ANDREJEV v. ESTONIA
Inadmissible
Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
The applicant, Mr Juri Andrejev, is an Estonian national who was born in 1947 and lives in Narva-Jõesuu. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant owned a cable television network in Narva-Jõesuu. His activities in connection with the retransmission of programmes of various television channels through his network gave rise to several sets of judicial proceedings. In the applicant’s submission, on 1 January 2003 and 27 September 2004 two sets of criminal proceedings were initiated against him, both of them in respect of suspected infringement of rights related to copyright (Article 220 of the Penal Code (Karistusseadustik)). Soon afterwards these proceedings were joined. The prosecutor modified the bill of indictment twice. The third and final bill of indictment, given to the applicant on 26 May 2006, stated that the offence which previously fell under Article 220 of the Penal Code was now to be dealt with under Article 223 § 1 of the Penal Code (unlawful retransmission for commercial purposes). This bill of indictment concerned retransmissions of the television channels ORT, RTR and NTV between 26 May 2003 and 29 September 2005. On 28 August 2009 the Viru County Court convicted the applicant under Article 223 § 1 of the Penal Code and sentenced him to four months’ imprisonment. The applicant appealed, arguing that his conviction had been unlawful and that several procedural violations had occurred. By a judgment of 19 February 2010 the Tartu Court of Appeal upheld the County Court’s judgment in substance but modified the sentence and fined the applicant 15,000 kroons (EEK, approximately 959 euros, (EUR)) instead of the prison sentence given by the lower court. The applicant filed an appeal with the Supreme Court, mainly challenging the interpretation of the criminal law by the lower courts. He did not raise the issue of the excessive length of the criminal proceedings. On 19 April 2010 the Supreme Court decided not to examine the appeal. He was informed of this decision by a letter dated 22 April 2010. In separate criminal proceedings the Viru County Court convicted the applicant on 23 May 2006 of infringement of rights related to copyright (unlawful retransmission of programmes of the television channels PBK and TVC). On 18 October 2006 the Viru Court of Appeal quashed the judgment and acquitted the applicant. The applicant’s subsequent criminal complaints against the public prosecutor and the first-instance judge were dismissed by the Public Prosecutor’s Office. His complaint to the Viru Court of Appeal was rejected on 14 February 2008, because it had not been drawn up by a lawyer as required by law. Furthermore, it appears that on 29 September and 27 October 2005 police officers endeavoured to conduct a search of the applicant’s residence. There was a dispute between him and the officers and he was taken to the police station. Later he was charged with refusing to comply with lawful orders given by representatives of the State authority. On 6 February 2006, in misdemeanour proceedings, the Narva City Court acquitted the applicant of the charge, finding that he had not committed the offence. In the meantime, on 29 October 2005 the applicant made a criminal complaint against the police officers. The Public Prosecutor’s Office refused to open proceedings. On 18 February 2008 the applicant lodged a complaint with the Viru Court of Appeal. It appears that the complaint was rejected as it had not been drawn up by a lawyer as required by law. By a decision of 30 December 2008, in constitutional review proceedings (case no. 3-4-1-12-08), the Constitutional Review Chamber of the Supreme Court rejected a complaint concerning the length of criminal proceedings, noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case. It held: “23. If the court comes to the conclusion that [the complainant’s] right to proceedings within a reasonable time has been violated, the court can, in the light of all the circumstances and on the basis of Article 6 § 1 of the Convention, terminate criminal proceedings due to inappropriateness, render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence.” The above decision of the Supreme Court is more extensively quoted in the case of Malkov v. Estonia (no. 31407/07, § 32, 4 February 2010). By a judgment of 27 January 2009 the Tartu Court of Appeal found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant’s sentence was reduced accordingly (see Malkov, cited above, § 29). The Criminal Chamber of the Supreme Court has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings, the defendant’s acquittal or taking the length of proceedings into account in the sentence (judgments of 27 February 2004 (case no. 3-1-1-3-04) and 28 December 2009 (case no. 311-100-09)).