SECOND SECTION
DECISION
Applications nos. 9044/17 and 48545/17
Peep HAVIK against Estonia
and Andres VAIK against Estonia
The European Court of Human Rights (Second Section), sitting on 12 May 2020 as a Committee composed of:
Egidijus Kūris, President,
Arnfinn Bårdsen,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 20 January 2017 and 4 July 2017 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Peep Havik (“the first applicant”), is an Estonian national who was born in 1963 and lives in Tallinn. He was represented before the Court by Mr M. Tammann, a lawyer practising in Pärnu.
2. The applicant in the second case, Mr Andres Vaik (“the second applicant”), is an Estonian national who was born in 1961 and lives in Tallinn. He was represented before the Court by Mr P. Palmiste, a lawyer practising in Tallinn.
3. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
4. On 20 April 2018 notice of the applicants’ complaints under Article 5 § 3 and the second applicant’s complaint under Article 3 was given to the Government, and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.The first applicant’s remand in custody
(a) Detention pending investigation
6. On 14 April 2014 the police took the first applicant into custody on suspicion of membership of a criminal organisation. Together with three other people, including the second applicant, he had allegedly been second in command to the leader of the organisation and had performed various tasks in the organisation.
7. On 16 April 2014 a preliminary investigation judge of the Harju County Court held a hearing in the presence of the first applicant and the prosecutor, and granted an application by the prosecutor to remand the first applicant in custody. The judge examined the file of the criminal case and considered that there was a reasonable suspicion that he had committed the offence of membership of a criminal organisation. His involvement in the organisation was confirmed by: a body of evidence including reports of secret surveillance reflecting the organisation’s activities and the first applicant’s role and involvement in it over a longer period of time; documentary evidence about different crimes committed by the members of the organisation; and corroborating evidence from other criminal cases (replies to requests for international legal assistance, statements of victims and suspects, search reports, and so on). As to the grounds for remanding the first applicant in custody, the judge noted that, if at liberty, he could continue committing the same offence. That view was supported by the fact that the suspicion concerned long-term membership of a criminal organisation; it was also supported by the systematic and well-ordered nature of the organisation’s activities, the hierarchical relationships within it and the covert communication between members, and other aspects. The risk of the first applicant reoffending was further increased by the fact that he was a suspect in a separate set of criminal proceedings concerning the acquisition of property received through the commission of an offence. Lastly, the court considered that less restrictive measures could not be applied to the applicant. His permanent place of residence, job, family and lack of previous convictions had not stopped him from behaving in a manner which had raised a reasonable suspicion of his being a member of a criminal organisation.
8. On 14 May 2014 the Tallinn Court of Appeal, sitting in a composition of three judges, dismissed an appeal by the first applicant against the decision to remand him in custody. It agreed with the conclusions of the court of first instance, elaborating further on certain pieces of evidence concerning reasonable suspicion and the risk of him reoffending. Regarding the evidence, the court referred to the secret surveillance reports and drew attention to: how the first applicant, together with the second applicant, had made contributions to the organisation’s common funds, had been subordinated to the orders of the leader, and had given commands to lower-ranking members; how he had regularly and directly reported to the leader on the outcomes of various criminal activities and the income received from those activities; and how he had organised financial support for a member of the organisation who had been taken into custody in a foreign country. Concerning the risk of the first applicant reoffending, the court explained that membership of a criminal organisation was, by nature, a “lifestyle crime”. Persons who formed a criminal organisation set the commission of criminal offences and living off the proceeds of crime as their common objective. One surveillance report showed that the organisation in question did not forget its members who had been imprisoned, and continued to support them financially while they served a sentence. Therefore, once they joined the organisation, members did not abandon it, even in situations where they personally had problems with law-enforcement authorities or were isolated from society for a long time. This, in turn, affirmed that short‑term detention or charges relating to a criminal offence were not factors that made a member of the criminal organisation leave the organisation. Therefore, it was reasonable to believe that, if at liberty, the first applicant would continue committing the offence – being a member of the criminal organisation.
9. Subsequently, the Harju County Court examined justifications for the first applicant’s remand in custody on seven occasions during the pre-trial investigation, either of its own motion (on 31 October 2014, 28 November 2014, 19 December 2014 and 19 January 2015) or in response to an application by the first applicant (on 17 June 2014 and 2 September 2014) or in response to a prosecutor’s application to extend his remand in custody (1 October 2014). Each time, a hearing in the presence of the first applicant and his counsel was held. On each occasion the court thoroughly justified the existence of a reasonable suspicion that he had committed the offence in question. At the hearing of 17 June 2014 his counsel agreed that a reasonable suspicion did exist. As to the grounds for remanding the first applicant in custody, the court explained why there was still reason to fear that he could continue to commit the same type of offence if at liberty. In the decisions of 28 November 2014 and 19 January 2015, the Harju County Court reasoned that, considering the first applicant’s position in the hierarchy of the criminal organisation, in addition to the risk of him reoffending, he could start to influence witnesses if released from detention. As to the length of his detention, in the decision of 2 September 2014 and in all the subsequent decisions, the court took into account the scope and complexity of the case and the conduct of the proceedings.
10. Specific nuances of some of the court decisions summarised above concerning the grounds for detention, the use of more lenient measures, and the nature and conduct of the proceedings are highlighted below, without the overlapping contents of the decisions being repeated.
11. In the decision of 17 June 2014, the Harju County Court dismissed an application by the first applicant for his detention to be replaced with electronic monitoring. The risk of him reoffending could not be excluded with electronic monitoring, because it would only restrict his freedom of movement, and the offence in question could also be committed while such movement was restricted.
12. In its decision of 2 September 2014, the Harju County Court dismissed an application by the first applicant for his remand in custody to be replaced with a ban on his leaving his place of residence. Relying on the file of the criminal case, the judge observed, inter alia, that the criminal case was large-scale and that the State had not been passive in conducting the criminal proceedings.
13. On 1 October 2014 the Harju County Court granted an application by the prosecutor to extend the first applicant’s remand in custody beyond the term of six months. At the hearing, he conceded that the criminal case was indeed large-scale. Having examined the course of the preliminary investigation, the court agreed that the criminal case was particularly complex and large in scope, and that the first applicant’s continued detention beyond the term of six months was therefore justified. The case concerned twenty-five natural persons and two legal entities. The proceedings aimed to collect and investigate evidence regarding the formation, development, membership, structure and management of a criminal organisation, and the hierarchy of relationships within it, as well as various offences committed in the name of or by the organisation, or in the organisation’s interests. The case file proved that a large number of investigative measures had continually been taken, and no unjustified delays had occurred during the pre-trial investigation. The court also observed that charges concerning three individuals whose whereabouts were unknown or who were serving a sentence in a foreign country had been severed from the main case, in order to ensure that it was processed swiftly and effectively.
(b) Detention during judicial proceedings
14. By a decision of 19 March 2015, the Harju County Court committed the first applicant for trial, together with the second applicant, twenty-four other people and two legal entities. The first applicant was accused of management of a criminal organisation and extortion by a criminal organisation. Before giving the decision, the court held two preliminary hearings on 2 and 19 March 2015, where his remand in custody was examined, among other matters. The court kept the first applicant and four other accused in custody. It referred to the persistence of a reasonable suspicion regarding the first applicant’s role in the criminal organisation, and the continued risk that he would carry on associating with the criminal organisation.
