FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55939/00 by Kristjan SULAOJA against Estonia

The European Court of Human Rights (Fourth Section), sitting on 13 January 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 20 October 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kristjan Sulaoja , is an Estonian national who was born in 1964 and lives in the Hüüru village, Harju County. He was represented before the Court by Mr T. Sild , a lawyer practising in Tallinn. The respondent Government were represented by their Agents, Mrs M. Hion , First Secretary of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs, and Mr E. Harremoes , Special Advisor to the Mission of the Republic of Estonia to the Council of Europe.

A. The circumstances of the case

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

On 14 February 1998 the Pärnu police took the applicant into custody on suspicion of having committed burglary. On 16 February 1998 the applicant was released from custody, but was subjected to another preventive measure in the form of a ban on leaving his place of residence.

On 19 February 1998 the applicant was re-arrested on suspicion of two further acts of burglary, one of which had been committed the same day.

On 20 February 1998 the applicant was charged with three counts of burglary and the police investigator requested the Pärnu City Court ( Pärnu Linnakohus ) to apply the preventive custody measure until 20 April 1998. The investigator noted that the applicant had no fixed residence and considered that he could, if released, continue to commit offences, evade investigation and abscond.

The applicant stated in writing that he did not wish to participate in the hearing before the City Court concerning the investigator’s request and that he did not consider the presence of his lawyer there necessary either.

On the same day, i.e. 20 February 1998, the City Court authorised the applicant’s detention until 20 March 1998.

In March 1998 the applicant was charged with additional counts of burglary, committed together with 2 minors.

On 20 March 1998 the investigator applied for an extension of the applicant’s detention. Having noted that the applicant had been charged with additional crimes, that he had no fixed residence or place of work and that he had two prior criminal convictions, the investigator found that the applicant could, while at liberty, re-offend, evade investigation and flee. The investigator also noted that the applicant had confessed to the charges.

The applicant did not wish to participate in the hearing before the City Court, which allowed the investigator’s request and prolonged the applicant’s detention until 20 April 1998.

On 17 April 1998 the City Court granted the investigator’s request to prolong the applicant’s detention further until 20 June 1998. The request was based on reasons which were similar to those contained in the previous request. The applicant again had stated that he did not wish to attend the hearing on the extension of his custody.

On 18 June 1998 the applicant’s detention was prolonged by the City Court for the third time at the request of the investigator who relied on his earlier arguments. The extension was valid until 20 August 1998.

On 19 August 1998 the City Court held a hearing on the further prolongation of the applicant’s detention. It heard the applicant and his lawyer as well as the investigator. It rejected the applicant’s request to be released and extended his detention until 20 September 1998. The court found that the applicant had no place of residence, family or work. If released, he could continue committing offences in order to support him, and also evade investigation.

On 1 September 1998 the investigator drew up a final indictment which included an additional charge of inducing minors to participate in a crime.

On 18 September 1998, following a hearing with the participation of the applicant and his lawyer, the City Court decided, at the request of the investigator, to extend the applicant’s detention until 20 November 1998 having regard to the large volume of the criminal case. It noted that the applicant had prior criminal convictions and that he no place of residence or work. He had been charged with several offences for which he could be sentenced to imprisonment. There was thus reason to believe that he could abscond or commit new offences, if released.

On 20 November 1998 the City Court heard the applicant and his lawyer on the sixth application by the investigator to extend the applicant’s detention. Noting again that the applicant had no place of residence, work or family to support him, it decided to prolong his detention until 20 January 1999.

On 18 January 1999 the investigator filed another request for extending the applicant’s custody term until 20 February 1999, i.e. 12 months in total. The applicant did not wish to be present at the examination of this request before the City Court, which found the request substantiated and allowed it for reasons similar to those in its previous decisions.

On 12 February 1999 the applicant and his lawyer were acquainted with the results of the preliminary investigation of the criminal case. Three days later the public prosecutor approved the bill of indictment and the case was to the City Court for trial.

