CEDH · CASELAW;COMMUNICATEDCASES;ENG — 8 octobre 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .sDA30A789 { margin-top:30pt; margin-bottom:36pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } FIRST SECTION Application no. 25662/10 Aleksandr STRELTSOV against Estonia lodged on 13 March 2010 STATEMENT OF FACTS THE FACTS The applicant, Mr Aleksandr Streltsov, is a Russian national, who was born in 1968 and lived in Narva until his arrest. He is currently detained in Viru Prison. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 14 November 2005 the Narva City Court (criminal case no. 1-457/05) convicted the applicant of physical abuse in summary proceedings ( käskmenetlus ). He was fined 2,500 kroons (EEK – corresponding to approximately 160 euros (EUR)) which was reduced to EEK 1,750 (EUR   112), account being taken of his five-day detention in custody from 21 to 25 May 2004. According to the judgment the applicant was charged with having hit his mother on 20 May 2004. The court found that although the applicant denied the charges, his guilt was established by witness statements and other written evidence. The applicant was not present in court and according to him he was unaware of the charges. Pursuant to the rules of summary proceedings and as noted in the judgment, the applicant could request that the criminal case was dealt with in ordinary criminal proceedings within ten days of the receipt of the judgment. In case no such request was made, the judgment became final. The copy of the judgment in the file bears a note that it became final on 16   September 2008. In the meantime, on 4 November 2006, the applicant was arrested and placed in custody in connection with a criminal case (no. 1-06-14247) unrelated to the present one. On 13 July 2008 enforcement proceedings were initiated in respect of the fine imposed on the applicant in the criminal case no. 1-457/05. A notice sent to the applicant’s home address on 13 November 2008 was returned as it could not be served on the applicant. On 22 December 2008 a notice was published in Official Announcements ( Ametlikud Teadaanded ), an electronic journal that publishes all notices, invitations and announcements prescribed by the legislation. On 19 August 2009 a bailiff filed a request with the Viru County Court asking for the replacement of the applicant’s fine with imprisonment. On 6   October 2009 the County Court decided to schedule a hearing for 6   November 2009. This decision was sent to the applicant to prison. The hearing took place as scheduled with the participation of the applicant, his legal-aid lawyer and a prosecutor. It is mentioned in the County Court’s decision of 6 November 2009 that the applicant submitted in court that he had been aware of the enforcement proceedings, had once visited the bailiff’s substitute but had not had money to pay the fine. The County Court noted that the criminal case had been dealt with in summary proceedings and the judgment had become final on 16 September 2008. The applicant had received a copy of the judgment but had not challenged it. His allegation that he had not received a copy of the judgment of 14 November 2005 was unsubstantiated. In case he had not received it, the judgment would not have become final. Moreover, the applicant confirmed at the hearing that he had indeed gone to the bailiff in order to settle the questions related to the payment of the fine imposed on him by the judgment of 14   November 2005. The County Court decided that the fine of EEK 1,750 that had been imposed on the applicant was to be replaced by eleven-day imprisonment which was considered as having been served as from 4   November 2006 when he had been taken in custody. In the applicant’s submission his visit to the bailiff had concerned a fine for a traffic violation or something similar. On 12 November 2009 the applicant sent a letter to the Viru County Court. It appears that he attempted to make a request for the conduct of ordinary criminal proceedings, an option referred to in the judgment of 14   November 2005. In a letter dated 17 November 2009 the County Court informed him that since the County Court’s judgment had become final on 16 September 2008, his request was rejected. On 24 November 2009 the applicant sent an “appeal” to the Viru Court of Appeal. He submitted that he had become aware of the Narva City Court’s judgment when being summoned to the County Court’s hearing of 6   November 2009. By a letter of 2 December 2009 the Tartu Court of Appeal returned to the applicant his appeal as the Narva City Court’s judgment of 14 November 2005 had become final. On 17 December 2009 the applicant filed an “appeal” with the Supreme Court challenging the City Court’s judgment in question and the Tartu Court of Appeal’s letter of 2 December 2009. By a decision of 20 January 2010 the Supreme Court rejected the applicant’s “request for the reopening” of the criminal case no. 1-475/05. It was noted that the applicant’s request had been filed by the applicant himself and not by a lawyer as required by law; nor had the applicant applied for legal aid. In the meantime, the applicant filed an appeal against the Viru County Court’s decision of 6 November 2009. He alleged that it he had only become aware of his conviction by the Narva City Court in 2005 at the County Court’s hearing of 6 November 2009. By a decision of 21 December 2009, the Tartu Court of Appeal dismissed the applicant’s appeal. The court noted that since the criminal case had been dealt with in summary proceedings, the applicant had not been summoned to court. However, a copy of the bill of indictment and the judgment had been sent to the address indicated by him. As the applicant submitted that he had appeared at the bailiff’s office in connection with the fine in question, it could be concluded that he had received a copy of the judgment. No appeal lay against the Court of Appeal’s decision. On 27 December 2009 the applicant requested the Supreme Court to assign him a legal-aid lawyer. According to the applicant he was advised, in response, to address a first-instance court. The applicant turned to the first-instance court in Narva and, on 11   February 2010, to the first-instance court in Kohtla-Järve. By a letter of 22 February 2010 the Viru County Court informed him that in a criminal case pending against him (no. 1-07-5486) he had been assigned R. as a legal-aid lawyer. He was reminded that the Narva City Court’s judgment in the case no. 1-457/05 had become final on 16 September 2008 and was enforceable. Thus, his request for assignment of a lawyer was rejected. However, according to the applicant, R. declined to assist him in respect of the criminal case no. 1-457/05. It appears that in July 2010 the applicant again applied for legal aid before the Supreme Court. On 30 July 2010 the latter informed him that his request could not serve as a basis for any kind of procedure (appeal, reopening) but State legal aid could only be granted according to the procedure and in cases provided for in law. B.     Relevant domestic law and practice Articles 251 to 256 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ), as in force at the material time, set out the rules for summary proceedings. Summary proceedings could be applied in respect of criminal offences in the second degree where the prosecutor considered application of a pecuniary punishment as the principal punishment. The prosecutor prepared a bill of indictment which was sent to the court and copies of which were transmitted to the accused and his or her lawyer. In case the court found that the matter could be dealt with in summary proceedings and consented to the conclusions set out in the bill of indictment in respect of the proof of the charges and punishment, it could hand down its judgment without holding an oral hearing. The judgment was to be sent, within three days, to the accused and the Public Prosecutor’s Office. Within ten days of the receipt of the judgment the accused had the right to request that the court heard the case pursuant to the general procedure. In case no such request was made, the judgment became final. If the request in question was made, the case file was to be returned to the Public Prosecutor’s Office for drawing up a new bill of indictment pursuant to the general procedure. Article 318 of the Code of Criminal Procedure provided that no appeal lay against a convicting judgment made in summary proceedings. In a judgment of 18 June 2010 (case no. 3-4-1-5-10) the Constitutional Review Chamber of the Supreme Court dealt with the constitutionality of the summary criminal proceedings. It found that although no appeal lay against a judgment made in summary proceedings, such an appeal could be filed after the accused had requested the conduction of general criminal proceedings. Thus, the possibility to appeal was not really excluded but rather delayed and therefore there was no violation of the right to appeal guaranteed by the Constitution. However, the Supreme Court found that different elements of summary proceedings as a whole failed to ensure an accused effective right of defence. The regulation was declared unconstitutional in this part. COMPLAINTS The applicant complains that the investigation and court hearing in the criminal case no. 1-457/05 were conducted without his participation, he was not informed of the charges against him, did not have adequate time and facilities for the preparation of his defence and was given no opportunity to defend himself, neither in person nor through legal assistance. He was not given a possibility to examine witnesses. He invokes Article 6 §§ 1, 2 and   3   (a), (b), (c), (d) and (e) and Article 13 of the Convention. The applicant further complains about a violation of the prohibition of imprisonment for debt (Article 1 of Protocol No. 4 to the Convention), argues that the Tartu Court of Appeal did not entertain his appeal (Article 2 of Protocol No. 7) and contends that he was punished twice – by a fine and imprisonment – in violation of Article 4 of Protocol No. 7. QUESTIONS     1.     Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, has there been a public and oral hearing in the present case, as required by Article 6 § 1 of the Convention? Was the applicant guaranteed an opportunity to participate effectively in his criminal trial?   2.     Was the applicant informed of the nature and cause of the accusation against him, as required by Article 6 § 3 (a) of the Convention?   3.     Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?   4.     Was the applicant able to defend himself or through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention and/or was he afforded free legal assistance, within the meaning of Article 6 § 3 (c) of the Convention? What was the legal-aid lawyer’s role in the present case and which procedural acts did she perform?   5.     Was the applicant able to examine witnesses against him and to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?   6.     The Government are also requested to provide information concerning the circumstances in which the judgment of the Narva City Court (criminal case no. 1-457/05) became final on 16 September 2008.