FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 64016/10
by Juri ANDREJEV
against Estonia
The European Court of Human Rights (First Section), sitting on 4 January 2012 as a Chamber composed of:
Anatoly Kovler, President,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 21 October 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Juri Andrejev, is an Estonian national who was born in 1947 and lives in Narva-Jõesuu.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owned a cable television network in Narva-Jõesuu. His activities in connection with the retransmission of programmes of various television channels through his network gave rise to several sets of judicial proceedings.
1. Criminal proceedings against the applicant
In the applicant’s submission, on 1 January 2003 and 27 September 2004 two sets of criminal proceedings were initiated against him, both of them in respect of suspected infringement of rights related to copyright (Article 220 of the Penal Code (Karistusseadustik)). Soon afterwards these proceedings were joined. The prosecutor modified the bill of indictment twice. The third and final bill of indictment, given to the applicant on 26 May 2006, stated that the offence which previously fell under Article 220 of the Penal Code was now to be dealt with under Article 223 § 1 of the Penal Code (unlawful retransmission for commercial purposes). This bill of indictment concerned retransmissions of the television channels ORT, RTR and NTV between 26 May 2003 and 29 September 2005.
On 28 August 2009 the Viru County Court convicted the applicant under Article 223 § 1 of the Penal Code and sentenced him to four months’ imprisonment.
The applicant appealed, arguing that his conviction had been unlawful and that several procedural violations had occurred.
By a judgment of 19 February 2010 the Tartu Court of Appeal upheld the County Court’s judgment in substance but modified the sentence and fined the applicant 15,000 kroons (EEK, approximately 959 euros, (EUR)) instead of the prison sentence given by the lower court.
The applicant filed an appeal with the Supreme Court, mainly challenging the interpretation of the criminal law by the lower courts. He did not raise the issue of the excessive length of the criminal proceedings.
On 19 April 2010 the Supreme Court decided not to examine the appeal. He was informed of this decision by a letter dated 22 April 2010.
2. Other proceedings
In separate criminal proceedings the Viru County Court convicted the applicant on 23 May 2006 of infringement of rights related to copyright (unlawful retransmission of programmes of the television channels PBK and TVC). On 18 October 2006 the Viru Court of Appeal quashed the judgment and acquitted the applicant. The applicant’s subsequent criminal complaints against the public prosecutor and the first-instance judge were dismissed by the Public Prosecutor’s Office. His complaint to the Viru Court of Appeal was rejected on 14 February 2008, because it had not been drawn up by a lawyer as required by law.
Furthermore, it appears that on 29 September and 27 October 2005 police officers endeavoured to conduct a search of the applicant’s residence. There was a dispute between him and the officers and he was taken to the police station. Later he was charged with refusing to comply with lawful orders given by representatives of the State authority. On 6 February 2006, in misdemeanour proceedings, the Narva City Court acquitted the applicant of the charge, finding that he had not committed the offence. In the meantime, on 29 October 2005 the applicant made a criminal complaint against the police officers. The Public Prosecutor’s Office refused to open proceedings. On 18 February 2008 the applicant lodged a complaint with the Viru Court of Appeal. It appears that the complaint was rejected as it had not been drawn up by a lawyer as required by law.
B. Relevant domestic law and practice
By a decision of 30 December 2008, in constitutional review proceedings (case no. 3-4-1-12-08), the Constitutional Review Chamber of the Supreme Court rejected a complaint concerning the length of criminal proceedings, noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case. It held:
“23. If the court comes to the conclusion that [the complainant’s] right to proceedings within a reasonable time has been violated, the court can, in the light of all the circumstances and on the basis of Article 6 § 1 of the Convention, terminate criminal proceedings due to inappropriateness, render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence.”
The above decision of the Supreme Court is more extensively quoted in the case of Malkov v. Estonia (no. 31407/07, § 32, 4 February 2010).
By a judgment of 27 January 2009 the Tartu Court of Appeal found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant’s sentence was reduced accordingly (see Malkov, cited above, § 29).
The Criminal Chamber of the Supreme Court has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings, the defendant’s acquittal or taking the length of proceedings into account in the sentence (judgments of 27 February 2004 (case no. 3-1-1-3-04) and 28 December 2009 (case no. 3‑1‑1-100-09)).
