LEUSKA AND OTHERS v. ESTONIA - 64734/11 (Judgment : Violation of Right to a fair trial - Criminal proceedings - Access to court Fair hearing) [2017] ECHR 969 (07 November 2017)

In the case of Leuska and Others v. Estonia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Paul Lemmens,
          Valeriu Griţco,
          Ksenija Turković,
          Stéphanie Mourou-Vikström,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 10 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 64734/11) 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 four applicants, namely Ms K. Leuska (“the first applicant”), Mr A. Leuska (“the second applicant”), Ms P. Esop (“the third applicant”) and Ms K.-B. Esop (“the fourth applicant”). The first and second applicants were represented before the Court by Mr T. Keevallik and the third and fourth applicants by Mr E. Tonka, both lawyers practising in Tallinn.

2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3. The applicants complained under Article 6 § 1 of the Convention of the failure of the Harju County Court to decide on their claim for compensation for the costs they had incurred in criminal proceedings in which they had participated as victims and to hear oral evidence from them.

4. On 4 February 2014 those complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The facts of the case, as submitted by the parties, may be summarised as follows.

6. The first and second applicants’ son was killed in a traffic accident on 17 July 2010 in which the fourth applicant sustained serious injuries. The third applicant is the fourth applicant’s mother.

7. The applicants joined the criminal proceedings concerning the accident as victims.

8. On 9 and 10 December 2010 the applicants lodged a civil action within the criminal proceedings against the suspect, J., claiming compensation for non-pecuniary damage and reimbursement of the legal costs incurred in the criminal proceedings.

9. On 28 January 2011 the applicants, represented by lawyers of their own choice, concluded an out-of-court settlement with J. (hereinafter “out-of-court settlement agreement”). They informed the prosecutor that they had agreed that the case would be settled (kokkuleppemenetlus). J. informed the prosecutor that he had paid the compensation to the applicants as laid down in the out-of-court settlement agreement.

10. On 4 February 2011 the applicants’ consent to the application of the settlement procedure was recorded in a report signed by the prosecutor and the applicants’ representatives. The report stated that the applicants had been informed of their rights under the settlement procedure and set out the consequences of applying the settlement procedure. In a section entitled “Remarks”, it was noted that the applicants had given up their claims in respect of non-pecuniary damage against J. (as lodged on 9 and 10 December 2010), but had not given up their claim for reimbursement of the legal costs incurred in the criminal proceedings. The report also stated that the victims had no right to withdraw their consent to the settlement procedure. At that time, the applicants had submitted neither an itemised list of legal costs nor any supporting documents.

11. On 11 February 2011 J. gave his consent to the application of the settlement procedure. The prosecutor, J. and the latter’s counsel signed a settlement agreement in which they agreed, inter alia, on the type and extent of the damage caused. The agreement stated that the victims had withdrawn the civil claims they had lodged within the criminal proceedings.

12. On 14 February 2011 the Harju County Court committed J. for trial and scheduled a hearing for 7 March 2011. J., his counsel and the prosecutor were summoned to appear at the court hearing. The applicants, however, were not summoned.

13. On 4 March 2011 the applicants lodged a claim for legal costs in the amount of 6,483.66 euros (EUR) and submitted supporting documents. The Harju County Court received their submission on 7 March 2011.

14. J., his counsel and the prosecutor attended the hearing held before the Harju County Court as scheduled. According to the court record, the trial judge disclosed the applicants’ claim for reimbursement of their legal costs. J. asked the court not to examine the claim as it had been absorbed by the out-of-court settlement agreement. The applicants alleged that they had not been allowed to address the court notwithstanding their presence in the court building.

15. In a judgment of the same date, the Harju County Court convicted J. of violating traffic and driving regulations and sentenced him to a suspended prison term. It also withdrew J.’s driving licence and ordered him to pay the State Treasury expenses consisting of compensation levies (sundraha) and the cost of expert assessments. It held that the victims had given up the civil claims they had lodged within the framework of the criminal proceedings. The judgment made no reference to the applicants’ claim for reimbursement of the legal costs incurred in the criminal proceedings.

