Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35086/97

by Argo VIIKMAN

against Estonia

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 April 1996 by

Argo VIIKMAN against Estonia and registered on 25 February 1997 under

file No. 35086/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Estonian citizen, born in 1960, residing in

Tartu, Estonia.

The facts of case, as submitted by the applicant, may be

summarised as follows.

1. By judgment of the Tartu City Court ("Tartu Linnakohus) of

18 April 1994 the applicant was reinstated in his work at the

University of Tartu and awarded compensation for the forced absence

from work resulting from his illegal dismissal. Alleging non-execution

of the compensation order, the applicant submitted a complaint to the

Tartu Administrative Court ("Tartu Halduskohus") regarding the actions

of the Tartu Execution Bureau ("Tartu Täitevbüroo"). The court

dismissed his complaint by judgment of 10 November 1995, which was

confirmed by the Tartu Court of Appeal("Tartu Ringkonnakohus") on

16 February 1996. Leave to appeal was refused by the Appeal Application

Panel of the Supreme Court ("Riigikohtu Loakogu") by its unmotivated

resolution of 10 April 1996. The applicant was notified of this refusal

on 16 April 1996.

2. On 25 April 1996 the applicant made an attempt to access his case

file in the Supreme Court with a view to discovering the reasons for

the rejection of his appeal. He was stopped by the court's security

guard and refused entry to the building.

3. The applicant alleges that he has won 400 000 EEK in a lottery.

As the Estonian Lottery refused payment, the applicant submitted a

complaint to the Tallinn City Court regarding the winning conditions

of his lottery tickets. The complaint was rejected by the court on

formal grounds by decree of 7 October 1994, which was confirmed by the

Tallinn Court of Appeal("Tallinna Ringkonnakohus") on 2 November 1994.

The applicant brought the same case before the Tartu City Court,

which rejected it on formal grounds by decree of 6 April 1995,

confirmed by the Tartu Court of Appeal ("Tartu Ringkonnakohus") on

26 June 1995. The Supreme Court, after holding a public hearing, upheld

the decision of the appeal court by decree of 8 November 1995.

On 29 January 1996 the applicant re-submitted his complaint in

the form prescribed by law to the Tartu City Court, which considered

it on the merits. By judgment of 26 July 1996 the court dismissed it,

after holding a public hearing.

The applicant lodged an appeal against this judgment. According

to procedural requirements an appeal must be filed with the first

instance court which then transmits it to the appeal court. In the

present case, the Tartu Court of Appeal returned the file to the first

instance court pointing out that the applicant had not paid in advance

the full court fee in the amount of 12 700 EEK.

On 24 September 1996 the Tartu City Court ordered the applicant

to pay the full court fee by 10 October 1996. The applicant submits

that the fee was too high and that the request to pay it was illegal.

On 23 October 1996 the court rejected the appeal on formal grounds,

i.e. for failure to pay the fee within the prescribed time limit.

The city and appeal courts in Tartu and Tallinn examined the

formal requirements for the admissibility of the applicant's claim in

all three sets of proceedings without holding a public hearing.

COMPLAINTS

1. With regard to the first procedure, the applicant complains about

a violation of his rights under Article 6 of the Convention. In

particular, he complains that the refusal of the Appeal Application

Panel of the Supreme Court of Estonia on 10 April 1996 to grant him

leave to appeal was not decided in a public hearing, that the decision

was unmotivated and therefore arbitrary, and that he was deprived of

the possibility to defend his case.

2. Invoking Article 6 of the Convention, the applicant also

complains that he was not allowed access to his case file in the

Supreme Court.

3. With regard to the civil proceedings concerning his lottery

claim, the applicant complains under Article 6 of the Convention

that the city and appeal courts of Tartu and Tallinn did not hold

public hearings and that they decided on his case only on the basis of

the written material he submitted. He further complains that the court

fee, as fixed by the Tartu Court of Appeal, was too high and did not

enable him to have access to a court.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention that the Appeal Application Panel of the Supreme Court

considered his case in a closed hearing without his presence and that

its decision is unmotivated and arbitrary.

