FIRST SECTION
DECISION
Application no. 32897/12
Arnold TREIAL
against Estonia
The European Court of Human Rights (First Section), sitting on 28 January 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 7 May 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Arnold Treial, is an Estonian national, who was born in 1932 and lives in Otepää.
2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
4. On 3 February 1994 the applicant’s wife filed an action against the applicant for divorce and division of marital property. The applicant filed an action against her for division of their son’s inheritance. These claims were joined into the same proceedings.
5. On 9 May 1994, at the request of the applicant’s wife, the attachment of certain property was ordered by a court in order to ensure its preservation pending the resolution of her civil action. The attachment was carried out by court bailiffs on 10 and 26 May 1994.
6. From 24 May until 20 December 1994 the applicant was in custody in connection with criminal proceedings instituted against him. On 15 May 1995 the criminal charges against him were dropped by the Public Prosecutor’s Office.
7. The applicant subsequently initiated several sets of civil and administrative court proceedings seeking the release of the attached property and claiming compensation for damage he had allegedly sustained as a result of his arrest and the attachment of the property in question.
2. Civil proceedings initiated on 21 December 1998 (case no. 2-00-27)
8. On 21 December 1998 the applicant filed a claim for compensation with the Valga County Court against his wife, a police investigator and a judge. As all the judges of the Valga County Court withdrew from the case, it was transferred to the Võru County Court shortly thereafter. It appears that eight preliminary hearings were held in the course of the following two years.
9. On 18 December 2000 the Võru County Court suspended the proceedings at the defendants’ request, pending the outcome of the proceedings concerning the division of property between the applicant and his wife (see paragraph 4 above). The applicant did not object.
10. On 22 December 2003 the applicant’s request for resumption of the proceedings was dismissed, as the other set of proceedings had not yet come to an end.
11. A judgment in the proceedings concerning the division of the inheritance was delivered by the Tartu County Court on 24 April 2006. It became final on 30 May 2006.
12. On 31 January 2007 the proceedings related to the applicant’s claim for compensation were resumed by the Tartu County Court, which was now dealing with the case after a reorganisation of the court system.
13. On 16 May 2007 the County Court substituted the State for the original defendants at the applicant’s request. At the court’s request the applicant submitted a new statement of claim incorporating all his earlier amendments to his claims and the Ministry of Justice was given the opportunity to reply. The Ministry challenged the civil court’s jurisdiction and sought the dismissal of the applicant’s claim.
14. In a decision of 24 January 2008 the County Court found that the matter fell within the jurisdiction of the administrative courts and discontinued the proceedings without examining the merits of the case.
15. On 10 March 2008 the Tartu Court of Appeal quashed the decision of the County Court and remitted the case to the lower court for fresh consideration.
16. In 2008 a preliminary hearing was held in the County Court. Subsequently, the parties exchanged several sets of written submissions. Disagreement arose as to whether certain submissions made by the applicant constituted a new action or an amendment to his earlier action.
17. In 2009 a preliminary hearing and later a full hearing were held. The case was adjourned pending the applicant’s appeal against a ruling of the County Court. The judge dealing with the case withdrew.
18. In 2010 a hearing was held. After the applicant made complaints about the new judge responsible for the case, that judge also withdrew.
19. Written submissions were again exchanged under the direction of a new judge to whom the case had been assigned.
20. By a judgment of 22 December 2010 the County Court terminated the proceedings in respect of the claim for compensation for the loss of certain items, in respect of which a judgment had already been made in separate civil proceedings. In respect of the remainder of the lost belongings the court dismissed the applicant’s claim against the State as unsubstantiated, finding that the applicant’s former wife (with whom the property in question had been deposited) was liable and could be sued for the alleged loss. Lastly, the court found that the remaining claims (compensation for economic loss caused by a rise in construction prices and compensation for non-pecuniary damage) had been made too late.
21. On 24 October 2011 the Tartu Court of Appeal dismissed the applicant’s appeal and upheld the County Court’s judgment.
22. The applicant sought legal aid for lodging an appeal with the Supreme Court. However, on 7 December 2011 the Supreme Court rejected his legal aid application on the basis that the appeal had no prospects of success. He was given a time-limit within which to pay the court fees and file the appeal through an advocate.
23. On 11 January 2012 the Supreme Court decided not to accept the applicant’s appeal, as he had failed to comply with the above requirements.
B. Relevant domestic law and practice
24. The Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides:
Article 14
“The guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments.”
Article 15
“(1) Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before a court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional.
(2) The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.”
Article 25
“Everyone has the right to compensation for pecuniary and non-pecuniary damage caused by the unlawful action of any person.”
25. Article 34 of the Constitution guarantees the freedom of movement and Article 35 stipulates that everyone has the right to leave Estonia.
26. Article 46 § 4 of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik) sets a three-year time-limit for compensation claims filed with an administrative court.
27. By a decision of 30 December 2008 (case no. 3-4-1-12-08) the Constitutional Review Chamber of the Supreme Court dealt with a complaint concerning the length of criminal proceedings. It rejected the complaint, considering that the complainant could have had recourse to another effective remedy. The Supreme Court held:
“25. In the examination of [the complainant’s] claim for compensation for the damage caused by the violation of fundamental rights, the Chamber agrees with the opinion expressed in the written submissions of the parties to the proceedings that [the complainant] can demand compensation for damage in an administrative court on the bases and pursuant to the procedure established by the State Liability Act.”
This decision of the Supreme Court is extensively quoted in the case of Malkov v. Estonia (no. 31407/07, § 32, 4 February 2010).
28. In its judgment of 22 March 2011 in the case of Osmjorkin (no. 3‑3‑1‑85‑09), the Supreme Court, sitting in plenary session, held that Article 14 of the Constitution provided for a fundamental right to an effective remedy. Taken together with Article 15 of the Constitution, these provisions provided for a fundamental right to effective judicial proceedings. The right to an effective remedy also encompassed the right to demand that the proceedings take place within a reasonable time. The Supreme Court also made reference to the right to a fair trial within a reasonable time enshrined in Article 6 § 1 of the Convention and to the right to an effective remedy in Article 13 of the Convention. The Supreme Court found that the State Liability Act (Riigivastutuse seadus) did not provide for compensation for non-pecuniary damage caused by excessive length of a preliminary investigation in criminal proceedings, declared it unconstitutional in this respect and awarded the complainant a sum of money, relying on Article 25 of the Constitution. The Supreme Court further considered that the enactment of a special regulation for compensation for damage arising from criminal proceedings was required (for a more extensive summary of the judgment, see Raudsepp v. Estonia, no. 54191/07, §§ 38-42, 8 November 2011).
29. By a decision of 23 May 2011 (unpublished) the Civil Chamber of the Supreme Court decided not to examine an appellant’s appeal in civil case no. 2-04-1159. In respect of a compensation claim concerning excessive length of proceedings made in the appeal, the Supreme Court noted that a civil court had no jurisdiction over such a matter. Referring to the decision of 30 December 2008 of the Constitutional Review Chamber of the Supreme Court (see paragraph 27 above) and the judgment of 22 March 2011 of the Supreme Court’s plenary session (see paragraph 28 above), the Civil Chamber explained that a claim for compensation for damage for excessive length of proceedings had to be lodged with an administrative court.
30. By a judgment of 27 February 2012 (case no. 3-10-3326) the Tartu Administrative Court awarded a complainant a sum of money for non-pecuniary damage caused by, inter alia, excessive length of criminal proceedings and lengthy application of a preventive measure (obligation not to leave the place of residence). Criminal proceedings against the complainant had already been discontinued because of the length of the proceedings. The Administrative Court referred to Articles 14, 15, 25, 34 and 35 of the Constitution and to the Supreme Court’s judgment in the case of Osmjorkin.
31. By a judgment of 30 November 2012 (case no. 3-11-1108) the Tartu Administrative Court awarded a complainant a sum of money as compensation for the non-pecuniary damage caused by the excessive length of the criminal proceedings he was involved in and the obligation not to leave his place of residence. The Administrative Court referred to Articles 14, 25, 34 and 35 of the Constitution and to the Supreme Court’s judgment in the case of Osmjorkin (these administrative court proceedings have been summarised in Mets v. Estonia (dec.), no. 38967/10, §§ 14-15, 7 May 2013).
32. By a decision of 8 May 2012 (case no. 3-11-1146) the Tallinn Administrative Court approved a compromise agreement between a complainant and the Ministry of Justice. The Ministry agreed to pay the complainant a sum of money in compensation for non-pecuniary damage caused by lengthy criminal proceedings.
COMPLAINTS
33. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the civil proceedings.
34. He also complained under Article 1 of Protocol No. 1 to the Convention that he had been unlawfully deprived of his property which had been subject to attachment pursuant to a court ruling.
THE LAW
A. Alleged violation of Article 6 of the Convention
35. The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
36. The Government contested that argument.
1. The parties’ submissions
37. The Government asked the Court to declare the complaint inadmissible because the applicant had failed to exhaust domestic remedies. The Government referred to the recent developments in domestic case-law outlined above (see paragraphs 27, 28, 31 and 32 above) and argued that it was possible to claim compensation from the Ministry of Justice and, if agreement could not be reached with the Ministry, the person concerned could have recourse to the administrative courts. The fact that there was still little case-law in this area did not mean that that remedy was ineffective. The Government considered that the Court declaring the current application inadmissible would contribute to wider use of the existing domestic remedies and would help to reduce the number of similar applications to the Court in the future.
