FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67623/10 by Urmas VELLESTE against Estonia

The European Court of Human Rights ( First Section ), sitting on 4 January 2012 as a Chamber composed of:

Anatoly Kovler , President , Peer Lorenzen , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , j u d ges, and Søren Nielsen , Section Registra r ,

Having regard to the above application lodged on 19 November 2010 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Urmas Velleste , is an Estonian national who was born in 1974 and lives in Pärnu .

A. The circumstances of the case

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

1. Criminal proceedings

The applicant was suspected of a number of economic crimes (fraud and embezzlement) in respect of which several separate sets of criminal proceedings were initiated on and after 20 September 2001. Subsequently, the different criminal proceedings were joined on several occasions (in 2002, 2003 and 2005). During the preliminary investigation and trial the applicant was at liberty, except for the period from 28 October to 19 November 2003, when he was kept in detention because he had failed to appear before the investigator when summoned.

On 23 May 2006 the bill of indictment was signed by the public prosecutor and the criminal case was sent to the Tartu County Court for trial.

On 19 June 2009 the Tartu County Court convicted the applicant of some of the charges related to fraud and embezzlement, and acquitted him in respect of the remaining charges. He was sentenced to two years and six months ’ imprisonment, of which he had to serve four months in prison, the remaining part of the sentence being suspended. The County Court rejected the applicant ’ s argument about the length of the proceedings. It found that considering the volume and complexity of the case and the fact that the case had been in court since 24 May 2006, the length of the proceedings had not been excessive. It added that the “factor of time, namely the time that had passed from the commission of the acts described in the charges until the delivery of the judgment, and the behaviour of the accused at that time, ... were taken into account by the court when determining the [applicant ’ s] sentence...”

By a judgment of 26 February 2010 the Tartu Court of Appeal upheld the County Court ’ s judgment in substance. In respect of the complaint about the lapse of reasonable time for the criminal proceedings, the Court of Appeal noted that the case at hand was a complicated and voluminous one, the written evidence comprised fifteen volumes, and many witnesses had been heard. It concluded that a reasonable time for the proceedings had not been exceeded. In respect of the applicant ’ s sentence, the Court of Appeal found that the fact that he had committed the offence seven years before did not serve as a ground for not applying “shock incarceration” to him.

On 20 May 2010 the Supreme Court decided not to examine the public prosecutor ’ s appeal.

2. Enforcement of the sentence

On 12 July 2010 the Tartu County Court postponed the enforcement of the applicant ’ s prison sentence until 21 October 2010 on health grounds.

On 22 October 2010 the Tartu County Court dismissed the applicant ’ s request for release from punishment on health grounds, or alternatively for postponement of the enforcement of his prison sentence . The applicant ’ s appeal was dismissed by the Tartu Court of Appeal on 10 November 2010. The courts relied on medical information presented by the applicant, according to which he had sustained a serious injury in 1994, had been receiving treatment for back pain since 2001 and had been diagnosed with spinal stenosis. Electrotherapy, swimming or other physical exercise had been recommended for him. The courts found that rehabilitation therapy, other than swimming, could be continued in prison and in case of need in-patient treatment was also available.

B. Relevant domestic law and practice

Article 349 § 1 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ) provides that the Supreme Court decides whether to examine an appeal on points of law within one month of receipt.

Article 352 § 3 of the Code stipulates that the Supreme Court hears a criminal case within two months of agreeing to examine the appeal.

By a decision of 30 December 2008, in constitutional review proceedings (case no. 3-4-1-12-08), the Constitutional Review Chamber of the Supreme Court rejected a complaint concerning the length of criminal proceedings, noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case. It held:

“23. If the court comes to the conclusion that [the complainant ’ s] right to proceedings within a reasonable time has been violated, the court can, in the light of all the circumstances and on the basis of Article 6 § 1 of the Convention, terminate criminal proceedings due to inappropriateness, render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence.”

The above decision of the Supreme Court is more extensively quoted in the case of Malkov v. Estonia ( no. 31407/07 , § 32 , 4 February 2010 ).

By a judgment of 27 January 2009 the Tartu Court of Appeal found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant ’ s sentence was reduced accordingly (see Malkov , cited above, § 29).

The Criminal Chamber of the Supreme Court has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings, the defendant ’ s acquittal or taking the length of proceedings into account in the sentence (judgments of 27 February 2004 (case no. 3-1-1-3-04 ) and 28 December 2009 (case no. 3 ‑ 1 ‑ 1-100-09 )).

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings had been excessive .

2. He also complained that his right to a fair trial (Article 6 § 1) had been violated, as during the court proceedings the prosecutor had given witnesses records of the statements they had made during the preliminary investigation, so that they could be reminded and could reproduce their earlier statements. Furthermore, a former police officer from the same police department which had carried out pre-trial investigation in the case, had later acted for a certain period as defence lawyer for the applicant ’ s co-defendant (Article 6 § 3 (c)). The applicant also argued that the principle of presumption of innocence had been breached (Article 6 § 2); that the application of “shock incarceration” had been in violation of Article 7 § 1; that one of the lay judges had been unlawfully replaced by a substitute (Article 6 § 1 and Article 13) and that his conviction had been contrary to Article 1 of Protocol No. 4 to the Convention.

3. Lastly, the applicant complained that due to his health problems the execution of his prison sentence amounted to inhuman treatment (Article 3).

THE LAW

1. The applicant complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The period to be taken into consideration began on 20 September 2001, when the criminal proceedings were initiated, and ended on 20 May 2010, when the Supreme Court decided not to examine the prosecutor ’ s appeal. Thus, the criminal proceedings lasted for eight years and eight months.

To begin with, the Court has to analyse whether the applicant has exhausted the domestic remedies available to him in Estonian law, in accordance with Article 35 § 1 of the Convention . The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies is to afford Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Co urt . Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the a ssumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see , among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V, with further references).

The Court reiterates that an effective remedy for a length-of-proceedings complaint should either be capable of expediting pending proceedings or provide the litigant with adequate redress for delays that have already occurred (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00 , § 17, ECHR 2002 ‑ VIII, and Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006 ‑ V). In respect of criminal proceedings, possible means of providing redress may be reduction of the sentence, discontinuation of the proceedings or an award of compensation (see Cocchiarella , cited above, loc. cit.; Weisert v. Germany (dec.), no. 14374/03 , 3 April 2007 ; Ugilt Hansen v. Denmark (dec.), 11968 / 04 , 26 June 2006 ; and Delanghe v. Belgium (dec.), no. 49716/99, 18 September 2001, all with further references).

The Court therefore has to examine whether the applicant had at his disposal a remedy which met those requirements. It notes that the Supreme Court, in its decision of 30 December 2008 (case no. 3-4-1-12-08), held that a length-of-proceedings complaint could be raised before a court examining a criminal case and the latter, finding that a defendant ’ s right to proceedings within a reasonable time had been violated, could terminate the criminal proceedings, acquit the defendant or take the length of proceedings into account upon imposition of punishment. Furthermore, the criminal courts ’ case-law demonstrates that the defendants ’ sentences have been reduced in practice along with a finding of a violation of the right to a fair trial within a reasonable time (see “Relevant domestic law and practice”, and Malkov , cited above, where the Court was satisfied that the applicant had lost victim status in respect of his length-of-proceedings complaint after an Estonian Court of Appeal had acknowledged a breach of Article 6 § 1 of the Convention and reduced his sentence in an express and measurable manner).

Indeed, in the present case the County Court and the Court of Appeal addressed the applicant ’ s complaints about the length of proceedings raised by him during the trial and in his appeal to the Court of Appeal. These courts, however, found that the length of the proceedings, in the circumstances, had not been excessive. Although it was open to the applicant to challenge this lower court finding in an appeal to the Supreme Court, he did not lodge such an appeal, and the Supreme Court was therefore prevented from examining whether the length of the proceedings had exceeded a reasonable time requiring a reduction of his sentence. Furthermore, the applicant has not cited any special circumstances which could absolve him from the obligation to make use of this remedy. As to the question whether an appeal to the Supreme Court could be seen as a step towards the further protraction of the proceedings the applicant was not required to take, the Court observes that Article 349 § 1 and Article 352 § 3 of the Code of Criminal Procedure set short time-limits for the examination of appeals by the Supreme Court in criminal cases. The Court further notes that in the present case the public prosecutor ’ s appeal was indeed dealt with swiftly by the Supreme Court. Thus, the Court does not consider that the applicant was absolved from the obligation to make use of this remedy on that ground.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant further complained of a number of violations related to the criminal proceedings and his conviction. He cited Article 6 §§ 1, 2 and 3 (c), Article 7 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 4.

However, the Court notes that the applicant did not raise these complaints in an appeal to the Supreme Court. It follows that th ese complaint s must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. Lastly, the applicant complained that his confinement in prison and deprivation of medical treatment amounted to a violation of Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

According to the Court ’ s case-law, the State has a duty of care towards sick prisoners, comprising three obligations. Firstly, the authorities have to be satisfied that the person concerned is fit to be detained; secondly, the State is required to provide the prisoner with the medical care he or she needs; and thirdly the authorities have to adapt the overall conditions of detention of the person concerned as necessary to his or her particular state of health (see Xiros v. Greece , no. 1033/07 , §§ 73-76 , 9 September 2010 , with further references).

The Court notes that the medical information submitted by the applicant, which was also analysed by the domestic courts, does not allow the conclusion that the enforcement of the applicant ’ s four-month prison service amounted to treatment contrary to Article 3 of the Convention. It does not appear that the applicant ’ s state of health was such that he could be considered to be unfit to serve his sentence. The applicant has not provided any information about the actual treatment available in prison, or about the conditions of detention. In so far as these questions were raised in and addressed by the domestic courts before the applicant started serving his sentence, it can be understood that the rehabilitation therapy could be continued, at least to a certain extent, in prison, and that in-patient treatment, if needed, was available. Considering the above as well as the chronic nature of the applicant ’ s health problems and the shortness of the sentence, the Court finds no appearance of a violation of Article 3 of the Convention.

It follows that this complaint must be declared manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Anatoly Kovler Registrar President