FIRST SECTION

Application no. 69155/11 Ain RANDMAA against Estonia lodged on 4 November 2011

STATEMENT OF FACTS

The applicant, Mr Ain Randmaa , is an Estonian national, who was born in 1970 and lives in Jõgeva . He is represented before the Court by Mr T. Laasik , a lawyer practising in Tartu .

A. The circumstances of the case

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

On 11 August 2009 a misdemeanour report was drawn up by a police constable in respect of the applicant. According to the report the applicant had called repeatedly and persistently from 1 October 2008 to 28 July 2009 to various fixed phones of several departments of a university and to mobile phones of the university officials. The phone calls had continued during daytime and at night despite the recipients ’ demand for the applicant ’ s discontinuing the calls. Thus, the applicant had committed a breach of public order, a misdemeanour under Article 262 of the Penal Code ( Karistusseadustik ).

The hearings at the Tartu County Court took place on 24 September 2009, 25 May 2010 and 8 June 2010.

At the hearing of 24 September 2009 the applicant asked for an appointment of a legal-aid lawyer. The County Court dismissed the request and explained to the applicant that he could choose counsel himself. He was advised to choose counsel well in advance so that the time of the next hearing could be fixed in coordination with the lawyer.

On 22 March 2010 the County Court asked the applicant to provide it with the details of his appointed lawyer by 29 March 2009. Since no reply was received, the court repeated its request on 31 March 2010 and set 15 April 2010 as a new time-limit. However, it proved impossible to serve this letter to the applicant as he was not available at his address or did not open the door. Nor did he pick up mail from a post office.

Finally, on 13 April 2010, the applicant was served with a letter, containing a request to appoint a lawyer, and summons for a court hearing. On 23 April 2010 he informed the court that he had appointed advocate L. as counsel. The court verified the existence of an agreement with L. by phone. L. did not confirm the existence of an agreement but affirmed that the applicant had contacted him and wished to conclude a legal services agreement. As the hearing had been scheduled for 25 May 2010 and L. was not available on that date, the court and L. agreed that L. would inform the court by 30 April 2010 of the conclusion of a legal services agreement between him and the applicant. The court received no information by that date, nor did the applicant appear at court on 26 April 2010 as had been agreed earlier.

On 4 May 2010 the applicant appeared at the courthouse among the public at a hearing in a criminal case unrelated to the present case. He was served with a court ’ s letter noting that L. had not confirmed the existence of a legal services agreement and therefore the hearing would take place on 25 May 2010 as scheduled. The applicant was also reminded that he had the right to choose a legal representative and that the absence of a representative did not prevent the matter being heard.

On 5 May 2010 the court again checked with L. by phone whether he had concluded an agreement with the applicant. L. submitted that there was no agreement and that he would not take part in the hearing as the applicant ’ s counsel.

At the hearing of 25 May 2010 the applicant requested the adjournment of the hearing since his appointed counsel L. could not take part in it. The court announced a break and checked with L. whether he had concluded a legal services agreement with the applicant. L. confirmed that such an agreement existed but submitted that he was not requesting the adjournment of the hearing since he had known at the time of the conclusion of the agreement that he could not participate at the hearing. In these circumstances the court dismissed the applicant ’ s request for adjournment finding that the case could be examined without the presence of counsel. The applicant considered this a substantial breach of his defence rights.

As to the substance, the applicant submitted that he did not understand the misdemeanour report. He made no statements as to the merits of the case but contended that it was not proved that he had been the person who had made the phone calls in question.

By a judgement of 10 June 2010 the Tartu County Court convicted the applicant of a breach of public order. He was sentenced to twenty days ’ detention. The court relied on the statements of a number of witnesses examined at the hearing, a police report concerning a recording of one of the applicant ’ s phone calls by a witness and other evidence. It also noted that the applicant had already been convicted of a similar offence on 15 February 2008.

