FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48129/99 by Arnold TREIAL against Estonia

The European Court of Human Rights (Fourth Section) , sitting on 3 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 9 December 1998,

Having regard to the partial decision of 28 November 2000,

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 Arnold Treial, is a Estonian national, who was born in 1932 and lives in Otep ää . He is represented before the Court by Mrs M. Ploom, a lawyer practising in Tartu. The respondent Government are represented by their Agents, Mrs M. Hion and Mr E. Harremoes.

A. The circumstances of the case

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

1. Proceedings concerning divorce and division of marital property

On 3 February 1994 the applicant’s wife filed with the Valga County Court ( Valga Maakohus ) an action for divorce and division of marital property.

On 23 February 1994 the applicant filed against her an action for division of the inheritance of their son who had died the year before.

On 12 April 1994 the claims were joined by the court.

On 21 April 1994 the County Court held a hearing in the case and scheduled a further hearing for 24 May 1994.

On 24 May 1994 the applicant was taken into custody in connection with the criminal proceedings instituted against him (see below).

On 9 May 1994 the County Court ordered, at the request of the applicant’s wife, attachment of the property in order to ensure its preservation pending the resolution of her civil action. The order stated that it was open to appeal within 10 days to the Tartu Court of Appeal ( Tartu Ringkonnakohus ).

The attachment was carried out by the court’s bailiffs on 10 and 26 May 1994, whose actions could be appealed against to the County Court within 10 days.

On 20 December 1994 the applicant was released from custody.

On 5 April 1995 the applicant filed an application with the County Court requesting that his case be transferred to another court alleging that the judge and the court were not impartial.

On 25 April 1995 the County Court imposed a fine on the applicant for having used insulting language in respect of the court both in his transfer application and at the hearings.

On 28 April 1995 the applicant requested that he be exempted from the fine. On 3 May 1995 the judge  hearing the case withdrew. On 26 May 1995 the applicant informed the court that he had lost confidence in it and requested that all members of the court step down.

By a decision of 30 May 1995 the County Court dismissed both his requests. The decision was confirmed by the Tartu Court of Appeal on 27 December 1995. Leave to appeal to the Supreme Court was refused on 13 March 1996

On 3 June 1996 the applicant filed an action for divorce.

On 12 March 1997 and 30 September 1997 the judges of the Valga County Court withdrew from examining the applicant’s and his wife’s civil actions. In their decisions it was noted that that the applicant’s written submissions, in particular that of April 1995, were disrespectful of the court and hampered an objective examination of the cases.

On 29 October 1997 the cases were transferred by a higher court to the Viljandi County Court ( Viljandi Maakohus ) which on 3 November 1997 scheduled a hearing for 10 February 1998.

On that day the hearing was adjourned as the parties failed to appear before the court. The applicant had not informed the court of the reasons for his failure to attend. His wife could not attend as she was hospitalised from 19 January 1998 until 6 February 1998.

On 4 March 1998 the applicant asked the court to set a hearing date.

On 24 August 1998 the hearing was adjourned since, according to a medical certificate presented to the court, the state of health of the applicant’s wife did not allow her to take part in it and it was not possible to decide on the divorce request without her presence.

On 29 September 1998 the applicant requested the court to hear the case without the presence his wife and to inquire whether she would agree to this.

In response to its inquiry of 8 October 1998 about the condition of health of the applicant’s wife, the court was informed that she had still to receive treatment.

On 30 November 1998 the applicant’s lawyer requested that the court fix a hearing date.

On 16 February 1999 the applicant’s wife asked for the adjournment of the hearing scheduled for 22 February 1999 as her state of health had deteriorated and she needed to be hospitalised.

At the hearing on 22 February 1999, despite the applicant’s request to proceed with the case, the court decided that the presence of the applicant’s wife was necessary. Accordingly, it adjourned the hearing.

On 16 March 1999 the applicant’s wife requested a higher court to  transfer the case to the Tartu County Court, apparently because it was closer to her place of residence. Her request was refused in April 1999.

On 23 September 1999 the applicant requested the trial court to replace the order for attachment of property with another measure for the purpose of securing the civil action.

By a judgment of 1 December 1999 the Viljandi County Court dissolved the marriage between the applicant and his wife. At the applicant’s request it allowed him additional time to modify and specify his property claim, which he submitted to the court on 21 January 2000.