By a decision of 18 February 1999 the City Court, having reviewed the case-file from the prosecution, committed the applicant for trial and left unchanged the preventive custody measure. The court relied on the relevant provisions, including Article 189, of the Code of Criminal Procedure. The applicant did not receive a copy of the court decision, but was notified by the public prosecutor of the renewal of his detention on 22 February 1999.

On 22 February 1999 the applicant complained to the City Court that he was dissatisfied with the investigator who had refused to conduct his confrontation with witnesses. He considered that the investigation had been incomplete and asked the court to send the case back to the relevant authority.

On 15 March 1999 the applicant filed another complaint with the City Court, arguing that his detention after 20 February 1999 was unlawful and requesting his release from custody. He submitted that under the Code of Criminal Procedure (Article 73(6)) notification of a prolongation of detention should reach the place of detention before the expiry of the previous order. He, however, received the notification only on 22 February 1999.

At the hearing before the City Court on 31 March 1999 the applicant pleaded guilty to the charges of burglary, but denied that he had induced two minors, M.T. and R.P., to participate in his criminal activity. The court heard five witnesses, including M.T. and R.P. By a judgment given on the same day it convicted the applicant on five counts of burglary under Article 139(2) of the Criminal Code as well as on the charge of inducing minors to participate in his crime, under Article 202 of the Code, and sentenced him to 2 years’ imprisonment. The judgment does not mention the applicant’s request for release or the continuation of the preventive custody measure.

On 15 April 1999 the applicant filed an appeal against the judgment with the Tallinn Court of Appeal ( Tallinna Ringkonnakohus ) in which he disputed his conviction under Article 202 of the Criminal Code. He also complained that the investigator had refused his request to conduct a confrontation with his accomplices M.T and R.P., and asked the appeal court to hear witness R.J, without indicating any reasons for his request.

The applicant further applied for release from custody and submitted that his continued detention after 20 February 1999 was unlawful.

On 23 April 1998 the Court of Appeal informed the applicant of the date of its preliminary hearing, noting that his presence was mandatory.

On 28 April 1999, after a preliminary hearing which the applicant did not attend, the Court of Appeal quashed the judgment of the City Court on procedural grounds and remitted the case to it for a new consideration with a different court composition. It found that the lower court judgment was not reasoned and that its hearing records were incomprehensible. Moreover, as the applicant suffered from a mental handicap, it was necessary to have a psychiatric expert opinion on his mental state. Neither the decision nor the minutes of the hearing make reference to the applicant’s request for release.

On 6 May 1999 the applicant wrote to the City Court asking it, without specifying the reasons, to call his witness R.J.

The following day the applicant filed an appeal against the appeal court decision with the Supreme Court, submitting that neither the City Court nor the Court of Appeal had indicated on what ground he was being detained. He argued that the maximum time-limit of one year for pre-trial detention, stipulated in Article 74 of the Code of Criminal Procedure, expired on 19 or 20 February 1999 and that his continued detention was unlawful. He also requested his release from custody.

At the hearing before the Supreme Court on 8 June 1999, where the applicant was not present, the defence lawyer supported the applicant’s appeal and maintained, in addition, that the applicant was not aware of the prolongation of his detention by a decision of the City Court of 18 February 1999 as a copy of the decision was not sent to him.

On 8 June 1999 the Supreme Court dismissed the appeal. It considered that the time-limit of one year for pre-trial detention under Article 74 of the Code of Criminal Procedure had not been exceeded. The applicant had been taken into custody on 19 February 1998 and on 18 February 1999 he was committed for trial and ordered to remain in custody. In response to the defence lawyer’s argument the Supreme Court noted that, according to Article 202(1) of the Code of Criminal Procedure, a copy of the court decision committing the accused for trial is sent to the person only when the court changes a preventive measure – which was not the applicant’s case. The applicant, however, had the opportunity to consult the decision in his criminal case-file.

The Supreme Court admitted that, in remitting the case back to the first instance court, the Court of Appeal should have indicated, for the sake of clarity, that the preventive custody measure in respect of the applicant remained in force. Nonetheless, the absence of that indication did not render the applicant’s detention unlawful. In sending the case back for a new consideration, the Court of Appeal restored the procedural stage which came about following the applicant’s committal for trial on 18 February 1999. This situation also involved the preventive custody measure applied in respect of the applicant on the same day.

On 31 August 1999 the medical experts established that the applicant was not of unsound mind or suffering from a mental disease, and was capable of understanding and controlling his actions.

On 5 October 1999 the City Court held a new hearing on the applicant’s case. It heard 4 witnesses, including M.T and R.P.  The applicant requested that an additional witness, L.M., be called to testify. The witness could provide information on the applicant’s place of residence after 16 February 1998. The court rejected the request on the ground that the testimony of the proposed witness was irrelevant. The applicant had already submitted that at that time he was living at L.M.’s place and the court had sufficient evidence to decide on the case.

By a judgment of 5 October 1999 the City Court, having analysed the evidence in the case, including the testimonies of witnesses, found the applicant guilty as charged and sentenced him to 2 years and 6 months’ imprisonment. It left unchanged the preventive custody measure applied to the applicant.

In his appeal to the Court of Appeal, filed on 13 October 1999 the applicant submitted that his conviction under Article 202 of the Criminal Code of inducing minors to participate in burglary was based on insufficient evidence. He referred to the inability to confront the two minors during the preliminary investigation and asked the appeal court to hear his witness L.M. The applicant further disputed the lawfulness of his detention after 19 February 1999 and claimed that he had not received adequate replies to this question. He also demanded his release.

On 29 November 1999 the Tallinn Court of Appeal, having held a hearing, upheld the applicant’s conviction, but reduced his sentence to 2 years’ imprisonment. It did not hear the requested witness. The judgment of the Court of Appeal took effect on the day of its pronouncement, but was open to appeal to the Supreme Court within one month. Neither the judgment nor the hearing records mention the applicant’s request for release.

On 21 December 1999 the applicant lodged an appeal with the Supreme Courts contending, inter alia , that the investigator had acted unlawfully and pointing to the failure to hear the witness L.M. He requested to be released from custody.

On 12 January 2000 the Supreme Court refused, by a final decision, the applicant leave to appeal.

B. Relevant domestic law

Under Articles 35-1 (Sections 1 and 2) and 37(2) of the Code of Criminal Procedure, the accused and his defence lawyer have the right to submit applications and file appeals relating to the criminal proceedings.

According to Article 73 of the Code, preventive custody measure may be applied in respect of a suspect, accused or accused at trial in order to prevent them from evading the criminal proceedings or committing a new crime as well as to ensure the enforcement of a court judgment (Section 1).

The permission for taking a suspect or accused into custody is given by a county or city court judge on the basis of a reasoned request from an investigator (Section 2).

An investigator must notify the defence counsel and prosecutor of a custody application beforehand; the counsel and prosecutor have the right to participate in the hearing of the application by the county or city court judge (Section 3).

A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of the defence counsel (Section 4).

A county or city court judge must give a reasoned ruling on the permission or refusal of the preventive custody measure. The judge must sign the ruling and certify it with the court seal (Section 5).

An extension of the term of custody is effected pursuant to the provisions which regulate the taking of a person into custody (Section 5 1 ).

A court must inform the administration of the detainee’s place of detention of its decision to prolong his detention or to annul it. The notification must reach the place of detention before the expiry of the term of detention (Section 6).

Article 71-1 of the Code stipulates that a judge may, at the request of an accused, replace the preventive custody measure with bail.

Article 74 of the Code provides that a period of detention during the investigation of criminal offences may not last longer than 6 months. In particularly complex and voluminous cases, the State Public Prosecutor or his Deputy may exceptionally request an extension of the time-limit for such detention up to one year.

According to Article 77 1 of the Code, a person in respect of whom a preventive custody measure is applied or extended, or his representative, may file an appeal against that ruling within five days pursuant to the procedure prescribed in the Code of Criminal Court Appeal and Cassation Procedure.

Article 78 of the Code stipulates that an investigator, prosecutor or court will annul a preventive measure if there is no further need for its application, or alter the preventive measure and choose a new preventive measure (Section 1).

A preventive measure chosen in respect of an accused at trial may be altered or annulled by the trial court or a higher court (Section 3).

Under Article 189 of the Code, when committing the accused for trial, a court must examine whether a preventive measure has been correctly applied.

Article 201(1) of the Code requires a court to forward to the accused a copy of its decision on the committal for trial, if by that decision the court changed a preventive measure.

Article 222 of the Code empowers a court to amend and annul, in the course of the court proceedings, the preventive measures previously chosen with regard to the accused at trial.

COMPLAINTS

1. The applicant complained under Article 5 of the Convention that his protracted detention on remand was not based on adequate reasons.

2. He also complained, relying on Article 5 § 4 of the Convention, that the courts failed to examine his requests for release.

3. Finally, the applicant complained under Article 6 of the Convention that he did not commit the offence of inducing a minor to participate in a crime and that there was not sufficient evidence to justify his conviction. He also complained that the investigator did not conduct his confrontation with witnesses and that his request to hear a witness was refused.

THE LAW

1. The applicant complained that the reasons for his protracted detention were inadequate. The Court considers that this complaint falls to be examined under Article 5 § 3 the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government argued that the complaint was manifestly ill-founded. They pointed out that the preventive custody measure was applied to the applicant pursuant to a court sanction, issued on 20 February 1998, after he had been arrested immediately after the commission of a crime.

As regards the justification of the applicant’s continued detention, it was maintained that, in addition to the persistence of a reasonable suspicion that the applicant had committed the offences with which had had been charged, there were other grounds to detain him. The applicant did not have a fixed place of residence or work and he had committed new offences during the period of a non-custodial preventive measure, applied to him on 16 February 1998. The authorities had sufficient grounds to believe that the applicant, who had two prior criminal convictions, could evade or interfere with investigation and re-offend, if released. The applicant also had sufficient opportunities to appear before a judge and to put forward his arguments on the issue of extension of his term of custody.

In sum, the reasons given for the applicant’s arrest and detention were sufficient and relevant for the purposes of Article 5 § 3 of the Convention.

The applicant admitted that his detention on remand during the preliminary investigation was reviewed by a judge and that he had the opportunity to be heard by him. He argued, however, that the review was superficial and that the detention orders were a mere repetition of each other and expressed in a laconic manner. What is worse, the order of 20 November 1998 only stated that the applicant did not have a place of residence or work or a family to support him, and contained no reference to the legal criteria set forth in Article 73(1) of the Code of Criminal Procedure.

The applicant further submitted that by the end of March 1998 all or nearly all investigative measures had been taken and the facts underlying the criminal charges had been established. As he had also confessed to almost all the charges, there were no good reasons for the subsequent delay in the investigation. The courts did not indicate why his criminal case was so complex as to justify the extension of his detention beyond the 6-months time-limit, stipulated in Article 74 of the Code of Criminal Procedure. Moreover, the order of the City Court of 19 February 1999 committing him for trial did not give any reasons for his continued detention, but merely left the preventive measure unchanged.

The Court considers, in the light of the parties’ submissions, that the length of the applicant’s detention on remand 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 part of the application 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.

2. The applicant also complained that his requests for release remained unexamined, relying 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 Government submitted that the applicant had available to him effective judicial procedures to challenge the lawfulness of his detention and that the complaint was therefore manifestly ill-founded. They argued that under Articles 35-1, 37(2) and 71-1 of the Code of Criminal Procedure the applicant had the possibility to file requests to change or revoke the preventive custody measure. However, he did not use this possibility. The applications filed by him related to his allegedly unlawful detention after 18 February 1999. Only his appeals to the Court of Appeal and the Supreme Court, dated 13 October 1999 and 21 December 1999, could be considered as requests for changing the custody measure. However, these courts could no longer decide on the request as the applicant had already been sentenced to imprisonment.