16. The applicants lodged an appeal against that judgment. They complained that they had not been allowed to attend the court hearing of 7 March 2011 and that the court had left their claim for reimbursement of the legal costs undecided.

17. On 23 March 2011 the Harju County Court refused to examine the appeal. Relying on Articles 246 and 318 of the Code of Criminal Procedure (CCrP; Kriminaalmenetluse seadustik), the court found that the applicants had not been parties to the court proceedings and did not, therefore, have the right to appeal (see paragraph 29 below).

18. The applicants appealed against the County Court’s decision, insisting that they had been parties to the proceedings and had the right to appeal.

19. At a public hearing on 5 April 2011 the Tallinn Court of Appeal examined the appeal in the presence of J. and his counsel, the prosecutor and the applicants’ counsel. At the hearing, the prosecutor firstly noted that the applicants had not submitted any documents concerning their claim for legal costs, despite the fact that they had had a week after the settlement to do so. According to the report of the hearing, the prosecutor later noted that those documents could have been submitted when the applicants had signed the report (see paragraph 10 above) or a few days later. The report stated that J. had wanted to submit the out-of-court settlement agreement to the judge in order to prove that it covered all the relevant damages. However, the Court of Appeal had refused, considering that it did not concern the subject matter of the dispute before the court in those proceedings.

20. By a decision of 13 April 2011, the Tallinn Court of Appeal dismissed the applicants’ appeal and upheld the Harju County Court’s decision of 23 March 2011. It referred to Article 243 of the CCrP, under which the victim was not entitled to revoke his or her consent to the application of the settlement procedure, and to Article 246 of the Code, which provided that the victim did not have to be summoned to a court hearing in settlement proceedings (see paragraphs 28 and 29 below). The Court of Appeal concluded that the applicants, as victims, had not been parties to such court proceedings and that, accordingly, they had no right to appeal against the County Court’s judgment.

21. Although the Court of Appeal’s decision stated that it was final and not amenable to appeal, the applicants’ counsel nevertheless challenged it before the Supreme Court.

22. By a decision of 3 October 2011 in case no. 3-1-1-60-11 the Supreme Court refused to examine the appeal on points of law because the Court of Appeal’s decision had been final and not amenable to appeal. It nevertheless stated that according to the established case-law, in settlement proceedings the court should not limit itself to merely analysing the settlement reached. It must also verify whether there were still questions that should be addressed in the subsequent judgment, but which had not been included in the settlement agreement. The court noted that according to Article 245 of the CCrP, the settlement agreement did not necessarily have to address matters dealing with the costs of criminal procedure or cover the extent of granting the civil claim or of compensating for the damage caused by the criminal offence. However, referring to Article 306 §§ 11, 13 and 14 of the CCrP and Article 248 § 1 (3) of the CCrP, the Supreme Court considered that those matters should not be overlooked by the court concerned (see paragraphs 30 and 31 below).

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Criminal Procedure, as in force at the relevant time

23. Article 38 provided that a victim had the right, within the framework of criminal proceedings, to lodge a civil claim before the end of the trial in the first-instance court.

24. Under Article 175 § 1 (1), the procedural costs (menetluskulud) included reasonable remuneration paid to the chosen counsel or representative and other necessary costs incurred by a party in connection with the criminal proceedings.

25. Article 180 laid down a general rule that in the event of conviction, procedural costs had to be borne by the convicted offender. Article 182 set out the rules for the payment of procedural costs related to a civil action, providing that in the event that the civil claim was dismissed, the costs were to be borne by the victim, and in the event that the claim was satisfied, the costs were to be borne by the accused or the civil defendant. If the court refused to hear a civil action, the procedural costs related to the civil action were to be paid by the State.

26. Article 189 § 2 provided that in court proceedings, compensation for expenses related to criminal proceedings had to be decided by a court ruling or a judgment. Article 189 § 3 provided that in the event that compensation for expenses related to criminal proceedings was prescribed by a court judgment, this could be contested separately from the court judgment itself.

27. The regulations concerning the settlement procedure were set out in Articles 239 to 250 of Chapter 9 entitled “Simplified Proceedings”.

28. Article 239 § 2(4) stipulated that the settlement procedure could not be applied without the consent of the victim. Article 240(2) provided that if a prosecutor’s office considered it possible to apply the settlement procedure, it had to explain to the victim the option of applying the settlement procedure, the rights of the victim under the settlement procedure and the consequences of applying such a procedure. Article 243 provided that a report had to be drawn up concerning the consent granted by a victim to the application of the settlement procedure. The victim did not have the right to revoke his or her consent.

29. Pursuant to Article 246, only a prosecutor, the accused and his or her counsel were summoned to court hearings in proceedings conducted under the settlement procedure, and their participation therein was mandatory.

30. Article 248 listed the possible outcomes of the settlement procedure. These included, inter alia, the court giving a ruling on the return of the criminal file to the prosecutor’s office if there were no grounds for applying the settlement procedure or a ruling on the refusal to apply the settlement procedure and on the return of the criminal file to the prosecutor’s office if the court had doubts regarding the circumstances specified in Article 306.

31. Under Article 306 §§ 11 and 14, when rendering a judgment, the court had to adjudicate on, inter alia, whether and to what extent to grant the civil action or award compensation for the damage caused by the criminal offence, as well as adjudicating on the costs and expenses relating to the criminal proceedings and the person who was to bear them.

B. Amendments to the CCrP

32. In 2016 and 2017, with the aim of transposing Directive 2012/29/EU of the European Parliament and the Council establishing minimum standards for the rights, support and protection of victims of crime, certain amendments dealing with the position and the rights of victims in settlement proceedings were made to the CCrP. Article 240(3) currently provides that the prosecutor must request the consent of the victim to the settlement procedure and ask the victim (where he or she is a natural person) whether he or she wishes to receive notification of the time of the relevant court hearing, unless the victim has expressed his or her opinion about these issues earlier in the course of the criminal proceedings. The prosecutor must also explain that the victim has no right to withdraw his or her consent to the settlement procedure. Under Article 240(4), the prosecutor may, if necessary, grant the victim a reasonable deadline for lodging a civil action or a claim for compensation for procedural costs. Under Article 246 § 1¹, as it entered into force on 16 January 2016, the court must now notify a victim who is a natural person of the time of a court hearing, if the victim has so requested. The failure of a victim to appear in court must not hinder the court. According to the explanatory memorandum attached to the draft legislation introducing the above-mentioned amendments to the CCrP, the Code did not previously provide for a clear deadline for submitting a claim for the reimbursement of procedural costs.

C. Relevant case-law

33. In its judgment of 8 February 2010 in case no. 1-09-13388 the Tallinn Court of Appeal held that an exception to the victim’s right to be informed of the hearing and the right to participate in it is set out in the settlement procedure where the victim has given consent to the sentence and the damages, and knows that the court cannot go beyond the limits of the settlement agreement.

34. In its judgment of 4 October 2007 in case no. 3-1-1-52-07 the Supreme Court held that a court in settlement proceedings should not overlook, among other things, the question of expenses relating to criminal proceedings when making its decision. The Supreme Court reiterated that requirement in the applicants’ case (see paragraph 22 above).

35. As to the right provided for under Article 189 § 3 of the CCrP (see paragraph 26 above), the Supreme Court in its decision of 27 April 2006 in case no. 3-1-1-38-06 (reiterated in the decision in the applicants’ case) held that this also applied in the context of the settlement procedure without the usual restrictions on appealing under the settlement procedure being applicable.

36. In its decision of 30 December 2008 in case no. 3-1-1-70-08 concerning compensation for legal costs incurred within the framework of general criminal procedure, and not the settlement procedure, the Supreme Court stated that the deadline for lodging a compensation claim and submitting all the supporting documents was before the court adjourned to deliberate in chambers.

III. RELEVANT EUROPEAN UNION LAW

37. On 15 March 2001 the Council of the European Union adopted Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1).

38. Article 2 § 1 of the Framework Decision reads:

“1. Each Member State shall ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.”

39. Article 7 of the Framework Decision concerns victims’ expenses with respect to criminal proceedings and reads:

“Each Member State shall, according to the applicable national provisions, afford victims who have the status of parties or witnesses the possibility of reimbursement of expenses incurred as a result of their legitimate participation in criminal proceedings.”

40. In 2002 Council Framework Decision 2001/220/JHA was replaced by Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards for the rights, support and protection of victims of crime (OJ 2012 L 315, p. 57) (see paragraph 32 above). The Directive, which the Member States of the European Union had to transpose by 16 November 2015, is not applicable to the facts of the present case.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

41. The applicants complained of a violation of Article 6 § 1 of the Convention in that they had not been heard by the Harju County Court and that the courts had not adjudicated on their claim for reimbursement of their legal costs. Article 6 § 1, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. The parties’ submissions

(a) The Government

42. Firstly, the Government submitted that Article 6 § 1 under its civil head was not applicable to the present dispute because it did not concern rights recognised under domestic law. Under domestic law, once the applicants had knowingly agreed to the settlement procedure, the right to submit requests and evidence to the court, the right to be heard by the court and the right to appeal were no longer provided. In any event, the dispute in the criminal proceedings was not decisive for the applicants’ compensation claim as they had voluntarily abandoned their civil action after having concluded the out-of-court settlement in respect of their entire claim for damages.

43. Secondly, the Government pointed out that the applicants had failed to mention in their application to the Court that on 28 January 2011 they had concluded an out-of-court settlement agreement with J., namely before either they or the suspect had given their consent to the application of the settlement procedure in the criminal case. The Government noted that according to the out-of-court settlement agreement, J. had agreed to pay compensation for both the pecuniary and non-pecuniary damage suffered by the applicants. J. had complied with that obligation. The Government argued that the out-of-court settlement agreement had played a decisive role in the domestic proceedings. Given that the applicants had not notified the Court of the out-of-court settlement, the Government invited the Court to declare the application inadmissible for abuse of the right of petition.

44. Thirdly, the Government argued that the applicants could not claim to be victims within the meaning of Article 34 of the Convention, since all their existing and potential claims, including their claim for legal costs, had been honoured by the above-mentioned out-of-court settlement agreement of 28 January 2011.

45. Fourthly, the Government maintained that the applicants had failed to make use of appropriate remedies in both the criminal and the civil proceedings. As to the criminal proceedings, the applicants had not submitted an itemised list of their legal costs or any supporting documents in a timely manner. They had therefore lost the opportunity to have a court decide on their claim for compensation. Had the applicants submitted those documents in due time - that is, before or at the time of giving their irrevocable consent to the case being decided under the settlement procedure - the court would have been obliged to adjudicate on their claim. The applicants in turn could then have appealed against the court’s judgment. Regarding the remedies available under the civil procedure, the applicants could have sought reimbursement of the legal costs by bringing a civil action against J. under the Obligations Act after the deadline for seeking compensation in the criminal proceedings had expired.

(b) The applicants

46. The applicants argued in substance that under the general rules of criminal procedure concerning the rights of victims, they had to be considered parties to the court proceedings with all the ensuing rights.

47. The applicants also maintained that by agreeing to the settlement proceedings, they had not waived their right to seek reimbursement of the legal costs incurred in the criminal proceedings. They had repeatedly informed the courts, the prosecutor and the accused of that position. The applicants stressed, moreover, that the out-of-court settlement agreement had not covered their legal costs. They also pointed out that it had never been presented to the domestic courts.

48. The applicants further submitted that the out-of-court settlement agreement had not concerned the legal costs incurred in the criminal proceedings.

49. With regard to the fourth objection to the admissibility of their complaints, the applicants in substance argued that they had submitted their claim for legal costs, together with the supporting documents, to the trial court in due time, in accordance with the provisions governing general criminal procedure. In that regard, they referred to the Supreme Court’s judgment of 30 December 2008 in case no. 3-1-1-70-08 (see paragraph 36 above). The applicants did not comment on the Government’s objection based on the possibility of lodging a civil action seeking reimbursement of the legal costs.