38. The applicant did not comment on the exhaustion issue.
2. The Court’s assessment
39. The Court reiterates that the purpose of the exhaustion rule set out in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 141, ECHR 2006‑V).
40. Nevertheless, the only remedies Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which are, at the same time, available and sufficient. The existence of such remedies must be sufficiently certain, not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, for example, Scordino, cited above, § 142, with further references).
41. The Court notes that it has found in earlier cases that no effective remedy existed in Estonia for length-of-proceedings complaints (see Raudsepp, cited above, §§ 62-66, and the other cases referred to therein). The Court further notes that it has recently had occasion to deal with a complaint concerning excessive length of proceedings and alleged lack of effective remedies in this respect in the above-cited case of Mets v. Estonia. In that case, which concerned excessive length of criminal proceedings, the applicant had recourse to an administrative court and was awarded compensation for non-pecuniary damage. The Court found that the applicant had lost his victim status in respect of his complaint under Article 6 § 1 (see Mets, cited above, §§ 27-33, and paragraph 31 above). In respect of the complaint of a lack of effective remedies, the Court noted that the enactment of legislation clearly establishing grounds for awarding compensation for excessively lengthy proceedings and swift procedures for dealing with such claims would contribute considerably to legal certainty in this field. Nevertheless, it found that the applicant had had at his disposal an effective remedy developed by the practice of the courts, which he had made use of, and that complaint was therefore declared inadmissible as being manifestly ill-founded (ibid., §§ 34-37). The Court has also taken note of another example of a case where an administrative court awarded compensation for excessive length of criminal proceedings (see paragraph 30 above).
42. The Court notes that these cases decided by administrative courts concerned the length of criminal proceedings, similarly to the Supreme Court’s judgment in the case of Osmjorkin (see paragraph 28 above) on which the administrative courts relied. Thus, in the context of the present case the question arises whether the same principles also apply to civil proceedings. The Court observes in this connection that, according to the Supreme Court in Osmjorkin, Articles 14 and 15 of the Constitution provide for a right to proceedings within a reasonable time, and that the Supreme Court relied on Article 25 of the Constitution in awarding the complainant compensation for the excessively lengthy nature of the proceedings. The Court notes that the provisions and principles relied on by the Supreme Court are of a general nature and not specific to criminal proceedings (see, in this connection, Raudsepp, cited above, § 63, where the Court evoked similar considerations). Therefore, the Court cannot see how a different conclusion could be reached in respect of a complaint concerning the excessive length of civil proceedings. This approach also appears to be supported by the Supreme Court’s decision referring an appellant in a civil case to the administrative courts for filing a compensation claim for damage caused by lengthy civil court proceedings (see paragraph 29 above).
43. It is true that the Government were unable to provide any examples of pertinent domestic case-law in respect of civil or administrative length-of-proceedings cases. At the same time, the Court is unaware of any post-Osmjorkin examples of domestic case-law leading it to conclude that recourse to the administrative courts does not constitute an effective remedy for civil length-of-proceedings cases. In this connection, the Court reiterates that if doubt exists as to the effectiveness of a domestic remedy, an attempt to use that remedy must be made (see, for example, Korobov and Others v. Estonia, no. 10195/08, § 137, 28 March 2013, with further references). Thus, the Court has found that a newly established remedy in respect of length-of-proceedings complaints had to be exhausted, regardless of the lack of pertinent case-law (see Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII); a similar conclusion has been made, for example, in respect of a complaint concerning excessive length of pre-trial detention (see Demir v. Turkey (dec.), no. 51770/07, § 31, 16 October 2012). The Court reiterates that the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on the national authorities and that the mechanism of applying to the Court is thus subsidiary to the national systems safeguarding human rights (see Scordino, cited above, § 140). Therefore, and in order to allow the domestic judicial authorities to further develop the available remedies, the Court considers that the domestic courts should have been given an opportunity to rule on a case like the present one before it was brought to Strasbourg (compare Demir, cited above, § 32, with further reference to Iambor v. Romania (no. 1), no. 64536/01, § 221, 24 June 2008). However, the Court emphasises in this connection that its position may be subject to review in the future depending, in particular, on the domestic courts’ capacity to establish consistent case-law in line with the Convention requirements (see Demir, cited above, § 34; Taron v. Germany (dec.) no. 53126/07, § 45, 29 May 2012; and Korenjak v. Slovenia (dec.) no. 463/03, § 73, 15 May 2007).
44. In view of the foregoing considerations the Court concludes that, following the Supreme Court’s judgment of 22 March 2011 in the Osmjorkin case, the applicant had to have recourse to the administrative courts in order to comply with the requirement of exhaustion of domestic remedies. However, the applicant has not availed himself of this remedy, which appears to be still open to him (see paragraph 26 above).
45. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Other alleged violations of the Convention
46. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that he had been unlawfully deprived of his property. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy