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FIFTH
SECTION
CASE OF BERGMANN v. ESTONIA
(Application
no. 38241/04)
JUDGMENT
STRASBOURG
29 May
2008
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 Bergmann v. Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen,
President,
Rait
Maruste,
Volodymyr
Butkevych,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38241/04) 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 Andres Bergmann (“the
applicant”), on 8 October 2004.
- The
applicant was represented by Mr J. Leppik, 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 he had been arrested and taken into custody in
violation of the requirements of Article 5 of the Convention.
- On
11 May 2007 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Tõrva.
- The
applicant was charged with economic offences, committed between 1995
and 2001, whereby damage exceeding 190 million Estonian kroons (EEK)
(approximately 12 million euros (EUR)) had been caused.
- On
13 December 2001 the Tartu County Court (maakohus) authorised
the applicant’s detention until 3 March 2002.
- On
25 January 2002 the County Court agreed to release the applicant on
bail set at EEK 1,000,000 (EUR 64,000). According to the court order
the applicant was prohibited from leaving his permanent or temporary
place of residence unless authorised by an investigator, prosecutor
or court (Section 71-1 § 5 of the Code of Criminal
Procedure (Kriminaalmenetluse koodeks)). The prosecutor’s
appeal against the applicant’s release was dismissed by the
Tartu Court of Appeal (ringkonnakohus) on 5 February 2002.
- The
County Court started the examination of the charges against the
applicant in September 2002.
- On
15 October 2003 the prosecutor requested the County Court to revoke
the bail and to order the applicant’s custody. It appears that
the applicant, who had suffered from a head injury, had failed to
appear at a hearing and that his lawyer had submitted a medical
certificate to the court. According to the certificate, the
applicant’s head wound had healed. Although the applicant had
troublesome pain in his head and neck, following concussion, the
doctor found it difficult to assess whether he could participate in a
court hearing. Apparently the County Court dismissed the prosecutor’s
request to take the applicant into custody.
- On
29 March 2004 the applicant did not appear at a hearing scheduled for
that date. His lawyer presented the court with a medical certificate
according to which the applicant had paid a visit to his doctor at
8.30 that same morning. The applicant had provided to his doctor
another medical certificate, issued on 24 March 2004 in Germany,
according to which he had been diagnosed with concussion and had had
a head wound requiring stitching. The applicant’s doctor had
prescribed that he stay at home for a fortnight and avoid strain. She
had confirmed that he would not be able to participate in a court
hearing on 29 March 2004.
- The
prosecutor presented the court with a copy of a fax according to
which the applicant had left Estonia on 24 March and had returned to
the country on 27 March 2004. She was of the opinion that by leaving
the country without authorisation the applicant had breached the
conditions of his bail and that it was therefore necessary to take
him into custody.
- The
applicant’s lawyer argued against the custody. He conceded that
the applicant had been in Germany – where his parents were
living – for three days. However, as he had not been placed
under house arrest, he had not been in breach of the bail conditions.
- By
a decision of 30 March 2004 the County Court granted the prosecutor’s
request and ordered the applicant’s detention. The court noted
that in addition to the period referred to above, the applicant had
left the country from 25 October to 28 October 2002 and on 17 January
2004. The court concluded that bail was not a sufficient measure to
ensure his presence at the hearings and that it was necessary to take
him immediately into custody.
- On
31 March 2004 the applicant was arrested at his home and taken into
custody.
- On
2 April 2004 both the applicant and his lawyer appealed against the
County Court’s decision. They argued that the applicant’s
non-compliance with Article 71-1 § 5 of the Code of Criminal
Procedure had been of a purely formal character and that his failure
to appear at the hearing had been caused by health reasons rather
than a formal breach of the bail conditions. Moreover, the County
Court had not established whether there had existed grounds –
such as prevention of crime, bringing a suspect before authorities or
preventing his fleeing – for depriving the applicant of his
liberty.
- On
6 April 2004 a judge of the Tartu Court of Appeal made a ruling
scheduling a public hearing for 16 April 2004. In the ruling it was
stated that the prosecutor, the applicant and his lawyer should be
notified about the hearing, with a note that failure of the parties
to appear would not prevent the hearing of the matter. On the same
date the Court of Appeal sent summonses to the applicant and his
lawyer.
- A
hearing before the Tartu Court of Appeal took place on 16 April 2004.
According to the record of the hearing, the applicant and his lawyer
had been informed of the time and place of the hearing with a note
that their participation in the hearing would not be mandatory. The
prosecutor and the applicant’s lawyer were present at the
hearing. The presiding judge asked for their opinion on whether it
was possible to hear the matter; both the prosecutor and the
applicant’s lawyer replied in the affirmative.
- In
the applicant’s submission, his request to be taken to the
Court of Appeal had been refused by the prison authorities and a
judge of the appellate court had told his lawyer that it was the
practice of the court to hear such cases in the accused’s
absence. The record of the hearing does not contain any such remarks.
- By
a decision of 16 April 2004 the Court of Appeal dismissed the
appeals. It found that the applicant had not complied with the
conditions of his bail. Moreover, it had been presented with evidence
according to which on 30 March 2004 at noon the applicant had been in
a public house in Tallinn, whereas his doctor had prescribed that he
stay at home and avoid strain. The court noted that bail was a
measure adopted in lieu of detention. Accordingly, as long as the
bail remained applicable, there were grounds for deprivation of the
applicant’s liberty and the lower court had had no obligation
to establish once more whether such grounds existed. The court stated
that the question of reimbursement of the bail money would be
resolved later, at the same time as the determination of the
applicant’s guilt. This decision was final.
- On
5 May 2004 the Supreme Court (Riigikohus) refused the
applicant leave to lodge “an application for correcting court
errors” (kohtuvigade parandamise avaldus) against the
County Court’s decision of 30 March 2004 and the Court of
Appeal’s decision of 16 April 2004.
- In
the meantime, on 26 April 2004, at a hearing before the County Court,
the applicant again requested his release on bail. He was of the
opinion that had he been present and able to present his arguments to
the courts at the hearings where the revocation of his bail had been
decided, the courts would not have granted the prosecutor’s
request to take him into custody.
- By
a decision of 27 April 2004 the County Court dismissed the
applicant’s request for release. It mainly referred to the
reasons that had been set out in the County Court’s decision of
30 March 2004.
- By
a judgment of 27 December 2004, in simplified proceedings, the County
Court convicted the applicant as agreed between him and the
prosecutor. He was sentenced to three years’ and six months’
imprisonment, less the time already spent in custody. The bail money
was to be returned when the judgment became final.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Criminal Procedure
(Kriminaalmenetluse koodeks), as in force at the material
time, read as follows:
Article 66
“(1) If there is sufficient reason to
believe that an accused or a defendant at trial who is at liberty
might abscond from an investigation or court proceedings or impede
the establishment of the truth in a criminal matter or continue to
commit criminal offences, or in order to ensure the enforcement of a
court judgment, one of the following preventive measures may be
imposed on him
or her:
1) obligation not to leave his or her place
of residence (allkiri elukohast mittelahkumise kohta);
...
3) remand in custody (vahi alla võtmine);
4) bail (kautsjon);
...”
Article 68
“(1) In the choice of preventive
measure, account shall be taken of the seriousness of the criminal
offence in question, the personality of the suspect, accused, or
defendant at trial, the possibility that the suspect, accused, or
defendant at trial may abscond from the investigation or from the
court proceedings or may impede the establishment of the truth, and
the state of health, age, marital status and other facts concerning
the suspect, accused or defendant at trial which may be relevant to
the application of a preventive measure.
...”
Article 71-1
“(1) A judge ... may, at the request of
the suspect, accused or defendant at trial, replace a preventive
custody measure (vahi alla võtmine) with bail
(kautsjon). ...
...
(5) A suspect, accused or defendant at trial
who has been released on bail shall not leave his or her permanent or
temporary residence unless authorised by an investigator, prosecutor
or court.
(5-1) Bail may be revoked at the request of
an investigator or prosecutor only by a county or city court judge.
(6) If a suspect, accused or defendant at
trial evades, without good reason, preliminary investigation or court
proceedings, or intentionally commits a new criminal offence, the sum
of the bail shall be transferred to public revenue by a judgment or
decision concerning discontinuance of the criminal proceedings ...”
(7) The sum for which bail is granted shall
be returned if the suspect, accused or defendant at trial does not
breach his or her obligation to appear when summoned ...”
Article 73
“(1) A preventive custody measure may
be applied in respect of a suspect, accused or defendant at trial in
order to prevent him or her from evading the criminal proceedings or
committing a new offence, as well as to ensure the enforcement of a
court judgment.
...”
Article 209
“If the defendant at trial fails to appear in a
court session, the court shall adjourn the hearing of the criminal
matter ... The court shall impose a fine on a defendant at trial who
fails to appear ... and shall decide on the application of compulsory
attendance or other preventive measures with regard to the defendant
at trial.”
Article 222
“In the course of a court hearing of a criminal
matter, the court shall be entitled to select, amend or annul ... the
preventive measures previously adopted with regard to the defendant
at trial.”
- Article
74 of the Code of Criminal Court Appeal and Cassation Procedure
(Apellatsiooni ja kassatisooni kriminaalkohtumenetluse seadustik),
as in force at the material time, provided that an appeal against a
procedural ruling of a first-instance court had to be transmitted to
the court of appeal by the first-instance court on the next day after
it had received the appeal. The court of appeal had to decide on the
scheduling of a hearing not later than on the next day after receipt
of the appeal; the appeal had to be examined by the court of appeal
within ten days after the scheduling of the hearing. The participants
in the proceedings had to be informed of the hearing but their
failure to appear did not prevent the matter from being heard.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that he had been taken into custody in violation
of Article 5 § 3 of the Convention. Article 5, in so far as
relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant complained that he had been taken into custody even though
he had not been absent from any of the court hearings without good
reason. Accordingly, the courts had interpreted the substance of bail
contrary to Article 5 § 3 of the Convention. Moreover, he
argued that he had been deprived of his liberty without having been
heard by the County Court or the Court of Appeal.
- The
Government submitted that the applicant had been taken into custody
on 13 December 2001 and had been subsequently released on bail. He
had been remanded in custody in 2004 not so much because of the
suspicion that he had committed a crime but because he had breached
the duty imposed on him not to leave his residence. Therefore, the
applicant’s detention after the replacement of the bail had
fallen within the scope of Article 5 § 1 (b) of the Convention
and Article 5 § 3 had not been applicable.
- In
the alternative, assuming that Article 5 § 3 was applicable, the
Government admitted that the period from the applicant’s
detention on 31 March to his appearance at a County Court
hearing on 26 April 2004, where the issue of the legality of his
detention had been discussed, had indeed been long. However, the
Government pointed out that the applicant and his lawyer had done
nothing to ensure the applicant’s appearance at the Court of
Appeal’s hearing on 16 April 2004 despite the fact that they
had been informed of the date of the hearing and of the fact that the
applicant’s failure to appear would not prevent the court from
examining the matter.
- The
Government pointed out that Article 5 § 3 expressly allowed for
the release of a person detained on remand to be conditioned by
guarantees of his appearance for trial. There was no absolute right
to be released on bail and Article 5 § 3 did not specify how and
under what conditions guarantees to appear for trial should be
applied or their application be terminated. Accordingly, these issues
were subject to determination by domestic law. In the present case
the applicant had been released on bail in 2002; however, he had been
in breach of the conditions of the bail and had thus been taken into
custody again in accordance with domestic law.
2. The Court’s assessment
(a) Applicability of Article 5 § 3
- Article
5 § 1 contains an exhaustive list of permissible grounds for
deprivation of liberty. Taking into account that the applicability of
sub-paragraph (c) of Article 5 § 1 triggers also the protection
provided by Article 5 § 3, which constitutes an important
additional guarantee for an arrested person, the Court considers it
appropriate to analyse first whether this sub-paragraph is applicable
to the present case (see Harkmann v. Estonia,
no. 2192/03, § 32, 11 July 2006).
- The
Court observes that in the present case the applicant had been
detained on 13 December 2001 on suspicion of having committed
economic offences. A month and a half later he had been released on
bail. According to the conditions of the bail under the domestic law,
he had been prohibited from leaving his permanent residence, unless
authorised by an investigator, prosecutor or court, and he was
obliged to appear before the court when summoned.
- The
Court further observes that the applicant was summoned to a hearing
of the criminal case against him scheduled for 29 March 2004 before
the County Court. However, he failed to appear, while his lawyer
presented the court with a medical certificate. Thereafter, on 30
March 2004, the court ordered the applicant’s detention for a
breach of the conditions of his bail, as he had on three occasions
left the country without the requisite authorisation.
- In
these circumstances, the Court considers that the purpose of the
measures applied in respect of the applicant – his initial
arrest on 13 December 2001, release on bail on 25 January 2002
and placement in detention again on 31 March 2004 – was to
ensure his effective participation in the criminal proceedings
against him, and it observes that the above restrictions had a legal
basis in the Code of Criminal Procedure.
- The
Court concludes that the applicant’s detention fell within the
ambit of sub-paragraph (c) of Article 5 § 1 of the Convention.
Having found that sub-paragraph (c) was applicable, paragraph 3 of
Article 5 also comes into play and the Court will proceed to examine
whether the more stringent guarantees afforded by Article 5 § 3
were complied with (see Harkmann, cited above, § 35).
(b) Whether the guarantees afforded by
Article 5 § 3 were complied with
- The
Court reiterates that Article 5 § 3 of the Convention provides
persons arrested or detained on suspicion of having committed a
criminal offence with a guarantee against any arbitrary or
unjustified deprivation of liberty (see, for example, Aquilina v.
Malta [GC], no. 25642/94, § 47, ECHR 1999 III).
- Article
5 § 3 is aimed at ensuring prompt and automatic judicial control
of police or administrative detention ordered in accordance with the
provisions of Article 5 § 1 (c) (see, for example, De Jong,
Baljet and Van den Brink v. the Netherlands, judgment of 22 May
1984, Series A no. 77, p. 24, § 51; Aquilina,
cited above, §§ 48-49; and McKay v. the United Kingdom
[GC], no. 543/03, § 34, ECHR 2006 ...).
- The Court has pointed out that under Article 5 §
3, there is both a procedural and a substantive requirement. The
procedural requirement places the “officer” under the
obligation of hearing himself the individual brought before him; the
substantive requirement imposes on him the obligations of reviewing
the circumstances militating for or against detention, of deciding,
by reference to legal criteria, whether there are reasons to justify
detention and of ordering release if there are no such reasons (see
McKay, cited above, §§ 35-38, with further
references).
- The
Court observes that, as in the above-cited case of Harkmann,
the detention of the applicant in the present case was ordered by a
court. Thus, the Court is called upon to determine whether the
judicial involvement in the applicant’s arrest was sufficient
in order to meet the requirements of Article 5 § 3.
- In
this context, the Court takes note of the Government’s argument
that the applicant’s detention had been initially ordered by a
court already on 13 December 2001 and that he had been subsequently
released on bail, while the Convention did not regulate the matter of
how and under what conditions the bail could be revoked and the
applicant remanded again in custody. The Court also takes note of the
applicant’s argument that his failure to appear at the hearing
before the County Court had been caused by his health problems and
not by the fact that he had left the country on three occasions, the
latter having been the main ground why the bail had been revoked.
- The
Court finds that a judicial decision as to the necessity of the
applicant’s detention which had been taken as long as two years
or more before his arrest on 31 March 2004 cannot be considered
sufficient at the material time. The circumstances militating for or
against the applicant’s detention might have changed over that
period and the reasons to justify his detention required fresh
examination in order to meet the procedural and substantive
requirements of Article 5 § 3 (see paragraph 41 above).
However, in the present case the applicant was not heard personally
about possible reasons militating against the detention order of 30
March and the detention after his arrest on 31 March 2004.
- The
Court agrees with the Government that the text of Article 5 § 3
indeed does not determine how the guarantees of appearance for trial,
as mentioned in the last sentence of the paragraph, are to be applied
or under what conditions they can be terminated. Therefore, it is not
for the Court to decide whether the reasons for revocation of the
bail in the present case were sufficient or not. However, what the
text of Article 5 § 3 does require is that a person has to be
brought promptly before a judge or other judicial officer after
having been arrested or detained. The text of the provision does not
provide for any possible exceptions to that requirement, not even on
grounds of prior judicial involvement. To conclude otherwise would
run counter to the plain meaning of the text of the provision (see
Harkmann, cited above, § 38).
- The
Court further notes that subsequent to his arrest and after his
appeal the applicant was not brought before the Court of Appeal
either. The first opportunity for him personally to present a court
with arguments for his release was only on 26 April 2004, that
is 26 days after his arrest. The Court finds that such a period is
incompatible with the requirement of “promptness” under
Article 5 § 3 (see, for example, Brogan and Others
v. the United Kingdom, judgment of 29 November 1988, Series A
no. 145 B, pp. 33-34, § 62).
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the proceedings before the Court of Appeal
had violated his rights guaranteed under the Convention. The Court
considers that the impugned proceedings concerning the applicant’s
deprivation of liberty fall to be examined under Article 5 § 4,
which reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is closely linked to the applicant’s
complaint about not having been taken promptly before a judge and it
must therefore be declared admissible.
B. Merits
- Having
regard to the finding of a violation of Article 5 §
3 of the Convention in the present case, the Court considers that the
fact that the applicant was not brought before the Court of Appeal
was in substance a further prolongation of the situation dealt with
above, namely that he was not brought promptly before a judge after
his arrest. Therefore, the Court considers that it is not necessary
to examine the applicant’s complaint under Article 5 §
4.
III. 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.”
A. Damage
- The
applicant requested the Court to award just satisfaction commensurate
with the seriousness of the violation. He did not submit any
quantified claims.
- The
Government agreed that if the Court were to find a violation, it
should also determine the sum to be awarded by way of just
satisfaction.
- The
Court finds that the applicant must have suffered anxiety and
distress as a result of the violations of the Convention that cannot
be compensated for adequately by the Court’s findings. Making
its assessment on an equitable basis, the Court awards the applicant
the sum of 3,000 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses he
incurred before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible unanimously;
- Holds unanimously that there has been a
violation of Article 5 § 3 of the
Convention;
- Holds unanimously that it is not necessary to
examine the applicant’s complaint under Article 5 §
4 of the Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Estonian kroons
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 29 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
