CASE OF TAAL v. ESTONIA
Violation of Art. 6-1;Violation of Art. 6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The applicant was born in 1954 and lives in Tallinn. 9. On 5 June 2000 the Tallinn police initiated criminal proceedings against the applicant on suspicion of having committed extortion under Article 142 of the Criminal Code. On 17 June 2000 the applicant was taken into custody. The applicant was charged with having threatened, by way of telephone calls, to explode a bomb in the supermarket Pirita Selver if his demands for a sum of money were not met. 10. Following the conclusion of the preliminary investigation the criminal case-file was sent to the Tallinn City Court (Tallinna Linnakohus). On 11 January 2001 witnesses K., R. and V. failed to appear at the hearing in the City Court and the hearing was adjourned to 5 February 2001. At the hearing of 5 February 2001 the applicant was questioned. The City Court again adjourned the hearing, since the witnesses had not appeared. Subsequently, the City Court heard the case on 20 February 2001. 11. According to the record of the City Court hearing, which set out the documents disclosed to the prosecution and defence at the public hearing, the City Court’s case-file included, inter alia, written witness statements made during the preliminary investigation by K. and R., who were both employees of the supermarket. Witness K. had stated that the phone calls on 2 and 4 June 2000 had been made by a male person, probably 40-50 years of age or more. She had submitted that it was possible that she would recognise the voice. Witness R. had submitted that she had received phone calls from a male person on 3 and 4 June 2000. The case-file further contained six tapes with recordings of several phone calls made to the supermarket (from 4, 5, 7, 8 and 11 June 2000) and one tape with an undercover recording of a phone call by the applicant from 29 June 2000, as well as transcripts of the tape recordings. According to the written records of witness V.’s statements during the preliminary investigation, on 13 June 2000 the applicant had asked him to dial a phone number of the applicant’s girl-friend and hand the handset over to the applicant. They tried to make four phone calls, but none of the calls was answered. The number called to was a local number, the last three digits containing a combination of “fives”, possibly “550” or similar. The City Court’s case-file also included a written statement of witness R.’s testimony, according to which, on 10 August 2000, she had been presented with an undercover recording of a phone call made by the applicant for recognition. She had been of the opinion that the male voice in the recorded conversation closely resembled the voice of the person who in June 2000 had made the bomb threats to the supermarket. She had answered four phone calls to the supermarket. When the threats were made, the voice had been more nervous, but otherwise the voices were identical. The case-file further contained a written record of the examination of an anonymous witness “Artur”, who stated that in June 2000 he had met the applicant at a party, where the latter had said that he had made the threats to the supermarket. In this way the applicant had had a chance to make good money. The owner of a shop located near the supermarket had asked him to make the threats. Every time after making the threats he had called the owner of the shop. Witness Artur stated that from the recordings of the bomb threats on six tapes he recognised the applicant’s voice. Witness Artur considered that the sound of the voice bore a resemblance to that of the applicant, as did some expressions and the manner of speaking. In the case-file there was included a written record of an examination of witness R., who said that, as of 11 June 2000, the information line of the supermarket did not answer calls made from public payphones. Witness R. stated that, based on the voice, the manner of speaking and the references to earlier phone calls, the threats had been made by one person. 12. All the witnesses failed to appear at the City Court’s hearing of 20 February 2001. Witnesses K. and R. submitted that they were unable to attend the hearing but that they maintained the statements given during the preliminary investigation; witness V. did not live at the address noted by the City Court. At that hearing the City Court refused the request of the applicant’s lawyer to call witnesses K. and R. The record of the hearing does not disclose the reasons why the request was refused. 13. By a judgment of 20 February 2001 the Tallinn City Court convicted the applicant of the charge and sentenced him to 3 years’ imprisonment. It relied on the testimony of the witnesses K., R., V. and of the anonymous witness Artur, given during the preliminary investigation, as well as on the transcripts of tape recordings of telephone conversations. 14. According to the judgment, the anonymous witness Artur had recognised the applicant’s voice on the tape and had heard him brag about his bomb threats. Witnesses K. and R. testified that they had received repeated phone calls from the same person, approximately 40-50 years of age, threatening to explode a bomb and demanding a sum of money. In addition, witness R. stated that the applicant’s voice on the tape played to her closely resembled the voice of the man who had made the bomb threats. According to the testimony of witness V., the applicant had told him that he was in need of money and asked him to dial a number, using public phones, of which he remembered the first and last digits. In the event that somebody should answer, he was supposed to hand over the phone to the applicant. The first and last digits of the phone number corresponded to the phone number of the supermarket. 15. On 26 February 2001 the applicant’s lawyer filed an appeal against the judgment requesting the applicant’s acquittal. She argued that the City Court had not heard any of the witnesses at its hearing and that her request to summon the witnesses had been denied. The City Court had convicted the applicant on the basis of insufficient evidence. The record of the court hearing had stated incorrectly that several items of evidence in the case-file had been disclosed. In fact, this had not been done. As regards the voice identification, the applicant’s lawyer noted that, as the witness R. had been presented with only one voice for recognition, she had not been able to compare voices. In his appeal the applicant noted that the bomb threats continued in July and August 2000, after he had been taken into custody. The applicant’s lawyer did not request in her appeal that any witnesses be called to the appeal court’s hearing. 16. On 28 March 2001 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) heard the appeal at a public hearing. The applicant’s lawyer reiterated that at the hearing in the City Court it had not been possible to put questions to the witnesses and that her request to summon the witnesses had been denied. According to the record of the Court of Appeal’s hearing neither the applicant nor his lawyer requested that any witnesses be summoned to the hearing. The Court of Appeal dismissed the appeal. It noted in its judgment: “The [Criminal] Chamber [of the Court of Appeal] finds, as did the City Court, that [the applicant’s] guilt has been established on the basis of an aggregate of evidence and that this aggregate [of evidence] does not include solely the statements of witnesses; all the evidence collected during the pre-trial investigation and examined at the court hearing has been taken into account.” The Court of Appeal found no substantial infringement of the procedural law which would have entailed a reversal of the lower court judgment. 17. On 18 April 2001 the applicant’s lawyer filed an appeal with the Supreme Court (Riigikohus) repeating the arguments raised before the Court of Appeal. She reiterated that, in violation of the law of criminal procedure, the City Court had not based its judgment on evidence examined at the hearing. The applicant requested in his appeal that an independent expert assessment of the voice be carried out. 18. On 17 May 2001 the Supreme Court refused the applicant leave to appeal. 19. Pursuant to Articles 205 and 206 of the Code of Criminal Procedure, as in force at the material time, a judge was to preside over court hearings so that all facts were examined thoroughly, from all perspectives and objectively and the truth was ascertained. When hearing a criminal case a court of first instance had to examine the evidence directly by hearing the accused, the victims, witnesses and expert opinions, inspecting physical evidence and disclosing records and other documents. Article 262 § 2 of the Code provided that a court judgment had to be based only on evidence that had been heard at a court hearing. Article 274 of the Code provided that the statement of facts and reasons in a court judgment had to set out, inter alia, the facts ascertained in the examination by the court and the evidence on the basis of which the court deemed the facts to be established, the reasons why the court based its judgment on such evidence and deemed other evidence in the case to be unreliable, the charges on which the court convicted each of the defendants and the evidence on which such a conclusion was based. 20. Article 233 § 1 of the Code of Criminal Procedure provided that where a witness failed to appear, the court heard the opinions of the participants in the proceedings as to whether it was possible for the hearing to proceed and ruled on the continuation or adjournment of the hearing. 21. According to Article 243 of the Code of Criminal Procedure, after a witness had given testimony, he or she could be examined by the participants in the proceedings, including the accused and his or her lawyer. Additional questions could be submitted to a witness to clarify and supplement the testimony previously given by him or her. If a court deemed it necessary to hear a witness who had been granted anonymity, the witness could be heard in the absence of the participants in the proceedings on the basis of the questions submitted by them. The content of the testimony had to be disclosed at a court hearing. 22. Pursuant to Article 246 of the Code of Criminal Procedure, testimony given by a witness during the pre-trial investigation could be disclosed if the witness failed to appear at a court hearing or if the whereabouts of the witness was unknown, or if the witness had been granted anonymity. 23. According to Article 791 § 1 of the Code of Criminal Procedure, in order to ensure the security of a victim or a witness or persons close to him or her, the person in question could be granted anonymity. Anonymity could be granted in a reasoned order by a preliminary investigator at the request of a witness or a victim, or on the initiative of the preliminary investigator. 24. According to the criminal procedure law the trial in second instance court was, in substance, trial de novo, within the limits of the appeal and according to what the appeal court considered necessary under the law. 25. Article 8 § 3 of the Code of Criminal Court Appeal and Cassation Procedure provided that, in an appeal, the appellant had to set out the names and addresses of the persons whom he or she wished to have examined by the court of appeal. 26. Under Article 15 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a court of appeal could order expert assessments and demand evidence during pre-trial proceedings. Under Article 17 § 2(3) of the Code, a judge, when assigning a criminal case for hearing by means of a ruling, also decided who should be summoned to the hearing as participants in the proceedings, witnesses or experts. Article 17 § 4 of the Code provided that a court of appeal could, of its own motion, summon to the hearing witnesses and experts and also order expert assessments and demand evidence. Article 17 § 5 of the Code provided that applications by the participants in the proceedings for the re-summoning of witnesses had to be granted if the court of first instance had denied such applications incorrectly or if a witness or expert summoned had failed to appear in the court of first instance or if the court of appeal found that a further examination of a witness or expert was of material importance. 27. Article 20 of the Code of Criminal Court Appeal and Cassation Procedure provided that, in appeal proceedings, the court of appeal had to verify whether a decision of the court of first instance was lawful and reasoned only to the extent set out in the appeal, and an appellant had no right to exceed the limits of an appeal during a court hearing. Under Article 31 of the Code of Criminal Court Appeal and Cassation Procedure, insufficiency or one-sidedness of the examination of the case by the court of first instance and discrepancy between the conclusions of the court as set out in the judgment and the facts were among the grounds on which a court of appeal could set aside the judgment of a court of first instance.