The Commission considers that it is not required to decide

whether or not the applicant's complaints about the procedure in the

Appeal Application Panel of the Supreme Court disclose any appearance

of a violation of the Convention.

The Commission observes that the complaints relate to a period

prior to 16 April 1996, which is the date of entry into force of the

Convention with respect to Estonia. It follows that this part of the

application is incompatible ratione temporis with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant complains that on 25 April 1996 he was not allowed

to see his case file in the Supreme Court in violation of Article 6

(Art. 6) of the Convention.

Article 6 para. 1 first sentence (Art. 6-1) of the Convention

provides:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law..."

The Commission observes that the applicant's complaint relates

to the proceedings in which the Supreme Court refused to grant the

applicant leave to appeal by decision of 10 April 1996. The Commission

first recalls that Article 6 (Art. 6) of the Convention is not

applicable to leave to appeal proceedings before a Supreme Court as

they do not involve the determination of civil rights and obligations

within the meaning of Article 6 (Art. 6) of the Convention (No.

11826/85, Dec. 9.5.89, D.R. 61, p. 138). In the present case, however,

the applicant complains that, after the final decision to refuse leave

to appeal was taken, he could not have access to the file. The

Commission notes that the applicant's purpose in gaining access to his

file was to determine the reasons for the refusal. In this respect, the

Commission notes that domestic law expressly provides that the

decisions of the Appeal Application Panel of the Supreme Court to grant

or refuse leave to appeal in the administrative proceedings are

unmotivated (Para. 46(6) of the Code of Administrative Procedure).

Access to his file would therefore not have enabled the applicant to

find out the reasons for the rejection of his request. Finally, the

Commission notes that the applicant has not alleged that he was denied

access to his case file at the appeal stage of the proceedings.

It follows that, even assuming that the complaint falls within

the Commission's competence ratione temporis, this part of the

application is manifestly ill-founded and must be rejected under

Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains under Article 6 (Art. 6) of the

Convention about access to court and the absence of a public hearing

in three sets of proceedings concerning the winning conditions of his

lottery tickets.

The Commission considers that it is not required to decide

whether or not the applicant's complaints regarding the first and the

second set of proceedings brought before the Tallinn City Court and

before the Tartu City Court disclose any appearance of a violation of

the Convention, since the final decisions in these proceedings are

dated 2 November 1994 and 8 November 1995 respectively, i.e. prior to

16 April 1996, which is the date of entry into force of the Convention

with respect to Estonia.

It follows that this part of the application is incompatible

ratione temporis with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

With regard to the third set of proceedings brought before the

Tartu City Court on 29 January 1996, the Commission recalls that

Article 6 para. 1 (Art. 6-1) does not prevent Contracting States from

regulating access to appeal jurisdictions, in order to ensure the

proper administration of justice (No. 12275/86, Dec. 2.7.91, D.R. 70,

p. 47). In the circumstances of the case, the Commission considers that

the applicant has not shown that the amount of the fee was in any way

illegal or arbitrary. The Commission also observes that the applicant

failed to avail himself of the possibility under domestic law

(Para. 54(3) of the Code of Civil Procedure) to ask the court for an

exemption of the fee he considered excessive.

It follows that this part of the application is manifestly ill-

founded and must be rejected under Article 27 para. 2 (Art. 27-2) of

the Convention.

As regards the applicant's claim of the lack of a public hearing

in determining the admissibility of his appeal against the judgment of

the Tartu City Court of 26 July 1996, the Commission recalls that a

tribunal which rejects a claim on procedural grounds is not determining

a dispute on civil rights and obligations (No. 12624/87, Dec. 10.7.89,

D.R. 62, p. 207). Article 6 para. 1 (Art. 6-1) is, therefore, not

applicable to such proceedings.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

Menu

VIIKMAN v. ESTONIA

VIIKMAN v. ESTONIA

LEXI