15. Subsequently, the reasons for remanding the first applicant in custody were examined on six occasions: in decisions of 18 September 2015, 14 March 2016 (considered on appeal in a decision of 14 April 2016), 6 September 2016 (considered on appeal in a decision of 4 October 2016), 6 January 2017 (considered on appeal in a decision of 10 March 2017), 17 March 2017 (considered on appeal in a decision of 19 April 2017) and 19 September 2017, either of the domestic court’s own motion or following an application by the first applicant for his detention to be replaced with electronic surveillance. The Harju County Court always noted that there was still a reasonable suspicion that the first applicant had committed the offences he was accused of. No new facts had emerged that could change that conclusion. As for the grounds for remanding the first applicant in custody, the court considered that he had belonged to the criminal organisation in question for a long time and had been in a position of authority, leading the northern Estonian substructure of the organisation. It referred to membership of a criminal organisation being a so-called “lifestyle crime” which members would not forego even if they were targeted by law-enforcement authorities. On that basis, the court considered that the first applicant could continue committing offences if at liberty. That likelihood was further increased by the fact that in the meantime he had been committed for trial in separate criminal proceedings, as an accomplice in the unlawful handling of large quantities of narcotic substances. The court also analysed the length and conduct of the criminal proceedings (except in the decision of 6 January 2017, which concerned electronic surveillance) and criticised the conduct of the first and second applicants’ representatives in those proceedings.
16. Specific nuances of some of the relevant court decisions summarised above are highlighted below, without the overlapping contents of those decisions being repeated.
17. In its decision of 18 September 2015, the Harju County Court considered, inter alia, that in addition to there being a risk of the first applicant reoffending, he could also begin to influence witnesses and co‑defendants who were at liberty. This risk derived from his presumed leadership position in the organisation and the fact that witnesses and co‑defendants had not yet given evidence in court; the risk of the first applicant influencing witnesses and co-defendants was also raised in the decisions of 14 March 2016, 6 September 2016 and 17 March 2017. As to the speed of the examination of the criminal case, the court observed that the pre-trial investigation and the court proceedings had taken the interference with the first applicant’s right to liberty into account and had been conducted swiftly, considering the scope and complexity of the case. It also noted that the court could have begun hearing the case two months earlier, but that had not suited the representatives in the case.
18. In its decision of 14 March 2016, the Harju County Court again noted the particular complexity and scope of the case, which justified the first applicant’s extended detention. In relation to the course of the proceedings, the court exposed in detail how since September 2015 the representatives had employed a strategy to delay the proceedings by submitting various applications and appeals. The court also explained that although the long period of detention constituted a severe restriction of the first applicant’s rights, there was a strong public interest in protecting public security; the existence and operation of criminal organisations undermined such security more than the commission of isolated offences. Given how big a threat organised crime was, the extended detention of people accused of it was justified; the same reason was repeated in the decisions of 6 September 2016 and 17 March 2017. The first applicant appealed against that decision, but on 14 April 2016 the Court of Appeal upheld it, and on 28 June 2016 the Supreme Court decided not to examine an appeal against the decision of the Court of Appeal.
19. In its decision of 6 September 2016, the Harju County Court considered that the first applicant’s continued detention was justified. The court noted that by that time he had also been accused of a drug crime, and this fact did not diminish but rather increased the likelihood of him reoffending. On 4 October 2016 the Court of Appeal upheld that decision, endorsing the reasons of the first‑instance court and adding that the first applicant’s counsel had in no way criticised the authorities as regards the conduct of the proceedings. On 12 December 2016 the Supreme Court decided not to examine an appeal against the Court of Appeal’s decision.
20. In its decision of 17 March 2017, the Harju County Court analysed the length of the proceedings by reference to the criteria developed in the case‑law of the Court. Most importantly, the court examined closely the conduct of the parties and the authorities. It firstly referred to its earlier findings regarding the delaying tactics of the representatives. It further added a detailed explanation as to how the proceedings had continued after 13 October 2016 when unexpected changes to the composition of the panel had had to be made and adjudication of the case had had to restart. The court also explained in detail its decision not to continue with the direct examination of all the evidence that had been examined before the change in the composition of the panel, and to proceed with examining the evidence that had not yet been presented (see, more specifically, paragraphs 54–57 below). In conclusion, the court considered that on 17 March 2017 the proceedings had not been so excessively long as to necessitate the first applicant’s release. On 19 April 2017 the Court of Appeal dismissed an appeal by the first applicant against that decision. On 24 May 2017 the Supreme Court decided not to examine an appeal against the Court of Appeal’s decision.
21. On 13 October 2017 the Harju County Court convicted the first applicant – who had entered into a plea bargain (kokkuleppemenetlus) with the prosecutor – of membership of a criminal organisation and extortion by a criminal organisation. The court sentenced him to four years and six months’ imprisonment, and noted that he must be considered to have started serving his sentence from the time he had been taken into police custody on 14 April 2014.The second applicant’s remand in custody
(a) Detention pending investigation
22. The second applicant has suffered from partial spastic tetraparesis since an accident in 1992, and moves around in a wheelchair.
23. On 14 April 2014 the police took the second applicant into custody on suspicion of management of a criminal organisation, money laundering, forgery of documents, and aiding a tax offence. He had allegedly directed the southern Estonian substructure of the same criminal organisation as that featured in the case of the first applicant.
24. On 14 April 2014 a preliminary investigation judge of the Tartu County Court held a hearing in the presence of the second applicant and his counsel, and allowed an application by the prosecutor to remand the second applicant in custody. The judge examined the file of the criminal case, as well as that of another criminal case concerning the organisation’s operations in other regions (in which the first applicant was a suspect). The judge considered that there was a reasonable suspicion that the second applicant had committed the offence of management of a criminal organisation and the other offences he was suspected of. His involvement in the organisation was confirmed by evidence which included reports of secret surveillance reflecting the organisation’s activities and his role and involvement in it over a longer period of time, documentary evidence, an expert assessment, records of searches, and examinations of items of evidence. As to the grounds for remanding the second applicant in custody, the judge noted that, if at liberty, he could continue committing offences. Such a conclusion was supported by the manner in which he had acted over a long period of time, his position within the hierarchy of the organisation, and his standard of living. The evidence showed that the second applicant’s habitual standard of living did not conform to his official income, which consisted of a disability allowance; he must therefore have gained his income from criminal activities, and could continue doing so to maintain his habitual standard of living.
The judge took note of the second applicant’s disability and the fact that he could only move around in a wheelchair. Even in view of those facts, less restrictive measures could not prevent him reoffending. His disability had not compromised or undermined his allegedly high‑ranking position in the criminal environment he inhabited. Tartu Prison had all the necessary facilities for detaining people who were in wheelchairs, and had also had prior experience of accommodating people with such disabilities. The second applicant had previously managed his life on his own; he had not had a permanent carer. The court also took note of his need to take certain types of medication. It explained that the prison had a medical section and employed medical personnel; it could therefore guarantee the medical assistance which he needed.
