FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14659/04 by Aleksandr DOROZHKO against Estonia lodged on 12 April 2004

The European Court of Human Rights (Fifth Section), sitting on 20 February 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 12 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Dorozhko, is a stateless person who was born in 1960. He is currently detained in the Murru Prison.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

The applicant was arrested, together with Mr Pozharski (whose application no. 16855/04 is examined by the Court simultaneously), around midnight between 8 and 9 November 2002. He was initially charged with causing serious bodily injury; apparently the charges were subsequently amended so as to include robbery. He was also questioned in respect of temporary unauthorised use of other persons ’ movable property (cars).

On 11 November 2002 the Tallinn City Court ( linnakohus ) authorised his detention for ten days.

On 20 November 2002 the City Court refused the investigator ’ s request to extend the applicant ’ s detention. It found that the investigator had charged the applicant with robbery, referring to a provision of the Penal Code ( Karistusseadustik ) that did not exist. However, the applicant was not released by the police. I nstead , he was charged with a further offence (threatening behaviour). On 22 November 2002 the City Court authorised his detention on charges of robbery and threatening behaviour.

The applicant was committed for trial by the Tallinn City Court on charges of aggravated robbery, threatening behaviour and two counts of temporary unauthorised use of other persons ’ movable property. The case was heard by a court composed of a professional judge, Ms P., and two lay judges. The victim of the robbery participated in the hearing and the applicant and his lawyer put questions to him.

On 30 May 2003 the City Court convicted the applicant, together with Mr Pozharski, as charged. He was sentenced to nine years ’ imprisonment. In the context of assessing the injuries caused to the victim in the course of the robbery, the court relied on a written opinion given by a medical expert. In connection with the second count of unauthorised use of other person ’ s property, the court relied on the witness statements of L., a police officer, given during the preliminary investigation, as L. had failed to appear at the hearing. The court also mentioned in its judgment that according to the statements of witness M., the applicant had served his previous sentence together with her son and that the last time she had seen the applicant had been at the end of October or beginning of November 2002 together with h er son. However, according to the applicant, he had gone to find M. ’ s son around midnight between 8 and 9 November 2002. Her son had not been at home and he had asked M. whether he could stay overnight in her apartment. M. had refused. When she had been interviewed by the police, she had hidden that she had met the applicant on the night concerned.

The applicant appealed against the judgment. He challenged, inter alia , the impartiality of the City Court ’ s judge Ms P., as her husband, Mr P., had headed the team of investigators which had been set up for the investigation of the criminal case concerned.

On 9 October 2003 the Tallinn Court of Appeal ( ringkonnakohus ) acquitted the applicant and Mr Pozharski in respect of the second count of temporary unauthorised use of other persons ’ movable property, in which respect the City Court had relied on the statements of witness L. who had not been examined by the court. It upheld the City Court ’ s judgment in the remaining part.

Referring to Article 20 § 1 of the Code of Criminal Procedure ( Kriminaalmenetluse koodeks ), which concerned grounds for disqualification of a judge, the Court of Appeal found that the applicant ’ s allegations did not warrant quashing the City Court ’ s judgment and referring the case to the first instance court for a new trial. Moreover, it was noted that none of the parties to the proceedings had requested judge P. ’ s disqualification during the proceedings in the City Court; neither had the impartiality of the judge nor that of the court been put into doubt in the appeal. The applicant had submitted at the Court of Appeal ’ s hearing that he had only become aware of the fact that Mr P. was the judge ’ s husband during the court proceedings. The Court of Appeal found, however, that the judge ’ s possible relationship with an official participating in the preliminary investigation did not prove the judge ’ s partiality. It noted that although Mr P. had been the head of the team of police officers investigating the case, the investigation had in fact been carried out by another police investigator. None of the reports concerning various investigative activities ( uurimistoimingu protokoll ) in the case file had been drawn up by Mr P. Moreover, besides judge P., two lay judges had taken part in deciding the case. The Court of Appeal considered that the allegation concerned was artificial and had been submitted with a view to delaying the proceedings.

On 21 January 2004 the Supreme Court ( Riigikohus ) refused the applicant leave to appeal.

2. Other proceedings

The applicant has initiated proceedings several times concerning ill-treatment by police officers and prison officials.

On 16 April 2003 and on 9 October 2003 he had conflicts with police officers who had escorted him to the hearings of the City Court and the Court of Appeal, respectively. Allegedly, the officers had exercised excessive force and had used special means of restraint, such as handcuffs and fetters. Criminal investigation of the incidents, initiated on the basis of the applicant ’ s complaints, was discontinued. The applicant ’ s complaint to the Prosecutor General was dismissed on 5 March 2004, since the criminal investigation had been lawfully discontinued.

Subsequently, the applicant lodged a complaint against the Prosecutor General ’ s decision with the Tallinn Administrative Court ( halduskohus ), seeking its invalidation. By a judgment of 31 January 2005, the court quashed the Prosecutor General ’ s decision. It noted that the Prosecutor General had ignored the applicant ’ s complaint concerning the unlawfulness of the use of fetters. However, the use of fetters had not been authorised by the applicable legislation and therefore constituted an element of the offence of abuse of authority under Article 291 of the Penal Code ( Karistusseadustik ) and, in more serious cases, a violation of Article 3 of the Convention. The court held that when reconsidering the applicant ’ s complaint, the Prosecutor General had also to examine it in respect of the use of fetters. Concerning the remaining complaints about the use of handcuffs and excessive force by the police officers, the court considered that they had been sufficiently examined by the Prosecutor General who had found that the police had not breached the law. Accordingly, these complaints did not require further review by the Prosecutor General.

On 27 October 2003, in the course of a search in the Tallinn Prison, the prison officials had used excessive force against the applicant. A criminal investigation initiated at his request was discontinued. He lodged a complaint with the Tallinn Administrative Court , pointing out that he intended to make a separate claim for compensation later. By a judgment of 18 October 2004, the court found that the order of the Minister of Justice on the basis of which the search in the prison had been carried out and the use of excessive force by the prison officials had been unlawful.

On 7 July 2004 the applicant had been placed in a small cell (no. 30), which measured 0.8 m by 1 m, in the Murru Prison. The cell had had no ventilation or light; there had been nothing to sit on and no possibility to drink water or to use a toilet. He had been kept in the cell for more than two hours. The applicant lodged a complaint with the Tallinn Administrative Court , requesting that the unlawfulness of the prison authorities ’ acts be established. He stated that he intended to make a separate claim for compensation later. The court found that the applicant ’ s placement in the cell concerned infringed his human dignity. By a judgment of 10 November 2004 the court upheld the complaint and declared the act of the prison authorities unlawful.

B. Relevant domestic law and practice

According to Article 20 § 1 of the Code of Criminal Procedure ( Kriminaalmenetluse koodeks ), as in force at the material time, a judge could not participate in the criminal proceedings and had to be disqualified if he or she was directly or indirectly personally interested in the case or if other circumstances gave reasons to doubt his or her impartiality.

Article 26 § 1 (2) of the Code stipulated that a person whose spouse had participated in the proceedings of a criminal case ( menetlusosaline kriminaalasjas ) could not act as a judge in that case. The same applied in respect of a person with regard to whom facts were presented which gave rea son to doubt his or her impartiality (Article 26 § 1 (4)).

According to section 7 (1) of the State Liability Act ( Riigivastutuse seadus ), a person whose rights are violated by the unlawful activities of a public authority in a public law relationship may claim compensation for damage caused to him or her.

In section 9 (1) of the Act the grounds on which a person may claim monetary compensation for non- pecuniary damage are enlisted. These include, among others, wrongful ly degrad ing dignity, damage to health and deprivation of liberty .

The Supreme Court has found in several cases for inmates of prisons who have claimed compensation for non-pecuniary damage caused by unlawful acts of prison authorities whereby their dignity had been degraded. For example, by a judgment of 28 March 2006 the Administrative Law Chamber of the Supreme Court ( Riigikohtu halduskolleegium ) granted under section 9 of the State Liability Act compensation to an inmate of a prison who had been unlawfully kept in a punishment cell, having found that his dignity had been degraded (case no. 3-3-1-14-06). The Supreme Court reached a similar conclusion in a judgment of 22 March 2006 (case no. 3-3-1-2-06).

COMPLAINTS

1. The applicant complain ed that his right to an impartial tribunal, guaranteed by Article 6 § 1 of the Convention , had been violated as the judge who had examined his case was the wife of a police investigator who had dealt with his case during the preliminary investigation.

2. He also complained of a violation of Article 6 § 3 (d) in that he had not been able to put questions to witnesses or to the victim of the offence.

3. He further complained that because of the bias of the court his detention had been contrary to Article 5 § 1 (a).

4. Moreover, he complained of a violation of paragraph 4 of Article 5 as he had not been released despite the City Court ’ s refusal to authorise his further detention on 20 November 2002.

5. He complained under Article 3 that he had been ill-treated by police officers and prison officials.

6. (a) The applicant also argued that his defence rights, guaranteed by Article 6 § 3 (c), had been violated. In this context, Article 17 had also been breached.

(b) Furthermore, he submitted that his complaints concerning various violations of the law of procedure and incorrect application of the criminal law had remained unsuccessful. Thereby Article 13 had been violated.

(c) Finally, he argued that the violations referred to above taken together amounted to a breach of Article 1 of the Convention.

THE LAW

1. The applicant complain ed that the judge who had examined his case in the Tallinn City Court had lacked impartiality as she had been the wife of a police officer heading the team of investigators which had been set up for the investigation of the criminal case concerned. He relied on Article 6 § 1 of the Convention , which reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant also complained that he had not been given the opportunity to put questions to the medical expert, other witnesses or the victim of the offence. In particular, he referred to the police investigator ’ s refusal to arrange a confrontation between him and the victim during the preliminary investigation. Furthermore, he referred to the fact that witnesses M. – who had allegedly given false statements – and L. had not appeared at the hearing in the City Court.

The Court considers that this complaint falls to be examined under Article 6 §§ 1 and 3 (d), which, in so far as relevant, provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The Court notes that the applicant and his lawyers failed to raise the complaint concerning wit ness M. and the medical expert in the appeals lodged with the Court of Appeal and the Supreme Court. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

In respect of the complaint concerning the investigator ’ s refusal to arrange the applicant ’ s confrontation with the victim, the Court is satisfied that the victim was questioned by the applicant and his lawyer at a City Court hearing.

In so far as the absence of witness L. is concerned, the Court notes that the Court of Appeal acquitted the applicant of the pertinent charge (second count of temporary unauthorised use of other persons ’ movable property).

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complained that because of the bias of the City Court his detention had been contrary to Article 5 § 1 (a) of the Convention, which reads:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court.”

The Court notes that the applicant was deprived of his liberty after conviction by a competent court. In the light of the material in its possession the Court is satisfied that the applicant ’ s deprivation of liberty met all the conditions for detention under Article 5 § 1 (a) of the Convention. Even if the applicant considers that procedural violations occurred in the determination of the criminal charges against him, this argument does not change the fact that after the convicting judgment of 30 May 2003 his detention fell within the scope of Article 5 § 1 (a) (see, for example, Taal v. Estonia (dec.), no. 13249/02 , 31 August 2004 , and Pfleger v. Czech Republic (dec.), no. 58116/00, 30 April 2002). It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant complained that he had not been released despite the fact that the City Court had on 20 November 2002 refused to extend his detention. He relied on Article 5 § 4 of the Convention, which reads:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court observes that this complaint concerns the applicant ’ s pre-trial detention, i.e. his detention pending his conviction at first instance on 30 May 2003. It notes that he lodged his application more than six months later, on 12 April 2004. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

5. The applicant complained that he had been ill-treated by police officers and prison officials. He relied on Article 3 of the Convention, which reads:

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

The Court notes that, after having made, in his letter of 29 July 2004, the complaints under Article 3 of the Convention, the applicant submitted several more recent administrative court judgments in his favour. It considers it unclear to what extent he wishes to pursue these complaints. Assuming that this is the case, the Court will consider each of them in turn.

(a) Firstly, the Court has examined the complaints concerning the alleged ill-treatment of the applicant when he was escorted to the hearings of the City Court and the Court of Appeal. The Court notes that by a judgment of 31 January 2005 the Administrative Court dismissed his complaint in so far as it concerned the use of excessive force and handcuffs. However, there is no indication that the applicant appealed against the Administrative Court ’ s judgment. Accordingly, the applicant has failed to exhaust domestic remedies in this respect and this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention.

In so far as the complaint concerns the use of fetters, the Court notes that the Prosecutor General ’ s decision was quashed by the Administrative Court on the grounds that he had not examined this complaint despite the fact that the use of fetters had not been authorised under the applicable legislation. The Administrative Court ordered that the Prosecutor General re-examine the applicant ’ s complaint in this respect, considering that unlawful use of special means of restraint constituted an offence and, in more serious cases, a violation of Article 3 of the Convention. The Court notes that the applicant has informed it neither of the Prosecutor General ’ s new decision after the Administrative Court ’ s judgment favourable to him nor of any further administrative court judgments. Moreover, there is nothing in the case file to indicate that the applicant made any claims for compensation for the alleged violation of his rights. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b) Secondly, the Court has examined the applicant ’ s complaints concerning the use of force during a search in the Tallinn Prison and his placement in a small cell in the Murru Prison. It notes that the domestic courts have declared the impugned acts of the prison authorities unlawful and the question arises whether the applicant has lost his status as a victim within the meaning of Article 34 of the Convention.

In this context, the Court recalls that, according to its case-law, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Mikheyev v. Russia , no. 77617/01, § 90 , 26 January 2006 , Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 846 , § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI ).

In the first case, the Administrative Court held that the use of force against the applicant had been excessive and unlawful. In the second case, it held that his human dignity had been degraded by an unlawful act of the prison authorities. In respect of these complaints, the Court is satisfied that the national authorities have in substance acknowledged that the applicant had been subjected to ill-treatment. Thus one of the conditions for considering him not a victim has been fulfilled. As to the further condition – whether the violation has been remedied –, the Court notes that the applicant expressly submitted to the domestic authorities that he intended to lodge a claim for compensation separately. The Court has been provided with no information on whether any such claims were made. Therefore, it considers that the applicant has not exhausted domestic remedies in this respect. Accordingly, these complaints must also be rejected under Article 3 5 §§ 1 and 4 of the Convention.

6. The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, in the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons , the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the lack of impartiality of the City Court judge ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer LORENZEN Registrar President