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FIFTH
SECTION
CASE OF PELLO v. ESTONIA
(Application
no. 11423/03)
JUDGMENT
STRASBOURG
12 April
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Pello v. Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 20 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11423/03) against the Republic
of Estonia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Estonian national, Mr Ain Pello (“the
applicant”), on 7 March 2003.
- The
applicant, who had been granted legal aid, was represented by Ms M.
Lust, a lawyer practising in Tallinn. The Estonian Government (“the
Government”) were represented by their Agent, Ms M. Hion,
Director of the Human Rights Division of the Legal Department of the
Ministry of Foreign Affairs.
- The
applicant alleged that his rights under Article 6 §§
1 and 3 (d) were violated as he had had no opportunity to examine two
of the witnesses in the criminal proceedings against him.
- By
a decision of 5 January 2006 the Court declared the application
admissible.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Estonia.
- In
the evening of 1 October 2000, next to a shop in Saue, a man who had
been beaten died on the spot as a result of head injuries. On 2
October 2000 the Harju police initiated criminal proceedings. Charges
were brought against the applicant and M.K.
- Following
the conclusion of the preliminary investigation the criminal
case-file was sent to the Harju County Court (maakohus).
According to the bill of indictment, the applicant and M.K. had been
consuming alcohol in a train from Tallinn to Saue. In Saue they had
walked to a shop in front of which they met T.N. They had entered the
shop. After having bought beer the applicant and M.K. left the shop
together. Outside the shop they had met O.U. and the victim. The
former had entered the shop, the latter stayed outside. The victim,
being under the influence of alcohol, had had an argument with the
applicant and M.K. They had attacked the victim and beaten him, as a
result of which he died. When O.U. left the shop and saw his friend
on the ground, he approached the applicant and M.K. for
clarification. After a brief scuffle O.U. had run away from the
applicant and M.K. and again had entered the shop. Witness R.L., the
shop assistant, had locked the door of the shop.
- The
bill of indictment relied on the statements of U.T., the father of
the victim; O.U., the man together with whom the victim had come to
the shop; R.L., the shop assistant; T.N., a man who had stayed in the
shop during the offence; K.K., a man who had passed by the scene of
the offence in a car and had seen two men beating a third one; and
K.E., a nearby inhabitant who had heard voices while at home in the
evening of the offence. In addition, reliance was placed, inter
alia, on the plan and report concerning the scene of the offence,
photos, a forensic expert's opinion with annexes, a report on the
comparison of K.K.'s statements with the circumstances and a report
concerning the confrontation of K.K. and the applicant.
- In
August 2001 the criminal case was joined with another case in which
the applicant was also accused. Altogether there were five defendants
in the criminal case.
- On
19 September 2001 the hearing was adjourned by the County Court.
- At
the hearing of 6 November 2001 the prosecutor presented amended
charges in the part not relating to the present case. The applicant's
lawyer requested that the hearing be adjourned and that all the
witnesses and the forensic expert be summoned. She also requested
that additional questions be put to the forensic expert. The
prosecutor informed the court that witness K.K. had died. The court
adjourned the hearing.
- The
County Court heard the case on 29 November 2001 and on 4 April
2002.
- At
the hearing of 29 November 2001 the applicant's lawyer found that the
participation of witnesses O.U., T.N., R.L. and K.E. was necessary.
She noted that she had made a request to the effect that the forensic
expert be called to the hearing. The court heard the applicant, M.K.
and U.T. In addition, the court disclosed the written records of
statements made by witnesses K.K. and R.L. during the preliminary
investigation, the record concerning the interrogation of M.K., the
report concerning the confrontation of the applicant and K.K. and the
report on the comparison of K.K.'s statements with the circumstances.
The County Court granted the request to call witnesses O.U., T.N. and
R.L. and ordered that an additional opinion from the forensic expert
be obtained. The expert submitted an additional opinion on 29 January
2002.
- On
4 April 2002 the County Court held the next hearing. Witness R.L. was
heard and the written record of his statements given during the
preliminary investigation was read out. Witnesses O.U. and T.N.
failed to appear. The court had summoned them but the letters had
been returned to the County Court by the postal service due to the
expiry of the term for which mail was held. In addition, the court
disclosed the written records of statements made by witness K.K., the
report concerning the confrontation of the applicant and K.K. and
several other materials. The applicant's lawyer insisted that the
personal attendance of witnesses O.U. and T.N. at the hearing was
necessary. The County Court dismissed the request and closed the
hearing on the same day.
