FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16855/04 by Vyacheslav POZHARSKIY against Estonia

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 7 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vyacheslav Pozharskiy, is an Estonian national who was born in 1981. He is currently detained in the Tallinn Prison.

A. The circumstances of the case

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

The applicant was arrested, together with Mr Dorozhko (whose application no. 14659/04 is examined by the Court simultaneously), around midnight between 8 and 9 November 2002. He was kept in detention for ten days. Thereafter, although his release had been ordered by the Tallinn City Court ( linnakohus ), he was kept in detention for a further four hours.

The applicant was charged with aggravated robbery and two counts of temporary unauthorised use of other persons ’ movable property (cars). He was committed for trial by the Tallinn City Court. The case was heard by a court composed of a professional judge, Ms P., and two lay judges.

On 30 May 2003 the City Court convicted the applicant, together with Mr Dorozhko, as charged. He was sentenced to seven years ’ imprisonment.

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 Dorozhko in respect of one count of temporary unauthorised use of other persons ’ movable property. 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 Court of Appeal held 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.

B. Relevant domestic law

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)).

COMPLAINTS

1. The applicant complain ed under Article 6 § 1 of the Convention about the lack of impartiality of the judge who had examined his case, as she was the wife of a police investigator who had dealt with the case during the preliminary investigation.

2. He also complained under Article 5 § 1 (c) that his detention during the preliminary investigation had been unlawful.

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 was the wife of a police officer heading the team of investigators which had been set up for the investigation of the criminal case concerned. The Court finds that this complaint falls to be examined under 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 under Article 5 § 1 (c) that his detention during the preliminary investigation had been unlawful.

The Court observes that the applicant was kept in detention in November 2002. However, he mentioned this matter before the Court for the first time in his application of 17 June 2004 and explicitly made this a complaint in his letter of 10 April 2006. 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.

For these reasons, the Cou rt unanimously

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

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer LORENZEN Registrar President