25. Subsequently, Tartu County Court and Harju County Court examined the second applicant’s remand in custody during the pre-trial investigation on six occasions: in decisions of 30 April 2014 and 25 November 2014 (considered on appeal in a decision of 6 January 2015) concerning an application by the second applicant for his detention to be replaced with electronic surveillance; in a decision of 3 October 2014 regarding the extension of his remand in custody beyond six months (considered on appeal in a decision of 31 October 2014); and of the courts’ own motion in decisions of 3 November 2014, 2 December 2014 and 29 December 2014. Each time, a hearing was held in the presence of the second applicant and his counsel. On all occasions, with references to particular pieces of evidence, the decisions contained detailed findings regarding the persistence of a reasonable suspicion that the second applicant had committed the offences he was suspected of. As grounds for detention, the courts relied primarily on the risk of him reoffending. In that regard, they referred, inter alia, to the second applicant’s membership of a criminal organisation being a so-called “lifestyle crime” which guaranteed a certain income and would not cease, even if a person was under criminal investigation. It was considered that, if at liberty, he might continue to direct the substructure of the criminal organisation. In their reasoning, the courts referred to the nature of criminal organisations in general, the functioning of the particular organisation under investigation according to the evidence on the file, and the second applicant’s position in the organisation. They also referred to his previous lifestyle, his long-term activities as the manager of the substructure of the criminal organisation, his previous convictions, and his social environment, which consisted mainly of people who were prone to committing offences. In decisions where the courts refused to replace his detention with electronic surveillance, they reached the conclusion that electronic surveillance would not prevent the second applicant from continuing to commit the types of offences he was suspected of (leading a criminal structure, giving instructions, preparing plans, allocating tasks, and so on), as he could do this without leaving home.
The decisions also refuted the second applicant’s arguments that he could not be remanded in custody owing to his disability, and that the prisons could not offer the care he needed. The courts noted that medical treatment and necessary medication were available at the prison, and that he had been guaranteed care which was adapted to his state of health.
As to the length of his detention, the courts noted (except in the decisions of 30 April 2014 and 25 November 2015, which concerned electronic surveillance) the particular complexity and scope of the criminal case, and found that the investigating authorities had not been passive in conducting the proceedings and that there had been no delays in taking relevant investigative steps.
26. Specific nuances of some of the relevant court decisions summarised above are highlighted below, without the overlapping contents of the decisions being repeated.
27. In its decision of 30 April 2014, when dismissing the second applicant’s application to have his detention replaced with electronic surveillance, the Tartu County Court took into account his disability, medical needs and specific grievances as to certain aspects of his living conditions in Tartu Prison. It observed that, according to the second applicant’s statements at the hearing, upon his arrival at the prison, doctors had checked his health, taken samples from him and prescribed treatment; round-the-clock supervision was ensured and he could use a call button whenever he needed to. Additionally, the administration of Tartu Prison had proposed to transfer him to even better conditions in the newer Viru Prison. The judge concluded again that the second applicant’s disability and use of a wheelchair could not preclude his being remanded in custody.
28. Furthermore, by a decision of 3 October 2014, the Harju County Court granted an application by the prosecutor to extend the second applicant’s remand in custody beyond the term of six months. By that time, the existence of a reasonable suspicion that he had committed a criminal offence also included the offence of human trafficking. It was suspected that since 2007 at least the second applicant, together with another suspect, had forced M.T. to work for unlimited hours without any remuneration, and had verbally and physically abused him for failing to comply with the second applicant’s orders. Regarding the grounds for remanding the second applicant in custody, in addition to the risk of him reoffending, the court considered it possible that he could obstruct the administration of justice, in particular by influencing witnesses. The court reached that conclusion on the basis of his violence towards the victim M.T., his authority and power in the criminal milieu he inhabited, and the fact that he had presented some forged documents to the authorities to exonerate himself from liability.
29. On 3 November 2014, in response to an argument by the second applicant’s counsel that his state of health required his release, the Harju County Court noted that his disability was not such as to preclude his detention. Evidence presented to the courts showed that the disability had not prevented him from making long journeys in conditions that were not suited to disabled persons with reduced mobility, or from using physical violence against an able‑bodied adult. The court also considered that, given the second applicant’s previous patterns of behaviour and convictions, and his mindset, criminal authority and power, he was able to make others succumb to his will, and thus it could be considered that there was a risk that he would influence witnesses if at liberty. Those arguments were also repeated to a large extent in the Harju County Court decisions of 2 December 2014 and 29 December 2014.
30. On 6 January 2015 the Tallinn Court of Appeal upheld the Harju County Court’s decision of 25 November 2014. The court did not agree with the argument by the second applicant’s counsel that he should be released on health grounds. His counsel had submitted to the court a private letter from a prison doctor addressed to him. The doctor had written that the second applicant needed rehabilitation therapy (massage, electric therapy, water therapy) which could not be provided in the prison, and that the lack of such therapy could reduce the likelihood of his survival in prison. The court considered that the letter could not constitute an official and objective assessment of whether a person was capable of being in prison. The court relied on explanations from the central prison administration about the nature of that letter and healthcare services in prison. The court also emphasised that, under relevant legal acts, medical assistance was guaranteed to detainees. If a person needed treatment which could not be provided in prison, then that person could be referred to a provider of specialist medical care. As to specific rehabilitation therapy, the prison authorities had to assess whether there were alternatives which were suitable for prison conditions, or whether the second applicant had to be referred to an outside provider for that therapy. The court further noted that the prison authorities had, on their own initiative, transferred the second applicant to a prison with the most suitable conditions for people with disabilities. He was guaranteed round-the-clock medical supervision, necessary medication, and access to medical specialists following a referral by a doctor. He had a bed which had been specially adapted for his needs, and sanitary facilities in his cell which were adapted for the needs of people with disabilities. The Supreme Court decided not to examine an appeal by the second applicant against the decision of the Tallinn Court of Appeal.
(b) Detention during judicial proceedings
31. By a decision of 19 March 2015, the Harju County Court committed the second applicant for trial and decided to keep him in custody. He was accused of management of a criminal organisation, human trafficking, money laundering, forgery of a document and use of such a document. Before giving the decision, the court held two preliminary hearings. At the hearing of 2 March 2015 the second applicant’s counsel submitted an application – which had already been noted in the second applicant’s defence statement – for a forensic medical examination of the second applicant, in order to ascertain whether his state of health would enable him to attend court hearings. At the hearing of 19 March 2015 the second applicant’s continued remand in custody was examined. In its decision, the court in essence referred to the persistence of a reasonable suspicion that he had committed the offences he was accused of, and the risk that he could reoffend.
32. Subsequently, the second applicant’s remand in custody was examined on seven occasions during the judicial proceedings: at the hearing of 18 June 2015, in the decisions of 18 September 2015 (considered on appeal in a decision of 5 November 2015), 14 March 2016 (considered on appeal in a decision of 20 April 2016), 6 September 2016 (considered on appeal in a decision of 4 October 2016), 6 January 2017 (considered on appeal in a decision of 8 February 2017), 17 March 2017 (considered on appeal in a decision of 17 April 2017), and in the decision of 19 September 2017 ordering his release. Each time, a hearing in the presence of the second applicant and his counsel was held before the Harju County Court rendered its decision. In each decision, courts confirmed the existence of a reasonable suspicion that the second applicant had committed offences, and referred to the risk that he would reoffend and influence witnesses. The courts also addressed and refuted his arguments to the effect that he should be released because: his health precluded detention; the detention facilities were not able to provide him with the requisite medical care; and the length of his detention had become excessive, given his disability. The Harju County Court ordered three forensic medical assessments of the second applicant’s medical condition and his ability to participate in hearings and serve a custodial sentence. Independent forensic medical experts drew up three reports on 1 June 2015, 21 July 2016 and 11 May 2017 and gave oral evidence in court. With regard to the length of his detention, the courts analysed the overall course of the proceedings, noted the remarkable scope and complexity of the case, and found that there had been no considerable delays in the conduct of the proceedings.
33. Specific nuances of some of the court decisions summarised above, as well as the forensic medical reports, are highlighted below, without the overlapping contents of the court decisions being repeated.
34. Before delivering the forensic medical report on 1 June 2015, the relevant panel of two experts examined the second applicant in person and inspected his medical records, along with various other documents. They established that his health would allow him to participate in court hearings if he could be in a wheelchair and could be guaranteed breaks whenever necessary. They also concluded that his health would allow him to serve a custodial sentence if the detention facility provided him with assistance with hygiene procedures, dressing and moving around.
35. At the hearing of 11 June 2015 a special medical bed was brought into the court room for the second applicant, who initially claimed that using it was degrading for him, but later agreed to the bed being kept in the court room.
36. At the hearing of 18 June 2015 the court decided not to replace detention with house arrest as the second applicant had requested. The court heard evidence from the two experts who had prepared the expert report, and from a staff physiotherapist at Tallinn Prison where the second applicant had been detained since March 2015. The second applicant and his counsel put questions to them, as did the prosecutor. The experts explained that, in view of the second applicant’s diagnoses, his condition would not be very different if he were at liberty, and there was no suspicion that he had not received sufficient treatment. The prison physiotherapist explained that the service provided by a physiotherapist comprised the assessment of a patient, the drafting of a personal training programme for active exercise at home, and counselling. In addition, an activity therapist assessed daily activities, assisted the patient in selecting medical devices and in making adjustments to his or her place of residence, and advised him or her on how to exercise better. Use of those services was based on a patient’s motivation and participation. However, the prison physiotherapist noted that the second applicant’s overall attitude towards those services had been negative. She further explained that in all of the prisons he had had a single-occupancy cell with a medical bed, and adjustments had been made so that he could, for instance, get from his wheelchair to the bed and the toilet. He had been offered an assistant, but had refused to have one. The physiotherapist lastly pointed out that, according to the second applicant’s medical records, in 2012 he had been given instructions for exercising on his own. She confirmed that those exercises could be done in a single-occupancy prison cell.
37. In its decision of 18 September 2015, the Harju County Court considered that the second applicant’s health did not preclude his detention. It relied on the earlier expert assessment, the legal obligations on prison authorities to guarantee detainees adequate medical services, and, as to the exact services provided to the applicant, the evidence examined at the hearing on 16 September 2015. According to that evidence, in July and August a rehabilitation nurse had visited the applicant. At first, the second applicant had not been willing to cooperate, arguing that he had been living with his disability for so long that he knew what exercises to do, but finally he had agreed to practise certain exercises with the nurse. The evidence also showed that, in addition to a medical bed and a modified toilet which had already been available to the second applicant, he had received a pedal exerciser for leg exercises, equipment for footbaths, and additional food. As to the duration of his detention, the court analysed the overall course of the proceedings and pointed to the fact that it had been ready to hear the case in April. However, owing to the busy schedule of the representatives, the hearings had had to be postponed until June.
38. The second applicant appealed against the decision of the Harju County Court, and in its decision of 5 November 2015, with respect to his conditions in prison, the Tallinn Court of Appeal stated that, at the material time, he had been detained in a cell which had been adjusted for persons with disabilities. It measured 14 square metres and a person could move around it in a wheelchair. The door of the cell had been adjusted to the width of the wheelchair. A bench had been removed from the cell so as to allow the second applicant to eat at the table. The bunk bed had been removed and a special medical bed had been installed. The toilet in the cell had been adapted so that a person in a wheelchair could use it – the doorway had been widened and the floor had been levelled off, and special safety armrests had been installed. The shower in the prison cell was equipped with a special seat for disabled persons. The second applicant’s personal items, the sink and necessary electric appliances were within easy reach and could be used while he was in a wheelchair. The television set in the cell could be used with a remote control. Regarding the outdoor exercise yard, the second applicant could independently move from the cell to the yard; if necessary, he was helped with crossing thresholds. The smooth surface of the yard allowed easy movement in a wheelchair. The court also noted that the second applicant had not made any complaints or requests to the prison authorities regarding any of his specific conditions of detention. On 15 December 2016 the Supreme Court decided not to examine an appeal by the second applicant against the decision of the Tallinn Court of Appeal.
39. By a decision of 14 March 2016, the Harju County Court pointed out that applicant had been given equipment for exercising and had also practised exercises under the guidance of a nurse. It appeared that he had demanded certain forms of rehabilitation therapy which did not involve his active participation (for example massage), while he had made minimal effort to perform the exercises which the specialists had suggested to him. His diet had been adjusted. In relation to the length of the proceedings, the court exposed in detail the strategy which the representatives had employed since September 2015 to delay the proceedings – submitting various applications and appeals. The court also referred to the public interest in protecting public security – security which the existence and operation of criminal organisations undermined – as one of the special circumstances that justified the second applicant’s extended detention (for the same reasoning, see the case of the first applicant in 18 above; public interest was also referred to in the subsequent decisions of 6 September 2016 and 17 March 2017 concerning the second applicant). The second applicant appealed against that decision, but on 20 April 2016 the Tallinn Court of Appeal upheld it, and on 6 June 2016 the Supreme Court decided not to examine an appeal by the second applicant against the decision of the Court of Appeal.
40. The second forensic medical report was delivered on 21 July 2016. It concluded that the second applicant would be able to attend hearings if he was in a wheelchair and if breaks were provided during the hearings. The relevant experts also found that he would be able to serve a prison sentence provided that he received a balanced diet, had regular consultations with a neurologist, and adhered to a treatment and rehabilitation programme prepared by a neurologist and a doctor specialising in rehabilitation.
41. The Harju County Court relied on that report in its decision of 6 September 2016 (as upheld by the Tallinn Court of Appeal in its decision of 4 October 2016), in which it considered that the continued detention of the second applicant was justified. The Harju County Count found, and the Tallinn Court of Appeal agreed, that in addition to risk of him reoffending and influencing witnesses, a risk of him absconding had emerged, which additionally justified the continued detention. The court made that finding in the view of the state of the proceedings, considering that several of the co‑accused, including the leader of the criminal organisation, had already opted for plea bargains, had been convicted and had received quite severe sentences. On 12 December 2016 the Supreme Court decided not to examine an appeal by the second applicant against the decision of the Court of Appeal.
42. In its decision of 17 March 2017, the Harju County Court repeated that the risk of the second applicant reoffending and influencing witnesses served as grounds for detaining him, noting that at that stage in the proceedings no witnesses had been heard. It also explained in detail how the proceedings had continued after 13 October 2016, when unexpected changes to the composition of the panel of judges had had to be made and adjudication of the case had had to restart (see paragraphs 20 above and paragraphs 54-57 below). On 17 April 2017 the Court of Appeal dismissed an appeal by the second applicant against that decision. On 5 June 2017 the Supreme Court decided not to examine an appeal by the second applicant against the Court of Appeal’s decision.
43. On 11 May 2017 the third forensic medical report was delivered. Before preparing the report, the expert in question had examined the second applicant’s medical files and examined him in person. The expert concluded that his medical condition did not preclude his attendance at court hearings, as long as breaks were afforded to him to alleviate the pain which he might experience from being in a seated position for a long time. The expert also found that he would be able to serve a prison sentence, as long as his need for additional assistance was taken into account.
44. The experts who had drawn up the previous forensic medical reports were heard at the Harju County Court on 30-31 May 2017, where the second applicant and his counsel could question them.
45. On 19 September 2017 the Harju County Court terminated the second applicant’s remand in custody and ordered his release. By that time, he had been detained in three different prisons – Tallinn Prison, Tartu Prison and Viru Prison. The court repeated that there was still a reasonable suspicion that he had committed an offence, and that in principle it would still be justified to remand him in custody. However, given the time which he had already spent in custody, the following considerations related to his health outweighed the reasons for remanding him in custody: the greater possibility of maintaining his physical health if he was at liberty; and the desirability of avoiding transfers between the prison where he was detained and the prison at the courthouse which would result in his physical exhaustion and consequently the need to hold shorter court hearings.
46. On 13 October 2017 the Harju County Court convicted the second applicant – who had entered into a plea bargain with the prosecutor – of membership of a criminal organisation, human trafficking, money laundering, forgery of a document and use of a forged document. The court sentenced him to three years, five months and seven days’ imprisonment and, as the time he had spent in detention was taken into account, it was considered that he had served his sentence.Conduct of the criminal proceedings during the applicants’ remand in custody
(a) Pre-trial investigation
47. On 11 January 2013 the Central Criminal Police initiated criminal proceedings under Article 255 § 1 of the Penal Code.
48. Both applicants were detained on 14 April 2014.
49. On 18 September 2014 the criminal cases of the first applicant and the second applicant were joined. Five more criminal cases concerning persons who were suspected of belonging to the criminal organisation in question were joined to the criminal case. The joint criminal case involved twenty-five natural persons and two legal persons. A total of sixty-two volumes of material were collected during the pre-trial proceedings.
50. On 28 January 2015 the prosecutor’s office sent the statement of charges concerning twenty-eight persons, including the applicants, to the Harju County Court.
(b) Judicial proceedings
51. On 19 March 2015 the Harju County Court committed the applicants for trial, together with twenty-six other persons. The applicants’ remand in custody continued. Before that, in February and at the beginning of March the court dealt with applications regarding legal aid and held two preliminary hearings, and representatives submitted defence statements. By a decision of 19 March 2015, taking into account the wishes of the representatives of all the accused, the court also set a schedule of hearings for the period from June 2015 to June 2016. The court proposed hearing dates for April 2015, but the defendants’ representatives had no time before June. In June 2015 the court also proposed hearing dates for the end of June, but the representatives could not accept hearing dates before September 2015.
52. On 10 September 2015 the second applicant suddenly felt unwell and the hearing had to be adjourned. On the morning of 11 September 2015 he fell out of his wheelchair and was taken for a medical check. The hearing could not take place.
53. By a decision of 4 August 2016, the Harju County Court separated the criminal cases of thirteen of the accused from the main set of criminal proceedings, as they had entered into plea bargains.
54. It appears that at the hearing of 5 October 2016 at the Harju County Court one of the two lay judges hearing the case together with a professional judge fell ill and had to be replaced with a new lay judge. As a result, after 13 October 2016 the court returned all the evidence that had already been examined to the prosecutor’s office and the adjudication of the case had to restart with respect to those accused who had not entered into plea bargains.
55. According to the explanation given by the Harju County Court in its decisions of 17 March 2017 (see paragraphs 20 and 42 above), the lay judge who had been replaced had in fact been a reserve lay judge himself. He had been appointed at the very beginning of the judicial proceedings to replace a lay judge who had been a member of the original composition of the court but who had also become ill immediately before the first hearing. At that time the court had decided not to appoint a new reserve lay judge. There was no legal obligation to do so. Moreover, the court had been prudent to start examining the case and not adjourn the first hearing, which all the accused and their representatives had attended.
56. At the hearing of 20 October 2016, relying on Article 296 § 3 of the Code of Criminal Procedure (see paragraph 62 below), the prosecutor proposed that the evidence that had already been presented to and examined by the previous panel of judges before 13 October 2016 should not be presented once again. That evidence included documentary evidence and recordings obtained by secret surveillance, together with written reports of those recordings. The judge at the time also considered that the change of only one member of the panel did not necessitate the re-examination of all that evidence, evidence which the new lay judge could examine either on the basis of the transcripts or subsequently during the deliberations. The applicants’ representatives firmly objected to that proposal. This meant that the prosecution had to start presenting all the evidence, namely reports, audio‑recordings and so on, to the court and the representatives once again.
57. Nonetheless, on 10 February 2017 the Harju County Court took a decision to continue with the examination of evidence in respect of the remaining accused from the point in the proceedings where the lay judge had had to be replaced. It ordered the prosecutor’s office to return to it the evidence that had previously been directly examined by the court. The court did so out of concern for the accused’s right to a trial within a reasonable time, and considering that their defence rights would not be affected, given the nature of the evidence in question. That evidence had not been oral evidence given in court, and the new lay judge could examine it on the basis of the transcripts. In support of its decision, the court cited the Court’s judgment in the case of Škaro v. Croatia (no. 6962/13, 6 December 2016). The Tallinn Court of Appeal refused to examine an appeal by the applicants’ representatives against that specific procedural decision, explaining that the decision could only be challenged later in an appeal against the Harju County Court’s judgment in the case, which had not yet been issued. The Supreme Court refused leave to appeal.
58. By a decision of 17 March 2017 the Harju County Court separated the criminal cases of another two accused from the main set of criminal proceedings.
59. During the trial proceedings between 19 March 2015 and 13 October 2017, hearings took place in March 2015 (two days; see also paragraphs 1717 and 37 above), June 2015 (five days; the court also proposed hearing dates for the end of June, but the representatives were unable to accept dates before September), September 2015 (ten days), October 2015 (fourteen days), December 2015 (six days), February 2016 (two days), March 2016 (nine days), April (twelve days), May 2016 (three days), June 2016 (one day), August 2016 (two days), October 2016 (six days), November 2016 (ten days), December 2016 (seven days), January 2017 (one day), March 2017 (six days), April 2017 (five days), May 2017 (ten days), June 2017 (one day) and September 2015 (six days).
60. By a judgment of 13 October 2017, the court of first instance convicted the applicants, along with the five remaining accused in the same criminal proceedings.Relevant domestic law
61. Article 127 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides that a preventive measure must be chosen after taking into account: the probability of a person absconding from criminal proceedings or the execution of a court judgment; whether criminal offences will continue to be committed; whether evidence may be destroyed, altered or falsified; the severity of the relevant punishment; the personality of a suspect, accused or convicted offender, and his or her state of health and marital status; and other circumstances relevant to the application of preventive measures.
62. Article 296 of the Code of Criminal Procedure, which concerns the presentation of evidence (tõendi avaldamine), reads as follows:
Article 296: Submission of records of data, physical evidence or documents as evidence
“(1) A party to court proceedings may ask a court to accept records of data, physical evidence or documents as evidence, taking into account the restrictions provided for in Articles 289-1, 2901, 291, 292 and 294 of this Code.
...
(3) If the court accepts the evidence specified in subparagraph 1, the party to the court proceedings which has submitted the evidence shall read it out in full or in part or present it in another way, taking into account the nature of the specific [piece of] evidence and the purpose of using it. Evidence does not have to be presented if the parties agree to this, if the court finds that this is not contrary to the principle of public access to court sessions.”
COMPLAINTS
63. The applicants complained under Article 5 § 3 of the Convention that their detention on remand had been excessively long.
64. The second applicant further complained that his detention on remand and transfers between different prisons had violated Article 3 of the Convention, as the conditions had not been adapted for a person in a wheelchair and sufficient (medical) aid had not been available.
THE LAW
65. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Alleged violation of Article 5 § 3 of the Convention
66. Article 5 § 3 of the Convention, in so far as relevant, provides as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”Abuse of the right of application
67. The Government considered that the applicants had abused their right of application, as they had submitted to the Court only particular pieces of information concerning the extension and review of their remand in custody. That had given the impression that the grounds for their detention had not been regularly and thoroughly reviewed by the domestic courts, and that the State was responsible for the excessive length of the proceedings. Additionally, the second applicant had omitted to present information proving that during the pre-trial proceedings and the trial itself the permissibility of his continued detention had been analysed in the light of his health condition, among other things.
68. The applicants did not comment on that objection.
69. The Court reiterates that incomplete and therefore misleading information may indeed amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and a sufficient explanation is not given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; see also Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
70. However, in the present case, the Court considers that at the time when it took its decision to give notice of the applications to the Government, it was sufficiently informed about the relevant circumstances of the case, on the basis of the material submitted to it by the applicants.
71. It follows that the preliminary objection of the Government concerning abuse of the right of application must be dismissed.Manifestly ill-founded
(a) The parties’ submissions
(i) The Government
72. The Government submitted that the period of detention to be taken into account was three years, five months and thirty days in the case of the first applicant (counting from 14 April 2014, when the police had taken him into custody, until his conviction on 13 October 2017) and three years, five months and six days in the case of the second applicant (counting from 14 April 2014, when he had been remanded in custody, until his release on 19 September 2017).
73. Both applicants’ detention had been reviewed on several occasions by the first and second-instance courts and by the Supreme Court when it had denied leave to appeal. The relevant decisions had been delivered after hearings had been held; they contained substantive and comprehensive reasoning which referred to specific facts of the case rather than using general and abstract arguments or relying on identical or stereotypical grounds for detention. The Government admitted that although there were some repetitive elements in the decisions – for example, reasonable suspicion as a precondition for the detention persisted throughout the proceedings – in general, the courts’ reasoning had evolved to reflect the state of the investigation and the passing of time.
74. The reasonable suspicion that the applicants had been members of a criminal organisation which stretched across Estonia (as well as the perpetrators of some other offences) had been based on various specific pieces of evidence – surveillance reports, replies to requests for international legal assistance, statements of victims and suspects, search reports, and so on. The persistence of such a suspicion had been affirmed throughout the proceedings, and as the proceedings had carried on the domestic courts had confined themselves to establishing that the suspicion had not disappeared.
75. The Government stressed that the applicants’ detention had never been justified by mere reference to the severity of the offences in question or the potential sentences. Rather, the courts had considered that the ground for remanding them in custody was the fear that, if at liberty, they would continue committing similar criminal offences to the ones which they were suspected and accused of. According to the courts’ reasoning, this fear was based on the hitherto systematic nature of the criminal activities, their long duration, and the hierarchical relations between the persons involved and the conspiratorial nature of their communications. The offence in question was considered a so-called “lifestyle crime”, and the fact that a person was merely suspected of an offence would not stop him from continuing to commit such crimes.
76. The Government also pointed out that the domestic courts had not relied on only one ground for detention. During the course of the proceedings, the courts had also noted that there was a risk of the applicants influencing witnesses and the co-defendants who were at liberty. With respect to the first applicant, such a risk had been considered to be particularly high, on account of his position within the criminal hierarchy. With respect to the second applicant, it had been his authority in the criminal world and the suspicion that he had forged documents and beaten a victim of human trafficking that had made the risk of him influencing witnesses more credible. Later in the proceedings, in 2016, the domestic courts had also identified that there was a risk of the second applicant absconding. The Government submitted that, against that background, the grounds for detention had become stronger, not weaker during the course of the proceedings.
77. The Government further noted that the domestic courts had analysed the possibility of replacing the applicants’ detention with a more lenient measure, primarily electronic surveillance. However, owing to the limitations of electronic surveillance – it did not extend to mobile phones and other means of communication – it had been found that the measure could not prevent the applicants from arranging the activities of a criminal organisation, and thus could not prevent the risk of them reoffending. Since, given the above reasons, replacing the measure of remand in custody had been excluded as an option, it had been unnecessary to specifically address that issue again in every court decision.
78. As for the length of the proceedings, the Government started by emphasising that the scope of the case had been remarkable – it had involved numerous defendants, other criminal cases had been joined to it, and a large amount of material had been gathered at the pre-trial stage.
79. The pre-trial investigation had been carried out swiftly, and the period going from the applicants’ remand in custody to the submission of the statements of charges to the court had been only nine and half months. In any event, the domestic courts had started paying attention to the course of the proceedings at the pre-trial stage, noting the complexity and scope of the case and verifying that no unjustified delays had occurred. During the course of the proceedings the courts had paid increasing attention to the conduct of the proceedings, taking note of the activities of the authorities as well as those of the accused. The courts had also analysed the existence of a public interest which had justified the applicants’ extended detention.
80. During the judicial proceedings, no inactivity or unjustifiable pauses attributable to the authorities had occurred. From the preliminary hearing on 2 March 2015 to the last hearing on 28 September 2017, a total of 117 hearings had been held in Harju County Court. In that regard, on a couple of occasions the hearings had been scheduled to take place later than the dates initially suggested by the court, owing to the representatives’ busy schedules. Sometimes the hearings had had to be adjourned as the second applicant had not felt well (see paragraph 52 above). The representatives had also submitted several applications and appeals (for example, applications for the prosecutor’s removal and for all the members of the court panel to recuse themselves) which had had to be addressed, and this had delayed the proceedings.
81. As for the alleged delay due to a lay judge falling ill, the composition of the panel having to change, and the subsequent decision to examine the evidence afresh, it was the Government’s firm opinion that the State could not be reproached for that. In fact, a reserve lay judge had been included in the proceedings from the beginning, but that judge had had to step in at the beginning of the proceedings. Not appointing a new reserve lay judge (so as not to delay the commencement of the proceedings) had not constituted a procedural violation under domestic law. In fact, it was the applicants’ representatives who had caused the delay by not agreeing to the prosecutor’s proposal that all the evidence that had previously been presented to and accepted by the court should not be directly re-examined. The subsequent re-examination of the evidence had taken approximately four months, before the Harju County Court had decided to stop that and resume the judicial examination from where it had previously been suspended.
82. As for the second applicant’s health, the Government stressed that in the framework of criminal proceedings, health-related matters and detention conditions were assessed only with a view to ascertaining whether holding a person in custody was at all possible. If a person had objections to specific conditions of detention or regarding the availability or quality of healthcare services, those should be addressed in a different set of proceedings (see further paragraph 118 below). In the instant case, the domestic courts had analysed the compatibility of the detention with the second applicant’s state of health every time that they had decided to extend his detention. It had been noted that he had been in a wheelchair for twenty-two years, that up until that point he had lived on his own without an assistant, and that he had been able to take long holidays abroad. The prison cells had been adapted to accommodate a person in a wheelchair, as had beds and sanitary facilities, and the second applicant had had access to medical care.
83. During the course of the proceedings, forensic medical opinions had been commissioned, which had all come to the conclusion that the second applicant’s health did not preclude his detention, provided that some conditions were satisfied, such as the provision of assistance and adherence to a treatment and rehabilitation programme. The experts had also been summoned to court, and the applicants’ representatives could put questions to them. On several occasions the courts had requested information about the second applicant’s health from the prosecutors, the Ministry of Justice and the prisons, and the information received had been taken into account during the hearings and in the relevant decisions.
