CASE OF TOLMACHEV v. ESTONIA
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1990 and lives in Narva. 6. On 17 September 2012 the applicant, in misdemeanour proceedings, was fined 80 euros (EUR) by a police officer of the East Prefecture of the Police and Border Guard Board for a breach of public order (breaking a glass panel of a bus shelter). 7. The applicant contested this decision before the Viru County Court. He argued that he had not committed the act in question and challenged the assessment of witness statements. He complained about the failure of the police to present him to a witness for identification. Lastly, he complained that the police had not indicated in its decision the specific provisions of the local rules on public order which he had allegedly breached. 8. The County Court sent summons to the applicant for a hearing scheduled for 21 March 2013 at 12.30 p.m. It was noted in the summons that the applicant’s participation in the hearing was mandatory. Furthermore, it was noted, with reference to Article 126 § 2 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik), that if a complainant failed to appear at the hearing, although he had been notified of the obligation to participate, and the hearing was not adjourned, the court would refuse to examine the complaint. The applicant’s counsel, a representative of the police prefecture and witnesses were also summoned. 9. The summons sent to the applicant’s address, which he had used throughout the proceedings and which had been indicated in his complaint, could not be served on him personally as he was not present on 4 February 2013 when the court’s security officer attempted to serve the summons. His mother refused to accept the summons and said that the applicant was living abroad. The applicant’s counsel received the summons on 8 February 2013. The witnesses also received the summons in the beginning of February. 10. On 20 March 2013 the County Court issued a ruling by which the applicant’s complaint was admitted for the proceedings. According to the ruling the hearing was scheduled for 21 March 2013 at 12.30 p.m. and the names of persons to be summoned to the hearing were set out. 11. On 21 March 2013 the County Court held its hearing. The applicant did not appear. His counsel asked the court to examine the matter without the applicant’s presence as the applicant was abroad and it was not known when he would return to Estonia. According to the applicant’s father, who was in the courtroom as a spectator, the applicant was not to return to Estonia within the next five years. The County Court refused to examine the applicant’s complaint. It delivered its decision in writing on 2 April 2013. 12. According to the County Court’s decision, the applicant had failed to inform the authorities of his new address. However, as the applicant’s father was aware of the time of the court hearing and of the applicant’s intention not to return to Estonia within the next five years, the court concluded that the applicant’s parents were communicating both with the applicant and his counsel. Thus, the applicant must have been aware of the court hearing and summons sent to him. 13. The County Court found that in view of the substance of the misdemeanour case and the court’s duty to hear a misdemeanour matter in its entirety, regardless of the limits of the complaint filed, and to verify the factual and legal circumstances on the basis of which the body conducting the extra-judicial proceedings (that is, the police) had made its decision, it was not possible to examine the case without the applicant’s participation. It noted that one of the complaints made by the applicant had been that the body conducting the extra-judicial proceedings had not presented the applicant for identification to the witness. Thus, interviewing of the applicant and presenting him for recognition to the witness were important steps for the adjudication of the matter which could not be accomplished without the applicant’s participation. The court considered that adjourning the hearing would serve no purpose since the applicant was not to return to Estonia within a month – the time-limit for which a hearing could be adjourned under the law of procedure. Moreover, the applicant’s counsel had not requested an adjournment but examination of the complaint without the applicant’s presence. However, for the above reasons the court did not consider it possible to examine the case without the applicant. Relying on Article 126 § 2 of the Code of Misdemeanour Procedure – which provided that if a complainant failed to appear at the hearing although he had been notified of the obligation to participate in the court hearing – the County Court refused to examine the complaint. 14. The applicant’s counsel appealed, relying, inter alia, on Article 6 § 3 (c) of the Convention according to which a person had the right to defend himself through legal assistance of his own choosing. The receipt of the summons was not disputed. 15. On 23 May 2013 the Tartu Court of Appeal dismissed the appeal and upheld the ruling of the first-instance court. It noted that under Article 126 § 1 of the Code of Misdemeanour Procedure the court could decide on a discretionary basis whether a complainant’s participation in the court hearing was necessary and, if needed, oblige the person in question to appear. In the case at hand the County Court had given reasons as to why the applicant’s participation was required and it was not possible to examine the case in his absence. The Court of Appeal pointed out that the applicant had challenged in his complaint to the County Court the failure of the police to present him to witnesses for identification. It was, however, unclear, how the County Court could have eliminated this deficiency in the applicant’s absence. 16. No appeal lay against the Court of Appeal’s ruling.