Communicated on 11 February 2014
FIRST SECTION
Application no. 73748/13
Kirill TOLMACHEV
against Estonia
lodged on 16 November 2013
STATEMENT OF FACTS
The applicant, Mr Kirill Tolmachev, is an Estonian national, who was born in 1990 and lives in Narva.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 September 2012 the applicant, in misdemeanour proceedings, was fined 80 euros by a police officer of the East Prefecture of the Police and Border Guard Board for a breach of public order. The applicant appealed against this decision to the Viru County Court.
The County Court sent summons to the applicant for a hearing scheduled for 21 March 2013. It was noted in the summons that the applicant’s participation in the hearing was mandatory. The applicant’s lawyer, a representative of the police prefecture and witnesses were also summoned. The summons sent to the applicant’s address known to the authorities could not be served on him personally as he was not at home. Her mother refused to accept the summons and said that the applicant lived abroad.
On 21 March 2013 the County Court held its hearing. The applicant had not appeared. His lawyer asked the court to examine the matter without the applicant’s presence. According to the applicant’s father, who was in the courtroom as an onlooker, the applicant was not to return to Estonia within the next five years. The County Court refused to hear the applicant’s appeal. It delivered its decision in writing on 2 April 2013.
According to the County Court’s decision, the applicant had failed to inform the authorities of his new address. However, as the applicant’s father was aware of the time of the court hearing and of the applicant’s intention not to return to Estonia within the next five years, the court concluded that the applicant communicated with his parents and must have been aware of the court hearing and summons sent to him. Relying on Article 126 § 1 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik) – which provided that if an appellant failed to appear at the hearing of the appeal although he had been notified of the obligation to participate in the court hearing – the County Court refused to hear the appeal. It also noted that the applicant’s lawyer had not requested to adjourn the hearing. The court did not consider it possible to examine the case without the applicant.
The applicant’s lawyer appealed, relying, inter alia, on Article 6 § 3 (c) of the Convention according to which a person had a right to defend himself through legal assistance of his own choosing.
On 23 May 2013 the Tartu Court of Appeal dismissed the appeal and upheld the ruling of the first-instance court.
B. Relevant domestic law
Article 126 § 1 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik) stipulates that an appellant and an official of a body conducting extra-judicial proceedings shall participate in the hearing of the appeal in court if the court considers their participation necessary. Article 126 § 2 of the Code provides that if an appellant fails to appear at the hearing of the appeal although the appellant was notified of the obligation to participate in the hearing of the appeal in the summons sent to the appellant and the hearing of the appeal has not been adjourned pursuant to Article 125 of the Code, the court refuses to hear the appeal.
Article 125 § 1 of the Code of Misdemeanour Procedure provides that at the reasoned request of a party to the court proceedings the court may adjourn the hearing of an appeal once for a period of up to one month.
COMPLAINT
The applicant complains under Article 6 § 1 in conjunction with Article 13 of the Convention that his complaint was not examined by the first-instance court and under Article 6 § 3 (c) that his right to defend himself through a lawyer was violated.
QUESTIONS TO THE PARTIES
Did the applicant have an access to court and a fair hearing in accordance with Article 6 § 1 of the Convention? Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 34, ECHR 1999‑I, and Neziraj v. Germany, no. 30804/07, § 49, 8 November 2012)?
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