FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8235/10 by Edgar KAASIK against Estonia

The European Court of Human Rights (Fifth Section), sitting on 24 August 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger, Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Ganna Yudkivska , judges, and Claudia Westerdiek , Section Registrar

Having regard to the above application lodged on 1 February 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Edgar Kaasik , is an Estonian national who was born in 1988 . He is currently serving a prison sentence.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents on file , may be summarised as follows.

On 3 December 2008 the Viru County Court convicted the applicant of manslaughter, attempted murder and violent and threatening behaviour. He was sentenced to fifteen years ' imprisonment to which an unserved sentence of seven months from an earlier judgment was added.

According to the text of the judgment – which was drawn up in Russian – an interpreter participated in the hearing; the applicant was assisted by a lawyer. It would appear that the proceedings in the County Court were conducted mainly in Russian since the applicant and several other participants in the proceedings were Russian-speakers.

On 15 May 2009 the Tartu Court of Appeal heard the applicant ' s appeal. The applicant was assisted by a lawyer; an interpreter also participated in the hearing. According to the documents submitted by the applicant, the Court of Appeal informed the participants in the hearing that its judgment would be available on 20 May 2009 at the court ' s office and explained that any notice of appeal against its judgment had to be submitted to the court ' s office within seven days of 21 May 2009. The participants in the proceedings confirmed that they had understood the appeal procedure.

By a judgment of 20 May 2009 the Court of Appeal dismissed the applicant ' s appeal. It appears that the operative part of the judgment was available at the court ' s office on 20 May 2009. A translation into Russian of the operative part of the judgment was served on the applicant, who was in detention in Viru Prison, on 26 May 2009.

According to the applicant, he had been informed after the examination of his appeal in the Court of Appeal that the court had to be notified of any intention to appeal within seven days and that only a lawyer had the right to lodge an appeal in cassation with the Supreme Court. His lawyer had not come to the prison to discuss further action despite his promise to do so. On an unspecified date he had called his lawyer, who had told him to inform the court of his intention to appeal and to lodge an appeal in cassation.

On 3 June and 4 June 2009 the applicant handed over to the prison authorities applications addressed to the County Court and the Court of Appeal in forming them of his intention to appeal.

On 8 June 2009 the Court of Appeal refused to accept the applicant ' s notification of appeal , finding that the time-limit for submission of any such notification had expired on 2 June 2009, that is , seven days after the applicant had received the translation into Russian of the operative part of the judgment , whereas the applicant ' s letters had been handed over to the prison authorities too late, on 3 June and 4 June 2009 . The Court of Appeal noted that the applicant had not requested that the court restore the time-limit and had not provided any explanation why he had failed to comply with it.

In the meantime, on 4 June 2009, the applicant requested the Supreme Court to restore the time-limit for appeal. By a decision of 29 June 2009 the Supreme Court rejected the application. It noted that pursuant to Article 344 § 3 of the Code of Criminal Procedure both an appeal in cassation and a request for restoration of the time-limit for appeal had to be drawn up by a lawyer. The Supreme Court ' s decision was sent to the applicant on 20 July 2009.

On 21 June 2009 the applicant lodged a procedural appeal with the Supreme Court against the Court of Appeal ' s decision of 8 June 2009. On 22 July 2009 the Supreme Court rejected the appeal because it too should have been drawn up by a lawyer. The Supreme Court ' s decision was sent to the applicant on 21 August 2009.

B. Relevant domestic law

Article 315 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ) concern s the pronouncement of a first-instance court ' s judgment . P ursuant to Article 343 (see below) it also applie s , mutatis mutandis , to appellate court judgments. It reads as follows :

Article 315 – Pronouncement of judgment and explanation of right of appeal

“ (1) A judge or ... the presiding judge shall pronounce a judgment at the time announced pursuant to Article 304 of this Code.

(2) If the accused is not proficient in the language of the criminal proceeding s , the judgment shall be interpreted or translated for him or her after its pronouncement.

(3) The judge shall ask whether the person acquitted or convicted understands the judgment and explain its content to him or her if necessary.

(4) A court may decide to pronounce only the operative part of the judgment, in which case it shall explain the main reasons for the judgment orally upon its pronouncement.

(5) After the pronouncement of a judgment or its operative part the judge or presiding judge shall:

1) upon the pronouncement of the operative part of the judgment, give notification of the date on which the judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the record of the court hearing ;

2) give notification of the term for appeal against the judgment and explain the procedure for appeal provided for in Section 318 of this Code and the possibility to waive the right of appeal;

3) explain that the county court must be notified in writing of the intention to exercise the right of appeal within seven days of the pronouncement of the judgment or its operative part .

(6) Waiver of the right of appeal shall be recorded in the record of the court hearing . A lawyer may waive the right of appeal only with the written consent of the defendant .

(7) If all parties to the court proceedings waive the right of appeal or if during the term provided for in paragraph 5(2) of this Article none of the parties to the court proceedings gives notification of the ir intention to exercise the right of appeal, only the [introductory part and operative provisions] shall be set out in the judgment.

(8) If the parties to the court proceedings do not waive the right of appeal, the full judgment shall be prepared within fifteen days of the date on which the county court is notified of an intention to exercise the right of appeal. ”

Article 317 provides that a court must send a copy of a judgment to a party who was not present at its pronouncement ( § 1). Where the defendant is under arrest, a copy of the judgment must be sent to him or her immediately after its pronouncement or immediately after it is made available at the court ' s office ( § 2).

Article 342 § 3 (2) provide s that if a court of appeal dismisse s an appeal and uph o ld s the judgment of the first-instance court, it can limit its judgment to the introduction and operative part and make reference to the provisions of procedural law pursuant to which the judgment was made.

Article 343 provide s that after the parties ' closing statements a court of appeal must announce the date when its judgment will be available for the parties to the proceedings at the court of appeal ' s office (§ 1). If the court of appeal pronounce s its judgment or the operative part of the judgment immediately after deliberations, the provisions of Articles 315 and 316 appl y (§ 2). Paragraph 3 provide s that copies of a judgment of the court of appeal must be served in accordance with Article 317.

In Article 344 § 3 the persons entitled to lodge an appeal in cassation with the Supreme Court a re listed. That list include s the Prosecutor ' s Office, a defence lawyer ( advokaat ) and other parties ' lawyer s .

Article 345 lays down the rules concerning the time-limit for an appeal in cassation. It provide s that a court of appeal must be notified in writing of any intention to appeal in cassation within seven days after its judgment or the operative part of its judgment ha s been pronounced or made available through the court ' s office (§ 1). An appeal in cassation must be lodged in writing with the court of appeal within thirty days of the date when the party to the court proceedings ha s the opportunity to examine the judgment of the court of appeal (§ 2).

COMPLAINTS

The applicant complained under Article 6 §§ 1 and 2 of the Convention that the C ounty Court had lacked impartiality and wrongly assessed the evidence.

He was also dissatisfied with the defence strategy proposed by his lawyer and complained that he had not received proper legal assistance in appealing against the Court of Appeal ' s judgment. He relied on Article 6 § 3 (c) and Article 13 of the Convention .

THE LAW

The applicant complained that he had not received a fair criminal trial. He relied on Article 6 §§ 1, 2 and 3 (c) and Article 13 of the Convention.

The Court notes at the outset that the applicant, represented by a lawyer and assisted by an interpreter, participated in the hearing before the Tartu Court of Appeal on 15 May 2009. The Court of Appeal explained to the participants in the proceedings the procedure for lodging an appeal in cassation, in particular the fact that any notice of intention to appeal had to be lodged within seven days of 21 May 2009, the day after the Court of Appeal ' s judgment was to be made available in the court ' s office. The parties to the proceedings confirmed that they had understood the appeal procedure.

The Court observes that the seven-day time-limit for submitting notice of intention to appeal was also mentioned in the operative part of the judgment of the Court of Appeal that was made available on 20 May 2009. A translation into Russian of the said operative part of the judgment was sent to the applicant and he received it in prison on 26 May 2009. In the applicant ' s case the Court of Appeal counted the seven-day time-limit for submitting notice of intention to appeal from 26 May 2009, that is from the day he received the operative part of the judgment.

The Court has taken note of the pertinent provisions of the Code of Criminal Procedure. In particular, it observes that Articles 315, 342, 343, and 345 permitted a court to pronounce the operative part of the judgment and only to provide a full reasoned judgment if any of the parties gave notice of an intention to appeal within seven days of pronouncement of the operative part. Article 344 provided that an appeal in cassation had to be lodged by the defendant ' s lawyer on the defendant ' s behalf. However, the Court observes that the submission of notice of intention to appeal was not subject to such a restriction.

On the basis of the information available, the Court is able to conclude that the applicant was informed of the procedure of appeal against the Court of Appeal ' s judgment and he confirmed that he had understood it. Even assuming that there was some miscommunication between the applicant and his lawyer as to which of them was supposed to inform the court of the intention to appeal, the Court is unable to find in the circumstances that there was any defect in the proceedings that would engage the responsibility of the respondent State in the present case. The Court reiterates that, given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the defendant and his or her counsel and, as such, cannot, other than in special circumstances, incur the State ' s liability under the Convention (see, for comparison and mutatis mutandis , Artico v. Italy , judgment of 1 3 May 1980, § 36 , Series A no . 37 ; Rutkowski v. Poland ( dec .), no. 45995/99 , ECHR 2000 ‑ XI ; Alvarez Sanchez v. Spain ( dec .), no. 50720/99 , ECHR 2001 ‑ XI ; and Kulikowski v. Poland , no. 18353/03, § 56, ECHR 2009 ‑ ... (extracts) ).

The Court observes in this context that according to the Court of Appeal ' s decision of 8 June 2009 the applicant in his letters had not requested the court to restore the time-limit for the submission of notice of his intention to appeal and did not provide any explanations as to why he had failed to comply with it. He therefore failed to use all procedural tools offered by Estonian law in order to challenge the proceedings at first and second instance, and to this extent has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

As to the remaining complaints raised by the applicant under Articles 6 §§ 1, 2 and 3 (c) and 13 of the Convention, the Court finds, having regard to all the material in its possession, and in so far as the matters complained of were within its competence, that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, the application must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President