METSAVEER v. ESTONIA
Inadmissible
Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
The applicant, Mr Ülari Metsaveer, is an Estonian national who was born in 1973 and lives in Vantaa, Finland. He was represented before the Court by Ms B. Mõttus, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was tried by a criminal court, apparently having been charged with theft. On 1 February 2003, before the judgment in the criminal case had been delivered, a newspaper, Pärnu Postimees, published an article entitled ‘Gang of Thieves on Trial’ (Vargajõuk kohtu all). According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted. The applicant brought a civil suit against Pärnu Postimees AS, the public limited company that published the newspaper. He claimed 300,000 kroons (EEK) (approximately 19,170 euros (EUR)). On 30 September 2005 the Pärnu County Court dismissed his claim. An appeal was dismissed by the Tallinn Court of Appeal by a judgment of 25 November 2005. The applicant received the judgment on 3 December 2005. An appeal to the Supreme Court could be filed within thirty days of the receipt of the judgment, that is, by 2 January 2006 at the latest. On 13 December 2005 the Court of Appeal received a request from the applicant for an extension of the time-limit for appeal, together with a request for legal aid. On 21 December 2005 the Court of Appeal granted the applicant legal aid for lodging an appeal with the Supreme Court. The Court of Appeal’s decision was sent to the applicant and to the Estonian Bar Association (Eesti Advokatuur) so that the latter could appoint a lawyer for him. The applicant’s address was given in the decision. It was explained in the decision that it was not possible to extend the time-limit for filing the appeal but it was possible to request the restoration of the time-limit after its expiry if good reason existed for the failure to comply with it. By a letter of 27 December 2005 the Board of the Bar Association (Advokatuuri juhatus) sent the Court of Appeal’s decision to the law office of the advocate who had been appointed, R., who received the letter on 30 December 2005. The applicant was not informed that the advocate had been appointed for him. R. neither contacted the applicant nor filed an appeal with the Supreme Court. According to different documents in the case file, the applicant became aware of the name and contact details of the appointed lawyer, R., either at the end of January 2006 when he telephoned the Court of Appeal, or on 9 February 2006 when he telephoned the Bar Association. On 9 February 2006 the applicant also telephoned R. According to the applicant, R. said that the time-limit for an appeal to the Supreme Court had already passed and she was no longer dealing with the case. The applicant himself should have sought to contact her. She had no time to meet the applicant on 9 or 10 February 2006. According to R. she had been unable to take any steps to lodge an appeal against the Court of Appeal’s judgment without having met the applicant. She proposed a meeting for 13 February 2006 but this was not suitable for the applicant, who said that he had to leave for Finland to start a new job on that date. On 9 February 2006 the applicant made a complaint to the Court of Honour (aukohus) of the Bar Association against R. R. was contacted by the Bar Association on the same date and was advised to file a request with the Supreme Court for the restoration of the time-limit for appeal. She filed the request, sent a copy to the applicant and requested the latter to contact her and pay the security for appeal. On 12 February 2006 the applicant requested that the Court of Honour suspend the proceedings as R. had filed a request for restoration of the time-limit with the Supreme Court. On 1 March 2006 the Supreme Court sent a letter to R. noting that according to Article 68 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) the appeal itself had to be lodged together with the request for restoration of the time-limit. Moreover, security had to be paid. On that basis the Supreme Court returned the application to R. The applicant was not informed thereof. It appears that in April 2006 the applicant, having telephoned the offices of different courts, learned of the Supreme Court’s letter and the fact that the case file had been sent back to the first-instance court as no appeal had been lodged and no security had been paid. On 19 April 2006 the applicant asked the Court of Honour to resume the examination of his complaint against R. He also requested that a new lawyer be appointed for him. The Court of Honour examined the matter on 8 June 2006. It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed. However, such an obligation could not be placed on the lawyer; nor was a lawyer responsible for paying the security for appeal. The Court of Honour found that R. had not committed a disciplinary offence and decided not to initiate proceedings in respect of her. It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to R. for legal assistance. It also informed the Board of the Bar Association of the circumstances relating to the informing of an applicant about the appointment of a legal-aid lawyer. According to the applicant he attempted to contact R. by telephone and by letter; this having proved unsuccessful, on 26 September 2006 he requested the Supreme Court to appoint another lawyer and to extend the time-limit for lodging an appeal. On 27 September 2006 the Supreme Court refused the applicant’s requests. It noted that a request for legal aid had already been granted by the Tallinn Court of Appeal on 21 December 2005, that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections 2 and 3 of section 20 of the State Legal Aid Act. The Supreme Court further noted that the applicant’s lawyer had requested that the time-limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security. Finally, the Supreme Court pointed out that the appeal had not been attached to the applicant’s application and that he had also failed to comply with the requirement under Article 218 § 3 of the Code of Civil Procedure according to which submissions to the Supreme Court could only be made through a lawyer. Accordingly, it returned the application to the applicant. Section 18(2) of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, stipulated that if a legal-aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto, or a lawyer named by the Bar Association, as the provider of State legal assistance. It was not specified how the claimant was to be informed thereof. Section 19 of the State Legal Aid Act provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests (section 44(4) of the Bar Association Act (Advokatuuriseadus)) or if the client’s claims were unlawful or contrary to the lawyer’s professional ethics, or the lawyer became aware that a criminal offence was being planned (sections 44(5) and 45(5) of the Bar Association Act). According to section 20 of the State Legal Aid Act the legal-aid lawyer could be replaced by another lawyer upon the latter’s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid (subsection 1). If, arising from law, a lawyer was unable to continue to provide legal services to a beneficiary of State legal aid, he or she had to submit to a court an application for the appointment of a new legal-aid lawyer (subsection 2). Upon the exclusion of such a lawyer from the Bar Association or his or her disbarment, or upon the suspension of the professional activities or the death of the lawyer, a court had to appoint a new lawyer (subsection 3). Where a lawyer was replaced, the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished (subsection 4). Article 341 § 2 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), as in force until 31 December 2005, provided that an appeal against a judgment of an appeal court could be filed within thirty days of the judgment being made public, or within thirty days of receipt of a copy of the judgment if the judgment was given in written proceedings. On 1 January 2006 a new Code of Civil Procedure (2006 Code) entered into force. Article 670 § 1 of the 2006 Code provided that an appeal in cassation was to be submitted within thirty days of the date on which the judgment was served on the appellant in cassation. Article 218 § 3 of the 2006 Code provided that a party to litigation could perform procedural acts and submit requests and applications to the Supreme Court only through a lawyer (advokaat). Article 68 § 2 of the 2006 Code provided that when a request was made for the restoration of a time-limit, the procedural act for which the restoration was requested had to be performed at the same time. Article 67 § 2 of the 2006 Code provided that a request for restoration of a time-limit could be filed within fourteen days of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist, but not later than six months after the expiry of the time-limit.