CASE OF SULAOJA v. ESTONIA
Violation of Art. 5-3;Violation of Art. 5-4 with regard to the first set of proceedings;No violation of Art. 5-4 with regard to the second set of proceedings;Non-pecuniary damage - financial award
Nicolas Bratza
7. The applicant was born in 1964 and lives in the Hüüru village, Harju County. 8. On 14 February 1998 the Pärnu police took the applicant into custody on suspicion of having committed burglary. On 16 February 1998 the applicant was released from custody, but was subjected to another preventive measure in the form of a ban on leaving his place of residence. 9. On 19 February 1998 the applicant was re-arrested on suspicion of two further acts of burglary, one of which had been committed the same day. 10. On 20 February 1998 the applicant was charged with three counts of burglary and the police investigator requested the Pärnu City Court (Pärnu Linnakohus) to apply the preventive custody measure until 20 April 1998. The investigator noted that the applicant had no fixed residence and considered that he could, if released, continue to commit offences, evade investigation and abscond. The applicant stated in writing that he did not wish to participate in the hearing before the City Court concerning the investigator's request and that he did not consider the presence of his lawyer there necessary either. On the same day, i.e., 20 February 1998, the City Court authorised the applicant's detention until 20 March 1998. 11. In March 1998 the applicant was charged with additional counts of burglary, committed together with two minors. 12. On 20 March 1998 the investigator applied for an extension of the applicant's detention. Having noted that the applicant had been charged with additional crimes, that he had no fixed residence or place of work and that he had two prior criminal convictions, the investigator found that the applicant could, while at liberty, re-offend, evade investigation and flee. The investigator also noted that the applicant had confessed to the charges. The applicant did not wish to participate in the hearing before the City Court, which allowed the investigator's request and prolonged the applicant's detention until 20 April 1998. On 17 April 1998 the City Court granted the investigator's request to prolong the applicant's detention further until 20 June 1998. The request was based on reasons which were similar to those contained in the previous request. The applicant again had stated that he did not wish to attend the hearing on the extension of his custody. On 18 June 1998 the applicant's detention was prolonged by the City Court for the third time at the request of the investigator who relied on his earlier arguments. The extension was valid until 20 August 1998. 13. On 19 August 1998 the City Court held a hearing on the further prolongation of the applicant's detention. It heard the applicant and his lawyer as well as the investigator. It rejected the applicant's request to be released and extended his detention until 20 September 1998. The court found that the applicant had no place of residence, family or work. If released, he could continue committing offences in order to support himself, and also evade investigation. 14. On 1 September 1998 the investigator drew up a final indictment which included an additional charge of inducing minors to participate in a crime. 15. On 18 September 1998 the City Court held a hearing to decide on the investigator's request to extend the applicant's detention until 20 November 1998 having regard to the large volume of the criminal case. The applicant and his lawyer, who both took part in the hearing, objected to the request. The City Court decided to allow the request and to extend the applicant's detention. It noted that the applicant had prior criminal convictions and that he had no place of residence or work. He had been charged with several offences for which he could be sentenced to imprisonment. There was thus reason to believe that he could abscond or commit new offences, if released. 16. On 20 November 1998 the City Court heard the applicant and his lawyer on the sixth application by the investigator to extend the applicant's detention. Noting again that the applicant had no place of residence, work or family to support him, it decided to prolong his detention until 20 January 1999. 17. On 18 January 1999 the investigator filed another request to extend the applicant's custody term until 20 February 1999, i.e. 12 months in total. The applicant did not wish to be present at the examination of this request before the City Court, which found the request substantiated and allowed it for reasons similar to those in its previous decisions. 18. On 12 February 1999 the applicant and his lawyer were acquainted with the results of the preliminary investigation of the criminal case. Three days later the public prosecutor approved the bill of indictment and the case was sent to the City Court for trial. 19. By a decision of 18 February 1999 the City Court, having reviewed the case-file from the prosecution, committed the applicant for trial. In respect of detention it was ordered in the decision: “To leave unchanged the preventive custody measure chosen with respect to the accused at trial.” The decision did not specify until when the applicant had to be kept in detention. The court relied on the relevant provisions, including Article 189, of the Code of Criminal Procedure. The applicant did not receive a copy of the court decision, but was notified by the public prosecutor of the renewal of his detention on 22 February 1999. 20. On 22 February 1999 the applicant complained to the City Court that he was dissatisfied with the investigator who had refused to arrange his confrontation with witnesses. He considered that the investigation had been incomplete and asked the court to send the case back to the relevant authority. 