Communicated on 4 February 2014

FIRST SECTION

Application no. 64734/11 Kai LEUSKA and others against Estonia lodged on 12 October 2011

STATEMENT OF FACTS

A list of the applicants is set out in the appendix .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first and the second applicants ' son was killed in a traffic accident where the fourth applicant sustained serious injuries. The third applicant is the fourth applicant ' s mother. The applicants were joined in the criminal proceedings concerning the accident as victims.

The prosecutor entered plea bargain negotiations with the accused J. upon the consent of the applicants. In the reports concerning the applicants ' consent to the plea bargain, dated 4 February 2011, the applicants submitted that they gave up their civil claims in respect of non-pecuniary damage against J. but they did not give up their claims for compensation for their procedure expenses in the criminal case. It was also stated in the reports that the victims had no right to withdraw from their consent granted to plea bargain.

On 4 March 2011 the applicants sent their claim for compensation for their procedure expenses (legal costs) together with supporting documents to the Harju County Court ' s judge responsible for the case. Their claim amounted to 6,483.66 euros (EUR). It was noted in the claim that the expenses in question only concerned the acts relating to the criminal proceedings.

On 7 March 2011 a hearing took place at the County Court. According to the record of the hearing the accused J., his defence counsel and the prosecutor took part in the hearing. The accused confirmed that he remained in the plea bargain agreement into which he had entered of his own volition. This was confirmed by J. ' s counsel who also submitted that an agreement concerning the civil claims had been entered into with the victims. Then the judge disclosed the applicants ' claims for their procedure expenses. J. ' s counsel asked the court to reject the claim and argued that according to the understanding of the defence the discussions in the pre-trial proceedings had covered the totality of the compensation including the procedure expenses. The prosecutor also expressed his surprise and submitted that when the case file had been sent to the court no such documents had been submitted to the prosecutor ' s office.

According to the applicants, their counsel had appeared at the hearing and informed the court of their wish to participate in it. However, they had not been allowed to address the court. The record of the court hearing makes no mention of the presence of the applicants ' counsel.

On the same da y , 7 March 2011, the County Court delivered its judgment. It convicted J. under Article 422 § 1 of the Penal Code ( Karistusseadustik ) (violation of traffic requirements or vehicle operating rules and thereby causing major damage to the health of a person or the death of a person through negligence) and sentenced him to one year ' s and six months ' suspended imprisonment according to the plea bargain agreement. His driving licence was withdrawn for four months. In respect of procedure expenses, the County Court ordered J. to pay to the State revenues procedure expenses consisting of compensation levies ( sundraha ) of EUR 417.03 and cost of expert assessments of EUR 1,341.44. No mention was made in the judgment of the applicant ' s claim for procedure expenses. It was noted that the victims had sustained pecuniary and non-pecuniary damage as a result of the crime and that they had given up their civil claims in this respect.

The applicants lodged an appeal against the judgment with the Tallinn Court of Appeal. They insisted that they were parties to the proceedings as victims and had a right to be heard before the court. However, the County Court had deprived them of their right to be heard and although the judge had asked the opinion of the accused and the prosecutor in respect of the applicants ' claim for compensation at the hearing , the court had failed to rule on their claim in its judgment. The applicants submitted that they had claimed compensation for their procedure expenses throughout the proceedings and this could not have been a surprise for the accused and for the prosecutor. The applicants also considered that the four-month period for which the driving licence of the accused had been withdrawn had been too short.

On 23 March 2011 the Harju County Court rejected the appeal. Relying on Articles 246 and 318 of the Code of Criminal Procedure (CCrP) ( Kriminaalmenetluse seadustik ) the court found that the applicants were not parties to the proceedings in plea bargain proceedings and did not have a right to appeal.

The applicants appealed against the County Court ' s decision insisting that they were parties to the proceedings and had a right to appeal. The Tallinn Court of Appeal examined the appeal at a public hearing on 5 April 2011 with the participation of the accused and his counsel, the prosecutor and the applicants ' counsel.

By a decision of 13 April 2011 the Court of Appeal dismissed the applicants ' appeal and upheld the County Court ' s decision of 23 March 2011. It referred to Article 243 of the CCrP according to which the victim did not have the right to revoke a consent granted for the application of plea bargain proceedings and to Article 246 of the Code which did not provide that the victim had to be summoned to a court hearing in plea bargain proceedings. The Court of Appeal concluded that the victim was not a party to such proceedings and, accordingly, the applicants had no right to appeal against the County Court ' s judgment.

Although it was noted in the Court of Appeal ' s decision that it was final and no appeal lay against it, the applicants ' counsel lodged an appeal with the Supreme Court.

By a decision of 3 October 2011 the Supreme Court rejected the appeal. It noted that a court of appeal ' s decision on an appeal from a first instance court ' s decision on a procedural question was final and not subject to an appeal according to Article 391 of the CCrP as in force at the material time. For this reason, the Supreme Court had to reject the appeal. Nevertheless, in order to ensure uniform court practice in plea bargain cases, it made the following observations.

The Supreme Court noted that a court in plea bargain proceedings could not limit itself to analysing the plea bargain; it also had to pay attention to the other questions to be resolved by a judgment pursuant to Article 306 of the CCrP . Thus, although questions like those concerning expenses relating to criminal proceedings did not have to be c overed by plea bargain (Article 245 of the CCrP ), a court could not overlook these questions when making its decision in plea bargain proceedings (Article 248 § 1 (3) and Article 306 § 1 (14) of the CCrP ). At the same time, it amounted to a breach of the plea bargain rules if in a judgment the above questions were dealt with without the accused and his or her counsel having been notified thereof at a court hearing and without their consent having been sought.

The Supreme Court also noted that, according to Article 189 § 3 of the CCrP, in plea bargain proceedings a decision concerning compensation for expenses relating to criminal proceedings made in a judgment could be appealed against separately from the judgment pursuant to the provisions of Chapter 15 of the CCrP without the usual restrictions on appeal in plea bargain proceedings being applicable.

B. Relevant domestic law

Article 17 § 1 of the Code of Criminal Procedure (CCrP) ( Kriminaalmenetluse seadustik ), as in force at the material time, provided that the prosecutor ' s office, the accused and his or her counsel and the victim, the civil defendant and the third party were the parties to court proceedings. It further provided as follows:

Article 173 – Expenses relating to criminal proceedings

“(1) Expenses relating to criminal proceedings are:

1. procedure expenses;

...

(2) Procedure expenses shall be compensated for by the obligated person pursuant to this Code to the extent determined by the body conducting proceedings.

... ”

Article 175 – Procedure expenses

“(1) The following are procedure expenses:

1. reasonable remuneration paid to the chosen counsel or representative and other necessary expenses incurred by a participant in a proceeding in connection with the criminal proceeding s ;

... ”

Article 180 – Compensation for procedure expenses in case of conviction

“( 1 ) In the case of a conviction, procedur e expenses shall be compensated for by the convicted offender. In such case, the exceptions provided for in Article 182 of this Code shall be taken into consideration.

( 2 ) If several persons are convicted in a criminal matter, the distribution of expenses shall be decided by the court, taking into account the extent of the liability and financial situation of each convicted offender.

( 3 ) When determining procedur e expenses, a court shall take into account the financial situation and chances of re-socialisation of a convicted offender. If a convicted offender is obviously unable to reimburse procedur e expenses, the court shall order a part of the expenses to be borne by the state .”

Article 189 – Decision concerning compensation for expenses relating to criminal proceedings

“( 1) In pre-trial proceedings, compensation for expenses relating to criminal proceedings shall be decided by an order of the i nvestigative body or Prosecutor ' s Office.

(2) In court proceedings, compensation for expenses relating to criminal proceedings shall be decided by a court ruling or judgment.

(3) If compensation for expenses relating to criminal proceedings is prescribed by a court judgment, this may be contested separately from the court judgment pursuant to Chapter 15 of this Code. ”

Article 190 – Content of decision concerning compensation for expenses relating to criminal proceedings

“ In a decision concerning compensation for the expenses relating to criminal proceedings, the body conducting the proceedings shall determine:

1 . who shall reimburse the procedur e expenses and the size of each part of the procedur e expenses required to be paid expressed as an absolute amount or, if this is impossible, as a fraction;

... ”

Article 191 – Contestation of decision concerning compensation for expenses relating to criminal proceedings

“( 1) A Prosecutor ' s Office or participant in a proceeding who is required to compensate for the expenses relating to the criminal proceeding s on the basis of a decision concerning compensation for the expenses relating to criminal proceedings may contest the decision in accordance with the provisions of Articles 228 or 229 of this Code, by an appeal or appeal in cassation or pursuant to Chapter 15 of this Code.

(2) When hearing an appeal filed against a court ruling ordering compensation for the expenses relating to criminal proceeding s , a court may extend the limits of the hearing of the appeal to the entire decision concerning compensation for the expenses relating to the criminal proceeding regardless of the content of the appeal.

(3) When hearing an appeal or an appeal in cassation filed against a court judgment, a circuit court or the Supreme Court may make a new decision concerning compensation for the expenses relating to criminal proceedings regardless of contestation. ”

Chapter 9 entitled “ Simplified Proceedings ” contained in its Division 2 (Articles 239 to 250) regulations concerning plea bargaining.

Article 239 § 2 (4) provided that plea bargain could not be applied without the consent of the victim. Article 243 stipulated that a report was to be drawn up concerning the consent granted by a victim for the application of plea bargain proceedings. The victim did not have the right to revoke a consent granted.

The relevant provisions further read:

Article 245 – Plea bargain agreement

“(1) A plea bargain agreement shall set out:

1. the time and place of conclusion of the settlement;

2 . the official title and name of the prosecutor;

3 . the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution of the accused;

4 . the name of counsel;

5 . the criminal record of the accused;

6 . the preventive measures applied with regard to the accused and the duration thereof;

7 . the facts relating to the criminal offence;

8 . the legal assessment of the criminal offence and the nature and extent of the damage caused by the criminal offence;

9 . the type and the category or term of the punishment;

10 . property subject to confiscation.

...

(4) A settlement is deemed to be concluded when the prosecutor, the accused and his or her counsel have signed the settlement.

(5) A Prosecutor ' s Office shall send copies of a settlement to the accused and his or her counsel and the criminal file to the court. ”

Article 246 – Participants in court hearing

“A prosecutor, the accused and his or her counsel shall be summoned to a court hearing and their participation therein is mandatory .”

Article 247 – Court hearing in plea bargain proceedings

“ (1) A judge shall announce the commencement of the hearing of a settlement and make a proposal to the prosecutor to present the plea bargain .

(2) After the presentment of a plea bargain , the judge shall ask whether the accused understands the plea bargain and consents thereto. The judge shall make a proposal to the accused to explain the circumstances relating to the conclusion of the plea bargain and shall ascertain whether conclusion of the plea bargain was the actual intention of the accused.

(3) The judge shall ask the opinions of counsel and the prosecutor concerning the plea bargain and whether they will adhere to the plea bargain .

(4) The judge may question the participants in the proceedings.

(5) After completion of the hearing of a plea bargain , the court shall announce the time of pronouncement of the court ruling and withdraw to the chambers. ”

Article 248 – Court rulings in plea bargain proceedings

“(1) The court shall make one of the following rulings in chambers:

1. a decision on the return of the criminal file to the Prosecutor ' s Office if there are no grounds for application of plea bargain proceedings;

2. a decision on the return of the criminal file to the Prosecutor ' s Office granting the possibility to conclude a new plea bargain if the court does not consent to the legal assessment of the criminal offence, the amount of the civil action or the type or the category or term of the punishment;

3. a decision on refusal to apply plea bargain proceedings and on the return of the criminal file to the Prosecutor ' s Office if the court has doubts regarding the circumstances specified in Article 306 of this Code;

4 . a decision on termination of the criminal proceeding s if the grounds listed in Article 199 § 1 ( 1)– ( 5) of this Code become evident;

5. a judgment on the conviction of the accused and on imposition of the punishment agreed upon in the plea bargain on the accused.

... ”

Article 249 – Main part of judgment of conviction in plea bargain proceedings

“ The main part of a judgment shall set out:

1. the charges on which the court convicts the accused;

2. the content of the plea bargain . ”

The Code of Criminal Proceedings further provided:

Article 3 06 – Issues to be adjudicated upon making of judgment and signing of judgment

“( 1) When making a judgment, the court shall adjudicate the following issues:

...

14) the expenses relating to the criminal proceeding s and the person who is to bear the expenses.

... ”

Article 3 18 – Right of appeal

“( 1) If a party to the court proceeding s does not consent to the judgment of the court of first instance, the party has the right to file an appeal. The party to the court proceeding s who files an appeal is the appellant in the appeal proceedings.

...

( 3) An appeal shall not be filed :

...

4. against a judgment made by way of plea bargain proceedings except in the event of a violation of the provisions of Division 2 of Chapter 9 of this Code ;

... ”

Chapter 15 , entitled “ Proceedings for Adjudication of Appeals Against Court Decisions”, provided in the relevant part:

Article 3 83 – Definition of appeal against court decision

“( 1) An appeal against a court decision may be filed in order to contest a court decision prepared in pre-trial proceeding s , court proceeding s conducted by a court of first instance or a court of appeal or execution proceeding s unless contestation of the decision is precluded pursuant to Article 385 of this Code.

(2) A court decision which cannot be contested by way of an appeal against the decision may be contested by an appeal or appeal in cassation filed against the judgment. ”

Article 3 84 – Right to file appeals against decision s

“(1) The parties to court proceeding s and persons not participating in the court proceeding s have the right to file appeals against a decision of a county court if the decision restricts their rights or lawful interests. ”

... ”

Article 385 of the CCrP provided a list of decisions not subject to contestation by way of proceedings for adjudication of appeals against decisions. Article 391 provided that a decision made in the hearing of an appeal against a decision by a higher court was final and not subject to appeal .

COMPLAINT

The applicants complain under Article 6 § 1 of the Convention about a violation of their right of access to a court and lack of a fair hearing owing to the fact that the Harju County Court refused to hear the applicants and failed to rule on their claim for compensation for their procedure expenses.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (that is, to the applicants ' claim for compensation for procedure expenses) ?

2. Did the applicant s have a n access to a court and a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

Appendix