CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 7 mars 2013

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Estonia Application No. 48132/07, Judgment of 22 November 2011   1)                    Case description : The applicant, a Russian national, was deprived of his right to appeal in the criminal proceedings directed against him as his legal-aid lawyer had failed to lodge an appeal within the applicable time-limit and no subsequent measures adequately remedied the situation (violation of Article 6 § 1 - access to court).   2)                    Individual measures : The just satisfaction awarded by the Court for non-pecuniary damage (EUR 1,000) was paid on 30/03/2012.   Additional individual measures apart from payment of just satisfaction are following.   Re-opening of the applicant’s criminal proceedings Following the Court judgment of 22 November 2011 the applicant submitted an application to re-open his criminal case (i.e Viru County Court judgment of 3 November 2006 and Viru Appeal Court judgment of 5 March 2007) to the Estonian Supreme Court.   On 9 May 2012 the Supreme Court in review proceedings No. 3-1-2-2-12 decided to grant the application to re-open the above-mentioned criminal case. The Supreme Court in its judgment referred expressly to the Strasbourg Court judgment in the applicant’s case No. 48132/07 when it found under § 366(7) of the Estonian Code of Criminal Procedure that the application for re-opening was justified.   The Supreme Court noted that the violation found by the Strasbourg Court had been related to the fact that the applicant’s advocate had not submitted the appeal in cassation within due time and that the applicant had therefore lost his right to have his case reviewed by the Supreme Court. The Supreme Court decided that such a violation can be remedied by granting the applicant’s advocate access to the Supreme Court. The Supreme Court decided that it does not have to refer the case back to lower instance courts but it can annul the Supreme Court’s ruling of 9 May 2007 No. 3-7-1-1-135 by which the advocate’s cassation had been disregarded and returned due to the expiry of the term for cassation. The Supreme Court also decided to adjudicate the respective appeals in cassation - both the appeal in cassation submitted in 2007 and the new appeal in cassation submitted in 2012 – itself and initiated respective pre-trial proceedings in the Supreme Court.   The Supreme Court in its 9 May 2012 judgment also referred to the Viru County Court ruling of 21 February 2012 in which it had already been decided that only the operative part of the Viru County Court judgment of 3 November 2006 - that foresees imprisonment and not the expulsion as an additional punishment, shall be taken into account when implementing the judgment. The Supreme Court expressly confirmed in its 9 May 2012 judgment that the applicant’s expulsion based on the criminal court judgment of 3 November 2006 is out of the question.   On 27 July 2012 the Supreme Court decided not to proceed with the above mentioned 2007 and 2012 cassations in the applicant’s criminal case. As the Viru County Court had already decided and the Supreme Court had confirmed that the applicant cannot be expelled upon the criminal court judgment (as the additional punishment had been annulled), the Supreme Court did not find any other grounds which would justify the adjudication of the appeals in cassation.   3)                    General measures :                     Legislative basis and amendments : According to § 350 (2)1 of the Criminal Procedure Code (CPC) the Supreme Court shall prepare a ruling on refusal to hear an appeal in cassation and return the appeal to the appellant in cassation if the appeal in cassation was filed after the expiry of the term for appeal in cassation provided for in § 345 of this Code and the appellant in cassation has not requested restoration of the term or the Supreme Court has refused to restore the term. According to § 172(2)1 of the CPC absence which is not related to absconding from the criminal proceeding is a good reason (i.e valid grounds) for allowing a term for appeal to expire. According to § 172(2)2 of the CPC the investigative body, Prosecutor’s Office or court are authorised to decide whether any other circumstances existed that were good reasons for allowing a term for appeal to expire.   § 267 of the CPC regulates the measures applicable to persons who violate order in a court hearing. According to new sub-clauses (4 1 )-(4 2 ) which entered into force on 1 September 2011, the court may remove an advocate from the court room if the advocate is not able to represent the client properly or has showed himself/herself as dishonest, incompetent or irresponsible; as well as when he/she has vexatiously hindered the correct and speedy adjudication or has repeatedly not complied with the court’s orders. § 20(3 1 ) of the State Legal Aid Act, in force from 1 January 2010, also foresees that a court shall, at the request of a recipient of legal aid or on its own motion, remove an advocate from the provision of state legal aid by a ruling if the advocate has demonstrated incompetence or negligence. In advance, the court may request a submission of explanations from the recipient of state legal aid and the advocate. The court shall forward the ruling concerning the removal of the advocate from the provision of state legal aid to the Bar Association for the commencement of proceedings of its court of honour and, if necessary, for the appointment of a new provider of state legal aid. The purpose of the new provisions is to guarantee that a person is not represented by an advocate who does not fulfil his/her tasks. Cases where a cassation is not submitted because of the wrongful failure of an advocate should thus be avoided or at least minimised. In any case courts can always take into account the wrongful failure when deciding on the restoration of the term of cassation which is evident from the case-law referred to below.                   Case-law developments : The Supreme Court judgment of 9 May 2012 in the applicant’s review proceedings No. 3-1-2-2-12 shows clearly that domestic courts take into account the fact that the applicant’s advocate had not submitted the appeal in cassation within due time and that the applicant had therefore lost his right to have his case reviewed by the Supreme Court. These circumstances were clearly taken as a basis to renew the term for appeal in cassation and for review the cassations in question.   The Supreme Court in its judgment of 16 May 2011 in civil case No. 3-2-1-40-11 has explained that the assessment of “the good reason” is a discretionary decision as procedural codes do not foresee an exhaustive list of reasons. “The good reason” shall be objective and it shall proceed from an event that the applicant himself/herself cannot influence. Although the Supreme Court in the 16 May 2011 judgment did not accept the explanations that the applicant’s advocate’s failure to submit an appeal in due time was “a good reason” for restoring the term of the appeal, it nevertheless acknowledged that errors in computer systems, incl. law office’s computer systems might be grounds for restoration of the term.   The above-mentioned judgments are relevant as they prove that courts have the discretion to assess different reasonings and are authorised to take into account various reasons for the restoration of a term for appeal in cassation. It also shows that not only “good reasons” of the applicant but also those of his/her legal counsel can be taken into account.                     Publication and dissemination: The judgment of the Court was translated into Estonian and published on the web-site of the Ministry of Foreign Affairs ( http://www.vm.ee/?q=taxonomy/term/229 ) and widely disseminated, including to the authorities directly concerned.   4)                    Conclusions of the respondent State :   Estonia has paid the applicant the just satisfaction provided in the judgment in due time. The applicant had and he used the right to request the re-opening of his criminal proceedings, which the Supreme Court granted. In the course of the re-opened criminal proceedings the Supreme Court established that the additional punishment to expel the applicant is invalid; thus the applicant does not face expulsion. The conviction itself and the respective imprisonment stayed in force.   Concerning the general measures the Government stress that all procedural codes give the domestic courts discretion to assess and decide case-by-case whether there exists “a good reason” to restore the term for cassation. It has also been acknowledged that the wrongful failure by an advocate could be one of the good reasons to restore respective term. Existing legislation which does not give an exhaustive list of “good reasons” gives to all courts, including to the Supreme Court, sufficient flexibility and possibilities to restore a (cassation) term if justified.   In addition, new legislative provisions are in force from 1 January 2010 and 1 September 2011 that foresee the possibility to remove an incompetent advocate from the court already at early stages of the proceedings. This should minimise the risk that negligent advocates represent clients in the Supreme Court proceedings.   Estonia finds that the judgment is implemented properly and fully and asks to close the examination of the case.   [1] Adopted by the Committee of Ministers on 7 March 2013 at the 1164th meeting of the Ministers’ Deputies.