21. On 15 March 1999 the applicant filed another complaint with the City Court, arguing that his detention after 20 February 1999 was unlawful and requesting his release from custody. He submitted that under the Code of Criminal Procedure (Article 73 § 6) notification of a prolongation of detention should reach the place of detention before the expiry of the previous order. He, however, received the notification only on 22 February 1999. 22. At the hearing before the City Court on 31 March 1999 the applicant pleaded guilty to the charges of burglary, but denied that he had induced two minors, M.T. and R.P., to participate in his criminal activity. The court heard five witnesses, including M.T. and R.P. By a judgment given on the same day it convicted the applicant on five counts of burglary under Article 139 § 2 of the Criminal Code as well as on the charge of inducing minors to participate in his crime, under Article 202 of the Code, and sentenced him to 2 years' imprisonment. The judgment did not mention the applicant's request for release or the continuation of the preventive custody measure. 23. On 15 April 1999 the applicant filed an appeal against the judgment with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he disputed his conviction under Article 202 of the Criminal Code. He also complained that the investigator had refused his request to conduct a confrontation with his accomplices M.T and R.P., and asked the appeal court to hear witness R.J., without indicating any reasons for his request. The applicant further applied for release from custody and submitted that his continued detention after 20 February 1999 was unlawful. 24. On 23 April 1999 the Court of Appeal informed the applicant of the date of its preliminary hearing, noting that his presence was mandatory. 25. On 28 April 1999, after a preliminary hearing which the applicant did not attend, the Court of Appeal quashed the judgment of the City Court on procedural grounds and remitted the case to it for a new consideration with a different composition. It found that the lower court judgment was not reasoned and that its hearing records were incomprehensible. Moreover, as the applicant suffered from a mental handicap, it was necessary to have a psychiatric expert opinion on his mental state. Neither the decision nor the minutes of the hearing made reference to the applicant's request for release or dealt with the issue of detention pending final conviction and sentence. 26. On 6 May 1999 the applicant wrote to the City Court asking it, without specifying the reasons, to call his witness R.J. He also informed the City Court that in his view he had the right to be released. The following day the applicant filed an appeal against the Court of Appeal's decision of 28 April 1999 with the Supreme Court, submitting that neither the City Court nor the Court of Appeal had indicated on what ground he was being detained. He argued that the maximum time-limit of one year for pre-trial detention, stipulated in Article 74 of the Code of Criminal Procedure, expired on 19 or 20 February 1999 and that his continued detention was unlawful. He also requested his release from custody. 27. At the hearing before the Supreme Court on 8 June 1999, where the applicant was not present, the defence lawyer maintained the applicant's appeal and submitted, in addition, that the applicant had not been aware of the prolongation of his detention by a decision of the City Court of 18 February 1999 as a copy of the decision had not been sent to him. 28. By a decision of 8 June 1999 the Supreme Court dismissed the appeal. It considered that the time-limit of one year for pre-trial detention under Article 74 of the Code of Criminal Procedure had not been exceeded. The applicant had been taken into custody on 19 February 1998 and on 18 February 1999 he was committed for trial and ordered to remain in custody. In response to the defence lawyer's argument, the Supreme Court stated that, according to Article 202 § 1 of the Code of Criminal Procedure, a copy of the court decision committing the accused for trial was to be sent to the person only if the court changed a preventive measure – which was not the applicant's case. The applicant, however, had the opportunity to consult the decision in his criminal case-file. The Supreme Court noted that, in remitting the case back to the first instance court, the Court of Appeal should have indicated, for the sake of clarity, that the preventive custody measure in respect of the applicant remained in force. Nonetheless, the absence of that indication did not render the applicant's detention unlawful. In sending the case back for a new consideration, the Court of Appeal restored the procedural stage which came about following the applicant's committal for trial on 18 February 1999. This situation also involved the preventive custody measure applied in respect of the applicant on the same day. 29. On 31 August 1999 the medical experts established that the applicant was not of unsound mind or suffering from a mental disease, and was capable of understanding and controlling his actions. 30. On 5 October 1999 the City Court held a new hearing on the applicant's case. It heard 4 witnesses, including M.T and R.P. The applicant requested that an additional witness, L.M., be called to testify. The witness could provide information on the applicant's place of residence after 16 February 1998. The court rejected the request on the ground that the testimony of the proposed witness was irrelevant. The applicant had already submitted that at that time he was living at L.M.'s place and the court had sufficient evidence to decide on the case. 31. By a judgment of 5 October 1999 the City Court, having analysed the evidence in the case, including the testimonies of witnesses, found the applicant guilty as charged and sentenced him to 2 years and 6 months' imprisonment. It left unchanged the preventive custody measure applied to him, without putting forward any specific reasons for that. 32. In his appeal to the Court of Appeal, filed on 13 October 1999, the applicant submitted that his conviction under Article 202 of the Criminal Code of inducing minors to participate in burglary was based on insufficient evidence. He referred to the inability to confront the two minors during the preliminary investigation and asked the appeal court to hear his witness L.M. The applicant further disputed the lawfulness of his detention after 19 February 1999 and claimed that he had not received adequate replies to this question. He also demanded his release. 