84. On 19 September 2017 the Harju County Court had terminated the second applicant’s detention on account of his health. Although the court had not explained exactly what had made it change its prior position as regards the prison conditions, it might be assumed that the purpose of the second applicant’s detention had no longer outweighed the impact of the length of the detention on his health.
(ii) The applicants
85. In their applications, both applicants complained of their excessively long detention on remand. They submitted that the domestic courts had repeatedly relied on the same grounds for their continued detention and had not actually analysed the need for such detention; they had not considered the possibility of applying more lenient measures (namely electronic surveillance) and had essentially resorted to automatically extending their detention.
86. Referring to the need to start examining the evidence afresh after one of the lay judges had changed, the first applicant argued that, by not having a lay judge in reserve from the beginning of the proceedings, the domestic courts had not acted with “special diligence”.
87. The second applicant suggested that he ought to have been released on account of his health, given that the prison conditions had not been adapted to his needs and the (medical) care available in prison had not been sufficient for his medical condition.
(b) The Court’s assessment
88. In the present case, the Court is called upon to decide whether the length of the applicants’ detention on remand was reasonable, and thus whether their right under Article 5 § 3 of the Convention to trial within a reasonable time or to release pending trial was respected.
89. The general principles regarding the application of Article 5 § 3 of the Convention have been set out in the judgments of Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, 102, ECHR 2016) and Merabishvili v. Georgia ([GC], no. 72508/13, §§ 222 and 225, 28 November 2017); for a recent application of those principles in a case similar to the instant one, see Štvrtecký v. Slovakia (no. 55844/12, 5 June 2018).
90. Guided by those principles, the Court will firstly establish what the relevant period of detention was long, then assess the reasonableness of the length of the detention and whether the national authorities displayed “special diligence” in the conduct of the proceedings, and lastly come to a conclusion.
(i) Period of detention
91. In the first applicant’s case, the period of detention to be taken into consideration under Article 5 § 3 of the Convention lasted three years, five months and thirty days between his arrest on 14 April 2014 and his conviction by the court of first instance on 13 October 2017.
92. In the case of the second applicant, the relevant period was three years, five months and six days between his arrest on 14 April 2014 and his release from detention on 19 September 2017.
93. The Court notes at the outset that the length of the applicants’ detention on remand – more than three years and five months – is a matter of great concern requiring very strong justification. At the same time, this being a classic example of organised crime, the Court is willing to accept that it presented, by definition, more difficulties for the investigating authorities, and later for the courts, in relation to determining the facts and the degree of responsibility of each member of the group. Accordingly, longer periods of detention than those in other cases may be reasonable. In the Court’s view, the fact that the case concerned the leaders of substructures of the criminal organisation in question should also be taken into account in assessing compliance with Article 5 § 3 (see Štvrtecký, cited above, § 58, with further references).
(ii) Reasonableness of the length of detention
94. The Court accepts, and the applicants do not argue otherwise, that the reasonable suspicion that they had committed the offences as charged persisted throughout the criminal proceedings leading to their conviction. This was verified by the domestic courts on each occasion when they reviewed the continued detention of the applicants.
95. It remains to be ascertained whether the domestic authorities provided relevant and sufficient grounds that covered the whole period of the applicants’ detention.
96. The Court observes that in their decisions the domestic courts consistently relied on the risk of the applicants reoffending as the main grounds for their continued detention. In other words, the courts considered that there was a risk that, if at liberty, the applicants would continue participating in activities to keep the criminal enterprise operational.
97. The Court accepts that a risk of reoffending can, in principle, be deemed relevant and sufficient grounds for remanding a person in custody. However, this risk must be duly substantiated, and the authorities’ reasoning on that point cannot be abstract, general or stereotyped (see Merabishvili, cited above, § 222).
98. The Court observes that the domestic courts justified the risk of the applicants reoffending by referring to their long-term membership of the criminal organisation, its systematic and well-ordered functioning, the applicants’ leading role and position within the hierarchy of the organisation, and their social context and overall lifestyle. The domestic courts particularly highlighted how subjecting somebody to criminal proceedings or even temporarily detaining him did not necessarily put an end to that person’s membership of the criminal organisation, as the organisation continued to support members in such situations. They referred to a particular example of this having happened within the criminal organisation in question. According to the domestic courts, the risk of the applicants reoffending was additionally evidenced by the fact that there was a separate set of criminal proceedings against the first applicant and the second applicant had previously been convicted.
99. The Court is satisfied that the purpose of the detention was to sever links between members of the organisation and to avoid the organisation regaining its operational capacity and readapting so as to be able to continue its criminal activities at some point in the future.
100. In addition to the risk of the applicants reoffending, the domestic courts also relied on the risk that they could start influencing witnesses and the co-accused who were at liberty (see paragraphs 9, 17, 28, 29, 32, 41 and 42 above). The Court observes that, apart from the general risk flowing from the organised nature of the applicants’ alleged criminal activities, the domestic courts, in support of their findings, relied on the applicants’ leadership position and authority within the criminal organisation. With regard to the second applicant, the courts also noted that he had previously forged documents and used violence against a victim of human trafficking. The Court acknowledges that, in cases such as the present one, concerning organised criminal groups, the risk that a detainee, if released, might put pressure on witnesses or other co-accused, or otherwise obstruct the proceedings, is, by the nature of things, often particularly high (see Štvrtecký, cited above, § 61). In the instant case, the risk of the applicants influencing witnesses persisted until the later stages of the court proceedings (according to the Harju County Court decision of 17 March 2017, at that stage of the proceedings, no witnesses had been heard; see paragraph 42 above).
101. With respect to the second applicant, taking into account the state of the proceedings and the fact that several other co-accused had already been convicted, the domestic courts also referred to the risk of him absconding (see paragraph 41 above). However, those grounds were not continually relied on.
102. In conclusion, the Court considers that the reasons relied upon, in particular the risk of the applicants reoffending, cannot be said to have been stereotyped and abstract, nor can it be said that at any point the courts referred to grounds for detention without showing how those grounds applied to the specific circumstances of the applicants’ case.
103. The Court further notes that the domestic courts considered the question of whether measures other than remand in custody would be sufficient to reduce the risk of the applicants continuing to organise the activities of their criminal enterprise. They answered this question in the negative, given the nature of the criminal activities that the applicants were suspected and accused of.
104. The second applicant suggested that the courts should release him because of his poor health, which had constantly been worsening during his detention. However, the Court points out that Article 5 § 3 cannot be read as obliging the national authorities to release a detainee on account of his state of health. The question of whether or not a detainee’s condition is compatible with his continued detention should primarily be determined by the national courts, and as the Court has held in the context of Article 3 of the Convention, in general, those courts are not obliged to release persons on health grounds or place them in a civilian hospital to enable them to receive a particular kind of medical treatment (see Kudła v. Poland [GC], no. 30210/96, § 93, ECHR 2000‑XI, and Jablonski v. Poland, no. 33492/96, § 82, 21 December 2000).
105. In the present case, the second applicant’s disability was duly considered during the process whereby he was placed and kept in detention. The courts continually took note of his condition, ordered forensic reports, heard experts in court, and closely examined the conditions of his detention and the availability of suitable healthcare in prison. A number of adjustments were made to accommodate his specific needs in prison. Indeed, taking into account his disability and the fact that there was more scope for his physical rehabilitation outside prison, the Harju County Court eventually ordered the second applicant’s release. However, in the absence of any grounds to doubt the relevance of the earlier (expert) assessments of the second applicant’s health and the adequacy of the prison conditions, the Court considers that his eventual release does not give grounds to conclude that his detention prior to that release was in violation of the Convention.
