Resolution CM/ ResDH (2010)156 [1]

Execution of the judgment of the European Court of Human Rights

Pello against Estonia

(Application No. 11423/03, judgment of 12/04/2007, final on 10/12/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the violation of the applicant ’ s right to a fair trial in that he had had no opportunity to examine some of the witnesses in the criminal proceedings against him (violation of Article 6, paragraphs 1 and 3(d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examinat ion of this case.

Appendix to Resolution CM/ ResDH (2010)156

Information about the measures to comply with the judgment in the case of

Pello against Estonia

Introductory case summary

The case concerns the violation of the applicant ’ s right to a fair trial in criminal proceedings in which the applicant was convicted in 2002 without having had the opportunity to examine two witnesses whose testimony could have led to his acquittal (violation of Article 6, paragraph 1 and 3(d)).

The European Court found that the domestic courts had failed to make every reasonable effort to ensure the attendance of the two witnesses before the court. In particular, the domestic courts did not order the police to compel the witnesses before the court and, moreover the court of appeal refused to question a witness who was present in the court room.

In conclusion, the European Court held that the constraints affecting the rights of the defence were such that the applicant could not be said to have received a fair trial.

I. Individual measures

The European Court did not award any just satisfaction to the applicant because his lawyer did not submit any claim within the time-limit. The applicant has already served his prison sentence and is no longer in prison.

Furthermore, under the new Estonian Code of Criminal Procedure, which entered into force on 18/11/2006, any applicant convicted in violation of the Convention may submit a request for the reopening of such proceedings before the Supreme Court. This possibility was introduced through case-law even before the new Code came into effect (see Final Resolution ResDH (2005)61 in the case of Puhk , and Final Resolution ResDH (2005)62 in the case of Veeber No. 2). According to the Estonian authorities, the applicant has not availed himself of this right so far.

No other individual measure therefore seems to be necessary in this case.

II. General measures

Referring to the case of Taal which was closed by a Final Resolution ( ResDH (2006)72), the Estonian authorities pointed out that the violation found in this case was also an isolated incident and indicated that the Court ’ s judgment had been translated into Estonian and published on the website of the Council of Europe Information Office ( www.coe.ee ) with a view to preventing similar violations. The Court ’ s judgment has been distributed to the authorities concerned, in particular to courts and prosecutors. The Estonian authorities consider that the publication and dissemination of the Court ’ s judgment are sufficient measures to prevent similar violations.

The Court did not attribute the violation in this case to any specific deficiency in the procedural legislation. On the other hand, the new Criminal Procedure Code has entered into force on 01/07/2004, i.e. after the violations in the present case and in the case of Taal took place. Pursuant to the provisions of the new Criminal Procedure Code, a defence lawyer may request the summonsing of witnesses (Article 227) and a party to the proceedings may request at a hearing that additional evidence be adduced (Article 297).

In addition, the Estonian authorities indicated that the Supreme Court of Estonia gives direct effect to judgments of the European Court as demonstrated in previous cases such as Pukh (see Final Resolution ResDH (2005)61).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Estonia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies