CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 avril 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 10 April 2014   FIRST SECTION Application no. 64160/11 Markus Pasi PÖNKÄ against Estonia lodged on 10 October 2011 STATEMENT OF FACTS The applicant, Mr Markus Pasi Pönkä, is a Finnish national, who was born in 1983 and lives in Helsinki. A.     The circumstances of the case The facts of the case, as submitted by the applicant and as they appear from the documents on file, may be summarised as follows. On 19 February 2007 the Harju County Court convicted the applicant of a murder. He was subsequently transferred to Finland to serve his prison sentence. On 11 December 2008 V., the owner of an apartment where the murder had taken place, brought a civil suit against the applicant with the Harju County Court. He claimed compensation for damage caused by the offence (damaged or lost furniture and belongings, parquet, carpet and so on) in the amount of 28,259 kroons (EEK) (corresponding to approximately 1,806   euros (EUR)). On 14 January 2009 the County Court ruled that the case was to be dealt with in simplified proceedings ( lihtsustatud menetlus ) under Article 405 § 1 of the Code of Civil Procedure (CCP) ( Tsiviilkohtumenetluse seadustik ) and that in case the parties wished to be heard they had to inform the court thereof within fifteen days. The applicant as was requested to provide the court with his written reply to the action. On 8 April 2009 the applicant informed the County Court in writing that he denied the claim arguing that he had not damaged or destroyed the items in question. He contended that he had not committed the crime but had acted in self-defence; in part the damage in question had been caused by the police, in part the claims were unsubstantiated. He requested examination of the case at a court hearing and asked that he and two witnesses (T. and K. – Estonian and Finnish forensic experts) be summoned and questioned in court. On 7 May 2009 plaintiff V. replied in writing to the applicant’s submissions noting that he did not deem necessary the applicant’s presence in person at a court hearing and asking that the court dismiss the applicant’s request for summoning witnesses. On 8 July 2010 the County Court ruled that the case was to be examined in written proceedings ( kirjalik menetlus ) under Article 404 of the CCP. It gave the parties a thirty-day time-limit for making any written submissions. No appeal lay against this decision. By a judgment of 3 December 2010 the Harju County Court granted V.’s claim in part. It was noted in the judgment that the court had also examined the materials of the related criminal case and relied as documentary evidence on the statements made by T. in the criminal proceedings. Relying on the judgment in the criminal case, the County Court considered it established that the applicant had not acted in self-defence when he killed the victim. Based on the materials of the criminal case as well as evidence submitted by V. the County Court satisfied V.’s claim in the amount of EEK   22,337 (EUR 1,428). It was noted in the judgment that an appeal lay to the Tallinn Court of Appeal. On 22 December 2010 the applicant filed an appeal against the County Court’s judgment. He complained that although he had requested an oral hearing in County Court, no hearing had been held. Thus, he had been deprived of an opportunity to be examined and to prove his position according to which he had caused no unlawful damage to the plaintiff’s property. He relied on Article 6 § 1 of the Convention and also referred to persons whose examination he had requested. He challenged the County Court’s reliance on the criminal court’s judgment and claimed that in a civil case is should be possible to challenge facts established in a criminal case. On 7 January 2011 the Tallinn Court of Appeal refused to accept the applicant’s appeal. It noted that the County Court had examined the case in simplified proceedings ( lihtmenetlus ). In such proceedings, the Court of Appeal could only accept an appeal for proceedings in case the County Court in its judgment had granted leave to appeal or a provision of substantive or procedural law had been clearly incorrectly applied or it was clear that the evidence had been wrongly assessed and the above could have significantly influenced the court’s ruling. The fact that the County Court’s judgment had contained information about the procedure of appeal did not mean that leave to appeal had been granted. The Court of Appeal did not find that in the case at hand it could have been said that the County Court had clearly incorrectly applied a provision of substantive or procedural law or clearly wrongly assessed the evidence or breached the right to be heard ( ärakuulamise õigus ). The County Court had examined the matter under Article 405 § 1 of the CCP in simplified proceedings. Pursuant to Article   405 § 1 of the CCP in such proceedings the court had to guarantee that the fundamental rights and freedoms and the essential procedural rights of the parties were observed and that the parties were heard ( kohus kuulab menetlusosalise ära ) if they so requested. However, for that no court hearing ( kohtuistung ) had to be conducted. On 8 July 2010 the County Court had ruled that the case was to be examined in written proceedings and had given the parties an opportunity to make any written submissions. Thus, the applicant had been guaranteed an opportunity to present his position to the court. The Court of Appeal further noted that the applicant had not objected (Article 333 §§ 1 and 2 of the CCP) to the County Court’s decision of 8 July 2010 by which the court had ordered that the case be examined in simplified proceedings and requested the applicant to make his submissions in writing; therefore, the Court of Appeal could not consider these arguments in the appellate proceedings (Article 333 § 3 and Article 652 § 6 of the CCP). The Court of Appeal concluded that there was no legal basis for it to accept the applicant’s appeal for proceedings. The applicant lodged an appeal against the Court of Appeal’s decision arguing that by refusing to hear him at a hearing the County Court had clearly violated procedural law and Article 6 § 1 of the Convention. On 30 May 2011 the Supreme Court decided not to examine the appeal. B.     