106. The Court therefore concludes that the domestic courts gave relevant and sufficient reasons for the applicants’ detention pending investigation and trial.
107. It is also important to note that there were extensive procedural guarantees surrounding the applicants’ remand in custody: courts were required under the law to regularly and frequently examine justifications for such remand; the applicants were able to lodge applications for release at reasonable intervals; hearings were held in the presence of the applicants or their representatives; and significant decisions were amenable to appeal and were examined by several judges.
(iii) Whether the national authorities displayed “special diligence” in the conduct of the proceedings?
108. The assessment of the relevant and sufficient reasons for the applicants’ detention cannot be separated from the actual length of time which the applicants spent in custody. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. In assessing whether this requirement has been met, the Court will have regard to, inter alia, the overall length of the pre-trial investigation and trial, the (legal and factual) complexity of the case, the number of defendants involved, and the conduct of the applicants and the authorities, including any periods of unjustified delay.
109. In the instant case, the Court accepts that the proceedings were of considerable scope and complexity, regard being had to the number of defendants involved and the duration of the activities of the criminal organisation under investigation. The case required the elucidation of facts concerning the formation, development, membership, structure and management of a criminal organisation, and the hierarchy of relationships within it, as well as various offences committed in the name of or by the organisation, or in the organisation’s interests. The degree of responsibility of each member of the criminal organisation had to be determined.
110. From the date when the applicants were detained on 14 April 2014, the pre-trial proceedings lasted approximately nine and half months. Based on the material submitted to the Court, it does not appear that there were any delays or interruptions in the proceedings. The applicants have not claimed otherwise. It is noteworthy that, being mindful of the applicants’ detention, the domestic courts paid close attention to the conduct of the proceedings at the pre-trial stage, so as to ensure that the detention would not be extended unreasonably. At that stage, material concerning three suspects whose whereabouts were unknown or who were serving a sentence abroad was also removed from the applicants’ criminal case in order to ensure its swift processing (see paragraph 13 above).
111. As to the trial stage of the proceedings, the Court notes that the hearings – 117 altogether, over a period of approximately two years and seven months – were held regularly, with reasonably short intervals between them, on a monthly or almost monthly basis. In setting the hearing dates, the availability of the applicants’ representatives was taken into account, and hence on a couple of occasions hearings had to be scheduled for later dates than those initially suggested by the court (see paragraph 51 above), which resulted in longer breaks between hearings.
112. As to the first applicant’s criticism regarding a reserve lay judge not having been appointed, and the consequent need to examine a large amount of evidence afresh, the Court observes that, in fact, the Harju County Court explained to the applicants the circumstances of the composition of the panel of judges having to change (see paragraphs 20 and 42 above). The Court has no reason to doubt the domestic court’s explanation that one of the lay judges in the original composition of the panel had already been a reserve lay judge who had had to step in at the very beginning of the trial. The Court is also mindful of the domestic court’s explanation that it had not wanted to postpone the commencement of the proceedings any longer in order to appoint another reserve lay judge to participate in the hearings (which in any event had not been required under the domestic law).
113. As to the consequences of replacing one of the lay judges, the Court will not discuss the applicants’ motivation for refusal to consent to the prosecutor’s proposal not to present for a second time evidence which had already been examined. In the light of the domestic law (see paragraph 62 above), they had a right to do so. However, their refusal did result in quite some time between 13 October 2017 and 10 February 2017 being spent on presenting and examining for a second time evidence which had already been examined by the original composition of the court.
114. Against that background, the Court notes that in a situation where the original panel of judges examining a case has had to change during the course of proceedings, measures can be taken to ensure that the judges who continue hearing the case have an appropriate understanding of the evidence and arguments – for example, making transcripts available, where the credibility of a witness is not in issue (see Cutean v. Romania, no. 53150/12, § 61, 2 December 2014). In the instant case, after a number of hearings had been devoted to presenting evidence that had already been examined by two out of the three judges on the panel, the domestic court decided to not continue with that, considering that the new lay judge could examine that evidence on the basis of the transcripts. Although not assessing how that procedural decision complied with the domestic law, the Court accepts that the step was taken in the interests of ensuring that the applicants had a trial within a reasonable time.
115. In the light of the reasoning above, the Court concludes that during the relevant periods the authorities and courts handled the applicants’ case with “special diligence”.
(iv) Conclusion
116. Having regard to the above, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Alleged violation of Article 3 of the Convention
117. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”The parties’ submissions
118. The Government argued that the second applicant’s complaint under Article 3 of the Convention was inadmissible, as he had not exhausted domestic remedies. The Government asserted that raising concerns about his health and the suitability of prison and transport conditions within the context of the criminal proceedings against him had not constituted a relevant and effective remedy to be exhausted with respect to his Article 3 complaint. The courts hearing the criminal case had only addressed the issue of the second applicant’s health in so far as that had been necessary to ascertain whether his detention on remand had been possible.
119. The Government stated that the second applicant had been detained in three different prisons, namely Tallinn Prison, Tartu Prison and Viru Prison. The complaints about the prison and transport conditions should initially have been raised before the specific prison in question and then before the relevant administrative court, to prevent or eliminate the alleged damage or, if that did not succeed, to claim damages. The complaints concerning the allegedly inadequate healthcare, and any questions concerning the availability of necessary services and referrals to specialist doctors, should have been submitted to the relevant prison first and subsequently brought before the relevant administrative court. If the second applicant had had complaints regarding the quality of the healthcare provided in prison, an action should have been lodged with a civil court, as under domestic law, the relationship between a prisoner and a doctor was of a civil-law nature. The Government submitted examples of domestic case‑law demonstrating how remedies had been used to challenge inadequate prison conditions and contest allegedly insufficient healthcare.
120. Alternatively, the Government argued that the second applicant had abused the right of individual application by misrepresenting facts and omitting to submit relevant documents. They added that the complaint was in any event manifestly ill-founded.
121. The second applicant did not respond to the Government’s objections.The Court’s assessment
122. The Court reiterates that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain, not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014).
123. Turning to the facts of the present case, the Court agrees with the Government that, owing to the specific and limited scope of the proceedings concerning the issue of the applicants’ detention on remand, those proceedings did not constitute a relevant and effective remedy capable of addressing the substance of the second applicant’s complaints of the inadequacy of prison and transport conditions and insufficient (medical) care.
124. At the same time, relying on the information provided by the Government and its own case-law (see Jatsõšõn v. Estonia, no. 27603/15, 30 October 2018, and the domestic case-law cited therein; Nikitin and Others v. Estonia, nos. 23226/16 and 6 others, 29 January 2019, and the domestic case-law cited therein; and V.S. v. Estonia (dec.), no. 8685/15, ECHR 10 October 2018), the Court finds that adequate remedies existed within the domestic legal system. Thus, depending on the substance of the second applicant’s grievances, he could have lodged relevant complaints with the prison and later with the relevant administrative court, or could have lodged an action with a civil court. He did not do so, and did not raise any arguments to cast doubt on the effectiveness of the remedies referred to.
125. Accordingly, the Court considers that the second applicant’s complaint under Article 3 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
126. Given the above conclusion, it is not necessary for the Court to examine the Government’s other preliminary objections regarding abuse of the right of individual application and the complaint being manifestly ill‑founded.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 11 June 2020.
Hasan BakırcıEgidijus Kūris
Deputy RegistrarPresident
Full & Egal Universal Law Academy