FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13249/02 by Hermo TAAL against Estonia

The European Court of Human Rights ( Fourth Section) , sitting on 31 August 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki, Mrs E. Fura-Sandström , Mrs L. Mijovi ć, judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 17 August 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hermo Taal, is an Estonian national, who was born in 1954. He is represented before the Court by Mr H . Vallikivi, a lawyer practising in Tallinn . The respondent Go vernment are represented by Mrs M. Hion, D irector of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 5 June 2000 the Tallinn police initiated criminal proceedings against the applicant on suspicion of having committed extortion under Article 142 of the Criminal Code. On 16 or 17 June 2000 the applicant was taken into custody.

The applicant was charged with having threatened, by way of telephone calls, to explode a bomb in the supermarket Pirita Selver if his demands for a sum of money were not met.

Following the conclusion of the preliminary investigation the criminal case-file was sent to the Tallinn City Court ( Tallinna Linnakohus) . On 11 January 2001 witnesses K., R. and V. failed to appear at the hearing in the City Court and the hearing was adjourned to 5 February 2001 . At the hearing of 5 February 2001 the applicant was questioned. The City Court again adjourned the hearing, since the witnesses had not appeared. Subsequently, the City Court heard the case on 20 February 2001 .

According to the minutes of the City Court hearing, which set out the documents disclosed to the prosecution and defence at the public hearing, the City Court ’ s case-file included, inter alia , written witness statements made during the preliminary investigation by K. and R., who were both employee s of the supermarket . Witness K. had stated that the phone calls on 2 and 4 June 2000 had been made by a male person, probably of an age of 40-50 years or more. She had submitted that it was possible that she would recognise the voice. W itness R. had submitted that she had received phone calls from a male person on 3 and 4 June 2000 . The case-file further contained six tapes with record ing s of several phone calls made to the supermarket (from 4, 5, 7, 8 and 11 June 2000) and one tape with an undercover record ing of a phone call by the applicant from 29 June 2000 , as well as transcripts of the tape recordings.

According to the written record s of witness V. ’ s statements during the preliminary investigation , on 13 June 2000 the applicant had asked him to dial a phone number of the applicant ’ s girl-friend and, in case a male voice, presumably that of the husband of the applicant ’ s girl-friend, answered, witness V. was supposed to say that it was a mistake and discontinue the phone call. In case a female voice answered, he had to hand the handset over to the applicant. They tried to make four phone calls, but none of the calls was answered. Witness V. offered the applicant t he use of his mobile phone, but the applicant refused, alleging that his girl-friend ’ s husband might see the number and call back. The number called to was a local number, the last three digits containing a combination of “fives”, possibly “550” or similar. The case-file contained an order by the investigator to record voice specimens of witness V. and of the applicant. The latter refused.

On 10 August 2000 an undercover record ing of a phone call by the applicant was presented to witness R. for recognition. According to a written statement of her testimony she was of the opinion that the male voice in the recorded conversation closely resembled the voice of the person who in June 2000 had made the bomb threats to the supermarket. She had answered four phone calls to the supermarket. When the threats were made, the voice had been more nervous, but otherwise the voices were identical.

The case-file further contained a written record of the examination of an anonymous witness “ Artur ”, who stated that in June 2000 he had met the applicant at a party, where the latter had said that he had made the threats to the supermarket. In this way the applicant had had a chance to make good money. The owner of a shop located near the supermarket had asked him to make the t h reats. Every time after making the threats he had called the owner of the shop. Witness “ Artur ” stated that from the recordings of the bomb threats on six tapes he recognised the applicant ’ s voice. Witness “ Artur ” considered that the sound of the voice bore a resemblance to that of the applicant, as did some expressions and the manner of speaking.

In the case-file there was included a written record of an examination of witness R., who said that , as of 11 June 2000 , the information line of the supermarket did not answer calls made from public payphones. Witness R. stated that, based on the voice, the manner of speaking and the references to earlier phone calls, the threats had been made by one person.

All the w itnesses failed to appear at the hearing of 20 February 2001 . Witness es R. and K. submitted that they were unable to attend the hearing but that they would maintain the statements given during the preliminary investigation; witness V. did not live at the address noted by the City Court. At that hearing the City Court refused the request of the applicant ’ s lawyer to call witnesses K. and R . The minutes of the hearing do not disclose the reasons why the request was refused .

By a judgment of 20 February 2001 the Tallinn City Court convicted the applicant of the charge and sentenced him to 3 years ’ imprisonment. It relied on the testimony of the witnesses K., R., V. and of the anonymous witness “ Artur ” , given during the preliminary investigation, as well as on the transcripts of tape recordings of telephone conversations.

According to the judgment, t he anonymous witness “ Artur ” had recognised the applicant ’ s voice on the tape and had heard him brag about his bomb threats. Witnesses K. and R. testified that they had received repeated phone calls from the same person, approximately 40-50 years of age, threatening to explode a bomb and demanding a sum of money. In addition, witness R. stated that the applicant ’ s voice on the tape played to her closely resembled the voice of the man who had made the bomb threats. According to the testimony of witness V., the applicant had told him that he was in need of money and asked him to dial a number, using public phones, of which he remembered the first and last digits. In the event that somebody should answer , he was supposed to hand over the phone to the applicant. The first and last digits of the phone number corresponded to the phone number of the supermarket.

On 26 February 2001 the applicant ’ s lawyer filed an appeal against the judgment requesting the applicant ’ s acquittal. She argued that the City Court had not hear d any of the witnesses at its hearing and that it had convicted the applicant on the basis of insufficient evidence. The minutes of the court hearing had stated incorrectly that several items of evidence in the case-file had been disclosed. In fact, this had not been done. As regards the voice identification, the applicant ’ s lawyer noted that, as the witness R. had been presented with only one voice for recognition, she had not been able to compare voices. In his appeal the applicant noted that the bomb threats continued in July and August 2000, after he had been taken into custody (on 16 June 2000 ).

On 28 March 2001 the Tallinn Court of Appeal heard the appeal at a public hearing . The applicant ’ s lawyer reiterated that at the hearing in the City Court it had not been possible to put questions to the witnesses and that h er request to summon the witnesses had been denied. The Court of Appeal dismissed the appeal. It noted that in convicting the applicant the City Court had relied not only on the witness testimony but also on other evidence. It found no substantial infringement of procedural law which would have entailed a reversal of the lower court judgment.

On 18 April 2001 the applicant ’ s lawyer filed an appeal in cassation with the Supreme Court rep eat ing the arguments raised before the Court of Appeal. She reiterated that, in violation of the law of criminal procedure , the City Court had not base d its judgment on evidence examined at the hearing. The applicant requested in his appeal in cassation that an independent expert assessment of the voice be carried out.

On 17 May 2001 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law

Under Article 18 of the Code of Criminal Procedure, as in force at the material time, persons charged with a criminal offence are guaranteed the right of defence. Under Article 19 § 1 of the Cod e the court is required to take all measures prescribed by law for a comprehensive, thorough and objective investigation of the facts on the basis of which the person charged with a criminal offence may be convicted or acquitted .

Pursuant to Article s 205 and 206 of the Code of Criminal Procedure, a judge must preside over court hearings so that all facts are examined thoroughly, from all perspectives and objectively and the truth is ascertained. When hearing a criminal case a court of first instance mus t directly examine the evidence by hear ing the accused , the victims, witnesses and expert opinions, inspect ing physical evidence and disclosing minutes and other documents. Article 262 § 2 of the Code provides that a court judgment must be based only on evidence that has been heard at a court hearing. Article 274 of the Code provides that the statement of facts and reasons in a court judgment must set out, inter alia , the facts ascertained in the examination by the court and the evidence on the basis of which the court deems the facts to be established, the reasons why the court bases its judgment on such evidence and deems other evidence in the case to be unreliable, the charges on which the court convicts each of the defendants and the evidence on which such a conclusion is based.

Article 233 § 1 of the Code of Criminal Proced ure provides that where a witness fails to appear, the court hears the opinions of the participants in the proceeding s as to whether it is possible for the hearing to proceed and rules on the continuation or adjournment of the hearing.

Article 237 of the Code of Criminal Procedure sets forth the procedure for the submission and adjudication of requests. A judge asks the participants in the proceedings whether they wish to request the summoning of new witnesses, experts or specialists or the submission of new evidence and its inclusion in the criminal proceedings . At the court hearing, the participants in the proceedings may submit requests concerning all issues related to the criminal case , regardless of whether such requests have previously been submitted during the pre-trial investigation or the examination by the court. Denial of a request does not deprive the person whose request was denied of the right to reiterate the request in the course of the court hearing. The court asks the opinions of other participants on each request and, after having heard the requests and petitions of the participants in the proceeding s , rules on whether the requests should be granted or denied.

Article 243 of the Code of Criminal Procedure provides that, after a witness has given testimony, he or she is examined by the participants in the proceedings, including the accused and his or her lawyer. Additional questions may be submitted to a witness to clarify and supplement the testimony previously given by him or her. If a court deems it necessary to hear a witness who has been granted anonymity , the witness is heard in the absence of the participants in the proceeding s on the basis of the questions submitted by them. The content of the testimony has to be disclosed at a court hearing.

Pursuant to Article 246 of the Code of Criminal Procedure , testimony given by a witness during the pre-trial investigation may be disclosed if the witness fails to appear at a court hearing or if the whereabouts of the witness is unknown, or if the witness has been granted anonymity.

According to Article 79 1 § 1 of the Code of Criminal Procedure, in order to ensure the security of a victim or a witness or persons close to him or her, the person in question may be granted anonymity. Anonymity is granted in a reasoned order by a preliminary investigator at the request of a witness or a victim, or on the initiative of the preliminary investigator.

Article 8 §§ 2 and 3 of the Code of Criminal Court Appeal and Cassation Procedure provide s that, in an appeal, the appellant may rely on new evidence or evidence which was not submitted to the court of first instance only if the appeal sets out the reasons for the failure to submit the evidence to the court of first instance. In an appeal, the appellant has to set out the names and addresses of the persons who m he or she wishes to have examined by the court of appeal.

Under Article 15 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a court of appeal may order expert assessment s and demand evidence during pre-trial proceedings. Under Article 17 § 2(3) of the Code, a judge, when assigning a criminal case for hearing by means of a ruling, also decides who should be summoned to the hearing as participants in the proceeding s , witnesses or experts. Article 17 § 4 of the Code provides that a court of appeal may, of its own motion, summon to the hearing witnesses and experts and also order expert assessment s and demand evidence. Article 17 § 5 of the Code provides that applications by the participants in the proceedings for the re-summoning of witnesses should be granted if the court of first instance has denied such applications incorrectly or i f a witness or expert summoned failed to appear in the court of first instance or i f the court of appeal finds that a further examination of a witness or expert is of material importance.

Article 20 of the Code of Criminal Court Appeal and Cassation Procedure provides that, in appeal proceedings, the court of appeal verifies whether a decision of the court of first instance is lawful and reasoned only to the extent set out in the appeal, and an appellant has no right to exceed the limits of an appeal during a court hearing.

Under Article 31 of the Code of Criminal Court Appeal and Cassation Procedure , insufficiency or one-sidedness of the examination of the case by the court of first instance and discrepancy between the conclusions of the court as set out in the judgment and the facts are among the grounds on which a court of appeal may set aside the judgment of a court of first instance.

Article 65 § 4 of the Code of Criminal Court Appeal and Cassation Procedure provides that the Supreme Court is not empowered to establish facts.

COMPLAINTS

1. The applicant complain ed under Article 5 § 1 ( a) of the Convention that he had been unlawfully deprived of his liberty as his conviction was unfair.

2. The applicant complained that he did not receive a fair trial and that his defence rights were violated. He had no opportunity to examine or have examined, both during the investigation and at the trial, any of the witnesses against him. Questioning of the witnesses would have been important for establishing the truth. He relied on Article 6 §§ 1 and 3 (d) of the Convention.

THE LAW

A. Complaint under Article 5 § 1 (a) of the Convention

The applicant complained that he had been unlawfully deprived of his liberty under Article 5 § 1 (a) of the Convention since his conviction was unfair. The provision referred to reads as follows:

“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 finds no indication that the applicant ’ s detention lacked a basis in domestic law or that it was arbitrary. 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. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Complaint under Article 6 §§ 1 and 3 (d) of the Convention

The applicant complained that he did not have a fair trial and that his rights of defence had been violated, since he did not have an opportunity to examine or have examined, both during the investigation and at the trial, any of the witnesses against him. He relied on Article 6 §§ 1 and 3 (d) of the Convention, 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 . ”

1. Exhaustion of domestic remedies

The Government submit ted that the applicant ha d failed to exhaust domestic remedies in respect of his complaint under Article 6 §§ 1 and 3 (d) of the Convention . After the hearing in the City Court, the applicant did not request the Court of Appeal , either in his appeal or at the court hearing , to call any witnesses . If such a request ha d been made, the Court of Appeal should have considered it and, if necessary, the applicant could have referred to the opinion of the Court of Appeal in the appeal in cassation lodged with the Supreme Court.

As regards the anonymous witness, the Government observe d that the applicant ha d not made any requests to question him, either in the first, or in the second court instance. Further, the applicant never raised the question of the necessity of maintain ing the anonymity of the witness “ Artur ”. The accused , claiming in the court that he had been aware of the identity of the anonymous witness and that the person had been hostile towards him, did not, nevertheless, apply to call that person in court as a witness.

The applicant disagreed, submitting that, in order to exhaust domestic remedies, it was fully appropriate and sufficient to point out the deficiencies in the appeal and the appeal in cassation , which he indeed had done .

The Court observes that , in his appeals to the Court of Appeal and to the Supreme Court, the applicant complain ed that the City Court had not heard any of the witnesses at its hearing and that it had convicted the applicant on the basis of insufficient evidence. The Court finds on the evidence before it that he raised the complaints made to the Court. The Estonian courts cannot be said to have been denied the opportunity which the rule of exhaustion of domestic remedies is designed to afford to States, namely, to put right the violations alleged against them (see, amongst other authorities, Botten v. Norway , judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 140, § 36). The Court is satisfied that the applicant has exhausted available domestic remedies.

2. The substance of the complaint

The applicant submitted that the courts had based his conviction on the statements made in the course of the preliminary investigation by two witnesses, one of whom was anonymous. These statements had not been examined by the courts , nor even formally disclosed at the hearings. A request by the appli cant ’ s lawyer to call witnesses had been rejected by the City Court. The applicant considered that the Court of Appeal not only had the possibility to express an opinion on the necessity of hearing the witnesses, it also had an obligation to do so . The applicant ’ s lawyer stress ed in her appeal that the conviction of the applicant on the basis of written witness statements that could not be verified by the defendant through direct questioning of the witnesses was in consistent with the law. In fact, the very essence of the appeal concerned the reliability of the testimony given by the witnesses.

According to t he Government , Article 6 of the Convention had not been violated. In their submission it was not the Court ’ s function to deal with errors of fact or of law allegedly committed by a national court. The admissibility of evidence wa s primarily a matter for regulation by national law and, as a general rule, it wa s for the national courts to assess the evidence befo re them. The Court of Appeal could only examine the matter within the limits of the appeal. If the applicant indeed wished to challenge the City Court ’ s judgment on the basis of the same evidence which was relied on by the City Court, the applicant should have advanced substantial reasons as to why the court should have assess ed the same evidence differently. T he Government found that this had not been done in the case under consideration .

The Government further observe d that, although it wa s true that the evidence normally had to be produced in the presence of the accused at a public hearing with a view to adversarial argument, the use of statements obtained at the pre-trial stage wa s not in itself inconsistent with Article 6 §§ 1 and 3 (d), provided tha t the rights of the defence had been respected. They also note d that, while the Court ha d found violations of Article 6 of the Convention when the conviction ha d been based only or mainly on the statements disclosed at the court hearing or only or mainly on the statements of an anonymous witness , t his had not been the case in the proceedings in question. Both the City Court and the Court of Appeal had based their judgments on an aggregate of evidence, including many other items of evidence. The Government we re of the opinion that the criminal proceedings as a whole had been fair and that the applicant had been placed on an equal footing with the prosecution.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint that he did not have a fair trial and that his rights of defence were violated, since he did not have an opportunity to examine or have examined, both during the investigation and at the trial, any of the witnesses against him ;

Declares inadmissible the remainder of the application.

Michael O ’ Boyle Nicolas Bratza Registrar President