The applicant argued that he had disputed the lawfulness of his detention, but the courts did not address his complaints. He pointed out that the order of the City Court of 18 February 1999 committing him for trial and leaving unchanged the preventive custody measure was not communicated to him. When he challenged his continued detention and requested his release on 15 March 1999, the City Court failed to examine his application. Nor did the Court of Appeal or the Supreme Court review his requests for release.

The Court considers, in the light of the parties’ submissions, that this part of the application also 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 part of the application is not manifestly ill-founded within the meaning of Article35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant complained under Article 6 of the Convention that his conviction of the offence of inducing a minor to participate in a crime was unfounded.  He also submitted that the investigator did not conduct his confrontation with witnesses R.P. and M.T. and that his request to hear a witness was refused.

Article 6 of the Convention provides in the relevant part as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

...

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 Government submitted that in the applicant’s criminal case-file there were no records of a refusal of the investigator to allow the applicant’s confrontation with the two witnesses. In any case, the witnesses were heard by the trial court at the hearing where the applicant had the opportunity to put questions to them.

As regards witness R.J., it was pointed out that the applicant first made his request for calling the witness in his appeal of 15 April 1999 against the City Court judgment. The request did not contain any reasons for hearing that witness. Although the applicant repeated his request to the City Court on 6 May 1999, he did not raise this issue during the new examination of his case on 5 October 1999. As regards the refusal to witness L.M., the Government referred to the ruling by the City Court of 5 October 1999 finding that the hearing of the witness was not necessary. Moreover, the applicant did not raise the issue at the subsequent hearing before the Court of Appeal. It was therefore argued that the applicant had failed to exhaust available domestic remedies in respect of both of the witnesses.

The Government considered that, in any event, the complaint was manifestly ill-founded as the domestic courts acted within their discretion, without prejudice to the rights of the defence and the trial as a whole was fair.

The Court first recalls that that its task is not to examine whether the applicant was guilty or innocent of the offences of which he was convicted. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). However, the Court must ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands , judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, § 50).

In the present case, the national courts found the applicant’s guilt established on the basis of an analysis of the relevant evidence. The Court finds no indication that in the assessment of the evidence the authorities exceeded their margin of appreciation or that the assessment was in any way arbitrary. Nor does it consider that the outcome of the proceedings had in itself any bearing on the applicant’s right to a fair trial.

The applicant also complained that his right to call and examine witnesses was not respected. In this respect, the Court recalls that, as a general rule, it is for the national courts to assess the relevance of the evidence which defendants seek to adduce. Article 6 § 3 (d) leaves it primarily to them to assess whether it is appropriate to call witnesses (see Vidal v. Belgium , judgment of 22 April 1992, Series A no. 235-B, § 33). It is accordingly not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth.

In the instant case the Court notes that the applicant requested the examination of witness R.J. in April and May 1999 following the first trial before the Pärnu City Court, when his appeals against its judgment were pending before the Court of Appeal and the Supreme Court, respectively. In his requests the applicant only mentioned the name of the witness and did not submit any reasons for hearing him. During the second round of the proceedings he made no further requests to hear that witness.

As regards the refusal of the City Court to hear witness L.M. at the new trial, the Court observes that the request was rejected by a reasoned ruling that the testimony of the proposed witness was without significance in the criminal case. It considers that this assessment was not arbitrary or unreasonable. It also notes the Government’s submission that it was open to the applicant to ask for an examination of that witness also at the hearing before the Court of Appeal.

Even assuming that the applicant has exhausted domestic remedies, the Court finds that the failure to hear the above witnesses does not disclose a lack of respect for the applicant’s defence rights.

As regards the alleged refusal to conduct the applicant’s confrontation with witnesses R.P. and M.T. during the preliminary investigation, the Court observes that the applicant had an adequate and proper opportunity to challenge and question the witnesses at the trial.

In sum, an examination of the applicant’s complaints has revealed nothing to suggest that the criminal proceedings as a whole were not fair, contrary Article 6 §§ 1 and 3(d) of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning:

a) the length of his detention on remand under Article 5 § 3 of the Convention; b) the failure to examine speedily his applications for release under Article 5 § 4 of the Convention;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza              Deputy Registrar President