CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 juin 2015

.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 } .s3F59B822 { font-family:Arial; font-weight:bold; 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 } .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 }     Communicated on 25 June 2015   FIRST SECTION Application no. 447/12 Ain RANDMAA against Estonia lodged on 19 December 2011 STATEMENT OF FACTS The applicant, Mr Ain Randmaa, is an Estonian national, who was born in 1970 and lives in Jõgeva. He is represented before the Court by Mr   T.   Laasik, a lawyer practising in Tartu. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was charged with physical abuse. According to the charges he had slapped A. on her back with his palm. The Tartu County Court heard the prosecutor, the applicant, the victim and two witnesses at an oral hearing. The prosecutor specified that the applicant had hit A. without qualifying that the blow had been administered with his palm. The applicant denied the charges, stated that he did not wish to give any further testimony but insisted that he had not committed the act he was charged with and had not been at the scene. According to the victim A. and witnesses K. and B. they had been doing maintenance works in and around the apartment building where the applicant lived. The applicant had walked back and forth using foul language and also shouted out of one of the windows. A. stated that after having been verbally abused by the applicant she turned away from him and was then hit on her back. She was convinced that it was the applicant who had hit her as there was no one else in the vicinity. When she had turned around, she had seen the applicant running away towards the building. A. had gone to the other side of the building and told to the others about what had happened. The blow had caused her pain but left no visible traces. Some days later, when they sighted the applicant, she pointed to K. that this was the man who had hit her. Witness K. stated that A. had come to them holding her shoulder and telling that she had been hit. Some days later A. had showed him the applicant saying that this was the man who had hit her. K. had told the applicant to keep away from his workers or he would trash him. K. had later been summoned to police to give statements in connection with the applicant’s complaint that K. had threatened to kill him. Witness B. stated that he had heard from his worker U. about A. having been hit. At the time in question he had seen the applicant nervously running up and down the stairs and using foul language towards the maintenance company. He had also heard the applicant verbally abusing A. The applicant and his counsel alleged that A.’s statements had been incoherent as to the question of whether she had been hit with the palm or the fist. They also raised the issue of possible revenge after the applicant had made an offence report related to threats by K. Only after he had made his offence report had the investigation been initiated into the physical abuse allegedly committed by him. On 3 February 2011 the Tartu County Court convicted the applicant as charged. He was fined 224 euros. The court found no reason to doubt about the reliability of the evidence given by the victim and witnesses. It observed that neither A. nor K. had seen whether the applicant had hit A. specifically with the fist, but the court did not consider that the lack of consistency in this question undermined the reliability of their statements. As regards the possible motive of revenge, the court noted that according to A. and K. they had not turned to the police themselves as they had not considered the matter sufficiently serious; the investigation had been opened by a police officer only after A. had been interviewed in connection with the offence report made by the applicant. As regards the applicant’s statements, the court found that these were incoherent and unreliable as at some point he had argued that he had not at all been at the scene whereas he had also submitted that he had been there and talked to the witnesses but had hit no one. The applicant and his counsel filed appeals with the Tartu Court of Appeal. The applicant argued that the judgment lacked sufficient reasoning and was based on insufficient and unreliable evidence. His counsel contended that the applicant had not committed the offence. He complained that the prosecutor had changed the charges at the hearing by omitting the qualification according to which the applicant had hit the victim with his palm. Furthermore, he challenged the reliability of the statements of victim A. and witness K. Lastly, he argued that the existence of the mental element of the offence had not been established and the applicant had not been given the benefit of doubt. By a decision of 6 May 2011, in preliminary proceedings and without holding a hearing, the Tartu Court of Appeal refused to hear the appeals. Having examined the case file, it considered that the appeals were clearly unfounded. The Court of Appeal noted that the County Court’s judgment was sufficiently reasoned and coherent and no procedural violations had taken place. It agreed with the lower court that the applicant’s guilt was established and considered that the arguments set out in the appeals did not rebut the reasoning of the County Court. In respect of the inconsistency of the victim’s statements as to whether the applicant had hit her with his palm or fist, the Court of Appeal was satisfied with the victim’s explanation given in the County Court according to which she could not tell whether she had been hit with the palm or fist because the blow had been administered to her back. The Court of Appeal considered this plausible and found that this inconsistency did not render the victim’s statements unreliable. The Court of Appeal also rejected some further arguments of factual nature raised in the appeals such as those challenging the victim’s claim that she had felt pain as a result of being hit and the alleged unreliability of witness K.’s statements owing to his earlier convictions. The applicant’s counsel filed an appeal with the Supreme Court. He reiterated the complaints about the reliability of witnesses and assessment of evidence. He submitted that the defence had requested that the evidence be reassessed by the Court of Appeal and that it would not have been legally impossible for the Court of Appeal to grant the appeals. On 20 June 2011 the Supreme Court decided not to examine the appeal. B.     Relevant domestic law Article 326 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ) provides that a court of appeal may refuse to hear an appeal if the court unanimously finds that the appeal is clearly unfounded. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that he was not given a fair trial. He argues that the right to be heard by the courts and contest the claims set out in the charges was not secured to him and invokes the right to an adversarial trial. He also complains about insufficient reasoning in the domestic courts’ rulings and their assessment of evidence.     QUESTIONS TO THE PARTIES 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, was the lack of an oral hearing before the Court of Appeal compatible with the right to a fair trial?