2. The Court’s assessment

(a) Applicability of Article 6 § 1 of the Convention

50. The Court reiterates that for Article 6 § 1 in its civil limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012). Lastly, the right must be a “civil” right.

51. Turning to the present case, the Court notes that the domestic legislation and the relevant case-law recognise the right of victims in criminal proceedings to have the legal costs incurred in those proceedings reimbursed. Furthermore, such a claim, which is pecuniary, and therefore “civil”, in nature, can be raised within criminal proceedings (see paragraphs 24 to 26 as well as paragraphs 34 and 35 and above). On the facts of the case, it is clear that there was a dispute over the right to claim legal costs. The domestic courts, as stated by the Government, had jurisdiction to decide the applicants’ claim (see paragraph 45 above). In the light of the statements made by the Supreme Court (see paragraph 22 above), it is clear that the decision of the Harju County Court would have been decisive for the outcome of the dispute over costs. As the Government itself stated, had the applicants submitted their itemised list of costs and the supporting documents on time - the deadline which was not clearly provided in the domestic law (see paragraph 61 below) - the court would have had to decide the applicants’ claim (see paragraph 45 above). That the applicants, as victims, were not considered parties and were not summoned to the trial court hearing is irrelevant.

52. In the light of the foregoing, the Court finds the civil head of Article 6 § 1 to be applicable in the present case. The Government’s objection must therefore be rejected.

(b) Abuse of the right of application

53. The Court reiterates that incomplete and therefore misleading information may indeed amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and a sufficient explanation is not given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; and also Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).

54. The Court notes that the applicants did not inform it of the out-of-court settlement agreement. However, it observes that that agreement was never examined by the domestic courts either. In fact, the Tallinn Court of Appeal considered it irrelevant for the subject matter before it (see paragraph 19 above). It cannot be ruled out that the legal costs were not covered by the out-of-court settlement agreement (see paragraph 10 above). Accordingly, the Court cannot accept the Government’s argument (see paragraph 43 above) that the out-of-court settlement agreement played any role, let alone a decisive one, in the impugned proceedings.

55. In such circumstances, the Court does not consider that, by having failed to bring the out-of-court settlement agreement to its attention, the applicants have abused their right of application. The Government’s objection must therefore be rejected.

56. The Court reiterates that in order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Micallef, cited above, § 44). The Court also 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 Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V).

57. Turning to the facts of the instant case, the Court notes that the applicants’ claim before the domestic courts concerned the reimbursement of the legal costs they had allegedly incurred in the criminal proceedings. During the impugned proceedings, the applicants and J. had a different position as to whether the applicants still had the right to claim those costs, or, as J. argued, the out-of-court settlement agreement covered that claim. The domestic courts did not resolve that dispute.

58. The applicants’ complaints before the Court concern the alleged violation of their rights to be heard and to have their claim for legal costs adjudicated upon. Accordingly, whether their claim was covered by the out-of-court settlement agreement is irrelevant for the determination of their victim status in relation to the above complaints. Lastly, the Court notes that the respondent State has neither acknowledged a violation of Article 6 § 1 of the Convention, nor offered any redress.

59. Against that background, the applicants must be considered to have victim status in relation to the complaints they have raised before the Court. The Government’s objection must therefore be rejected.

(d) Exhaustion of domestic remedies

60. The Court reiterates that when making use of the domestic remedies, the applicants must comply with the requirements and time-limits laid down in the domestic law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

61. Turning to the present case, the Court is not convinced that the domestic legislation provided for a clear time-limit for the submission of relevant documents. In this connection it notes, firstly, that the Government did not refer to any statutory provision where such a time-limit was stipulated. Secondly, it observes that the prosecutor involved in the case was also uncertain about the time-limit within which the documents should have been deposited with the court (see paragraph 19 above). Thirdly, the explanatory memorandum for the recent legislative amendments clearly stated that the CCrP, as in force at the time, had not provided for a clear time-limit for lodging a compensation claim and submitting the supporting documents (see paragraph 32 above). Lastly, there was no established case-law on the matter with respect to criminal proceedings which had ended on the basis of a settlement procedure. Accordingly, the fact that the applicants followed the Supreme Court’s case-law applicable to general criminal procedure (see paragraph 36 above) cannot be held against them.

62. As to the alleged availability of other civil-law remedies, the Court notes that the domestic law provided for two possible avenues: a compensation claim lodged in the context of criminal proceedings (see paragraphs 23 to 26 above), or a separate civil action under the Obligations Act. The applicants chose the first avenue. Once they had done so, the use of another remedy which had essentially the same objective was not required in order to meet the criterion of exhaustion of domestic remedies under the Convention (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010).

63. Against that background, the Court considers that the applicants have exhausted the domestic remedies. The Government’s objection must therefore be rejected.

(e) Conclusion

64. The complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. As no other ground for declaring the application inadmissible has been established, the Court concludes that it must be declared admissible.

B. Merits

1. The parties’ submissions

65. The applicants reiterated that the courts had left their claim for the reimbursement of legal costs undecided and that they had not been given an opportunity to participate in the hearing before the Harju County Court, which amounted to violation of Article 6 § 1 of the Convention.

66. The Government noted that the applicants had given their voluntary and irrevocable consent to the settlement procedure. They had also voluntarily decided to withdraw their previous civil action. Had the case been processed by way of general procedure, the applicants as victims would have been parties to the judicial proceedings and would have had the right to participate in a court hearing. The applicants themselves chose to consent to the settlement procedure, which entailed inherent procedural limitations in the interests of procedural economy and guaranteeing reasonable length of proceedings. Against that background the Government concluded that the applicants’ rights under Article 6 § 1 of the Convention had not been violated.

2. The Court’s consideration

(a) Right of access to a court

(i) General principles

67. Article 6 § 1 of the Convention guarantees the right of access to a court for the determination of civil disputes. The Court considers that this right of access to a court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case would be determined by a final decision in the judicial proceedings. It would be inconceivable for Article 6 § 1 to describe in detail procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without securing to the parties the right to have their civil disputes finally determined (see Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002-II).

(ii) Application of the principles to the present case

68. The Court observes that by its judgment of 7 March 2011 the Harju County Court convicted J. and held that the applicants had given up the civil claims they had lodged in the framework of criminal proceedings (see paragraph 15 above). However, the judgment made no mention of the applicants’ claim for legal costs. The applicants considered that their claim had been left undecided. It appears from the Government’s observations that they did not consider that the Harju County Court had dismissed the applicants’ claim for the reimbursement of legal costs. On the contrary, the Government submitted that the applicants had lost the right to have the court decide on their claim by not submitting the relevant supporting documents on time (see paragraph 45 above).

69. The Court therefore concludes that no decision was taken on the applicants’ claim for legal costs, even though they had explicitly referred to it in the report when giving their consent to the settlement procedure (see paragraph 10 above) and had provided the court with an itemised lists of those costs before the relevant hearing had taken place (see paragraphs 13 and above). In the Court’s view, this should have been sufficient indication for the County Court that there was a dispute over the applicants’ claim (see paragraph 51 above) that required a judicial decision.

70. Furthermore, the specific features of the settlement procedure required particular vigilance on the part of the domestic courts when examining the settlement agreement presented to them. This assertion is supported by the Supreme Court’s judgment in the present case, in which it stressed that the question of legal costs should not be overlooked (see paragraph 34 above).

71. Whereas the Court’s task is not to take a position on whether the applicants’ claim for reimbursement of their legal costs was well-founded, as that falls primarily to the national courts (see Ruiz Torija v. Spain, 9 December 1994, § 30, Series A no. 303-A, and Hiro Balani v. Spain, 9 December 1994, § 28, Series A no. 303-B), it notes that the courts took no decision on that claim, which as noted above (see paragraphs 51 and 69 above), was of a “civil” nature and required a judicial determination.

72. In such circumstances, the Court finds that there has accordingly been a violation of Article 6 § 1 of the Convention under this head.