In respect of the applicant ’ s complaint concerning a violation of his defence rights, the court noted that pursuant to the Code of Misdemeanour Procedure ( Väärteomenetluse seadustik ) the participation of counsel was not mandatory in the case at hand. Thus, it had dismissed the applicant ’ s request for state legal aid. The court also noted that it had explained to the applicant that he could himself appoint a lawyer. The applicant had been given sufficient time for finding a lawyer and he had been repeatedly reminded to provide the court with the details of his counsel. In these circumstances, the court considered that the applicant ’ s defence rights had not been violated.

The court also noted that during the court proceedings doubts had raised about the applicant ’ s mental capacity. His psychiatric and psychological expert examination had been ordered. The experts observed accentuation of personality traits but considered that the applicant was fully able to understand his surroundings, master his behaviour, participate in the proceedings and serve a punishment. His treatment in a psychiatric hospital was not considered necessary.

The applicant appealed to the Tartu Court of Appeal. He complained, inter alia , about a violation of his defence rights because his counsel had not taken part in the County Court ’ s hearing.

By a judgment of 19 November 2010 the Tartu County Court dismissed the appeal. In respect of the alleged violation of defence rights, the appeal court noted that the applicant had been repeatedly given an opportunity to find counsel. He had done this only briefly before the hearing, his counsel could not take part in the hearing and did not request an adjournment as he had already known at the time of the conclusion of the legal services agreement that he would not be able to participate at the hearing. The Court of Appeal was satisfied with the County Court ’ s reasoning according to which the applicant ’ s defence rights had not been violated.

The applicant, legally represented by advocate L., lodged an appeal with the Supreme Court.

By a judgment of 4 May 2011 the Supreme Court in substance upheld the lower courts ’ judgments. Nevertheless, it pronounced itself on the nature of the offence of a breach of public ordered finding that this presupposed disturbing the peace in a public place. It considered that there was no evidence that the applicant ’ s calls to mobile phones constituted a breach of public order and discontinued the proceedings in this respect. In the remaining part the judgments were upheld.

In respect of the complaint about the alleged violation of the applicant ’ s defence rights the Supreme Court noted that the County Court had thoroughly dealt with the involvement of the applicant ’ s counsel in the proceedings. On four occasions had the applicant been given a time-limit for informing the court of the details of his counsel which he had failed to do. Furthermore, the court had on several occasions verified with L. whether the applicant had concluded a legal services agreement with him as he had alleged but L. had not confirmed the existence of such an agreement. The court had explained to the applicant that he could find counsel to represent him at the hearing but that the absence of counsel did not hinder examination of a misdemeanour case. At the hearing the court had made a break in order to check whether the applicant had signed an agreement with L. This time L. had confirmed the agreement but had not requested an adjournment of the hearing as the applicant had been aware at the time of the conclusion of the agreement that L. would not be able to take part in the hearing of 25 May 2010. The Supreme Court concluded that the applicant ’ s defence rights had not been violated considering that the County Court had repeatedly given him a possibility to find a lawyer and that pursuant to the Code of Misdemeanour Procedure the applicant ’ s legal representation had not been mandatory.

B. Relevant domestic law

Article 19 § 2 of the Code of Misdemeanour Procedure ( Väärteomenetluse seadustik ) provides that counsel defending a person subject to misdemeanour proceedings may participate in the performance of a procedural act concerning the person, but the failure of counsel to appear shall not hinder the performance of the act.

Article 19 § 3 of the Code of Misdemeanour Procedure stipulates that the participation of counsel in court proceeding is mandatory if the person subject to proceedings is fourteen to eighteen years of age or is unable to represent himself or herself due to a mental disorder.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he was not given a fair trial as the participation of his counsel at the Tartu County Court ’ s hearing of 25 May 2010 was not secured.

He also complains about a violation of Article 6 in that he was convicted of an offence he had not committed, the judgments lacked sufficient reasoning and the arguments of the defence were not properly dealt with.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention?