CASE OF DOROZHKO AND POZHARSKIY v. ESTONIA
Violation of Art. 6-1;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
4. Mr Aleksandr Dorozhko, the applicant in application no. 14659/04 (“the first applicant”), was born in 1960. Mr Vyacheslav Pozharskiy, the applicant in application no. 16855/04 (“the second applicant”), was born in 1981. Both of them are currently serving prison sentences. 5. The applicants were arrested around midnight on the night of 8 to 9 November 2002. They were initially suspected of having caused grievous bodily harm and of temporary unauthorised use of other persons’ movable property (cars). Subsequently, the applicants were also charged with robbery. 6. On 20 November 2002 the Tallinn City Court (linnakohus) refused to extend the applicants’ detention. The second applicant was released. The first applicant, however, was not released by the police; he was kept under arrest and declared under suspicion of an offence of threatening behaviour. On 22 November 2002 the City Court authorised his further detention. 7. In the meantime, on 20 November 2002, the police chief inspector I. P. ordered that a team of investigators be set up for the criminal case concerned. The team consisted of I. P. himself as the head of the team and three other senior police inspectors: L., G. and K. 8. In the submission of the Government, the further criminal investigation was practically solely carried out by police investigator L., while only a few procedures were performed by investigators G. and K. The criminal case file did not contain any indication that I. P. personally performed any investigative actions or that he issued any instructions or guidelines to the members of the team. 9. Nevertheless, the first applicant was informed by the Tallinn Police Prefecture and the Public Prosecutor’s Office during the pre-trial investigation, in response to his complaints, that I. P. was a member of the team of investigators set up for the criminal case concerned and he had the powers to conduct all investigative activities. 10. On 14 March 2003 the Lääne County Court (maakohus) authorised the second applicant’s detention until 14 May 2003 in different criminal proceedings not related to the present case. 11. In the meantime, on 3 February and again on 29 April 2003, after the Public Prosecutor’s Office had amended the charges, the applicants were committed for trial by the Tallinn City Court. The case was heard by a court composed of a professional judge, E. P., and two lay judges. The hearings before the City Court took place on several dates. 12. At a City Court hearing on 30 May 2003 the first applicant said in his closing statement that because he had refused to cooperate with the police investigators B., I. P. and K., the charges against him had been changed. He also said that although a judge had ordered his release, police investigators I. P. and K. had not released him from the police cell but had detained him again on suspicion of threatening behaviour. 13. On 30 May 2003 the City Court convicted the applicants of robbery and temporary unauthorised use of other persons’ movable property. The first applicant was also convicted of an offence of threatening behaviour. The first applicant was sentenced to nine years’ and the second applicant to seven years’ imprisonment. 14. The applicants and the first applicant’s lawyer appealed against the judgment. The applicants in their appeals challenged, inter alia, the impartiality of the City Court’s judge E. P., as her husband, I. P., had headed the team of investigators which had been set up for the investigation of the criminal case concerned. The second applicant noted that this issue had been raised at a City Court hearing but judge E. P. had not withdrawn. 15. On 6 June 2003 the first applicant’s wife also lodged a complaint to the Court of Appeal, arguing, inter alia, that judge E. P. should have withdrawn because her husband had been involved in the pre-trial investigation. 16. At the hearing before the Court of Appeal on 9 October 2003 the first applicant raised the issue of impartiality of the City Court judge E. P. According to the record of the hearing, he stated as follows: “The presiding judge was [E. P.]. Her husband was the person who carried out the preliminary investigation. I only learned about it after the court hearing. This fact affected the impartiality of the judge. It could also be seen from the record [of the court hearing] because it is imprecise. ... It affected the judicial investigation. The judge did not grant my requests, everything happened very quickly. She[] wanted to have me imprisoned. I did not request the removal of the judge. I did not know at that time that her husband had been the head of the preliminary investigation.” 17. According to the prosecutor the applicants had not been aware that E. P. and I. P. were married to each other when the City Court began to hear the case. In her submission they had become aware of it later, by the time of the subsequent hearings. However, no requests for removal of the judge had been made. 18. At the end of the Court of Appeal hearing the second applicant said that I. P. had interrogated him. He added: “[I. P.] threatened me [and said] that if I confessed, I would not go to prison.” 19. On 9 October 2003 the Tallinn Court of Appeal (ringkonnakohus) acquitted the applicants in respect of the second count of temporary unauthorised use of other persons’ movable property. It upheld the City Court’s judgment in the remaining part. 20. Referring to Article 20 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), which concerned grounds for disqualification of a judge, the Court of Appeal found that the applicants’ allegations did not warrant quashing the City Court’s judgment and referring the case to the first-instance court for a new trial. Moreover, it was noted that none of the parties to the proceedings had requested judge E. P.’s disqualification during the proceedings in the City Court; neither had the impartiality of the judge nor that of the court been put into doubt in the appeals. The first applicant had submitted at the Court of Appeal hearing that he had become aware of the fact that I. P. was the judge’s husband during the court proceedings. The Court of Appeal found, however, that the judge’s possible relationship with an official participating in the preliminary investigation did not prove the judge’s partiality. It noted that although I. P. had been the head of the team of police officers investigating the case, the investigation had in fact been carried out by another police investigator. None of the reports concerning various investigative activities (uurimistoimingu protokoll) in the case file had been drawn up by I. P. Moreover, besides judge E. P., two lay judges had taken part in deciding the case. The Court of Appeal considered that the allegation concerned was artificial and had been submitted with a view to delaying the proceedings. 21. In his appeal to the Supreme Court (Riigikohus), the first applicant argued that judge E. P. could not have been unaware of the fact that her husband had led the team of investigators and that the applicant had made several complaints during the preliminary investigation to the Public Prosecutor’s Office against the police investigators, including I. P. He asserted that judge E. P. should have withdrawn from hearing the case. In his view the judicial investigation in the City Court had not been impartial; the lack of impartiality had particularly been reflected in the severity of the sentence. The applicant had not requested E. P.’s removal because he had found out too late and through informal sources that she was married to I. P. Nevertheless, he was of the opinion that his failure to request the judge’s removal should not deprive him of the right to impartial adjudication of the charges against him. 22. The second applicant argued in his appeal to the Supreme Court that judge E. P. had had no right to administer justice in respect of him because she was the wife of the head of the team of police investigators. 23. On 21 January 2004 the Supreme Court refused the applicants leave to appeal. 24. According to Article 20 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, a judge could not participate in criminal proceedings and had to be disqualified if he or she had a direct or indirect personal interest in the case or if other circumstances gave reasons to doubt his or her impartiality. Article 20 § 3 provided that a person who was related to an official conducting a preliminary investigation or court proceedings in a criminal case could not participate in the proceedings as an expert, specialist, defence counsel or representative of a victim, plaintiff or defendant, or as an interpreter or translator. 25. Article 26 § 1 (2) of the Code stipulated that a person whose spouse had participated in the proceedings of a criminal case (menetlusosaline kriminaalasjas) could not act as a judge in that case. The same applied in respect of a person with regard to whom facts were presented which gave reason to doubt his or her impartiality (Article 26 § 1 (4)). 26. Article 34 § 1 of the Code provided that participants in the criminal proceedings (kriminaalmenetluse osaline; menetlusosaline) were: suspect, accused, accused at trial and his or her defence counsel, prosecutor in court proceedings, and victim, plaintiff, defendant and their representative. 27. In Article 107-1 § 1 of the Code the rights and obligations of a head of the investigation (uurimisjuht) were enumerated. He or she could monitor the activities of a preliminary investigator and give him or her instructions; form teams of investigators (uurimisgrupp); annul unlawful or unjustified orders of preliminary investigators; participate in the actions of preliminary investigators or personally perform actions in a criminal matter. 28. Under Article 178 of the Code a head of the investigation could form a team of investigators by his or her order. The head of the team of investigators (uurimisgrupi vanem) had to be named in the order. The latter had to coordinate the activities of the team of investigators. 29. Article 231 of the Code provided that after a judge had announced the panel of the court, he or she had to explain to the participants in the proceedings their right to request the judge’s or lay judges’ disqualification. 30. Article 232 of the Code stipulated that judges and lay judges had to withdraw from hearing of the case, and the participants in the proceedings had the right to request their disqualification, under the circumstances specified in Article 20 or 26 of the Code.