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings.
2.(a) The applicant also complained that he had not been given adequate time and facilities to prepare his defence, that his requests for the removal of the prosecutor and the judge had been dismissed, that witnesses in his favour had not been summoned, that he had been convicted of an offence of which he had already been acquitted, that his conviction had been based on retroactive application of the criminal law, and that the courts had wrongly assessed the evidence and incorrectly interpreted the law. He cited Article 6 §§ 1, 3 (a), (b), (d), Article 7 § 1 and Article 14 of the Convention, Article 4 of Protocol No. 7 and Article 1 of Protocol No. 12.
(b) In respect of the criminal proceedings where the applicant was acquitted on 18 October 2006 by the Viru Court of Appeal, he complained that his conviction by the first-instance court had been unlawful and that the criminal proceedings had lasted several years and had caused damage to his reputation and health. He cited Articles 6 and 7 of the Convention. Lastly, relying on Article 5 of the Convention, the applicant complained that the actions of the police officers on 29 September and 27 October 2005 were unlawful.
THE LAW
1. The applicant complained that the length of the criminal proceedings against him was excessive. He relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The criminal proceedings were initiated, according to the applicant’s submission, on 1 January 2003. They came to an end on 19 April 2010, that is more than seven years later, when the Supreme Court decided not to examine the applicant’s appeal.
The Court has certain doubts as to the starting date of the proceedings. However, it considers that there is no need to establish the exact date of the beginning of the criminal proceedings in the present case as this part of the application has to be declared inadmissible in any event for the reasons set out below.
The Court has to analyse whether the applicant has exhausted the domestic remedies available to him in Estonian law, in accordance with Article 35 § 1 of the Convention. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made, at least in substance, to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V, with further references).
The Court reiterates that an effective remedy for a length-of-proceedings complaint should either be capable of expediting pending proceedings or should provide the litigant with adequate redress for delays that have already occurred (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002‑VIII, and Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006‑V). In respect of criminal proceedings, possible means of providing redress may be reduction of the sentence, discontinuation of the proceedings, or an award of compensation (see Cocchiarella, cited above, loc. cit.; Weisert v. Germany (dec.), no. 14374/03, 3 April 2007; Ugilt Hansen v. Denmark (dec.), 11968/04, 26 June 2006; and Delanghe v. Belgium (dec.), no. 49716/99, 18 September 2001, all with further references).
The Court therefore has to examine whether the applicant had at his disposal a remedy which met those requirements. It notes that the Supreme Court, in its decision of 30 December 2008 (case no. 3-4-1-12-08), held that a length-of-proceedings complaint could be raised before a court examining a criminal case and the latter, finding that a defendant’s right to proceedings within a reasonable time had been violated, could terminate the criminal proceedings, acquit the defendant or take the length of proceedings into account when passing sentence. Furthermore, the criminal courts’ case-law demonstrates that defendants’ sentences have been reduced in practice where a violation of the right to a fair trial within a reasonable time has been found (see Relevant domestic law and practice, and Malkov, cited above, where the Court was satisfied that the applicant had lost victim status in respect of his length-of-proceedings complaint after an Estonian Court of Appeal had acknowledged a breach of Article 6 § 1 of the Convention and reduced his sentence in an express and measurable manner).
However, the Court notes that in the present case the applicant has failed to show that he in any way contested the length of the proceedings before the domestic courts. Nor has he cited any special circumstances which could absolve him from the obligation to make use of this remedy.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. In respect of the criminal proceedings dealt with above, the applicant also made a number of complaints under Article 6 §§ 1, 3 (a), (b), (d), Article 7 § 1 and Article 14 of the Convention, Article 4 of Protocol No. 7 and Article 1 of Protocol No. 12. In addition, he made several complaints in respect of the proceedings which led to his acquittal on 18 October 2006, as well as in respect of the actions of the police officers on 29 September and 27 October 2005. He cited Articles 5, 6 and 7 of the Convention in the latter context.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenAnatoly Kovler
RegistrarPresident
Full & Egal Universal Law Academy