Resolution CM/ ResDH (2010)157 [1]

Execution of the judgment of the European Court of Human Rights

Liivik against Estonia

(Application No. 12157/05, judgment of 25/06/2009, final on 25/09/2009)

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 principle of "no punishment without law" as a result of his conviction based on imprecise legislation (violation of Article 7 of the Convention) (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;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

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 clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)157

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

Liivik against Estonia

Introductory case summary

The case concerns a violation of the right under Article 7 of the Convention in that the applicant, a former acting Director General of the Estonian Privatisation Agency, was convicted in 2004 for abuse of power (under Article 161 of the Criminal Code) in the context of a privatisation agreement concerning Estonian railways, in circumstances in which it was impossible for him to anticipate that his actions could be defined as criminal in the light of the legislation applicable at the material time.

The domestic courts judged that the applicant had created a “situation whereby the preservation of the state ’ s assets might have been jeopardised” and that the existence of such a risk was sufficient to conclude that the offence had been committed.

The European Court found that the vague wording of Article 161 of the Criminal Code did not allow the applicant reasonably to foresee that his acts would be deemed to amount to causing “significant damage” to the state, since no criteria had been developed in domestic law to assess such a risk of “significant damage”. The Court also noted that the criteria used by the domestic courts to assess whether the applicant had caused “significant damage” and that his acts had been incompatible with “the general sense of justice”, were too vague (violation of Article 7).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 EUR

9 000 EUR

14 000 EUR

Paid on 12/11/2009

b) Individual measures

According to Article 366 of the Code of Criminal Procedure, a person whose conviction by Estonian Courts has been held by the European Court to be in violation with the provisions of the Convention is entitled to apply to the Supreme Court for re-opening of the proceedings. In this case, the Estonian Supreme Court decided to accept the applicant ’ s application to re-open his criminal case on 23/11/2009. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The legislative provision at issue, Article 161 of the Criminal Code, which was replaced by Article 289 of the new Criminal Code, was definitively repealed in 2007 by a legislative amendment. In the explanatory memorandum prepared by the Ministry of Justice concerning the repeal of this Article, it was stated that the vague wording of this Article was in contradiction with the general principle of legal certainty and the principle of nulla poena sine lege . In the explanatory memorandum reference was especially made to the interpretation of Article 7§1 of the Convention by the European Court of Human Rights, according to which the necessary elements of a criminal offence had to be clearly defined in law. The judgment has been translated into Estonian and placed on the website of the Council of Europe Information Centre in Tallinn ( www.coe.ee ).

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