Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35541/97

by Aadu OLL

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 May 1996 by

Aadu OLL against Estonia and registered on 3 April 1997 under file

No. 35541/97;

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 1932, residing in

Tallinn, Estonia.

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

summarised as follows.

A. Particular circumstances of the case

On January 9, 1994 the applicant filed a civil suit against the

company Vipo regarding the validity of a car sale's contract. The

Tallinn City Court ("Tallinna Linnakohus")ruled in his favour by

judgment of 2 June 1995.

On appeal by the defendant, the Tallinn Court of Appeal

("Tallinna Ringkonnakohus") revoked the city court's judgment on

12 February 1996.

The applicant lodged a cassation complaint with the Supreme Court

of Estonia against the appeal court's judgment claiming that the court

had incorrectly interpreted the law.

On 17 April 1996 the Appeal Application Panel of the Supreme

Court ("Riigikohtu Loakogu")refused leave to appeal by its unmotivated

resolution.

B. Relevant domestic law

Paragraph 332 of the Code of Civil Procedure, adopted on

19 May 1993, provides in the relevant part:

[Translation]

"(2) The Appeal Application Panel grants leave to appeal, if the

appeal disputes the correctness of the application of substantive

law or if it seeks an annulment of a court decision due to a

serious violation of procedural norms which resulted or could

have resulted in an incorrect court decision.

(5) The Appeal Application Panel decides on the granting or

refusal of leave to appeal without calling the parties to the

proceedings, after an exchange of documents or before that, if

it is obvious that the appeal is ill-founded.

(6) Leave to appeal is not granted if the Appeal Application

Panel unanimously agrees that the appeal is manifestly ill-

founded in the light of the conditions set forth in section 2 ...

of the current paragraph.

(7) The Appeal Application Panel decides on the granting or

refusal of leave to appeal by its resolution, which does not have

to be motivated, within two months from the receipt of the

appeal."

[Estonian]

"(2) Loakogu annab menetlusloa, kui kaebuses vaidlustatakse

materiaalõiguse normide kohaldamise õigsust või kui nõutakse

kohtulahendi tühistamist protsessiõiguse normide olulise

rikkumise tõttu, mis tõi kaasa või võis kaasa tuua ebaõige

kohtulahendi.

(5) Menetlusloa andmise või andmisest keeldumise otsustab

loakogu, protsessiosalisi välja kutsumata, pärast dokumentide

vahetamist või ka enne seda, kui loakogule on ilma selleta selge

menetlusloa taotluse põhjendamatus.

(6) Menetlusluba ei anta, kui loakogul on üksmeelselt selge

kaebuse ilmne põhjendamatus käesoleva paragrahvi 2. ..l õikes

sätestatud aluste puudumisel.

(7) Menetlusloa andmise või andmisest keeldumise otsustab

loakogu resolutsiooniga, mida ei pea põhjendama, kahe kuu jooksul

kaebuse saamise päevast.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he was prevented from having his cassation complaint examined in a fair

and public hearing by a tribunal established by law. He complains that

the proceedings before the Appeal Application Panel were not fair and

public and that its decision was unmotivated. He alleges that the

Appeal Application Panel examines cases on the merits.

THE LAW

Invoking Article 6 (Art. 6) of the Convention, the applicant

complains that he was denied access to the cassation proceedings and

that the Appeal Application Panel of the Supreme Court of Estonia did

not examine his complaint in a fair and public hearing and that its

decision was unmotivated.

Article 6 para. 1 (Art. 6-1) first sentence 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 recalls that the right to appeal does not feature

among the rights and freedoms guaranteed by the Convention. No

provision of the Convention requires the High Contracting Parties to

grant persons under their jurisdiction an appeal to a Supreme Court.

If a High Contracting Party makes provision for such an appeal it is

entitled to prescribe the rules by which this appeal shall be governed

and fix the conditions under which it may be brought (No. 11826/85,

Dec. 9.5.89, D.R. 61, p. 138).

According to para. 332 of the Code of Civil Procedure, the Appeal

Application Panel of the Supreme Court grants leave to appeal if the

appeal disputes the correctness of the application of substantive law

or if there has been a serious procedural mistake. The Commission

considers that an examination as to whether leave to appeal shall be

granted is only an examination as to whether the conditions of

para. 332 of the Code of Civil Procedure are satisfied. It does not

amount to an examination of the merits of the appeal.

The Commission recalls that, when a Supreme Court determines, in

a preliminary examination of a case, whether or not the conditions

required for granting leave to appeal have been fulfilled, it is not

making a decision relating to "civil rights and obligations" (ibid.)

It follows that Article 6 (Art. 6) is not applicable to the proceedings

in which the Appeal Application Panel of the Supreme Court of Estonia

refused the applicant leave to appeal against the judgment of the Court

of Appeal. This complaint is thus incompatible ratione materiae with

the provisions of 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

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OLL v. ESTONIA

OLL v. ESTONIA

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