FIRST SECTION

Application no. 22574/08 Janek KASHLEV against Estonia lodged on 5 May 2008

STATEMENT OF FACTS

The applicant, Mr Janek Kashlev , is a stateless person who was born in 1987 and lives in Tallinn . He was represented before the Court by Mr A. Repnau , a lawyer practising in Tallinn .

The circumstances of the case

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

The applicant was charged with causing life threatening health damage. According to the charges he, acting together with J., had repeatedly hit L. against his head on 22 April 2006 at 4.30 a.m. in Harju Street outside a night club. L. had fallen down and had then been repeatedly kicked. He had sustained serious head injuries and permanent health damage.

The criminal proceedings in respect of J. were discontinued after his death on 25 February 2007.

The Harju County Court heard the applicant and nine witnesses and examined a number of other evidence such as a written forensic expert opinion on L. ’ s injuries, telephone metering report concerning the time and location of the applicant ’ s communications, identification reports based on photos and a video recording from a closed circuit television camera near the scene. It also examined the statements of J. given during the preliminary investigation. The court found that the statements of the witnesses were incoherent and there were contradictions in the statements of some witnesses. The witnesses had given different accounts of events as concerned the number of persons who had been on the scene and attacked L. as well as the attackers ’ actions during the scuffle and after L. had fallen down. The court considered that there was only indirect evidence against the applicant and concluded that it could not be established beyond doubt that the applicant had committed the offence he was charged with. By a judgment of 30 April 2007 the County Court acquitted the applicant.

The prosecutor appealed to the Tallinn Court of Appeal. He mainly challenged the assessment of evidence by the County Court.

The Court of Appeal heard the applicant, assisted by a lawyer, and the prosecutor. No witnesses were heard and it does not appear that any requests for summoning witnesses to the Court of Appeal ’ s hearing were made.

The appeal court, based on the case file which also included the record of the first-instance court ’ s hearing, assessed the evidence differently and found that the applicant ’ s guilt was established. It considered that it was not correct to describe the statements of the witnesses as contradicting each other; rather, the attention of the witnesses had been focused on different details and the scope and preciseness of the information contained in their statements varied. The Court of Appeal provided a detailed analysis of evidence in its judgment of 18 September 2007 whereby it convicted the applicant as charged. He was sentenced to five years ’ imprisonment of which term he immediately had to serve two months, the remainder of the sentence being suspended.

The applicant appealed, complaining that the Court of Appeal had not examined any witnesses and had merely relied on the evidence in the case file. He further contended that the appeal court should have resolved any doubts in favour of the accused.

On 14 November 2007 the Supreme Court decided not to examine the applicant ’ s appeal.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the Tallinn Court of Appeal convicted him only on the basis of the case file and no witnesses were examined at the Court of Appeal ’ s hearing.

He further complains that he had no possibility to appeal against the convicting judgment and directly present his arguments to a higher court since the convicting judgment had been made by the Court of Appeal and the Supreme Court decided not to examine his appeal.

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 and 3 (d) of the Convention? In particular, as a matter of fair trial, could the issues determined by the Court of Appeal have been properly examined without summoning the witnesses and hearing evidence from them directly (see, for example, Ekbatani v. Sweden , 26 May 1988, Series A no. 134; Botten v. Norway , 19 February 1996, Reports of Judgments and Decisions 1996 ‑ I; Popovici v. Moldova , nos. 289/04 and 41194/04, 27 November 2007; Igual Coll v. Spain , no. 37496/04, 10 March 2009; Marcos Barrios v. Spain , no. 17122/07 , 21 September 2010 ; García Hernández v. Spain , no. 15256/07 , 16 November 2010)? Was the applicant able to examine witnesses against him, as required by Article 6 § 3 (d) of the Convention? Could he, and was he required to, request summoning witnesses to the Court of Appeal hearing (cf. Băcanu and SC « R » S.A. v. Romania , no. 4411/04, 3 March 2009, and Destrehem v. France , no. 56651/00, 18 May 2004)?