FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48129/99 by Arnold TREIAL against Estonia

The European Court of Human Rights (First Section) , sitting on 28 November 2000 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , [Note1]

and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced on 9 December 1998 and registered on 17 May 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Estonian citizen, born in 1932 and living in Otepää .  He is represented before the Court by Ms Maia Ploom , a lawyer practising in Tartu .

A. The circumstances of the case [Note2]

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

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

On 9 May 1994 the County Court ordered, at the request of the applicant’s wife, attachment of the property in order to secure its preservation pending the resolution of her civil action.  The attached property was placed under her care.

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

Subsequently all the judges of the Valga County Court withdrew from examining the applicant’s and his wife’s civil actions.  On 3 November 1997 the cases were transferred to the Viljandi County Court ( Viljandi Maakohus ).  Thereafter the cases lay idle due to the serious illness of the applicant’s wife which prevented her from appearing before the court. The court apparently refused to hear the cases in her absence.

On 1 December 1999 Viljandi County Court granted the applicant’s and his wife’s action for divorce.  The claims concerning division of marital and inherited property were scheduled to be examined on 4 September 2000.  At present the cases are still pending before the court.

b) 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, upon a court sanction, 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 with a committal 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.

The applicant submits that during his detention he was kept for 12 days in a cold cell with only light summer clothes on and that he was not given a mattress.  As a result, he could not sleep.

c) Proceedings for damages

Upon his release from custody the applicant discovered that some of his property, which had been placed under 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 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 granted 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 is 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 ground of a 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 new consideration.

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

The applicant submits that the sum awarded to him will be paid only after the proceedings concerning the remainder of his claims have come to an end.

In the meantime, on 28 October 1997, the applicant submitted 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 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.  It noted that Article 25 of the Constitution foresees the right to compensation for moral and material damage, and not for any other type of damage.  It considered that, in essence, the applicant had submitted a claim for moral damage which had already been awarded to him.

On 26 June 1998 the Tallinn Court of Appeal confirmed the decision to terminate the proceedings and on 17 December 1998 the Supreme Court rejected his application for 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 new examination the applicant filed, on 13 January 2000, several additional claims which included compensation for damages in respect of which there were already final judgments .  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 arguing, inter alia , that had not been able to use his property for 6 years.

By judgment of 27 June 2000 the City Court granted 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 where it is currently pending.

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.

COMPLAINTS

1) The applicant complains that the conditions of his detention and placement in a psychiatric hospital constituted an infringement of Article 3 of the Convention.

2) The applicant complains that his arrest and detention was unlawful.  He invokes Article 5 §§ 1 and 3 of the Convention.

3) 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.

4) 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.

5) 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 that the conditions of his detention during the period from 24 May 1994 until 20 December 1994 and his placement in a psychiatric hospital from 1 September 1994 until 2 November 1994 constituted an infringement of Article 3 of the Convention which prohibits torture or inhuman or degrading treatment.

The Court 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.  It observes that the applicant’s complaint relates to a period prior to the entry into force of the Convention with respect to Estonia on 16 April 1996.

It follows that this part of the application is outside the competence ratione temporis of the Court, and is incompatible with the provisions of the Convention within the meaning of Article 35 § 3.

2) The applicant complains that his arrest and detention from 24 May 1994 until 20 December 1994 was unlawful.  He invokes Article 5 the Convention which guarantees a right to liberty and security of person.

As before, the Court notes that the facts complained of relate to a period prior to the entry into force of the Convention with respect to Estonia on 16 April 1996.

It follows that this part of the application is also incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.

3) 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 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.”

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

4) 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.

Article 6 § 1 of the Convention provides, insofar as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ...”

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

5) 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.

Article 1 of Protocol No. 1 to the Convention 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 Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints concerning

a) the non-enforcement of the compensation order (Article 5 § 5 of the Convention),

b) the length of the civil proceedings (Article 6 § 1 of the Convention), and

c) restrictions on his use of property (Article 1 of Protocol No. 1 to the Convention);

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)

[Note2] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.