(b) Right to be heard

(i) General principles

73. The Court reiterates that it is not uncommon for the Council of Europe member States to have plea-bargaining processes resulting in a criminal conviction, or certain procedures that to a varying extent present elements of plea-bargaining procedure. It is common that plea-bargain agreements are entered into by the prosecution and the defendant, and subsequently reviewed by a court (see Natsvlishvili and Togonidze v. Georgia, no. 9043/05, §§ 62-75, ECHR 2014 (extracts)).

74. The Court acknowledges that the application of a plea-bargain procedure may entail a waiver of a number of procedural rights. The Court considers that the waiver of certain procedural rights cannot be a problem in itself, since neither the letter nor the spirit of Article 6 prevents a person from waiving these safeguards of his or her own free will (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 135, 17 September 2009). However, it is also a cornerstone principle that any waiver of procedural rights must always, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest (see, amongst other authorities, Scoppola, cited above, §§ 135-36; see also Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A) and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII).

(ii) Application of the above principles to the present case

75. The Court notes that the Estonian settlement procedure appears to have the characteristics of a plea-bargain procedure. The relevant question is whether the applicants validly waived their right to participate in a court hearing.

76. Under domestic law, as an exception to the general criminal procedure, victims under the settlement procedure were not summoned to attend, and were not heard at, the court hearing where the settlement agreement is discussed (see paragraphs 29 and 33 above). This was also so in the present case: the applicants, who were represented by lawyers of their own choice, had their rights and the consequences of the settlement procedure explained to them before consenting to its application and, after having consented, they were not summoned to appear and were not heard at the court hearing (see paragraphs 10 and 14 above).

77. In such circumstances, the Court is satisfied that the applicants’ consent to the settlement procedure can be regarded as an unequivocal waiver of their procedural rights, including the right to be heard.

78. Against this background, the Court finds that the fact that the applicants were not heard by the Harju County Court does not constitute a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79. 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.”

A. Damage

80. The applicants claimed 6,483.66 euros (EUR) in respect of pecuniary damage and EUR 32,000 in respect of non-pecuniary damage.

81. The Government requested that the claim for just satisfaction be rejected in full. They contended that there was no causal link between the alleged violation and the pecuniary damages claimed, the amount of which corresponded to the legal costs claimed in the criminal proceedings before the domestic courts. With respect to non-pecuniary damage, the Government considered that in the event that the Court found a violation of the Convention, such a finding of itself would constitute sufficient reparation.

82. The Court considers that the basis for an award of just satisfaction in the present case must be the denial of the applicants’ right to a court under Article 6 § 1 of the Convention. It cannot speculate as to what the outcome of the impugned proceedings would have been had there been no violation on this ground (see Demerdžieva and Others v. the former Yugoslav Republic of Macedonia, no. 19315/06, § 33, 10 June 2010). It therefore finds no causal link between the pecuniary damage claimed and its finding of a violation of Article 6. Accordingly, the Court makes no award under this head. On the other hand, making an assessment on an equitable basis, it awards each applicant EUR 1,500 in respect of non-pecuniary damage sustained as a result of the violation of their right to a court.

B. Costs and expenses

83. In the application form the applicants expressed their intention to have their legal costs and expenses incurred in the proceedings before the Court reimbursed. However, they neither specified those costs nor submitted any supporting documents in accordance with and within the time-limit provided for in Rule 60 § 2 of the Rules of Court.

84. The Court therefore makes no award under this head.

C. Default interest

85. 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the domestic courts’ failure to adjudicate on the applicants’ claim for reimbursement of their legal costs;

3. Holds that there has been no violation of Article 6 § 1 of the Convention on account of the applicants not being heard by the court;

4. Holds:

(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred 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;

5. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LEUSKA AND OTHERS v. ESTONIA - 64734/11 (Judgment : Violation of Right to a fair trial - Criminal proceedings - Access to court Fair hearing) [2017] ECHR 969 (07 November 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/969.html Cite as: [2017] ECHR 969, ECLI:CE:ECHR:2017:1107JUD006473411, CE:ECHR:2017:1107JUD006473411