FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 5801/05
by Kalmer JAASKA
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 10 June 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 3 February 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kalmer Jaaska, is an Estonian national who was born in 1967 and lives in Põdra village, Tartu County. He is represented before the Court by Mr M. Paabumets, a lawyer practising in Tartu.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 July 2003 a police investigator drew up a decision to charge the applicant with unlawful felling of forest and aggravated fraud.
On 8 July 2003 the Tartu County Court (maakohus) heard the police investigator’s request to take the applicant into custody. The hearing was held in the presence of the police investigator, public prosecutor and the applicant’s lawyer. The court granted the request and authorised the applicant’s detention for four months from the day of his arrest. It noted in its decision that according to the information presented by the investigator, the applicant had failed to appear before the investigator on three occasions in June 2003. On 2 July 2003 the police had sought to compel him by force to appear (sundtoomine) but he was not found at his place of residence. The court concluded that there were sufficient grounds to believe that the applicant was evading the proceedings and could commit further offences.
On 10 July 2003 the applicant appeared before the police investigator. He was presented with the decision to bring charges against him and with the County Court’s decision, and was taken into custody.
The applicant’s lawyer appealed against the County Court’s decision, complaining that the applicant had not been present at the court when his detention had been authorised and thus could not present his arguments against the detention. In any event, the applicant had been in contact with the police investigator and had not evaded the proceedings. Nor had there been any risk of the applicant committing further offences. The applicant’s lawyer noted in the appeal that the applicant wished to participate in the Court of Appeal (ringkonnakohus) hearing.
On 30 July 2003 the Tartu Court of Appeal heard the appeal in the presence of the applicant’s lawyer and the prosecutor. It dismissed the appeal. The court did not agree with the argument of the applicant’s lawyer that application of a preventive measure (tõkend) could be decided only in the presence of the accused. The court pointed out that as the applicant had been evading the investigation it had been necessary to make a decision by default. The Court of Appeal’s decision was final.
On 26 November 2003 the applicant was released from custody.
B. Procedure before the Court
According to the applicant’s lawyer he posted an application, together with copies of relevant documents, addressed to the Court, on 22 September 2003. The letter was sent by registered mail but without a request for receipt. It never arrived at the Court’s Registry.
On 3 February 2005 the applicant’s lawyer sent an inquiry to the Court, noting that he had received no response. He asked for information about the state of the proceedings. Copies of the application of 22 September 2003 and of a receipt from the post office were appended to the letter. According to the post office receipt a letter from the lawyer’s law office to the Registrar of the European Court of Human Rights had been sent by registered mail on 22 September 2003. There was a printed text on the receipt according to which requests and complaints concerning registered mail could be made within six months from the date of the posting.
By a letter of 15 February 2005 the Registry informed the applicant’s lawyer that the Court had not received his letter of 22 September 2003. A case file concerning the application was opened and the applicant’s lawyer was requested to complete the application form and submit copies of all pertinent documents.
On 21 April 2005 the applicant’s lawyer submitted a completed application form together with copies of the application of 22 September 2003 and of the relevant documents. He also submitted a copy of his inquiry to the post office in Estonia, made on 16 March 2005, concerning the correspondence of 22 September 2003, and a reply of 18 March 2005, according to which it was possible to search for international registered mail within six months from the day following the posting of the correspondence. It had therefore not been possible to search for the letter sent by the applicant’s lawyer. The applicant’s lawyer requested that the Court consider 22 September 2003 as the date of the introduction of the application.
COMPLAINTS
The applicant complained that no adequate reasons had been given for his detention and that he had been given no opportunity to be heard in this respect either before the County Court or before the Court of Appeal. Moreover, the review of the lawfulness of his detention exercised by the Court of Appeal had been superficial. He relied on Article 5 §§ 1 and 4 and Article 6 §§ 1 and 3 (c) of the Convention.
THE LAW
The applicant complained that his detention had been in violation of Article 5 §§ 1 and 4 Article 6 §§ 1 and 3 (c) of the Convention.
Pursuant to Article 35 § 1 of the Convention, the Court has first considered the question of the date of introduction of the application. In this respect the Court observes that according to the applicant’s lawyer his first communication to the Court was on 22 September 2003 when he posted the application together with copies of relevant domestic decisions. However, the Court notes that in spite of the absence of any reply from the Court, he made no further communication until 3 February 2005, that is more than one year and four months later.
According to its case-law, the Court considers the date of the introduction of an application to be the date of the first letter indicating an intention to lodge an application and giving some indication of the nature of the application. However, where a substantial interval follows before an applicant submits further information about his proposed application or before he returns the application form, the Court may examine the particular circumstances of the case to determine what date should be regarded as the date of introduction, with a view to calculating the running of the six-month period imposed by Article 35 of the Convention (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004).
The Court reiterates that the purpose of the six-month rule is to maintain reasonable legal certainty and ensure that cases raising issues under the Convention are examined within a reasonable time. It ought also to prevent the authorities and other persons concerned from being in a state of uncertainty for a long period of time. Lastly, the rule is designed to facilitate establishment of the facts of the case; otherwise, with the passage of time, this would become more and more difficult, and a fair examination of the issue raised under the Convention would thus become problematic (see, among others, Alzery v. Sweden (dec.), no. 10786/04, 26 October 2004, and M. v. Belgium, no. 15213/89, Commission decision of 1 July 1991, Decisions and Reports 71, p. 230).
It would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an application could set in motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. Applicants must therefore pursue their applications with reasonable expedition, after any initial introductory contact (see P.M. v. the United Kingdom, cited above, with further references).
As concerns the present case, the Court recognises the possibility that a letter sent to it by post, even in case of the use of registered mail, may go missing. However, the Court notes that the applicant has not put forward any convincing explanation, or indeed any explanation, as to what circumstances prevented him from making an inquiry to the Court or to the postal service earlier than a year and four months after the event. The final domestic decision in the proceedings concerning the applicant’s detention in the present case was made on 30 July 2003. Accordingly, the six-month period ran until 31 January 2004. Moreover, a six-month period from the posting date of the first communication during which the letter could have been searched by the post service – a pertinent notice having been printed on the post office receipt – ran until 23 March 2004. The Court has not been informed of any obstacles that would have prevented the applicant or his lawyer from making any inquiries at a time when it would still have been possible to find out whether the Court had received the first letter, and from taking appropriate steps if it had not. Furthermore, the Court notes that the present case was not the first one brought before it with the applicant’s lawyer acting as representative.
Therefore, notwithstanding the applicant’s initial submission of 22 September 2003, the Court considers 3 February 2005 as the date of introduction of the present application. It follows that the application has been lodged out of time and it must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy