SECOND SECTION

DECISION

Application no. 10788/19 Oleg PULATOV against Estonia

The European Court of Human Rights (Second Section), sitting on 7 July 2020 as a Committee composed of:

Valeriu Griţco , President, Arnfinn Bårdsen , Peeter Roosma, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 20 February 2019,

Having regard to the declaration submitted by the respondent Government on 1 November 2019 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicant, Mr Oleg Pulatov , is a Russian national, who was born in 1967 and lives in Tamsalu . He was represented before the Court by Mr K. Tuul , a lawyer practising in Tallinn.

2 . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg , of the Ministry of Foreign Affairs.

3 . The applicant complained under the substantive and procedural limbs of Article 3 of the Convention about the allegedly excessive use of force in the course of his arrest and about the lack of effective investigation in this respect.

4 . The applicant was arrested on 11 October 2016 while sitting in his car. According to the applicant, during the arrest, one of the police officers hit him in the face with a fist. He sustained a fracture of the maxillary sinus with oedema and hematoma. The ensuing criminal investigation concluded that the police officer had used acceptable technique of disorienting slaps to get control of the applicant ’ s hands for handcuffing. Although the first two forensic medical expert reports had considered it possible that the injury had been caused by hitting the applicant with a fist, according to the third commissioned forensic medical expert report, it could not be excluded that the police officer had accidentally hit the applicant with the lower part of his palm. The criminal proceedings against the police officer were terminated without indicting him and the applicant ’ s complaints against the termination were dismissed by the prosecutor ’ s office and subsequently by the Tartu Court of Appeal.

5 . The Government were given notice of the application on 17 July 2019.The Russian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

THE LAW

6 . The applicant complained about the excessive use of force by the police during his arrest and about the subsequent criminal investigation being ineffective. He relied on Article 3 of the Convention.

7 . After the failure of attempts to reach a friendly settlement, by a letter of 1 November 2019 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“1. The Government note that the efforts with a view to securing a friendly settlement of the case have been unsuccessful.

2. In this situation, the Government would hereby like to express  by a way of unilateral declaration  their regret in respect of the occurrence of individual cases of ill-treatment, as in the circumstances of the present case, notwithstanding existing Estonian legislation and the resolve of the Government to prevent such actions. The Government admit that the treatment to which the applicant was subjected and the investigation conducted into his allegations did not meet the standards enshrined in Article 3 of the Convention. The Government undertake to adopt all necessary measures to ensure that the standards enshrined in Article 3 of the Convention — including the obligation to carry out effective investigations — are in future enforced in an effective manner.

3. The Government is prepared to pay to the applicant the global sum of 11,700 euros (eleven thousand seven hundred euros). This sum is to cover any pecuniary and non-pecuniary damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

4. In addition, regarding the legislation which would allow re-opening of the proceedings, the Government refer to [Article 213 § 1 (6)] of the Code of Criminal [Procedure] (the CCrP ), according to which the Prosecutors ’ Offices shall direct pre ‑ trial proceedings and ensure the legality and efficiency thereof and are competent to annul and amend orders of investigative bodies. However, when receiving and deciding on a request to re-open pre-trial proceedings, the Prosecutor ’ s Offices shall take into account all relevant circumstances, including Article 4 of Protocol No. 7, time-bars and factual ( im )possibilities (see recent decisions of the Court of 12 March 2019 in cases Tasdemir v. Turkey (52538/09 ), Kutlu and Others v. Turkey (18357/1 1), and Karaca v. Turkey (5809/13)).

5. The Government refer also to [Article] 366 of the Code of Criminal [Procedure] ( CCrP ) that foresees grounds for review of a judgment or of a ruling that has entered into force. [Article 366 (7)] of the CCrP sets forth that a ground for review is also a satisfaction of an individual appeal filed with the European Court of Human Rights against a court judgment or ruling in the criminal matter subject to review filed with the European Court of Human Rights, due to violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or a Protocol belonging thereto if the violation may have affected the resolution of the matter and it cannot be eliminated or damage caused thereby cannot be compensated in a manner other than by review. In case such request is submitted, it will be for the Supreme Court to decide whether to grant the request for review.

6. It is recalled that according to the case-law of the Court, it may be appropriate under certain circumstances to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued (for instance Omblus v. Estonia (striking out) application no. 27669/08, decision of 2 March 2010; Treial v Estonia (striking out) application no 42496/05, decision of 18 March 2008).

7. It is also recalled that in respect of Article 3 cases the Court has paid attention to the terms of the declaration made by the Government and in particular, the possibility under domestic law or practice to request reopening of criminal proceedings (e.g. Jeronovics v. Latvia , application no. 44898/10, GC 5 July 2016). However, the Court has also accepted the unilateral declarations without such undertaking, if re ‑ opening is impossible de jure or de facto (decisions of the Court of 12 March 2019 in cases Tasdemir v. Turkey (5253 8/09), Kutlu and Others v. Turkey ( 18357/11 ), and Karaca v. Turkey (5809/ 1 3)). In any case, it will be for the relevant domestic authorities to assess and decide whether re-opening of the investigation would be possible.

8. In the light of the above and in accordance with Article 37 § 1 (c) of the Convention the Government would like to suggest that the circumstances of the present case allow the Court to reach the conclusion that for “any other reason” it is no longer justified to continue the examination of the application. Moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of the case by virtue of that provision.

9. Therefore, the Government invites the Court to strike the application out of its list of cases.”

8 . By a letter of 14 January 2020, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. In particular, the applicant was unsatisfied with the sum of compensation offered by the Government and noted that the procedural possibilities to request the re ‑ opening referred to by the Government would in any event not improve his health or remedy the damage suffered. The applicant considered that the re-opening of criminal proceedings and prosecution would be difficult, owing to the fact that the impugned event took place more than three years ago. He referred to the fact that due to the use of force during his arrest he had lasting medical problems that needed treatment.

9 . The Court re iterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

10 . It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

11 . To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also Jeronovičs v. Latvia [GC], no. 44898/10 , 5 July 2016; Taşdemir v. Turkey ( dec .), no. 52538/09, ECHR 12 March 2019, Karaca v. Turkey ( dec. ), no. 5809/13, ECHR 12 March 2019; Kutlu and Others v. Turkey ( dec. ), no. 18357/11, ECHR 12 March 2019).

12 . The Court has established in a number of cases, including those brought against Estonia, its practice concerning complaints about the violation of both substantive and procedural limbs of Article 3 on account of ill-treatment by police officers (see, for example, Mihhailov v. Estonia , no. 64418/10 , 30 August 2016, and cases cited therein ; Korobov and Others v. Estonia , no. 10195/08, 28 March 2013).

13 . The Court also notes in the context of the obligation to conduct effective investigation into alleged ill-treatment under Article 3 that there may be situations where it is de jure or de facto impossible to re-open criminal investigation into the incidents giving rise to the application being examined by the Court (see Taşdemir , cited above, §§ 18-19; Karaca , cited above, § 17).

14 . However, in the case at hand, the Government referred to certain provisions of the domestic law which would allow the applicant to apply for the re-opening of the criminal proceedings. They noted that the decision of whether or not to re-open the proceedings would lie with the domestic authorities, who would have to assess its legal and factual possibility. The applicant in his reply of 14 January 2020 did not oppose the relevance or applicability to his situation of the provisions referred to by the Government in the unilateral declaration. Instead, the applicant considered that the re ‑ opening of the proceedings might be difficult for practical reasons, owing to the passage of time. Moreover, he did not consider that such re-opening could remedy the damage he had suffered.

15 . Although the Court has doubts about the applicability, in the current case, of Article 366(7) of the Code of Criminal Procedure (namely, the possibility of requesting re-opening of the criminal proceedings on the basis of unilateral declaration in a situation where criminal proceedings were terminated without committing the accused to trial), it is not in the position to find that it would be impossible for the applicant, under domestic law, to request the re-opening of the criminal proceedings. The applicant did not submit any arguments to the contrary.

16 . Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

17 . Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

18 . As in the above-mentioned judgment in the case of Jeronovičs (cited above, § 117), the Court deems it important to stress that the unilateral declaration procedure is an exceptional one. As such, when it comes to breaches of the most fundamental rights contained in the Convention, it is not intended either to circumvent the applicant ’ s opposition to a friendly settlement or to allow the Government to escape their responsibility for such breaches.

19 . Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

20 . In view of the above, it is appropriate to strike the case out of the list .

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 17 September 2020 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President