Relevant domestic law The relevant provisions of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ), as in force at the material time, provided as follows: Article 333 – Filing of objections to activity of court “(1)     The participants in the proceedings may file objections to the activity of the court in directing the proceedings and also objections to the violation of procedural provisions and above all, to the violation of the formal requirements of performance of procedural acts. The court shall adjudicate an objection by a decision. (2)     If a party does not file an objection at the latest at the end of a court session where the violation took place, or in the first procedural document submitted to the court after the violation took place, and the party was aware or should have been aware of the error, the party has no right to file the objection at a later time. (3)     In the case specified in paragraph 2 of this Article, the party also has no right to rely on the error in the activity of the court upon filing an appeal against the court ruling. (4)     The provisions of paragraphs 2 and 3 of this Article do not apply if the court has violated an essential principle of civil procedure.” Article 404 – Written proceedings ordered by court “(1)     The court may decide to conduct written proceedings ( kirjalik menetlus ) in respect of a proprietary claim if the value of the action does not exceed EEK 50,000 (EUR 3,196) and a party has significant difficulties in appearing before the court due to the length of the journey or for another good reason. (2)     In the case specified in paragraph 1 of this Article, the court shall set a due date for submission of petitions and documents, and determine the time for announcing the judgment, and notify the participants in the proceedings thereof. The court may change the due date if this is necessary because changes have occurred in the procedural situation. (3)     The court shall cancel written proceedings if, in the opinion of the court, the personal appearance of the parties is unavoidable for ascertaining the facts on which the action is based or if the party due to whom the written proceedings were ordered applies for adjudication of the matter in a court session. At the request of the other party, such party shall be heard regardless of whether or not written proceedings have been ordered.” Article 405 – Simplified proceedings (1)     In justified cases, an action with a value not exceeding EEK 20,000 (EUR   1,278) may be adjudicated by way of simplified proceedings ( lihtmenetlus ) at the discretion of the court, taking account of only the general procedural principles provided by this Code. (2)     In the case specified in paragraph 1 of this Article, the court shall guarantee that the fundamental rights and freedoms and the essential procedural rights of the parties are observed in the course of the proceedings and the parties are heard if they so request ( kohus ... kuulab poole tema taotlusel ära ). It is not necessary to hold a court hearing ( kohtuistung ) for that purpose. (3)     A court may examine a case in the manner specified in paragraph 1 of this Article without making a separate decision for that purpose. Nevertheless, the parties to the proceedings must be informed of their right to be heard by the court ( õigus olla kohtu poolt ära kuulatud ).” Article 652 § 6 of the Code of Civil Procedure provides that in the appeal instance of court, a party cannot rely on the fact that the court of first instance violated a provision of procedural law, unless the party has filed an objection to it on time in the court of first instance (Article 333 of the CCP). COMPLAINT The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair civil trial owing to the lack of an oral hearing.     QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there a breach of the applicant’s right to an oral and public hearing? 2.     Was the present case examined in written proceedings or in simplified proceedings? By which decision and on what grounds the courts refused the applicant’s request for holding an oral hearing? Did the courts give reasons for that decision? 3.     What is the difference between ‘holding a court hearing’ ( kohtuistung ) and ‘hearing a party’ ( ärakuulamine ) (Article 405 of the Code of Civil Proceedings)? How is a party heard without a court hearing being held? Are the parties’ oral submissions obtained in either manner (that is, at a court hearing or in the course of a party being ‘heard’) of different value for the court examining the case? 4.     Was the County Court in the present case obliged to ‘hear’ ( ära kuulama ) the applicant? Was the applicant in fact heard by the court in the present case? If not, on which legal basis, by which court order and for what reasons?