- The
Harju County Court delivered its judgment on 10 April 2002. Under
Article 107 § 2 (1) and (2) of the
Criminal Code the applicant was convicted of intentionally causing an
extremely serious bodily injury which had been life-threatening and
which due to negligence had caused the death of the victim and which
had been committed in a manner motivated by hooliganism. The court
sentenced him to three years' imprisonment. It relied on the forensic
expert opinion together with annexes, the statements of witnesses
K.K. and K.E., given during the preliminary investigation, and the
statements of witness R.L. It further relied on the report concerning
the scene of the offence together with a sketch plan and photos
appended to it, the report concerning the examination of the material
evidence together with photos and the victim's death certificate. The
court established, inter alia, that the applicant and M.K. had
attacked the victim and that they had been ready to attack K.K. and
O.U. who had intervened.
- The
applicant's lawyer appealed against the County Court's judgment. She
challenged the County Court's refusal to summon witnesses O.U. and
T.N., finding that their statements could have been in favour of the
applicant. She also complained that the findings of the County Court
had been incompatible with the factual circumstances, pointing out,
inter alia, that the statements of those witnesses on which
the court had relied had been contradictory. She requested that
witnesses O.U. and T.N. be summoned to the court and that the
applicant be acquitted in respect of the charge concerned.
- On
12 June 2002 a hearing at the Tallinn Court of Appeal
(ringkonnakohus) took place. T.N. was present in the
courtroom. However, the court dismissed the applicant's lawyer's
request that he be heard as a witness.
- On
the same date the Court of Appeal delivered its judgment. It
established that the County Court had repeatedly sent summonses to
the witnesses O.U. and T.N. Since the letters had been returned to
the County Court by the postal service, the Court of Appeal concluded
that the whereabouts of these witnesses had been unknown to the
County Court. It had been lawful for the County Court to disclose
their statements made during the preliminary investigation. As the
County Court had disclosed the statements and examined them at its
hearing, it had used these statements as evidence in compliance with
the law. The Court of Appeal noted that the applicant's lawyer had
failed to specify, either before the County Court or in her appeal,
what information she would have wished to obtain from these
witnesses. The Court of Appeal rejected the appeal in respect of the
alleged lack of evidence and incompatibility of the County Court's
conclusions with the factual circumstances, relying on the statements
of witness K.K., given during the preliminary investigation and
disclosed at the County Court's hearing, and the statements of
witness R.L., given prior to the trial and confirmed by him at the
hearing. The Court of Appeal noted that the County Court had rightly
disregarded the statements of the accused. It also referred to the
statements of U.T., given at the County Court's hearing, and to the
forensic expert opinion. The court upheld the County Court's judgment
in its relevant part in substance omitting, however, the element of
hooliganism in the behaviour of the applicant and M.K. (Article 107 §
2 (2) of the Criminal Code). The prosecutor's appeal concerning the
sentence was upheld in part and the applicant was sentenced to five
years' imprisonment under Article 107 §
2 (1) of the Criminal Code.
- The
applicant's lawyer lodged an appeal with the Supreme Court
(Riigikohus). She again challenged the County Court's refusal
to summon witnesses O.U. and T.N., finding that the mere fact that
the witnesses had not picked up the letters sent to them from the
post office did not permit the conclusion that their place of
residence had changed and that their whereabouts had been unknown to
the court. She noted that the County Court had not ordered the police
to secure the attendance of the witnesses at the hearing.
- The
Supreme Court rejected the appeal on 16 October 2002. It held that
the County Court had failed to employ all possible means to guarantee
the applicant a fair trial in accordance with Article 6 §
1 of the Convention, in that the County Court had failed to secure
the witnesses' attendance by ordering the police to compel them to
appear in court (sundtoomine). By disclosing the statements
given by O.U. and T.N. during the preliminary investigation, without
the applicant having had an opportunity to put questions to them, the
County Court had also failed to observe the requirements of Article 6
§ 3 (d). However, after
having analysed at length the case-law of the European Court of Human
Rights, the Supreme Court found that there was no ground for quashing
the judgments of the County Court and the Court of Appeal, since the
conviction of the applicant had not been based entirely or to a
decisive extent on the statements of witnesses O.U. and T.N.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§
1 and 3 (d) OF THE CONVENTION
- The
applicant complained that he had not received a fair trial and that
his defence rights had been violated. He had had no opportunity to
examine witnesses O.U. and T.N. Questioning of those witnesses would
have led to his acquittal. He relied on Article 6 §§
1 and 3 (d) of the Convention, which, in so far as relevant, provide:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...
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.”
A. The parties' submissions
- The
Government were of the opinion that the applicant essentially wished
to contest his conviction by the domestic courts. They noted that the
Supreme Court had dealt with all the applicant's complaints,
analysing also the relevant case-law of the European Court of Human
Rights. It had found that the applicant's conviction had not been
based solely or to a decisive extent on the statements of witnesses
O.U. and T.N. Furthermore, the Government recalled that it was not
the Court's task to substitute its own assessment of the facts for
that of the domestic courts. They also argued that Article 6 §
3 (d) did not grant the accused an unlimited right to secure the
appearance of witnesses in court. The Government found that in the
present case the criminal proceedings as a whole had been fair and
compatible with the requirements of Article 6 §
1.
- The
applicant did not comment on the Government's observations.
B. The Court's assessment
- The
Court notes at the outset that, since the guarantees of paragraph 3
(d) of Article 6 are specific aspects of the right to a fair trial
set forth in paragraph 1 of this Article, it will consider the
complaint about the lack of a possibility to examine the two
witnesses at issue under the two provisions taken together (see
Meftah and Others v. France [GC], nos. 32911/96, 35237/97
and 34595/97, § 40, ECHR 2002-VII).
- According
to the Court's case-law, all the evidence must normally be produced
at a public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but
they must not infringe the rights of the defence; as a general rule,
paragraphs 1 and 3 (d) of Article 6 require that the
defendant be given an adequate and proper opportunity to challenge
and question a witness against him, either when he makes his
statements or at a later stage (see Van Mechelen and Others v. the
Netherlands, judgment of 23 April 1997, Reports of Judgments
and Decisions 1997 III, p. 711, § 51). A conviction
should not be based either solely or to a decisive extent on
statements which the defence has not been able to challenge (see,
among others, A.M. v. Italy, no. 37019/97, § 25,
ECHR 1999 IX, and Lucà v. Italy, no. 33354/96,
§ 40, ECHR 2001 II, and, more recently, Mild and
Virtanen v. Finland, no. 39481/98 and 40227/98, § 42,
26 July 2005).
- The
Court recalls that the admissibility of evidence is primarily a
matter for regulation by national law. As a general rule, it is for
the national courts to assess the evidence before them as well as the
relevance of the evidence which the defendant seeks to adduce. It is
not sufficient for a defendant to complain that he has not been
allowed to question certain witnesses; he must, in addition, support
his request by explaining why it is important for the witnesses
concerned to be heard and their evidence must be necessary for the
establishment of the truth (see Perna v. Italy [GC],
no. 48898/99, § 29, ECHR 2003 V, with further
references). Article 6 § 3 (d)
does not require the attendance and examination of every witness on
the accused's behalf. Its essential aim, as is indicated by the words
“under the same conditions”, is a full “equality of
arms” in the matter (see Engel and Others v. the
Netherlands, judgment of 8 June 1976, Series A no. 22, pp. 38-39,
§ 91).
- Therefore,
even though it is normally for the national courts to decide whether
it is necessary or advisable to call a witness, there might be
exceptional circumstances which could prompt the Court to conclude
that the failure to hear a person as a witness was incompatible with
Article 6 (see Popov v. Russia, no. 26853/04, § 179,
13 July 2006, Destrehem v. France, no. 56651/00, § 41,
18 May 2004, and Bricmont v. Belgium, judgment of 7 July
1989, Series A no. 158, p. 31, § 89).
- In
the present case, the applicant argued that he had been unable to
question O.U. and T.N. – witnesses whose statements would have
led to his acquittal.
- The
Court observes that the prosecution had relied in the bill of
indictment, among others, on the statements of these witnesses, given
during the preliminary investigation, considering those statements as
inculpating evidence. However, these statements of witnesses O.U. and
T.N. were not mentioned in the County Court's judgment. Nevertheless,
the Court takes note of the observation made by the Court of Appeal
in its judgment as to the use as evidence of the witness statements
made by O.U. and T.N. by the County Court. The Court of Appeal
considered that this had been lawful, as the whereabouts of these
witnesses had been unknown. The Supreme Court found that, although
the disclosure of the statements of O.U. and T.N. by the County Court
gave rise to certain misgivings, the applicant's conviction had not
been based solely or to a decisive degree on the statements of these
witnesses.
- It
transpires from the reasoning of the Court of Appeal and the Supreme
Court that they considered O.U. and T.N. primarily as prosecution
witnesses. Having concluded that their statements were not the only
or decisive evidence on which the applicant's conviction had been
based, the Supreme Court found that there was no ground for quashing
the judgments of the lower courts.
- The
Court notes, however, that the applicant's lawyer insisted on several
occasions at the hearing before the County Court that it was
necessary to examine the witnesses concerned. In her appeal to the
Court of Appeal, she challenged the County Court's refusal to summon
O.U. and T.N., arguing that they could have given statements in the
applicant's favour. Moreover, she requested at the hearing before the
Court of Appeal that T.N., who was present in the courtroom, be
examined. She reiterated the argument concerning the County Court's
refusal to summon the witnesses in her appeal to the Supreme Court.
Accordingly, the defence considered O.U. and T.N. as witnesses on
their behalf rather than as prosecution witnesses.
- The
applicant's appeals concerned the fact that O.U. and T.N. were not
heard in court rather than that the courts unduly relied on their
statements. The Supreme Court did not address this issue, but
dismissed the appeal on the ground that the lower courts had not
decisively relied on their statements.
- As
to the question whether the applicant has explained why it was
important for the witnesses concerned to be heard, the Court takes
note of the Court of Appeal's finding that the applicant's lawyer had
failed to specify what information she would have wished to obtain
from them. The Court notes that O.U. and T.N. had been in the
immediate vicinity of the scene of the offence at the material time.
The Court considers that the relevance of the evidence concerned for
the establishment of the truth had been recognised by the
prosecution, since the bill of indictment had also relied on it, and
by the County Court, which granted on several occasions the
applicant's request to summon O.U. and T.N. Moreover, although the
County Court, in its judgment, did not refer to the statements of
O.U., it mentioned that the applicant and M.K. had been ready to
attack him after his intervention.
- Yet,
the Court finds that the County Court did not make every reasonable
effort to obtain the attendance of O.U. and T.N. in the court. In
particular, it drew its conclusion that their whereabouts were
unknown merely on the basis of the fact that the summonses sent to
them had been returned by the postal service. It did not order the
police to compel the witnesses to appear in court. Moreover, it
appears that the Court of Appeal not only made no effort to obtain
these witnesses' attendance, but it also refused to question T.N. who
was present in the courtroom.
- Taking
into account that the domestic courts failed to make every reasonable
effort to obtain the attendance and examination of the witnesses
initially named by the prosecution and then called by the defence and
that they failed to examine adequately the applicant's requests to
that effect, the Court finds that the applicant's defence rights were
limited to an extent incompatible with the guarantees of fair trial.
There has accordingly been a violation of paragraphs 1 and 3 (d) of
Article 6, taken together.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- After the decision on admissibility the applicant's
lawyer did not submit any claim for just satisfaction within the time
allowed, although in the letter sent to her on 12 January 2006 her
attention had been drawn to Rule 60 of the Rules of Court, which
provides that an applicant who wishes to obtain an award of just
satisfaction under Article 41 of the Convention in the event of the
Court finding a violation of his or her Convention rights must make a
specific claim to that effect. Accordingly, since the Court received
no reply within the time prescribed in the letter accompanying the
decision on admissibility, it considers that there is no reason to
award any sum under Article 41 of the Convention (see Capeau v.
Belgium, no. 42914/98, § 32, ECHR 2005 I).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 6 §§
1 and 3 (d) of the Convention.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
