CASE OF ANDREYEV v. ESTONIA
Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
7. The applicant was born in 1961 and lived in Narva until his arrest. He is currently serving a prison sentence. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. Shortly thereafter the applicant applied for legal aid for the second time. On 19 January 2009 the Viru County Court granted his request. 25. 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. 26. On 22 July 2009 the Supreme Court declined to accept the request. 27. 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. 28. Article 45 § 4 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) stipulates that the participation of counsel in court proceedings is mandatory. 29. Pursuant to Article 344 § 3, an appeal in cassation may be filed by an advocate acting as criminal defence counsel. 30. 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. 31. 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. 32. 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: “(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.” 33. Article 349 of the Code of Criminal Procedure provides as follows: “(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.” 34. 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: “(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.” “... (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. ...” 35. 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). 36. 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. 37. 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. 38. 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.” 39. 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. 40. 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. 41. 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. 42. 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).