33. On 29 November 1999 the Tallinn Court of Appeal, having held a hearing, upheld the applicant's conviction, but reduced his sentence to 2 years' imprisonment. It did not hear the requested witness. The judgment of the Court of Appeal took effect on the day of its pronouncement, but was open to appeal to the Supreme Court within one month. Neither the judgment nor the hearing records mention the applicant's request for release. 34. On 21 December 1999 the applicant lodged an appeal with the Supreme Court contending, inter alia, that the investigator had acted unlawfully and pointing to the failure to hear the witness L.M. He requested to be released from custody. On 12 January 2000 the Supreme Court refused, by a final decision, the applicant leave to appeal. 35. Under Article 35-1 §§ 1 and 2 and Article 37 § 2 of the Code of Criminal Procedure, as in force at the material time, the accused and his defence lawyer have the right to submit applications and file appeals relating to the criminal proceedings. 36. Article 69 of the Code provides that a prohibition to leave a place of residence may be imposed on a suspect, accused or accused at trial, i.e. he or she may be obliged to undertake a written commitment not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court. If the suspect, accused or accused at trial violates such commitment, a more severe preventive measure may be applied with regard to him or her, against which the suspect, accused or accused at trial shall be cautioned upon the obtaining of his or her signature. 37. Article 71-1 of the Code stipulates that a judge may, at the request of an accused, replace the preventive custody measure with bail. 38. According to Article 73 of the Code, preventive custody measure may be applied in respect of a suspect, accused or accused at trial in order to prevent them from evading the criminal proceedings or committing a new crime as well as to ensure the enforcement of a court judgment (§ 1). The permission for taking a suspect or accused into custody is given by a county or city court judge on the basis of a reasoned request from an investigator (§ 2). 39. An investigator must notify the defence counsel and prosecutor of a custody application beforehand; the counsel and prosecutor have the right to participate in the hearing of the application by the county or city court judge (§ 3). A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of the defence counsel (§ 4). 40. A county or city court judge must give a reasoned ruling on the grant or refusal of the preventive custody measure. The judge must sign the ruling and certify it with the court seal (§ 5). 41. An extension of the term of custody is effected pursuant to the provisions which regulate the taking of a person into custody (§ 5-1). A court must inform the administration of the detainee's place of detention of its decision to prolong his detention or to annul it. The notification must reach the place of detention before the expiry of the term of detention (§ 6). 42. Article 74 of the Code provides that a period of detention during the investigation of criminal offences may not last longer than 6 months. In particularly complex and voluminous cases, the State Public Prosecutor or his Deputy may exceptionally request an extension of the time-limit for such detention up to one year. 43. According to Article 77-1 of the Code, a person in respect of whom a preventive custody measure is applied or extended, or his representative, may file an appeal against that ruling within five days pursuant to the procedure prescribed in the Code of Criminal Court Appeal and Cassation Procedure. 44. Article 78 of the Code stipulates that an investigator, prosecutor or court will annul a preventive measure if there is no further need for its application, or alter the preventive measure and choose a new preventive measure (§ 1). A preventive measure chosen in respect of an accused at trial may be altered or annulled by the trial court or a higher court (§ 3). 45. Under Article 189 of the Code, when committing the accused for trial, a court must examine whether a preventive measure has been correctly applied. 46. Article 202 § 1 of the Code requires a court to forward to the accused a copy of its decision on the committal for trial, if by that decision the court changed a preventive measure. 47. Article 222 of the Code empowers a court to amend and annul, in the course of the court proceedings, the preventive measures previously chosen with regard to the accused at trial. 48. According to Article 325 § 1 of the Code a court judgment becomes legally enforceable upon expiry of the term for filing of appeals or protests, if appeals or protests are not filed. If an appeal or protest is filed, a court judgment enters into force after the criminal matter has been heard by a higher court, unless the judgment is annulled. 49. Article 263 § 1 (10) and Article 275 § 1 (6) provide that, upon making a judgment, a court has to decide what preventive measure shall be applied with regard to the accused at trial or whether the preventive measure previously applied shall be annulled. 50. According to Article 35 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a judgment of a court of appeal enters into force after it is pronounced or communicated through the court office in its full extent.