On 10 August 2000 the applicant requested the court to verify the existence of the attached property, and, in case it had got lost, to award him damages.

The hearing scheduled for 4 September 2000 was adjourned at the request of both parties who wanted to call certain witnesses.

The hearing on 20 September 2000 was also adjourned as the parties requested that additional witnesses be heard.

On 14 November 2000 the applicant unsuccessfully requested the removal of the judge.

A hearing took place 20 November 2000.

By a judgment of 4 December 2000 the Viljandi County Court dismissed the applicant’s wife’s action for division of marital property for lack of proof that such property existed and accepted part of the applicant’s claim concerning the inheritance of their son.

On 20 December 2000 the applicant, being dissatisfied with the way the inheritance was divided by the court,  filed an appeal against the judgment with the Tartu Court of Appeal which, on 30 April 2001, quashed in part the County Court judgment and remitted the claim concerning the division of inheritance to it for a new examination.

2. Criminal proceedings

On 20 May 1994 the Valga police, acting upon an application of the applicant’s wife alleging ill-treatment by her husband, initiated criminal proceedings against the applicant for having caused his wife grievous bodily harm.

On 24 May 1994, pursuant to court order, the applicant was taken into custody.

On 1 June 1994 the applicant was additionally charged with assault in respect of two other persons as well as unlawful possession of a firearm.

On 2 July 1994 the applicant was ordered to undergo a psychiatric examination and to be committed to a hospital. The examination took place from 1 September 1994 until 2 November 1994 in the Tallinn Psychiatric Hospital which declared him mentally fit.

On 30 November 1994 the case was transferred to the Viljandi police.

Following the expiry of the court authorisation to keep him in custody, issued on 11 November 1994, the applicant was released on 20 December 1994.

On 15 May 1995 the Viljandi police terminated the criminal proceedings against the applicant on the ground that the acts committed by him did not amount to a criminal offence and that the assault victims did not wish to pursue the charges.

3. Proceedings for damages

a) Upon his release from custody the applicant discovered that some of his property, which had been placed in his wife’s care following the court order of 9 May 1994, had gone missing.

On 30 November 1995 the applicant filed with the Tartu City Court ( Tartu Linnakohus ) a civil action against the Government for damages arising from his unlawful detention and the unsubstantiated criminal charges. In particular, he claimed moral damages for his arrest and placement in a psychiatric hospital in the amount of 200,000 EEK as well as damages for lost property and for the loss of profit he would have made from his farming activities in the amount of 1,043,678 EEK.

By judgment of 2 May 1997 the City Court allowed in part the applicant’s lawsuit awarding him 29,400 EEK for moral damages and 14,530 EEK for farming expenses. It found that his arrest and detention had been unlawful and that his right to liberty had been violated.  In particular, it had not been established that he had tried to evade the investigation or appearing before the court which was one the grounds for taking a person into custody. It considered that the applicant was entitled to compensation on the basis of Article 25 of the Constitution, Article 172 of the Law on the General Principles of the Civil Code and Article 451 of the Civil Code (see below). The fact that the special law referred to in the latter Article had not yet been adopted could not prevent the court from awarding damages. In calculating the amount of moral damages the City Court took as a basis the officially established minimum salary applicable at the time of the judgment .

The City Court found unsubstantiated the claim concerning loss of profit. It also rejected the applicant’s claim concerning the loss of property items on the grounds of lack of proof that the loss was due to the actions or omissions of the authorities. It noted that it was the applicant’s wife who had been left in charge of the common property and that the proceedings for its division were still pending.

On 27 January 1998 the Tartu Court of Appeal ( Tartu Ringkonnakohus ) upheld the judgment of the first instance court as regards the applicant’s claim concerning the loss of property as well as his right to moral and material damages. It reduced, however, the amount of moral damages payable to the applicant to 15,750 EEK finding that it should be calculated on the basis of the minimum salary applicable at the time of his release, rather than in the subsequent period.  It noted that a similar rule had been established in the Law on Compensating Damage Arising Out of Unfounded Deprivation of Liberty by the State (“ Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus ”) which had entered into force on 1 January 1998. It revoked the judgment with respect to the claim of loss of profit and sent it back to the City Court for a new consideration.

On 22 April 1998 the Supreme Court ( Riigikohus ) refused to grant the applicant leave to appeal.

In the meantime, on 28 October 1997, the applicant filed with the Tallinn City Court a new civil action against the Government claiming damages for his unlawful arrest and detention as well as his ill-treatment in police custody. By a decision of 2 March 1998 the Tallinn City Court terminated the proceedings on the ground that the action was essentially the same as the one which had already been decided by the Tartu City Court and the Tartu Court of Appeal. On 26 June 1998 the Tallinn Court of Appeal confirmed the decision and on 17 December 1998 the Supreme Court refused leave to appeal.

Following the decision of the Tartu Court of Appeal of 27 January 1998 to remit the claim concerning loss of profit to the Tartu City Court for a new examination the applicant filed, on 13 January 2000, several additional claims which included a claim for damages in respect of which there was already a final judgment . On 7 February 2000 the proceedings regarding these claims, among which was a claim to the attached and lost property, were terminated. The applicant also sought moral damages in the amount of 1,500,000 EEK in connection with the loss of property.

By judgment of 27 June 2000 the City Court allowed in part the applicant’s claim regarding loss of profit awarding him 49,560 EEK. It rejected his claim for moral damages on the grounds that compensation for unlawful detention had already been awarded to him and that his claim for additional damage had not been established.

On 11 July 2000 the applicant filed an appeal against the judgment with the Tartu Court of Appeal which, on 2 February 2001, quashed it and sent the case back to the first instance court for a new consideration. As regards the applicant’s claim for moral damages, the Court of Appeal noted that the matter had already been finally decided by its judgment of 27 January 1998 and that the first instance court should not have stated its position on the subject again in its judgment of 27 June 2000.

On 20 June 2001 the Supreme Court, upon examination of the merits of the appeal, upheld the judgment of the Court of Appeal. It noted that the Code of Civil Procedure allowed the plaintiff to modify his claim while the case was pending before the first instance court. However, the applicant filed his addition claim after the judgment had entered into effect.

b) On 21 December 1998 the applicant brought civil proceedings against the judge who had authorised the attachment of property on 9 May 1994, the police investigator involved in his criminal case and his wife, claiming compensation for damage caused to the property by their unlawful acts.

On 18 December 2000 the Võru County Court, in order to establish a list of the applicant’s property and the extent of possible damage, suspended the proceedings pending the entry into force of the judgment of the Viljandi County Court concerning the division of marital and inheritance property between the applicant and his wife.

c) On 1 September 2000 the applicant brought before the Viljandi County Court a civil action for damages against the Government alleging arbitrariness and misuse of power by a court and the court’s bailiff in attaching the applicant’s property and in dealing with his case. By a decision of 19 September 2000 the County Court refused to accept his action on the grounds that the action did not fall under its jurisdiction, that the action did not comply with certain formal requirements and that the applicant had not paid the required court fee. The decision was confirmed by the Tartu Court of Appeal on 12 January 2001, which suggested that the applicant turn to the Valga County Court - the court having jurisdiction over the territory where the alleged damage was caused.

B. Relevant domestic law

Article 25 of the Estonian Constitution provides that everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.

Law on Compensating Damage Arising Out of Unfounded Deprivation of Liberty by the State (“ Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus ”) adopted on 11 June 1997 and in force as from 1 January 1998, provides in Article 5 (2) that the basis for calculating the rate of compensation is the minimum salary, established by the Government of the Republic, at the time when the decision for release of the person takes effect.

According to the text of Article 451 of the Civil Code , in force at the material time, damage caused to the individual as a result of his/her unlawful detention will be compensated in full in a manner prescribed by law, regardless of culpability of the officials of the investigation, prosecution or court authorities.

Article 172 (2) of the Law on the General Principles of the Civil Code ( Tsiviilseadustiku üldosa ) stipulates that moral damage caused to a person must be compensated by the person causing the damage, unless the latter proves that he/she was not at fault for causing the damage.

According to Article 155 of the Code of Civil Procedure a court may, at the request of a party, replace one measure for securing an action with another one.

Under Article 158 (1) of the Code, the court dealing with the case or a higher court may quash the measure for securing an action at the request of the parties to the proceedings or on its own initiative.

Article 160 of the Code provides that, following the entry into force of the judgment dismissing an action, the defendant has the right to request compensation from the plaintiff for damage caused by the interim measure ordered at the plaintiff’s request.

According to Article 243 (3) of the Code a judgment is executed on the application of the claimant

Article 26 (1) of the Code of Execution Procedure stipulates that actions of a court’s bailiff can be appealed against to the head of the enforcement agency and the court.

COMPLAINTS

1) The applicant complains, under Article 5 § 5 of the Convention, that the moral damages awarded to him for his unlawful arrest and detention were not adequate and that the judgment of the Tartu City Court of 2 May 1997, as modified by the Tartu Court of Appeal on 27 January 1997, has not been executed. He submits that he will receive the sum awarded by the courts only after the proceedings concerning the remainder of his claims have been terminated.

2) The applicant complains, under Article 6 § 1 of the Convention, of the length of civil proceedings concerning divorce from his wife and division of property.

3) The applicant complains, under Article 1 of Protocol No. 1 to the Convention, that the authorities failed to secure the preservation of his property while he was in custody. He further points out that he has not been able to use his property freely since its attachment in May 1994 due to the prolonged failure of the courts to examine the actions for divorce and division of property.

THE LAW

1) The applicant complains, under Article 5 § 5 of the Convention, that the moral damages awarded to him for his unlawful arrest and detention were not adequate and that the judgment of the Tartu City Court of 2 May 1997, as modified by the Tartu Court of Appeal on 27 January 1997, has not been executed. He submits that he will receive the sum awarded by the courts only after the proceedings concerning the remainder of his claims have been terminated.

Article 5 § 5 of the Convention reads as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable  right to compensation.”

As regards the alleged non-execution of the relevant judgment the Government submit that there is no document supporting the applicant’s allegation that enforcement of the judgment has been refused or delayed pending the resolution of his other claims. As judgments in civil cases are executed at the request of the claimant, according to Article 243 (3) of the Code of Civil Procedure, it was necessary for the applicant to make an application to the competent enforcement agency at the seat of the defendant in Tallinn and submit to it the relevant judgment . The applicant, however, has not requested the Enforcement Agency of the Tallinn City Court to initiate the execution proceedings. Nor has he provided any document to show that he presented an application to any other enforcement agency. The Government also point out that the refusal of the bailiff to execute a judgment can be appealed against to the head of the enforcement agency and/or the court. The applicant has therefore not used the possibilities available to him under Estonian law to obtain redress for his complaint.

The applicant submits that the judgment has not been executed owing to the fault of the Government and that the bailiff of the Valga City Court refused to accept his execution application on the ground that on his copy of the Court of Appeal judgment there was no note that it had entered into force.

As regards the applicant’s complaint concerning the inadequacy of compensation for moral damage awarded to him in the proceedings brought before the Tartu City Court on 30 November 1995, the Court notes that the final domestic decision in respect of this complaint was given by the Supreme Court on 22 April 1998. The applicant, however, introduced his complaint before this Court on 9 December 1998, i.e. more than six months later. Further proceedings brought before the Tallinn City Court with essentially the same object, which ended on 17 December 2000 with the refusal to consider the action, was not a remedy affecting the running of the six-month rule laid down in Article 35 § 1 of the Convention.

Insofar as the applicant complains that the judgment has not been executed, the Court notes that, according to Article 243 (3) of the Code of Civil Procedure, execution is effected on the request of the claimant. Contrary to what has been argued by the applicant the Court finds nothing in the case-file to show that the applicant has ever filed such a request or that his request has been refused.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

2) The applicant complains, under Article 6 § 1 of the Convention, of the length of civil proceedings concerning divorce from his wife and division of property.

The relevant part of Article 6 § 1 of the Convention provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] tribunal established by law.”

The Government submit that, although the proceedings which are still pending, were initiated on 3 February 1994, the period to be taken into consideration started on 16 April 1996, when Estonia ratified the Convention.

It is argued that the case was of some complexity, involving several claims. Moreover, the applicant seized different courts with claims which were interdependent and in some cases identical.

It is submitted that the conduct of the parties also contributed to the length of the proceedings. The applicant did not exercise his procedural rights in good faith, acting in an abusive manner which led to the withdrawal of the judges of the Valga County Court from his case. The applicant also requested the removal of the judge of the Viljandi County Court, although the proceedings had already lasted for some time.

During the years 1997-1999 the court could not hear the case because of the serious illness of the applicant’s wife, which prevented her from attending. It was not possible to proceed with the case, which involved delicate and personal matters, without the presence of both parties. The court verified the reasons for the adjournment requests of the applicant’s wife by requesting information about her state of health and her ability to participate in the proceedings. The applicant also requested adjournments.

As regards the conduct of the authorities, the Government submit that there were delays in the proceedings before the Valga County Court, although most of them occurred prior to the entry into force of the Convention in respect of Estonia on 16 April 1996. In 1997 the case was delayed because of the withdrawal of all the judges. Following the transfer of the case to the Viljandi County Court no further delays could be attributable to the courts. The County Court delivered a partial judgment already after the first hearing at which both parties were present and subsequently the proceedings have been conducted with due speed.

In sum, the Government consider that the delays in the proceedings during the relevant period were mainly attributable to the parties and that the complaint about the length of the proceedings is ill-founded.

The applicant submits that he has not obstructed the proceedings. He denies the use of offensive language and argues that he had a valid reason to request the removal of the judge of the Viljandi County Court.

The Court considers, in the light of the parties’ submissions, that this part of the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.  It 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 grounds for declaring it inadmissible have been established.

3) The applicant complains that in carrying out the attachment of his property in May 1994 the bailiffs acted unlawfully, that the authorities failed to secure the preservation of his property while he was in custody from 24 May 1994 to 20 December 1994 and that he has not been compensated for the moral and material damage caused by their unlawful acts.  He invokes Article 1 of Protocol No. 1 to the Convention which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submit that the applicant has not exhausted domestic remedies in respect of his complaint. First, it was open to the applicant to appeal against the order of 9 May 1994 concerning attachment of property. Second, under Articles 155 and 158 (1) of the Code of Civil Procedure, he had the possibility of requesting the substitution of the attachment by another measure to secure the civil action and/or to request the court dealing with the case or a higher court to quash the impugned measure. Third, it was possible for the applicant to lodge a complaint about the actions of the bailiff with the head of the enforcement agency or the court, as provided for in Article 26 (1) of the Code of Execution Procedure. Fourth, it was open to the applicant to appeal against the judgment of the Viljandi County Court of 2 December 2000 concerning the division of marital property, if he was dissatisfied with the ruling.

Finally, the applicant could still obtain redress from the domestic courts for the alleged violation of his property rights. In particular, under Article 160 of the Code of Civil Procedure, he is entitled to claim compensation from the plaintiff for damage caused by the attachment order.

It is pointed out that the applicant’s action for damages against the Government filed with the Viljandi County Court was returned to him for jurisdictional and other formal reasons. There are no obstacles to his filing a new claim with the competent court in conformity with the formal requirements. In addition, the applicant’s claim for damages against the judge, the investigator and his former wife is currently pending before the Võru County Court.

The applicant submits that he learned of the attachment order only when he was released from custody in December 1994. Furthermore, he has requested the Viljandi County Court to replace attachment with a different measure to secure his wife’s civil action, but received no reply. He also unsuccessfully complained about the attachment to the Chairman of the Supreme Court and Minister of Justice. The fact that the attached property was not the common property of the spouses is demonstrated by the judgment of the Viljandi County Court of 4 December 2000 which found unsubstantiated the applicant’s wife’s claim for division of marital property.

The Court notes that the impugned actions of the bailiff and the alleged loss of property took place in 1994. It recalls that, according to the generally recognised principles of international law, the Convention is binding on the Contracting States only in respect of facts occurring after its entry into force. The Convention entered into force in respect of Estonia on 16 April 1996. It follows that insofar as the applicant’s complaint relates to a period prior to that date, it is outside the competence ratione temporis of the Court.

As regards the claim for damages against the Government in connection with the loss of property following its attachment, the Court notes that the proceedings in which the claims were dismissed ended with the Supreme Court decision of 22 April 1998, which is more than six months from the date of 9 December 1998 on which the complaint was lodged. The fact that the applicant filed on 13 January 2000 essentially the same claim, in respect of which the proceedings were terminated on 7 February 2000, could not be taken into account as this was not a remedy which needed to be exhausted under Article 35 § 1 of the Convention.

As regards further proceedings for damages brought by the applicant against individuals allegedly responsible for the loss of property, the Court notes that these proceedings are currently pending before the Võru County Court. Accordingly, the applicant has not exhausted remedies, available to him under Estonian law, as required by Article 35 § 1 of the Convention.

It follows that this part of the application as a whole is also manifestly ill-founded, within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the civil proceedings for divorce and division of property;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President