appeal, the court delivered the full text of the judgment, which was
served on the applicant on 22 November 2006. The operative
provisions of the full text had been amended – in addition to
the originally delivered operative part, the expulsion of the
applicant after his release from prison was ordered and a ten-year
prohibition on entering the country was imposed.
- The
applicant lodged an appeal with the Viru Court of Appeal, requesting
his acquittal or the mitigation of the sentence, including the
overturning of the expulsion order. He asked that the case be heard
in his absence but in the presence of his legal-aid lawyer, B., who
had also participated in the first-instance hearing. He requested,
inter alia, that his former wife, the victim’s mother,
be re-examined at the appellate court hearing, and asked his lawyer
to put certain questions to her.
- The
Court of Appeal scheduled its hearing for 26 February 2007 and
informed the parties and the applicant’s lawyer, B. As B.
already had another court hearing scheduled for that date, he asked
the court to reschedule the hearing or appoint another lawyer for the
applicant. The Court of Appeal appointed K. as counsel for the
applicant. According to the record of the Court of Appeal’s
hearing, K. challenged the assessment of the evidence and the
applicant’s conviction by the first-instance court. In the
event that the appellate court nevertheless found that the applicant
was guilty, K. asked for a more lenient sentence for him. Lastly, he
argued that no reasons had been given in the judgment for the
applicant’s expulsion and that therefore the expulsion was
unlawful.
- By
a judgment delivered on 5 March 2007 the Court of Appeal upheld the
County Court’s judgment. Any intention to appeal to the Supreme
Court had to be notified in writing to the Court of Appeal within
seven days of the delivery of the judgment. An appeal to the Supreme
Court, drawn up by a lawyer, had to be deposited with the Court of
Appeal within thirty days of service of its judgment on the
defendant.
- On
7 March 2007 the applicant refused to accept the Court of Appeal’s
judgment in Estonian. On 15 March 2007 he received a Russian
translation. On the following day he submitted a notice indicating
his intention to appeal.
- On
Friday, 13 April 2007 the applicant gave to a prison officer an
appeal drawn up by himself addressed to the Supreme Court via the
Court of Appeal. It was posted on the following working day, Monday,
16 April 2007.
- Apparently
the applicant had telephoned B. from the prison to ask him to draw up
an appeal to the Supreme Court. B. had replied that an appeal to the
Supreme Court had to be drawn up by K., the lawyer who had
represented the applicant before the Court of Appeal. According to
B., he telephoned K. immediately and informed him of the applicant’s
wish to lodge an appeal with the Supreme Court. According to the
applicant, he also telephoned K.
- According
to K., he did not become aware of the applicant’s wish to
appeal to the Supreme Court until he was telephoned by the office of
the Court of Appeal on 17 April 2007. He was informed that the
applicant had submitted a notice of intention to appeal and that,
accordingly, an actual appeal had to be drawn up by a lawyer. On 23
April 2007 K. lodged the appeal. He argued that the original
operative part of the judgment was decisive, and the imposition of
the additional sentence was unlawful and had to be quashed. He also
asked for a reduction of the length of the prison sentence.
- On 9 May 2007 the Supreme Court rejected the appeal
drawn up by the applicant since such an appeal had to be drawn up by
a lawyer. It also rejected the appeal drawn up by K. on the
applicant’s behalf, noting that the last day for lodging it had
been 16 April 2007 and the appeal had arrived at the Court of
Appeal too late, on 24 April 2007.
- On 15 May 2007 K. asked the Supreme Court to restore
the time-limit for lodging an appeal. On 23 May 2007 the Supreme
Court refused because no acceptable reasons had been put forward.
- In a letter sent to the Supreme Court on 7 June 2007
the applicant insisted that he had done everything he could in the
circumstances and asked the Supreme Court to examine his appeal. On
21 June 2007 the Supreme Court replied by a letter reiterating that
the appeals drawn up by the applicant himself and K. had been
rejected and K.’s request for the restoration of the time-limit
dismissed.
B. Subsequent proceedings initiated by the applicant
- Subsequently,
the applicant made several complaints to courts, the Ministry of
Justice and the Chancellor of Justice expressing his dissatisfaction
with the actions of the courts and the conduct of K. in dealing with
his case.
1. The applicant’s complaints against the lawyers
- On
17 September 2007 the applicant made a complaint against K. to the
Estonian Bar Association (Eesti Advokatuur). He argued that
because of K.’s omissions he had been deprived of his right of
defence.
- On
13 November 2007 the Board of the Bar Association (Advokatuuri
juhatus) found that there were indications that a disciplinary
offence (distsiplinaarsüütegu) had been committed
and proposed that the Court of Honour (aukohus) of the Bar
Association initiate proceedings in respect of K. Proceedings
commenced on 12 December 2007. The Court of Honour gave its decision
on 6 March 2008. It considered that K. had had an obligation to take
steps to find out whether the applicant wished to appeal against the
Court of Appeal’s judgment. However, K. had taken no such steps
between the delivery of the appellate court’s judgment (5 March
2007) and the expiry of the time-limit for lodging an appeal (16
April 2007). The Court of Honour found that K. had breached the
requirements of the Code of Conduct (Eetikakoodeks) of the
Estonian Bar Association and thus committed a disciplinary offence.
He was given a reprimand (noomitus) as a disciplinary penalty.
- In
the meantime, the applicant also made a complaint against B. to the
Bar Association. On 13 November 2007 the Board of the Bar Association
found that B.’s behaviour showed no elements of a disciplinary
offence and would not therefore recommend that the Court of Honour
initiate proceedings against him.
2. The applicant’s requests for the reopening of
the proceedings
- Subsequently,
the applicant applied for legal aid to fund the lodging of a request
with the Supreme Court for the criminal proceedings to be reopened
(teistmine). Such a request had to be drawn up by a lawyer. On
10 March 2008 the Harju County Court granted the applicant legal
aid to obtain a lawyer’s opinion on the prospects of success of
a request to the Supreme Court for the reopening of the proceedings
and of an application to the European Court of Human Rights. On 8 May
2008 the lawyer appointed gave her opinion, according to which the
request and application in question had no reasonable prospects of
success. On the following day an assistant judge at the Harju County
Court endorsed the lawyer’s opinion and terminated the legal
aid granted to the applicant, without extending it to the drawing-up
of the request and application referred to above. On 19 September
2008 the Tallinn Court of Appeal dismissed an appeal by the applicant
against the County Court’s decision to terminate legal aid.
- Shortly
thereafter the applicant applied for legal aid for the second time.
On 19 January 2009 the Viru County Court granted his request.
- On
29 June 2009 L., a lawyer appointed under the legal-aid scheme lodged
a request for the reopening of the criminal proceedings
(teistmisavaldus) with the Supreme Court, together with a
request for the restoration of the pertinent time-limit. In the
request the severity of the prison sentence and the later amendment
of the operative provisions of the convicting judgment were
complained about. It was argued that such subsequent amendment of the
operative provisions had been unlawful. It was submitted that the
applicant wished to use his right to challenge the Court of Appeal’s
judgment in the procedure for the reopening of the criminal
proceedings because he had been unable to exercise his ordinary right
to appeal against the said judgment.
- On 22 July 2009 the Supreme Court declined to accept
the request.
C. Revocation of the applicant’s residence permit
- In
the meantime, on 24 October 2007 the Citizenship and Migration Board
(Kodakondsus- ja Migratsiooniamet) revoked the applicant’s
long-term residence permit in Estonia. The applicant challenged the
decision before the Tallinn Administrative Court, which on 11 April
2008 dismissed his complaint. On 30 January 2009 the Tallinn Court of
Appeal upheld that judgment. On 2 April 2009 the Supreme Court
declined to accept the applicant’s appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
- Article 45 § 4 of the Code of Criminal Procedure
(Kriminaalmenetluse seadustik) stipulates that the
participation of counsel in court proceedings is mandatory.
- Pursuant
to Article 344 § 3, an appeal in cassation may be filed by an
advocate acting as criminal defence counsel.
- Article
345 § 2 provides that an appeal in cassation must be lodged
within thirty days of the date when a party to the proceedings had
the opportunity to examine the judgment of the court of appeal.
Paragraph 5 provides that, at the request of the appellant, the
Supreme Court may restore the time-limit for an appeal in cassation
if it was allowed to expire for good reason.
- Article 347 sets forth the requirements for an appeal
in cassation. These requirements include formal ones, such as the
personal details of the appellant and details of the judgment
appealed against, as well as substantial ones, such as an indication
of the appellant’s request and reasoning setting out why he or
she considers that the substantive law was incorrectly applied or the
criminal procedural law was violated. Pursuant to Article 350, if an
appeal in cassation does not meet the requirements set out in Article
347, the Supreme Court gives the appellant a time-limit for amending
the appeal; in case of a failure to amend the appeal, or if the
appeal has been submitted too late, the Supreme Court rejects the
appeal.
- Article 346 provides that the incorrect application of
substantive law and the material violation of criminal procedural law
are grounds for appeal in cassation. The latter ground is defined in
Article 339 of the Code, which at the material time read as follows:
Article 339 – Material violation of criminal
procedural law
“(1) A violation of criminal procedural
law is material if:
1) a decision is made in a criminal matter by
an unlawful court panel;
2) a criminal matter is heard in the absence
of the accused, except in the cases provided for in Articles 267 §
1 and 334 § 1 of this Code;
3) court proceedings are conducted without
the participation of counsel;
4) court proceedings are conducted without
the participation of the prosecutor;
5) the confidentiality of deliberations is
breached in the making of a judgment;
6) a judgment is not signed by all members of
the court panel;
7) a judgment does not contain reasons;
8) the conclusions presented in the
conclusion of a judgment do not correspond to the facts established
with regard to the subject of proof;
9) a criminal matter is heard in a language
in which the accused is not proficient without the participation of a
translator or interpreter;
10) a record is not made of a court session,
with the exception of matters heard by way of summary proceedings.
(2) A court may declare any other violation
of criminal procedural law to be material if such violation results
or may result in an unlawful or unfounded judgment.”
- Article 349 of the Code of Criminal Procedure provides
as follows:
Article 349 – Decision on acceptance of an
appeal in cassation
“(1) A panel of three justices of the
Supreme Court shall decide on the acceptance of an appeal in
cassation on the basis of the material in the criminal file ... .
...
(4) An appeal in cassation shall be accepted
if at least one justice of the Supreme Court finds that:
1) the allegations made in the appeal in
cassation give reason to believe that the appeal court has applied
substantive law incorrectly or has materially violated criminal
procedural law;
2) the appeal in cassation contests the
correctness of the application of substantive law or requests the
annulment of the judgment of an appeal court on account of a material
violation of criminal procedural law, and a judgment of the Supreme
Court is essential for the uniform application of the law.
...
(5) Acceptance of an appeal in cassation or
refusal to accept an appeal in cassation shall be in the form of a
decision of the Supreme Court without any reasons being given.”
- Chapter 13 of the Code of Criminal Procedure sets out
the rules concerning a request for the reopening of criminal
proceedings. The relevant parts read as follows:
Article 366 – Grounds for the reopening of
proceedings (teistmine)
“(1) The grounds for the reopening of
proceedings (teistmine) are:
1) the unlawfulness or unfoundedness of a
judgment or decision arising from the false testimony of a witness,
knowingly wrong opinion of an expert, knowingly false interpretation
or translation, or falsification of documents, or fabrication of
evidence, which is established by another judgment which has taken
effect;
2) a criminal offence committed by a judge in
the hearing of the criminal matter under review and which is
established by a judgment;
3) a criminal offence committed by an
official of the body that conducted the pre-trial proceedings, or a
prosecutor in the pre-trial proceedings of a criminal matter, and
which is established by a judgment, if the criminal offence could
have had an effect on the judgment made in the criminal matter under
review;
4) the annulment of a judgment or decision
which was one of the bases for the judgment or decision in the
criminal matter under review, if this may result in the making of a
judgment of acquittal in the criminal matter under review, or in the
mitigation of the situation of the convicted offender;
5) any other facts which are relevant to the
just adjudication of the criminal matter but which the court was not
aware of when making the judgment or a decision in the criminal
matter under review and which independently or together with the
facts previously established may result in a judgment of acquittal or
in mitigation of the situation of the convicted offender or in
mitigation of the situation of a third party whose property has been
confiscated on the basis of a judgment or decision;
6) the Supreme Court declares, by way of
constitutional review proceedings, that the legislation of general
application or provision thereof on which the judgment or decision in
the criminal matter under review was based is in conflict with the
Constitution;
7) the satisfaction of an individual
application filed with the European Court of Human Rights against a
judgment or decision in the criminal matter under review on account
of a violation of the European Convention for the Protection of Human
Rights and Fundamental Freedoms or a Protocol thereto, if the
violation may have affected the resolution of the matter and it
cannot be eliminated or damage caused thereby cannot be compensated
for in a manner other than by review.”
Article 370 – Decision on the acceptance of a
request for the reopening of proceedings
“...
(2) A request for the reopening of
proceedings shall be accepted if at least one justice of the Supreme
Court finds that the allegations made in the petition give reason to
presume the existence of grounds for review. ...”
- Article 369 of the Code of Criminal Procedure sets
forth the requirements for a request for the reopening of
proceedings. This provision is in substance similar to Article 347,
which concerns appeal proceedings. Article 371 provides that Article
350 also applies to requests for the reopening of proceedings (see
paragraph 31 above).
- Article 431 of the Code of Criminal Procedure provides
for issues arising in the implementation of judgments for which there
is no specific regulation in the preceding provisions of the Code,
and other doubts and ambiguities, to be settled by a decision of the
court which gave the judgment or the judge in charge of execution of
judgments at the county court responsible for enforcing the judgment.
- Section
19 § 1 of the State Legal Aid Act (Riigi õigusabi
seadus), as in force at the material time, provided that an
advocate was not allowed to refuse to provide State legal aid to a
person or terminate the provision of legal services to a person
before the final adjudication of the matter.
B. Case-law of the Supreme Court
- In a judgment of 17 March 2003 (case no. 3-1-3-10-02)
the Supreme Court, sitting in plenary session, dealt with an
application from a person convicted under the Criminal Code
(Kriminaalkoodeks) who sought to be released from serving his
remaining sentence after a new Penal Code (Karistusseadustik)
had entered into force because the new Penal Code provided for a
shorter maximum prison term for a similar offence. The Supreme Court
considered that the applicant’s petition could not be
considered a request for the reopening of the criminal proceedings
(teistmine) or a petition for the correction of court errors
(kohtuvigade parandamine). The Supreme Court held:
“17. ... [T]he fact that Article 15 of
the Constitution recognises everyone’s right of recourse to the
courts, if his or her rights and freedoms are violated, must not be
ignored. [The applicant’s] petition concerns the rights
referred to in the Constitution ... . Proceeding from Article 15 of
the Constitution, the Supreme Court may refuse to hear [the
applicant’s] petition only if [the applicant] has other
effective ways to obtain judicial protection of the right of recourse
to the courts established in the [above] provision of the
Constitution.”
The
Supreme Court proceeded to analyse whether other possible procedures
were available to the applicant and concluded:
“18. ... [The Supreme Court] is of the
opinion that there is no effective remedy for [the applicant] for the
protection of his fundamental right. Taking into account this fact,
the fundamental rights at stake, and the duration of the sentence
served, the [Supreme Court] can find no
justification for refusing to hear [the applicant’s] petition
on the merits. [The Supreme Court] also bears in mind the need to
give the courts clear guidelines on how to resolve similar cases.”
- Subsequently,
dealing with requests lodged in accordance with the procedure for the
reopening of criminal proceedings (teistmine), the Supreme
Court has in several cases referred to the judgment referred to in
the previous paragraph, for example, in the judgments of its Criminal
Chamber of 19 October 2009 (case no. 3-1-2-4-09) and 7 April 2010
(case no. 3-1-2-1-10). In the former case, the Supreme Court
noted that the grounds invoked by the prosecutor were not included in
the exhaustive list given in Article 366 of the Code of Criminal
Procedure. Nevertheless, the Supreme Court found that in that case
there was no other effective procedure for verifying whether the
applicant’s right to liberty had been infringed; it heard the
case and ordered the applicant’s immediate release.
- In the latter case, the Supreme Court, having also
established that there were no grounds for reopening the criminal
proceedings, nevertheless analysed whether the applicant’s
rights had been violated. Finding that this was not the case, it
refused to reopen the proceedings.
- In a judgment of 2 October 2009 (case no. 3-1-2-3-09)
the Criminal Chamber of the Supreme Court dealt with a request for
the reopening of proceedings (teistmine), filed on 25 May
2009, in a case where two different versions of the operative
provisions of a judgment of a first-instance court existed. According
to the operative part of the judgment originally delivered by the
first-instance court, seven months of the ten-month prison sentence
imposed on the defendant were to be suspended. However, according to
the operative provisions of the full text of the judgment, delivered
at a later date, the defendant had to serve two months’
imprisonment immediately and the remaining eight months were
suspended.
- The Supreme Court declined to reopen the proceedings,
finding that there were no grounds for that under Article 366 of the
Code of Criminal Procedure. Nevertheless, in order to secure the
uniform application of the law and consistency in the case-law, the
Supreme Court made it clear that the original operative part of the
judgment was to be considered decisive and reiterated that pursuant
to Article 431 of the Code doubts and ambiguities arising in the
execution of a judgment were to be settled by a decision (määrus)
made by the judge in charge of the execution of judgments
(täitmiskohtunik).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been deprived of his right to appeal
to the Supreme Court because of the omissions of the lawyer who had
been appointed for him. He relied on Article 2 § 1 of
Protocol No. 7 to the Convention and Articles 6 § 3 (c), 12, 13
and 17 of the Convention. The Court deems it appropriate to examine
the complaint under Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
1. The parties’ submissions
(a) The Government
- The
Government submitted that the application should be deemed to have
been lodged more than six months after the Supreme Court’s
decision of 23 May 2007. They argued that in the applicant’s
first letter, which had arrived at the Court on 6 November 2007, he
had neither complained about the Supreme Court’s decisions of 9
May and 23 May 2007 (see paragraphs 16 and 17 above) nor
provided a copy of them. The application form in which the decision
of 23 May 2007 was mentioned had only been received by the Court on
21 May 2008.
- Furthermore,
the Government contended that the application was manifestly
ill-founded since the applicant had been assigned counsel under the
State legal-aid scheme and the courts had not needed to be aware of
his problems of communication with his counsel. Moreover, the State
could not be held directly responsible for the activities of counsel.
In any event, the applicant had lost his “victim” status
since he was later afforded a new legal aid lawyer for the
filing of his request with the Supreme Court for the reopening of the
proceedings (cf. Fiecek v. Poland (dec.), no. 27913/95,
23 October 2001).
- Lastly,
the Government argued that the applicant had failed to exhaust
domestic remedies, namely to file a claim for damages against the
lawyer or his law firm or insurer.
(b) The applicant
- The
applicant reiterated that the breaches of the Convention and events
leading to his having no effective access to the Supreme Court had
been outlined in his first submission to the Court and thus the
six-month rule had been complied with.
-
The applicant emphasised that in the case of Fiecek, referred
to by the Government, a cassation appeal had been lodged after the
appointment of a lawyer and the Supreme Court had heard the appeal
but rejected it. Furthermore, cassation proceedings and proceedings
concerning a request for the reopening of criminal proceedings were
to be distinguished in Estonian law. Therefore, the applicant had
maintained his “victim” status.
- In
respect of whether he had to lodge a claim for damages in order to
exhaust domestic remedies, the applicant submitted that such a claim
could not have changed his criminal punishment, including his
expulsion after serving the prison sentence.
2. The Court’s assessment
- In
respect of the question whether the six-month rule (Article 35 §
1) has been complied with, the Court notes that pursuant to Rule 47 §
5 of the Rules of Court, as in force at the material time, the date
of introduction of the application was as a general rule to be
considered to be the date of the “first communication from the
applicant setting out, even summarily, the object of the
application”. The Court further notes that in the applicant’s
first communication, signed on 30 October 2007 and handed to the
prison authorities on the following day, the applicant set out the
facts of the case and his complaints in a rather detailed manner, his
submissions comprising eleven pages of handwritten text. Although the
applicant did not mention in that letter the Supreme Court’s
decisions referred to by the Government, he explicitly invoked his
right to appeal against the Court of Appeal’s judgment and in
substance complained that in his case his lawyers and a judge of the
Court of Appeal had deprived him of that right. In the Court’s
opinion the applicant’s first communication to the Court was
sufficient to interrupt the running of the six-month period referred
to in Article 35 § 1. It follows that the applicant complied
with the six-month rule and that the Government’s objection
should be rejected.
- As
concerns the question whether the applicant has lost his “victim”
status, the Court reiterates that a decision or measure favourable to
the applicant is not in principle sufficient to deprive him of his
status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Amuur
v. France, 25 June 1996, § 36, Reports of Judgments and
Decisions 1996 III). The Court observes that in the present
case the domestic authorities have not made a decision where a breach
of the applicant’s right to appeal has been acknowledged. It
further notes that, unlike the case of Fiecek, referred to by
the Government, the present case does not concern a reversal by the
State authorities of their initial decision to refuse legal aid, but
rather whether and to what extent the State was responsible for
securing the applicant the right to appeal to the Supreme Court.
Therefore, the Court considers that the applicant has not lost his
“victim” status.
- In
respect of the Government’s argument that the applicant could
have claimed damages from the lawyer or his law company or insurer,
the Court reiterates that the only remedies which Article 35 § 1
of the Convention requires to be exhausted are those that relate to
the breaches alleged and at the same time are available and
sufficient; the existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness (see, among
other authorities, Selmouni v. France [GC], no. 25803/94,
§ 75, ECHR 1999 V).
- In
the Court’s opinion the gist of the applicant’s complaint
was that he was deprived of his right to appeal to the Supreme Court.
It considers that a claim for damages, as suggested by the
Government, would not have allowed him to have access to the Supreme
Court. In these circumstances, the Court considers that the
applicant’s complaint cannot be rejected for failure to exhaust
domestic remedies.
- In
conclusion, the Court considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant argued that he had not had effective access to the Supreme
Court. He was of the opinion that the mere appointment of a legal aid
lawyer – who without good reason had failed to lodge an appeal
– was insufficient.
- The
applicant pointed out that he had done everything he could reasonably
have been expected to do in order to have an appeal lodged: he had
telephoned both his lawyers in the case, informed the court about his
intention to lodge an appeal, and drafted an appeal of his own. There
had been no reason to make any complaints against the lawyer while
the time-limit for appeal had not yet expired, whereas afterwards it
had been too late.
- The
applicant was of the opinion that the rapid replacement of his
original counsel B. by K. by the Court of Appeal had contributed to
the result that had followed. He also noted that the officers of the
Court of Appeal had deemed it necessary to notify K. of the
applicant’s intention to appeal to the Supreme Court but they
had done so only after the time-limit for appeal had expired.
- The
applicant considered that the procedure for requesting the reopening
of criminal proceedings (teistmine) was not equivalent to and
could not replace the cassation procedure since in the former
procedure the Supreme Court’s jurisdiction was much more
limited than in the latter. Failure by a lawyer to submit an appeal
in time did not constitute a ground for reopening criminal
proceedings.
- The
applicant noted that only on an extremely limited number of occasions
had the Supreme Court examined the matter on the merits and ruled in
favour of applicants, who had had no clear-cut formal procedure for
enforcing their rights. Had the Supreme Court been willing to find
such exceptional circumstances in the present case, it would have had
the opportunity to do so on receipt of the applicant’s appeal
in cassation, his counsel’s appeal in cassation and application
for the restoration of the time-limit, or the applicant’s
request for the reopening of the criminal proceedings.
(b) The Government
- The
Government emphasised that the authorities had appointed a legal-aid
lawyer for the applicant. Lawyers were independent in their provision
of legal services. The State had no right of direct involvement in
the lawyers’ activities and it could not be held responsible
for every shortcoming on the part of a lawyer. As K. had participated
as counsel in the hearing before the Court of Appeal, he had also
been obliged to provide legal assistance to the applicant in filing a
cassation appeal. The courts dealing with the case had been aware of
this and could not have been expected to take any additional steps in
this connection. The applicant had also been aware that K. was
supposed to file the cassation appeal. The authorities had been
unaware of any problems with counsel the applicant might have had at
the material time.
- The
Government further submitted that although the State was not
responsible for the actions of the lawyer, it had nevertheless
remedied the fact that the applicant had had no access to the Supreme
Court because of the failure of the advocate to file a cassation
appeal within the time-limit by providing new State legal aid to the
applicant for filing a request for the reopening of the case after
the Bar Association had ascertained the breach of duty by the
advocate. The new legal-aid lawyer had filed a request for the
reopening of the case with the Supreme Court on the grounds that the
former counsel’s failure to file a cassation appeal within the
time-limit had meant that the applicant had had no access to the
Supreme Court. The Supreme Court had examined the request for the
reopening of the case and had decided not to accept it for
proceedings.
- The
Government acknowledged that in narrow and formal terms it might be
said that a refusal by the Supreme Court to accept for proceedings a
request for the reopening of a case meant that no grounds for
reopening existed. However, according to the Supreme Court’s
case-law, the Supreme Court did not refuse to review a case on the
merits if a person had no other means of protecting his fundamental
rights (see paragraphs 38 to 40 above). Thus, it had to be concluded
that in essence the refusal to accept the request had also meant that
no grounds for cassation existed, that is, that no rules of
substantive law had been misapplied or rules of procedure violated.
- The
Government concluded that the applicant had had effective access to
the Supreme Court and there had been no violation of Article 6 § 1.
2. The Court’s assessment
(a) General principles
- In respect of the Contracting Parties’ liability
under the Convention, the Court
reiterates that their responsibility is incurred by the
actions of their organs. A lawyer, even if officially appointed,
cannot be considered to be an organ of the State. Given the
independence of the legal profession from the State, the conduct of
the case is essentially a matter between the defendant and his or her
counsel, whether counsel be appointed under a legal-aid scheme or be
privately financed, and, as such, cannot, other than in special
circumstances, incur the State’s liability under the
Convention. The competent national authorities are required under
Article 6 § 3 (c) to intervene only if a failure by legal-aid
counsel to provide effective representation is manifest or
sufficiently brought to their attention in some other way (see
Kamasinski v. Austria, 19 December 1989, § 65, Series A
no. 168; Daud v. Portugal, 21 April 1998, § 38,
Reports 1998 II; Sannino v. Italy, no.
30961/03, § 49, ECHR 2006 VI; Siałkowska v. Poland,
no. 8932/05, § 99, 22 March 2007; and Kulikowski v.
Poland, no. 18353/03, § 56, 19 May 2009). It will depend on
the circumstances of the case whether the relevant authorities should
take action (see Daud, cited above, §§ 40-42) and
whether, taking the proceedings as a whole, the legal representation
may be regarded as “practical and effective” (see
Kulikowski, cited above, § 57; Siałkowska,
cited above, § 100; Rutkowski v. Poland (dec.),
no. 45995/99, ECHR 2000 XI; Goddi v. Italy, 9
April 1984, § 27, Series A no. 76; and Artico v. Italy,
13 May 1980, § 33, Series A no. 37). Assigning counsel to
represent a party to the proceedings does not in itself ensure the
effectiveness of the assistance (see, for example, Sejdovic
v. Italy [GC], no. 56581/00, § 94, ECHR 2006 II,
and Imbrioscia v. Switzerland, 24 November 1993, §
38, Series A no. 275).
- The Court reiterates that the Convention is intended
to guarantee not rights that are theoretical or illusory but rights
that are practical and effective. This is particularly so of the
right of access to the courts in view of the prominent place held in
a democratic society by the right to a fair trial (see Sabeh El
Leil v. France [GC], no. 34869/05, § 50, 29 June 2011;
Andrejeva v. Latvia [GC], no. 55707/00, § 98, 18 February
2009; Kulikowski, cited above, § 58; Siałkowska,
cited above, § 101; and Airey v. Ireland, 9 October
1979, § 24, Series A no. 32).
- Furthermore,
the “right to a court”, of which the right of access is
one aspect, is not absolute; it is subject to limitations permitted
by implication, in particular where the conditions of admissibility
of an appeal are concerned, since by its very nature it calls for
regulation by the State, which enjoys a certain margin of
appreciation in this regard. However, these limitations must not
restrict or reduce a person’s access in such a way or to such
an extent as to impair the very essence of the right. Furthermore,
such limitations will only be compatible with Article 6 § 1 if
they pursue a legitimate aim and there is a reasonable relationship
of proportionality between the means employed and the aim pursued
(see Prince Hans-Adam II of Liechtenstein v. Germany
[GC], no. 42527/98, § 44, ECHR 2001 VIII; RTBF v.
Belgium, no. 50084/06, § 69, 29 March 2011; Kemp and
Others v. Luxembourg, no. 17140/05, § 47, 24 April
2008; Běleš and Others v. the Czech Republic, no.
47273/99, § 61, ECHR 2002 IX; and Edificaciones March
Gallego S.A. v. Spain, 19 February 1998, § 34,
Reports 1998 I).
- The Convention does not compel the Contracting States
to set up courts of appeal or of cassation. However, where such
courts do exist, the guarantees of Article 6 must be complied with
(see Delcourt v. Belgium, 17 January 1970, § 25,
Series A no. 11). The manner in which this provision applies to
courts of appeal or of cassation depends on the special features of
the proceedings concerned and account must be taken of the entirety
of the proceedings conducted in the domestic legal order and the
court of cassation’s role in them. Given the special nature of
the court of cassation’s role, which is limited to reviewing
whether the law has been correctly applied, the Court is able to
accept that the procedure followed in such courts may be more formal
(see Meftah and Others v. France [GC], nos. 32911/96,
35237/97 and 34595/97, § 41, ECHR 2002 VII; Khalfaoui
v. France, no. 34791/97, § 37, ECHR 1999 IX;
Kulikowski, cited above, § 59; and Siałkowska,
cited above, §§ 103-104). Nevertheless, the Court has in
several cases found that a particularly strict construction of
procedural rules by the supreme or constitutional courts deprived
applicants of their right of access to a court (see, among others,
Běleš and Others, cited above, §
69; Zvolský and Zvolská v. the Czech Republic,
no. 46129/99, § 55, ECHR 2002 IX; Efstathiou and
Others v. Greece, no. 36998/02, § 33, 27 July 2006;
Kemp and Others, cited above, § 59, 24 April 2008; Reklos
and Davourlis v. Greece, no. 1234/05, § 28, 15
January 2009; Dattel v. Luxembourg (no. 2),
no. 18522/06, § 44, 30 July 2009; and RTBF, cited
above, § 74).
(b) Application of the principles to the
present case
- Turning
to the present case, the Court notes at the outset that the applicant
benefited from State legal aid in the proceedings before the
first-instance court. He drew up an appeal of his own but did not
wish to participate in the appellate court hearing, although he gave
certain instructions to his lawyer. When his original legal-aid
lawyer could not participate in the hearing, the Court of Appeal
replaced him by another lawyer in order to ensure the applicant’s
representation. The newly appointed lawyer did participate in the
hearing before the Court of Appeal.
- As
concerns the applicant’s wish to pursue the proceedings before
the Supreme Court, the Court notes that he duly notified the
appellate court of his intention to appeal. As to the applicant’s
further steps, the facts are not entirely clear. According to the
applicant he telephoned his original lawyer from prison to inform him
of his intention to appeal. Having been told that it was for the
newly appointed lawyer to provide him with any further assistance, he
also telephoned the new lawyer. The supposition that the new lawyer
was aware of the applicant’s wish to appeal to the Supreme
Court is supported by the original lawyer’s statements to the
Court of Honour of the Bar Association, in which he asserted that
having received the telephone call from the applicant he had informed
the new lawyer of the applicant’s intention to appeal. However,
the newly appointed lawyer submitted to the Court of Honour that he
had only learned of the need to draft an appeal to the Supreme Court
from the Court of Appeal’s office after the expiry of the
time-limit. Be that as it may, the Court notes the Court of Honour’s
finding that it had been the newly appointed lawyer’s duty to
find out whether the applicant wished to appeal against the Court of
Appeal’s judgment.
- This
leads the Court to the question of the extent to which the State’s
responsibility is engaged in such circumstances. Given the
independence of the profession, it is impossible for a State to
prevent all and any omissions by a lawyer (see the principles
established in the Court’s case-law, summarised in paragraph 65
above). At the same time, it is for the State to put in place a
system capable of ensuring the respect of rights guaranteed under the
Convention, including the right to a fair trial (see paragraphs 66 to
68 above).
- The
Court notes in this context that the applicant had no ground to
complain about his lawyer before the time-limit allowed for appeal to
the Supreme Court had expired; thereafter he wrote a letter to the
Supreme Court but received the reply that the appeals had been
rejected and the lawyer’s request for the restoration of the
time-limit dismissed (see paragraph 18 above).
- As
concerns further possibilities to complain about the lawyer’s
omission, the Court observes that the applicant had the opportunity
to use a procedure put in place by the State for that purpose,
namely, recourse to the Court of Honour of the Bar Association. While
it is true that proceedings in the Court of Honour could not replace
an appeal to the Supreme Court, the applicant could, and in fact did,
have it established, in those proceedings, that his legal-aid lawyer
failed to duly perform his duties.
- However,
the Court observes that the system put in place for dealing with such
cases had one important shortcoming: it does not appear that the
domestic law provided for any immediate consequences of the
establishment of the lawyer’s failure to act by the Court of
Honour, such as its serving as grounds for the assigning of a new
lawyer and the restoration of the time-limit for appeal or the
reopening of the criminal proceedings. In the absence of such
legislation or court practice, the Court does not consider that the
applicant was required to try these remedies before lodging an
application with it. Similarly, in the recent case of Metsaveer v.
Estonia, which concerned civil proceedings, the Court noted that
the Government had not referred to any case-law where after
proceedings before the Court of Honour of the Bar Association the
time-limit for filing an appeal in cassation with the Supreme Court
had been restored. In that context, and in the absence of any
specific legal provisions which would have secured a person in
receipt of legal aid access to the Supreme Court in the case of an
omission by the legal-aid lawyer, the Court was not convinced of the
effectiveness of the remedies proposed by the Government (see
Metsaveer v. Estonia (dec.), no. 16343/07, 14 June 2011).
- Nevertheless,
the Court has not overlooked the fact that in the present case the
applicant did apply for and was granted legal aid for lodging a
request for the reopening of the criminal proceedings and the new
legal-aid lawyer did indeed lodge such a request on the applicant’s
behalf. It further notes that the parties’ opinions differ as
to the relevance of such a request. According to the applicant, a
request for the reopening of proceedings could not replace an appeal
in cassation because the legal grounds for reopening a case were much
more limited and only on exceptional occasions had the Supreme Court
dealt with the merits of such requests. In contrast, the Government
referred to the Supreme Court’s case-law according to which it
did not refuse to review a case on the merits if the person concerned
had no other means of protecting his or her fundamental rights.
- The Court observes that the grounds for cassation and
for the reopening of proceedings are indeed different pursuant to the
Code of Criminal Procedure (see paragraphs 32 to 34 above). It
follows from the text of the law, as well as from the Supreme Court’s
practice, that a request for the reopening of a case is not meant to
be an alternative to cassation proceedings, and the former appears to
be limited to rather exceptional circumstances. While it is true that
the Supreme Court has stated that it does not decline to accept
petitions in circumstances where an applicant has no other effective
procedure for the protection of his or her rights (see paragraphs 38
to 40 above), the fact remains that such cases are exceptional and
cannot be considered part of the ordinary criminal proceedings.
Moreover, the Court reiterates that according to its established
case-law Article 6 does not apply to proceedings for the reopening of
criminal proceedings (see, for example, X v. Austria,
no. 7761/77, Commission decision of 8 May 1978, Decisions and Reports
14, p. 173; and, more recently, Trgo v. Croatia, no. 35298/04,
§ 70, 11 June 2009, and Vojta v. the Czech Republic
(dec.), no. 25126/06, 8 February 2011), nor is it a remedy to be
exhausted for the purposes of Article 35 of the Convention. The Court
also takes note of the Supreme Court’s judgment in case no.
3-1-2-3-09 where it was found that the existence of two divergent
sets of operative provisions of a judgment were not grounds for the
reopening of the proceedings, the originally delivered operative
provisions being decisive (see paragraphs 41 and 42 above).
Therefore, the Court cannot accept that filing a request for the
reopening of the proceedings meant that the applicant was ensured
effective access to the Supreme Court.
- The
Court consequently considers that although the applicant was given
State legal aid for filing an appeal with the Supreme Court, and
despite the fact that he did everything that could have been expected
for his part, the failure of his legal-aid lawyer to duly perform his
duties and the lack of any subsequent measures to adequately remedy
the situation deprived the applicant of his right of access to the
Supreme Court.
- There
has therefore been a violation of Article 6 §
1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further made a number of complaints under Article 6 §§
1, 2 and 3 (d) of the Convention. However, having regard to all the
material in its possession, and in so far as these complaints fall
within its competence, the Court finds that there is no appearance of
a violation of the provisions invoked. It follows that this part of
the application must be rejected as manifestly ill-founded, pursuant
to Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
Government argued that the applicant had not exhausted domestic
remedies in respect of his claim for damages (see paragraph 47
above). Furthermore, the Government questioned the necessity of an
award by the Court, arguing that if the Court found a violation of
the applicant’s rights, he could claim compensation for damage
under the domestic law.
- The
Court notes that the argument concerning the non-exhaustion of
domestic remedies does not apply in respect of the issue of awarding
damages under Article 41 of the Convention.
- The
Court has already held that if a victim, after exhausting the
domestic remedies in vain before complaining to the Convention
institutions of a violation of his rights, were obliged to do so a
second time before being able to obtain just satisfaction from the
Court, the total length of the procedure instituted by the Convention
would scarcely be in keeping with the idea of the effective
protection of human rights. Such a requirement would lead to a
situation incompatible with the aim and object of the Convention (see
Oğur v. Turkey [GC], no. 21594/93, § 98,
ECHR 1999 III, and De Wilde, Ooms and
Versyp v. Belgium (Article 50), 10 March 1972, § 16,
Series A no. 14).
- The
Court therefore considers that it is required to rule on the
applicant’s claim for just satisfaction.
A. Damage
- The
applicant argued that as a result of being
unlawfully kept in prison, he had been deprived of the opportunity to
earn living. He claimed 1,015 kroons (EEK) (64.87 euros (EUR)) for
each day spent in prison, starting from 30 December 2005, in
respect of pecuniary damage.
- In
respect of non-pecuniary damage, the applicant requested the Court to
make an appropriate award.
- The
Government considered that the applicant’s claim for pecuniary
damage was unsubstantiated and that there was no causal link between
the sum claimed and the violation alleged. The Government requested
that the applicant’s claim for damage be rejected in full.
Should the Court nevertheless reject the Government’s
objections to the award of just satisfaction and find a violation of
the Convention, the Government left it to the Court to determine an
appropriate sum to be awarded to the applicant for non-pecuniary
damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicant EUR 1,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant, who had been granted legal aid under the
Council of Europe’s legal-aid scheme, did not file any further
claims for costs and expenses.
- Therefore,
there is no call for the Court to make any award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning right of
access to the Supreme Court admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,000 (one thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
