KAASIK v. ESTONIA
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Mr Edgar Kaasik, is an Estonian national who was born in 1988. He is currently serving a prison sentence. and as they appear from the documents on file, may be summarised as follows. On 3 December 2008 the Viru County Court convicted the applicant of manslaughter, attempted murder and violent and threatening behaviour. He was sentenced to fifteen years' imprisonment to which an unserved sentence of seven months from an earlier judgment was added. According to the text of the judgment – which was drawn up in Russian – an interpreter participated in the hearing; the applicant was assisted by a lawyer. It would appear that the proceedings in the County Court were conducted mainly in Russian since the applicant and several other participants in the proceedings were Russian-speakers. On 15 May 2009 the Tartu Court of Appeal heard the applicant's appeal. The applicant was assisted by a lawyer; an interpreter also participated in the hearing. According to the documents submitted by the applicant, the Court of Appeal informed the participants in the hearing that its judgment would be available on 20 May 2009 at the court's office and explained that any notice of appeal against its judgment had to be submitted to the court's office within seven days of 21 May 2009. The participants in the proceedings confirmed that they had understood the appeal procedure. By a judgment of 20 May 2009 the Court of Appeal dismissed the applicant's appeal. It appears that the operative part of the judgment was available at the court's office on 20 May 2009. A translation into Russian of the operative part of the judgment was served on the applicant, who was in detention in Viru Prison, on 26 May 2009. According to the applicant, he had been informed after the examination of his appeal in the Court of Appeal that the court had to be notified of any intention to appeal within seven days and that only a lawyer had the right to lodge an appeal in cassation with the Supreme Court. His lawyer had not come to the prison to discuss further action despite his promise to do so. On an unspecified date he had called his lawyer, who had told him to inform the court of his intention to appeal and to lodge an appeal in cassation. On 3 June and 4 June 2009 the applicant handed over to the prison authorities applications addressed to the County Court and the Court of Appeal informing them of his intention to appeal. On 8 June 2009 the Court of Appeal refused to accept the applicant's notification of appeal, finding that the time-limit for submission of any such notification had expired on 2 June 2009, that is, seven days after the applicant had received the translation into Russian of the operative part of the judgment, whereas the applicant's letters had been handed over to the prison authorities too late, on 3 June and 4 June 2009. The Court of Appeal noted that the applicant had not requested that the court restore the time-limit and had not provided any explanation why he had failed to comply with it. In the meantime, on 4 June 2009, the applicant requested the Supreme Court to restore the time-limit for appeal. By a decision of 29 June 2009 the Supreme Court rejected the application. It noted that pursuant to Article 344 § 3 of the Code of Criminal Procedure both an appeal in cassation and a request for restoration of the time-limit for appeal had to be drawn up by a lawyer. The Supreme Court's decision was sent to the applicant on 20 July 2009. On 21 June 2009 the applicant lodged a procedural appeal with the Supreme Court against the Court of Appeal's decision of 8 June 2009. On 22 July 2009 the Supreme Court rejected the appeal because it too should have been drawn up by a lawyer. The Supreme Court's decision was sent to the applicant on 21 August 2009. Article 315 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) concerns the pronouncement of a first-instance court's judgment. Pursuant to Article 343 (see below) it also applies, mutatis mutandis, to appellate court judgments. It reads as follows: “(1) A judge or ... the presiding judge shall pronounce a judgment at the time announced pursuant to Article 304 of this Code. (2) If the accused is not proficient in the language of the criminal proceedings, the judgment shall be interpreted or translated for him or her after its pronouncement. (3) The judge shall ask whether the person acquitted or convicted understands the judgment and explain its content to him or her if necessary. (4) A court may decide to pronounce only the operative part of the judgment, in which case it shall explain the main reasons for the judgment orally upon its pronouncement. (5) After the pronouncement of a judgment or its operative part the judge or presiding judge shall: 1) upon the pronouncement of the operative part of the judgment, give notification of the date on which the judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the record of the court hearing; 2) give notification of the term for appeal against the judgment and explain the procedure for appeal provided for in Section 318 of this Code and the possibility to waive the right of appeal; 3) explain that the county court must be notified in writing of the intention to exercise the right of appeal within seven days of the pronouncement of the judgment or its operative part. (6) Waiver of the right of appeal shall be recorded in the record of the court hearing. A lawyer may waive the right of appeal only with the written consent of the defendant. (7) If all parties to the court proceedings waive the right of appeal or if during the term provided for in paragraph 5(2) of this Article none of the parties to the court proceedings gives notification of their intention to exercise the right of appeal, only the [introductory part and operative provisions] shall be set out in the judgment. (8) If the parties to the court proceedings do not waive the right of appeal, the full judgment shall be prepared within fifteen days of the date on which the county court is notified of an intention to exercise the right of appeal.” Article 317 provides that a court must send a copy of a judgment to a party who was not present at its pronouncement (§ 1). Where the defendant is under arrest, a copy of the judgment must be sent to him or her immediately after its pronouncement or immediately after it is made available at the court's office (§ 2). Article 342 § 3 (2) provides that if a court of appeal dismisses an appeal and upholds the judgment of the first-instance court, it can limit its judgment to the introduction and operative part and make reference to the provisions of procedural law pursuant to which the judgment was made. Article 343 provides that after the parties' closing statements a court of appeal must announce the date when its judgment will be available for the parties to the proceedings at the court of appeal's office (§ 1). If the court of appeal pronounces its judgment or the operative part of the judgment immediately after deliberations, the provisions of Articles 315 and 316 apply (§ 2). Paragraph 3 provides that copies of a judgment of the court of appeal must be served in accordance with Article 317. In Article 344 § 3 the persons entitled to lodge an appeal in cassation with the Supreme Court are listed. That list includes the Prosecutor's Office, a defence lawyer (advokaat) and other parties' lawyers. Article 345 lays down the rules concerning the time-limit for an appeal in cassation. It provides that a court of appeal must be notified in writing of any intention to appeal in cassation within seven days after its judgment or the operative part of its judgment has been pronounced or made available through the court's office (§ 1). An appeal in cassation must be lodged in writing with the court of appeal within thirty days of the date when the party to the court proceedings has the opportunity to examine the judgment of the court of appeal (§ 2).