Resolution CM/ ResDH (2010)158 [1]

Execution of the judgments of the European Court of Human Rights

Harkmann & Bergmann against Estonia

(Application No. 2192/03 and 38241/04, judgments of 11/07/2006 and 29/05/2008,

final on 11/10/2006 and 29/08/2008)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the denial of the applicants ’ right to be brought promptly before a judge following arrest (violation of Article 5, paragraph 3) ( Harkmann and Bergmann) and lack of an enforceable right to compensation for unlawful detention (violation of Articles 5, paragraph 5) ( Harkmann ) (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 judgments;

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 plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)158

Information on the measures taken to comply with the judgments in the cases of

Harkmann & Bergmann against Estonia

Introductory case summary

These cases concern a violation of the applicants ’ right to be brought promptly before a judge after their arrest (violation of Article 5, paragraph 3). The case of Harkmann also concerns the absence of an enforceable right to compensation for unlawful detention (violation of Article 5, paragraph 5).

In case of Harkmann , in October 1996 and also in 2000 criminal proceedings were instituted against the applicant. In the succeeding years, the applicant repeatedly failed to appear at the police prefecture when summoned. It proved impossible to compel him to appear by force, as he was not present at the address he had indicated and his whereabouts were unknown. On 30 September 2002, as the applicant again failed to appear, the Tartu County Court declared him to be a fugitive and ordered his arrest. The European Court noted that the applicant had been released after a hearing of his criminal case on 17 October 2002. Prior to that date, he had been kept in custody for 15 days without being brought before a judge. .

In case of Bergmann, the applicant was in detention on remand from December 2001 until January 2002, when the domestic court decided to release him on bail. On 30 March 2004, observing that the applicant had left the country without authorisation , the domestic court decided to revoke his bail and ordered his detention. The European Court of Human Rights found that the court order to re-arrest the applicant on 31 March 2004 had been based on a decision taken approximately two years previously and that the Estonian courts should therefore have made a fresh examination of the circumstances in order to justify the applicant ’ s renewed detention. Moreover, the first opportunity that the applicant had personally to present arguments for his release was 26 days after his arrest.

In both cases, the Court found that those periods were incompatible with the requirement of “promptness” under Article 5, paragraph 3 of the Convention (violation of Article 5, paragraph 3).

In Harkmann case, after observing that the applicant ’ s detention was lawful under Estonian law at the material time, the European Court concluded that a claim for compensation made by the applicant under any of the relevant provisions of the Unjust Privation of Liberty (Compensation) Act or the State Liability Act would have had any reasonable prospect of success. The Court also pointed out that Estonian law did not provide for a distinct right to compensation for detention in violation of Article 5 of the Convention (violation of Article 5, paragraph 5 of the Convention).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Harkmann (2192/03)

-

2000 EUR

-

2000 EUR

Paid on 08/01/2007

Bergmann (38241/04)

-

3000 EUR

-

3000 EUR

Paid on 30/09/2008

b) Individual measures

In case of Harkmann , the applicant was released on 17/12/2002. In case of Bergmann, in December 2004 the applicant was sentenced to three years ’ and six months ’ imprisonment, less the time already spent in custody. The applicant has now served his sentence and thus is no longer detained. In both cases, the Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicants. Consequently, no other individual measure seems to be necessary.

II. General measures

a) Violation of Article 5, paragraph 3 : The Estonian authorities have taken legislative measures with respect to the violation of Article 5, paragraph 3 of the Convention. In particular, the new Criminal Procedure Code entered into force on 01/07/2004. According to Article 131 paragraph 4 of this code, an investigating judge may issue an arrest warrant for the purpose of arresting a person who has been declared a fugitive. In this case, not later than on the second day following the date of apprehension of the fugitive, the arrested person shall be taken to the investigating judge for interrogation. According to paragraph 5 of the same provision, if there are no grounds for arrest, the person shall be released immediately.

In addition, the Estonian authorities indicated that in accordance with the provisions of Article 21 of the Estonian Constitution and Article 34, paragraph 1, point 6 and Article 35, paragraph 2 of the Criminal Procedure Code, any detained person is entitled personally to present a court with arguments for his or her release. Pursuant to Article 217, paragraph 1, point 8 of this Code, the Estonian prosecutors have an obligation to bring the arrested person within 48 hours before an investigating judge, who will then examine the reasons for his or her detention or release.

b) Violation of Article 5, paragraph 5 : The Estonian authorities have also taken legislative measures with respect to the violation of Article 5, paragraph 5, of the Convention. In particular, the amendments to the State Liability Act entered into force on 18/11/2006. According to Article 7 § 2 of this act, a distinct right to compensation is provided for unlawful activities of a public authority if the European Court found a violation of the Convention in a particular case. Such right for compensation is also provided for applicants who have filed an application with the Court in a matter in which the Court has already found a violation before, or for persons who has the right to file such an application.

The Estonian authorities indicated that the persons detained unlawfully may receive compensation on the basis of this law. The provisions of the State Liability Act and its amendments may be invoked before the Estonian courts in case of unlawful detention under the new Criminal Procedure Code or under Article 5, paragraph 3 of the Convention, which is an integral part of Estonian law.

The Estonian authorities further indicated that a person who was detained unlawfully may claim compensation according to the provisions of Unjust Privation of Liberty (Compensation) Act. These provisions can be invoked before the Estonian courts in case of violation of Articles 131 and 217 of the new Code of Criminal Procedure. Since the detention in the present cases would be considered unlawful under the new Criminal Procedure Code, it appears that such detention would qualify for compensation under the Unjust Privation of Liberty (Compensation) Act.

c ) Publication and dissemination : The judgments of the Court have been translated into Estonian and published on the website of the Council of Europe Information Office in Tallinn ( www.coe.ee ). They have been widely distributed, including to courts and prosecutors.

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted 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