CASE OF PÖNKÄ v. ESTONIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
6. The applicant was born in 1987 and lives in Helsinki, Finland. 7. On 19 February 2007 the Harju County Court in Estonia convicted the applicant of murder. In the criminal proceedings T. was heard as a witness. In its judgment the domestic court dismissed the applicant’s argument that he had shot the victim in self-defence. The applicant was subsequently transferred to Finland to serve his prison sentence. 8. On 11 December 2008 V., the owner of the apartment where the applicant had committed the crime brought a civil action against the applicant before the Harju County Court. He claimed compensation for damage caused as a consequence of the offence (damaged chair which had been hit by the bullet, damaged or lost belongings (mostly various items used to wrap parts of the victim’s cut up body), damaged flooring after the police had cut out a piece of parquet with a bullet mark to serve as evidence, a lock cylinder removed for evidence, cleaning bills, unpaid utility bills) in the amount of 28,259 kroons (EEK) (corresponding to approximately 1,806 euros (EUR)). The plaintiff submitted to the court documentary evidence (material from the criminal case, photos, invoices, inventory list of the apartment attached to the contract between V. and the victim) in support of his claims. 9. On 14 January 2009 the County Court ruled that the action was accepted for proceedings and that the case was to be dealt with in simplified proceedings (lihtsustatud menetlus) under Article 405 § 1 of the Code of Civil Procedure (CCP) (Tsiviilkohtumenetluse seadustik). It also explained to the parties that if they wished to be heard, they would have to notify the court within fifteen days of the date of receiving the decision. The applicant was asked to provide the court with a written reply to the action. 10. On 8 April 2009 the applicant informed the County Court in writing that he did not object to accepting the action for proceedings but he contested the claim, arguing that he had not damaged or destroyed the items in question. He further contended that he had not committed murder but had shot the victim in self-defence; in so far as the alleged damage related to the collection of evidence, it had been caused by the police; the claims were unsubstantiated in part. He requested examination of the case at a court hearing and asked that he and two witnesses (T. and K. – Estonian and Finnish forensic experts) be summoned and questioned in court. He stated that he wished to explain that he had not caused the damage and had acted in self-defence. As to the witnesses, he also wished them to give evidence about his acting in self-defence. 11. On 7 May 2009 plaintiff V. replied in writing to the applicant’s submissions, stating that he did not deem it necessary for the applicant to be present in person at the court hearing. He asked the court to dismiss the applicant’s request for the summoning of witnesses, as these individuals would be unable to give testimony about the items in the apartment or their value, and their statements could not refute the findings of a final court decision. He also submitted additional evidence to the court (a photo of one of the items in question; a bank statement about the payment of utility bills; price lists to prove the cost of another damaged item and the cost of cleaning services). 12. On 8 July 2010 the County Court ruled that the case was to be examined in written proceedings (kirjalik menetlus) under Article 404 of the CCP. The court noted the plaintiff’s agreement to the case being examined in written proceedings and that the applicant wished to be heard. It then went on to explain that under Article 404 of the CCP a written procedure could be applied when the amount of the claim was under 50,000 kroons (EUR 3,196) and a party’s appearance in court was significantly hindered by a long distance or for any other good reason. It gave the parties a thirtyday time-limit from the date of receipt of the decision for making any written submissions. No appeal lay against this decision. 13. No submissions were made to the court within the thirty-day time limit. 14. By a judgment of 3 December 2010 the County Court adjudicated the case in simplified and written proceedings. The court noted in its judgment that it had also examined the material pertinent to the related criminal case and relied as documentary evidence on the statements made by T. in the criminal proceedings. Relying on the judgment in the criminal case, the County Court considered it established that the applicant had not acted in self-defence when he killed the victim. Based on the material of the criminal case as well as documentary evidence submitted by V., the County Court accepted V.’s claim in part, that is in the amount of EEK 22,337 (EUR 1,428, which amounted to 79% of the initial claim). The court found on the basis of the applicant’s submissions that accepting the claim was not justified in so far as it concerned the lock cylinder, unpaid utility bills and certain allegedly damaged items. It was noted in the judgment that an appeal lay to the Tallinn Court of Appeal and that the appeal could be examined in a written procedure unless examination at a court hearing had been requested in the appeal. 15. On 22 December 2010 the applicant filed an appeal against the County Court’s judgment. He complained that, although he had requested an oral hearing before the County Court, no hearing had been held. He had therefore been deprived of an opportunity to be examined and to explain his position, according to which he had caused no unlawful damage to the plaintiff’s property. He relied on Article 6 § 1 of the Convention and also referred to persons whose examination he had requested. He challenged the County Court’s reliance on the criminal court’s judgment and claimed that in a civil case it should be possible to challenge facts established in a criminal case. 16. On 7 January 2011 the Tallinn Court of Appeal refused to accept the applicant’s appeal. It noted that the County Court had examined the case in simplified proceedings (lihtmenetlus). In such circumstances, the Court of Appeal could only accept an appeal for examination if the County Court in its judgment had granted leave to appeal or a provision of substantive or procedural law had clearly been incorrectly applied or it was clear that the evidence had been wrongly assessed and this could have significantly influenced the court’s ruling. The County Court had not granted leave to appeal. The Court of Appeal did not find that in the case at hand it could be said that the County Court had clearly incorrectly applied a provision of substantive or procedural law or clearly wrongly assessed the evidence or breached the right to be heard (ärakuulamise õigus). The County Court had examined the matter under Article 405 § 1 of the CCP in simplified proceedings. Pursuant to Article 405 § 1 of the CCP, in such proceedings the court had to guarantee that the fundamental rights and freedoms and the essential procedural rights of the parties were observed and that the parties were heard (kohus kuulab menetlusosalise ära) if they so requested. However, for that it was not necessary for a court hearing (kohtuistung) to be conducted. On 8 July 2010 the County Court had ruled that the case was to be examined in written proceedings and had given the parties an opportunity to make written submissions. The applicant had thus been guaranteed an opportunity to present his position to the court. The Court of Appeal further noted that the applicant had not objected under Article 333 §§ 1 and 2 of the CCP to the County Court’s decision of 8 July 2010 whereby the court had ordered that the case be examined in simplified proceedings and requested the applicant to make his submissions in writing. Pursuant to Article 333 § 3 and Article 652 § 6 of the CCP (see paragraphs 19 and 20 below) the Court of Appeal could not therefore consider these arguments in the appellate proceedings. The Court of Appeal concluded that there was no legal basis for it to accept the applicant’s appeal for examination. 17. The applicant lodged an appeal against the Court of Appeal’s decision, arguing that by refusing to allow him a hearing the County Court had clearly violated procedural law and Article 6 § 1 of the Convention. 18. On 30 May 2011 the Supreme Court decided not to examine the appeal.