CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 mars 2006

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sFEE8C148 { width:13.68pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s9D025815 { width:20.21pt; display:inline-block } .s495E66C1 { width:192.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 40420/05 by Jüri RAND against Estonia The European Court of Human Rights (Fourth Section), sitting on 28   March 2006 as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   G. Bonello ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Mr   J. Šikuta, judges , and Mr M.   O’Boyle , Section Registrar , Having regard to the above application lodged on 8 November 2005, Having deliberated, decides as follows: THE FACTS The applicant, Mr Jüri Rand, is an Estonian national who was born in 1955 and lives in Tallinn. He was represented before the Court by Mr   M.   Susi, a lawyer practising in Estonia. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. By a decision of 17 May 2004 the Lääne-Viru County Court ( Lääne-Viru Maakohus ) discontinued criminal proceedings in respect of the applicant who had been charged with having committed an aggravated fraud involving substantial material damage (Article 143 § 2 (1-1) of the Criminal Code ( Kriminaalkoodeks )). The decision was taken at the request of the prosecutor, under Article 168-2 of the Code of Criminal Procedure ( Kriminaalmenetluse koodeks ), according to which criminal proceedings could be discontinued if the punishment liable to be imposed on the accused would be negligible compared to the punishment which would be likely to be imposed on him or her for the commission of another criminal offence. The County Court made reference to other proceedings pending before the Tallinn City Court ( Tallinna Linnakohus ) which are summarised below. By a judgment of 17 November 2004 the Tallinn City Court convicted E.B. and V.K. of illicit trafficking of gasoline by a group of persons (Article   76 § 3 (2) of the Criminal Code). The applicant was convicted of aiding and abetting the above offence (Article 76 § 3 (2) and Article 17 §   6 of the Criminal Code). He was sentenced to two years’ imprisonment, less the time spent in pre-trial detention. M.K. was convicted of misuse of his official position (Article 161 of the Criminal Code). The court granted the civil claim of the Customs Board against the applicant, E.B. and V.K. in the amount of 34,917,918 kroons (EEK) (approximately 2,231,177   euros   (EUR)). Finally, it decided to confiscate the property (gasoline) that had been seized from the applicant, E.B. and V.K. in order to meet the civil claim. On 23 February 2005 the Tallinn Court of Appeal ( Tallinna Ringkonnakohus ) upheld the City Court’s judgment in substance insofar as it concerned the applicant. The Supreme Court ( Riigikohus ) refused the applicant leave to appeal on 15   June 2005. On 20 June 2005 the applicant requested the Tallinn City Court to postpone the enforcement of his prison sentence for up to one year, as he was critically ill with rheumatoid arthritis and in case his medical treatment were to be discontinued, the inflammation of joints would become more acute. The applicant submitted that he was the sole supporter of his sick parents and that he provided subsistence to a one-year-old child. On 21   June   2005 the City Court postponed the enforcement of the applicant’s imprisonment for six months. On 22 June 2005 the applicant requested the Tallinn City Court to lift his sentence due to his incurable illness. By a decision of 28 September   2005 the City Court dismissed his request. It found, on the basis of medical certificates submitted by the applicant, that he had been prescribed pills which could also be taken in prison. It considered that the necessary medical examinations (once every three months) could be arranged by the prison authorities in cooperation with a hospital. Therefore, the City Court dismissed the applicant’s request and noted that according to the City Court’s decision of 21 June 2005 the applicant had to appear in the Tallinn Prison on 6 January 2006 at the latest to start serving his sentence (1   year, 9   months and 18 days). The applicant did not appeal against the decision. COMPLAINTS 1.     The applicant complained that due to his poor medical condition his imprisonment constituted a violation of Article 3 of the Convention. 2.     He complained that Article 6 § 3 (d) had been violated by the domestic courts’ failure to summon a witness. 3.     He further complained that his right to the presumption of innocence guaranteed under Article 6 § 2 had not been respected, since a reference in a judgment suggested that he had been convicted in a different criminal case, whereas in fact the criminal proceedings referred to had been discontinued without his conviction. 4.     Moreover, the applicant complained about the confiscation of his property, relying on Article 1 of Protocol No. 1 to the Convention, taken together with Article 6 § 1 of the Convention. 5.     Finally, he complained that the cumulative effect of the above violations amounted to a violation of Article 6 § 1. THE LAW 1.     The applicant complained that due to his poor medical condition his imprisonment would constitute a violation of Article 3 of the Convention. He submitted that he had been diagnosed with rheumatoid arthritis. Cessation of the prescribed medication could lead to the deterioration of his health condition and even to his death. He would not receive adequate medical treatment and around-the-clock assistance in prison. Article 3 of the Convention, relied on by the applicant, reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” To begin with, the Court has to analyse whether the applicant has exhausted the domestic remedies available to him. It reiterates that the purpose of the requirement of exhaustion of the domestic remedies (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. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article   13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V, with further references). As regards the present complaint, the Court recalls that the applicant did not appeal against the Tallinn City Court’s decision of 28 September   2005, by which the court dismissed his request that his prison sentence be lifted due to his incurable illness. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 2.     The applicant argued that he had no opportunity to question the witness R.S., since the latter had not been summoned to the court. By questioning that witness the applicant could have tested the credibility of the statements of E.B., a co-defendant. The applicant relied on Article 6 § 3 (d) of the Convention, which reads: “3.     Everyone charged with a criminal offence has the following minimum rights: ... (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;” The Court notes that in his appeal against the Tallinn City Court’s judgment of 17 November 2004 the applicant’s lawyer neither requested the Court of Appeal to summon any witnesses, nor complained about R.S.’s absence from the hearing in the City Court. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 3.     The applicant complained that his right to the presumption of innocence had not been respected, since the Tallinn Court of Appeal had noted in its judgment that it had not been the first time that the applicant had been involved in unlawful gasoline business. He invoked Article 6 § 2 of the Convention, which reads: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” The Court observes that, as stated in the applicant’s lawyer’s appeal to the Supreme Court, the Court of Appeal had made the “incomprehensible allegation” that the applicant had previously been involved in unlawful gasoline business as an argument for his conviction. According to the appeal, however, it had been unequivocally clear from the Lääne-Viru County Court’s decision of 17 May 2004 that the applicant had been previously charged with a failure to pay for fuel rather than with having been involved in unlawful gasoline business. The Court finds that the applicant challenged in his appeal against the Court of Appeal’s judgment the correctness of the reference to the offence dealt with by the Lääne-Viru County Court in different proceedings only insofar as it concerned the classification of that offence under the Criminal Code. However, an argument that by that reference the applicant’s right to the presumption of innocence had been violated was not put forward. It follows that this complaint too must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 4.     The applicant also complained about the fact that the Tallinn City Court’s judgment of 17 November 2004, by which the Customs Board’s civil claim had been granted and his property had been confiscated, contained no substantial explanation and reasoning on that point. The Court of Appeal’s judgment had not cured this defect. The applicant argued that Article 1 of Protocol No. 1 to the Convention had been violated in conjunction with Article 6 § 1 of the Convention. These provisions, in so far as relevant, provide: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Court observes that in the appeal against the City Court’s judgment the applicant’s lawyer requested that the applicant be acquitted and that the civil claim against him be dismissed. In the alternative, he requested that the prison sentence be suspended. The Court notes that the appeal did not contain any allegations to the effect that the civil claim had been unsubstantiated or miscalculated or that the City Court’s judgment had not included sufficient reasoning on that point. The Court finds that the brief mention of the civil claim in the part of the appeal setting out the applicant’s claims constituted a subsidiary claim, which was to be relied on in the event of the applicant’s acquittal, rather than an independent claim or ground of appeal demonstrating a flaw in the City Court’s judgment and calling for a separate analysis by the Court of Appeal. The Court finds, in the circumstances, that the domestic authorities cannot be said to have been provided with a due opportunity of preventing or putting right the alleged violations in respect of the applicant’s property rights, taken together with the procedural guarantees of Article 6 § 1 of the Convention. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 5.     Lastly, the applicant complained that the cumulative effect of the above violations rendered the proceedings in respect of him unfair. He relied on Article 6 § 1 of the Convention. The Court notes that the applicant did not raise this issue in his appeals against the impugned judgments of the domestic courts. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Declares the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President