Resolution ResDH(2005) 61

concerning the judgment of the European Court of Human Rights of 10 February 2004 (final on 10 May 2004) in the case of P uhk against Estonia

(Adopted by the Committee of Ministers on 18 July 2005 at the 933rd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the P uhk case delivered on 10 February 2004 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 55103/00) against Estonia, lodged with the European Court of Human Rights on 23 November 1999 under Article 34 of the Co n vention by Mr Rain P uhk , an Estonian national, and that the Court declared admissible the complaint that the applicant ' s conviction under the P enal Codes which had entered into force on 13 January 1995 and 20 July 1993 of acts committed prior to those dates amounted to retrospective application of penal law;

Whereas in its judgment of 10 February 2004 the Court unanimously:

- held that there had been a violation of Article 7, paragraph 1, of the Convention on account of retrospective application of the criminal law of 13 January 1995;

- held that there had been a violation of Article 7, paragraph 1, of the Convention on account of retrospective application of the criminal law of 20 July 1993;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 3,000 euros in respect of non-pecuniary damage; 1,508.31 euros in respect of costs and expenses, these sums to be converted into the national currency at the rate applicable on the date of settlement, and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant ' s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 10 February 2004, having regard to Estonia ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken in order to erase the consequences of the violation for the applicant and to prevent new violations of the same kind in the future; this information appears in the appendix to this resolution;

Having satisfied itself that on 11 June 2004, within the time-limit set, the government of the respondent state had paid the a p plicant the sums provided for in the judgment of 10 February 2004,

Declares, after having examined the information supplied by the Government of Estonia, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2005)61

Information provided by the Government of Estonia during the examination of the P uhk case by the Committee of Ministers

Violation of the Convention

The case concerns the applicant ' s conviction for acts committed between 1993 and 1995, under the P enal Codes which entered into force on 13 January 1995 and 20 July 1993 respectively, which amounted to retrospective application of criminal law in breach of Article 7, paragraph 1, of the Convention. The applicant was sentenced to 4 years ' imprisonment, suspended for 3 years, on charges of bookkeeping and tax offences.

Individual measures

Following the European Court ' s judgment, the applicant submitted an application for reopening of the criminal proceedings before the Supreme Court. The Supreme Court granted him leave to appeal and his case was reopened. By the judgment of 22 November 2004, the Supreme Court set aside the applicant ' s convictions insofar as these convictions related to facts having occurred prior to the entry into force of the P enal Codes and acquitted the applicant of those charges. The Supreme Court has thus effaced the applicant ' s conviction as it was held by the European Court to be in violation of the Convention.

General measures

T he reopening of the impugned criminal proceedings and the applicant ' s ensuing acquittal demonstrates the direct effect granted to the European Court ' s judgments by the Supreme Court of Estonia. Along the same lines, the Supreme Court has stated in many other cases that the Convention is directly applicable before the Estonian courts and that it takes precedence over legislation. The direct effect of the Convention and of the European Court ' s judgments in Estonian law will play an essential role in preventing new violations similar to that found in the present case.

An earlier judgment of the European Court raising the same problem (Veeber No. 2 against Estonia, judgement of 15 January 2003) has been widely disseminated to all relevant authorities and published (in Estonian translation) on the website of the Council of Europe Information Office in Tallinn ( www.coe.ee ) and in a book called “Human Rights and P rotection of Human Rights in Europe”. The latter is widely distributed free of charge to individuals upon request and automatically sent to libraries, universities and state agencies. In addition, in order to introduce the consequences of the judgment to the authorities and public, it was discussed both on television and in seminars involving competent officials and authorities.

The P uhk judgment (in Estonian translation) has been also communicated to the courts and prosecutors and published on the website of the Council of Europe Information Office in Tallinn ( www.coe.ee ).

It may also be recalled that the P enal Codes, which were retrospectively applied in the applicant ' s case, are no longer in force and that a new P enal Code entered into force on 1 September 2002.

Conclusion

The Government of Estonia considers that in view of these developments, full satisfaction has been given to the applicant and that there no longer exists any risk of new violations similar to those found in this case. Therefore Estonia has fulfilled its obligations under Article 46, paragraph 1, of the Convention.