SVINARENKOV v. ESTONIA
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is an Estonian citizen, born in 1966 and currently serving a prison sentence in Estonia. The facts of the case, as submitted by the parties, may be summarised as follows. A. On 17 April 1995 criminal proceedings were instituted against the applicant on the suspicion of his having committed a murder on the previous day. On 18 April 1995 the applicant was taken into custody. On 20 April 1995 he was formally charged with deliberate homicide and unlawful possession of a firearm. On the same day the Tartu City Court (Tartu Linnakohus), having regard to the nature of the crime committed, the danger of his absconding and the fact that the weapon used in the crime had not been found, ordered the applicant’s remand in custody until 26 April 1995. On 24 April 1995 the applicant’s defence lawyer lodged an appeal against the order with the Tartu Court of Appeal (Tartu Ringkonnakohus) which dismissed it on 8 May 1995. The applicant’s detention on remand was subsequently extended until 30 June 1995. On 24 April 1995, apparently on the investigator’s order, the authorities seized from the applicant’s apartment, and in his absence, three passports and two other items. The applicant claims that the authorities also seized other objects which were not entered in the official records. He further claims that the authorities conducted an undocumented search at his work place. Upon conclusion of the preliminary investigation the applicant and his defence lawyer were presented with the contents of the case file on 9-16 June 1995. On 22 June 1995 the Tartu public prosecutor approved the summary of charges against the applicant and transferred the case for examination to the Tartu City Court where it was registered on the same day. On 10 July 1995 the City Court held a preliminary hearing in which it considered that due to its case load it was not possible to begin the applicant’s trial immediately, and extended the applicant’s detention until 30 September 1995. On 26 October 1995 the City Court held another preliminary hearing in which it committed the applicant for trial and set its date for 11-17 January 1996. It prolonged the applicant’s detention accordingly. On 4 December 1995 the applicant complained to the City Court that it had violated procedural time-limits under Articles 184 and 204 of the Criminal Procedure Code concerning the start of the trial. He also complained that the authorisation for his detention was renewed only 27 days after the prior authorisation had expired on 30 September 1995. The formal indictment was served on the applicant on 5 December 1995 and his trial commenced on 11 January 1996. As the applicant considered that his witness TN, who testified before the City Court and was questioned by the parties on the same day, had been subjected to undue influence by unknown persons, he requested the City Court on 17 January 1996 to hear promptly his witnesses NL and VL. The City Court postponed the session until 1 April 1996. The applicant’s witness NL appeared before the City Court on 2 April 1996 where she gave evidence and was questioned by the parties. Her husband VL was also summoned but was not heard. The Government submit that VL failed to appear in the hearing while the applicant argues that the City Court refused to hear VL who was therefore denied entry into the court building. On the same day the defence lawyer requested the confrontation of two witnesses TN and IL both of whom had been previously heard by the City Court. The request was turned down as the City Court considered that it possessed sufficient evidence in the case. On 1 April 1996 the applicant complained to the City Court that the authorities’ actions in his apartment on 24 April 1995 were unlawful as they had in fact performed a search which required the public prosecutor’s authorisation and that the seizure of objects took place without his presence. The applicant alleges that he also complained to the public prosecutor. By judgment of the Tartu City Court 17 April 1996 the applicant was found guilty of the charges against him and sentenced to 9 years’ imprisonment. On 22 April 1996 the applicant complained to the judge of the City Court about having had inadequate time to read through the minutes of the court sessions and to comment on them. He also pointed to the alleged violation of the procedural rules concerning the timelimits in examining his case. On 25 April 1996 the applicant lodged an appeal against the City Court judgment disputing the assessment of evidence for his conviction. He further complained about the refusal of the City Court to allow the confrontation of the two witnesses and stated that the City Court had not addressed multiple violations of procedural norms during the pre-trial investigation. In particular, the applicant submitted that it made no mention of his complaint of 1 April 1996 regarding the search of his apartment and workplace and the seizure of his personal effects. In a hearing on 6 June 1996 before the Tartu Court of Appeal (Tartu Ringkonnakohus) the applicant also referred specifically to the interrogation of Russianspeaking witnesses without an interpreter and to falsified additions to the records of witness testimonies. On the same day the applicant requested a new expert opinion on the cartridge cases. The Court of Appeal granted the request and adjourned its examination of the applicant’s case pending the outcome of the expert opinion. On 23 September 1996 the applicant complained to the Court of Appeal about the discovery of changes in several case file documents, e.g. the crime scene record, which were introduced after the termination of the preliminary investigation without his knowledge. According to his lawyer, the changes were probably made after the judgment of the City Court. By judgment of 25 September 1996 the Court of Appeal confirmed the judgment of the first instance court holding it lawful, well-founded and sufficiently motivated. As regards the applicant's complaint of 23 September 1996, the Court held that the alleged changes in the case file documents would not have influenced the City Court's judgment as they were introduced only subsequently. On 7 October 1996 the applicant lodged an appeal in cassation to the Supreme Court (Riigikohus) in which he questioned the evaluation of evidence and pointed again to the allegedly unlawful search and seizure and other violations of procedural norms during the pre-trial investigation, including the interrogation of witnesses without an interpreter and the falsification of witness testimonies. He stated that he had received no reaction from either the City Court or the Court of Appeal to his complaints. He further complained about the introduction of later changes in the file documents and the failure of the Court of Appeal to fully address this issue. On 27 November 1996 the Supreme Court refused the applicant leave to appeal against the Court of Appeal judgment. On 16 April 1997 it allowed, however, the applicant’s appeal for correction of court errors. By judgment of 6 May 1997 the Supreme Court dismissed his application holding the judgments of the Tartu City Court and the Court of Appeal lawful and not subject to annulment. It agreed with the analysis of the evidence and the conclusions reached in these judgments and did not find any substantial violations of the criminal procedure law which would have hindered the thorough, complete and objective investigation of the case or prevented the courts from rendering a lawful and substantiated judgment. B. Relevant domestic law According to Article 182 of the Code of Criminal Procedure the court must take a decision to try the accused who is in custody within 5 days from the arrival of the case file in the court. Its Article 204 provides that the trial must start no later than 20 days from the taking of that decision. Under Article 77¹ of the Code of Criminal Procedure and Article 68 of the Code of Criminal Court Appeal and Cassation Procedure a special appeal on the decisions concerning pre-trial detention and its prolongation can be submitted within five days to a higher court. Pursuant to Article 120 § 1 of the Code of Criminal Procedure supervision over the following of laws by the organs of preliminary investigation is carried out by the public prosecutor. According to its Articles 182 and 183 complaints regarding the activities of the police investigator are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed to the higher level public prosecutor. Article 4 § 1(1) of the Code of Administrative Court Procedure provides that the Administrative Court is competent to deal with appeals against the organs of the executive State power or the legal acts or action by one of its officials. Article 139 of the Code of Criminal Procedure stipulates that if an investigator has sufficient reason to believe that in a certain room, location or in a person’s possession there might be items of significance to a criminal case he may conduct a search to find them. A search may be conducted on the basis of a decision of an investigator and only upon the authorisation of the public prosecutor or his deputy. If an investigator knows the exact location of an item which is of significance to a criminal case, he may conduct the seizure of that item. A seizure is carried out on the basis of a decision of an investigator. Under Article 140 of the Code of Criminal Procedure an investigator, in performing a search and a seizure, can take away only those items and documents which are relevant to a criminal case. Each seized item and document must be entered in a protocol indicating their exact amount, format, weight and individual characteristics. Article 141 of the Code of Criminal Procedure provides that a search and a seizure is conducted in the presence of the person concerned or his adult family member or, if this is not possible, in the presence of a local government representative.