Ulari METSAVEER v Estonia - 16343/07 [2011] ECHR 1037 (14 June 2011)

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The European Court of Human Rights (First Section), sitting on 14 June 2011 as a Chamber composed of:

Nina Vajić, President,
Elisabeth Steiner,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Ülari Metsaveer, is an Estonian national who was born in 1973 and lives in Vantaa, Finland. He was represented before the Court by Ms B. Mõttus, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was tried by a criminal court, apparently having been charged with theft. On 1 February 2003, before the judgment in the criminal case had been delivered, a newspaper, Pärnu Postimees, published an article entitled ‘Gang of Thieves on Trial’ (Vargajõuk kohtu all). According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted.

The applicant brought a civil suit against Pärnu Postimees AS, the public limited company that published the newspaper. He claimed 300,000 kroons (EEK) (approximately 19,170 euros (EUR)). On 30 September 2005 the Pärnu County Court dismissed his claim. An appeal was dismissed by the Tallinn Court of Appeal by a judgment of 25 November 2005. The applicant received the judgment on 3 December 2005. An appeal to the Supreme Court could be filed within thirty days of the receipt of the judgment, that is, by 2 January 2006 at the latest.

On 13 December 2005 the Court of Appeal received a request from the applicant for an extension of the time-limit for appeal, together with a request for legal aid.

On 21 December 2005 the Court of Appeal granted the applicant legal aid for lodging an appeal with the Supreme Court. The Court of Appeal’s decision was sent to the applicant and to the Estonian Bar Association (Eesti Advokatuur) so that the latter could appoint a lawyer for him. The applicant’s address was given in the decision. It was explained in the decision that it was not possible to extend the time-limit for filing the appeal but it was possible to request the restoration of the time-limit after its expiry if good reason existed for the failure to comply with it.

By a letter of 27 December 2005 the Board of the Bar Association (Advokatuuri juhatus) sent the Court of Appeal’s decision to the law office of the advocate who had been appointed, R., who received the letter on 30 December 2005. The applicant was not informed that the advocate had been appointed for him. R. neither contacted the applicant nor filed an appeal with the Supreme Court.

According to different documents in the case file, the applicant became aware of the name and contact details of the appointed lawyer, R., either at the end of January 2006 when he telephoned the Court of Appeal, or on 9 February 2006 when he telephoned the Bar Association.

According to the applicant, R. said that the time-limit for an appeal to the Supreme Court had already passed and she was no longer dealing with the case. The applicant himself should have sought to contact her. She had no time to meet the applicant on 9 or 10 February 2006.

According to R. she had been unable to take any steps to lodge an appeal against the Court of Appeal’s judgment without having met the applicant. She proposed a meeting for 13 February 2006 but this was not suitable for the applicant, who said that he had to leave for Finland to start a new job on that date.

On 9 February 2006 the applicant made a complaint to the Court of Honour (aukohus) of the Bar Association against R.

R. was contacted by the Bar Association on the same date and was advised to file a request with the Supreme Court for the restoration of the time-limit for appeal. She filed the request, sent a copy to the applicant and requested the latter to contact her and pay the security for appeal.

On 12 February 2006 the applicant requested that the Court of Honour suspend the proceedings as R. had filed a request for restoration of the time-limit with the Supreme Court.

On 1 March 2006 the Supreme Court sent a letter to R. noting that according to Article 68 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) the appeal itself had to be lodged together with the request for restoration of the time-limit. Moreover, security had to be paid. On that basis the Supreme Court returned the application to R. The applicant was not informed thereof.

It appears that in April 2006 the applicant, having telephoned the offices of different courts, learned of the Supreme Court’s letter and the fact that the case file had been sent back to the first-instance court as no appeal had been lodged and no security had been paid. On 19 April 2006 the applicant asked the Court of Honour to resume the examination of his complaint against R. He also requested that a new lawyer be appointed for him.

The Court of Honour examined the matter on 8 June 2006. It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed. However, such an obligation could not be placed on the lawyer; nor was a lawyer responsible for paying the security for appeal. The Court of Honour found that R. had not committed a disciplinary offence and decided not to initiate proceedings in respect of her. It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to R. for legal assistance. It also informed the Board of the Bar Association of the circumstances relating to the informing of an applicant about the appointment of a legal-aid lawyer.

According to the applicant he attempted to contact R. by telephone and by letter; this having proved unsuccessful, on 26 September 2006 he requested the Supreme Court to appoint another lawyer and to extend the time-limit for lodging an appeal.

On 27 September 2006 the Supreme Court refused the applicant’s requests. It noted that a request for legal aid had already been granted by the Tallinn Court of Appeal on 21 December 2005, that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections 2 and 3 of section 20 of the State Legal Aid Act. The Supreme Court further noted that the applicant’s lawyer had requested that the time-limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security. Finally, the Supreme Court pointed out that the appeal had not been attached to the applicant’s application and that he had also failed to comply with the requirement under Article 218 § 3 of the Code of Civil Procedure according to which submissions to the Supreme Court could only be made through a lawyer. Accordingly, it returned the application to the applicant.

Section 18(2) of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, stipulated that if a legal-aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto, or a lawyer named by the Bar Association, as the provider of State legal assistance. It was not specified how the claimant was to be informed thereof.

Section 19 of the State Legal Aid Act provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests (section 44(4) of the Bar Association Act (Advokatuuriseadus)) or if the client’s claims were unlawful or contrary to the lawyer’s professional ethics, or the lawyer became aware that a criminal offence was being planned (sections 44(5) and 45(5) of the Bar Association Act).

According to section 20 of the State Legal Aid Act the legal-aid lawyer could be replaced by another lawyer upon the latter’s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid (subsection 1). If, arising from law, a lawyer was unable to continue to provide legal services to a beneficiary of State legal aid, he or she had to submit to a court an application for the appointment of a new legal-aid lawyer (subsection 2). Upon the exclusion of such a lawyer from the Bar Association or his or her disbarment, or upon the suspension of the professional activities or the death of the lawyer, a court had to appoint a new lawyer (subsection 3). Where a lawyer was replaced, the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished (subsection 4).

Article 341 § 2 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), as in force until 31 December 2005, provided that an appeal against a judgment of an appeal court could be filed within thirty days of the judgment being made public, or within thirty days of receipt of a copy of the judgment if the judgment was given in written proceedings.

On 1 January 2006 a new Code of Civil Procedure (2006 Code) entered into force. Article 670 § 1 of the 2006 Code provided that an appeal in cassation was to be submitted within thirty days of the date on which the judgment was served on the appellant in cassation.

Article 218 § 3 of the 2006 Code provided that a party to litigation could perform procedural acts and submit requests and applications to the Supreme Court only through a lawyer (advokaat).

Article 68 § 2 of the 2006 Code provided that when a request was made for the restoration of a time-limit, the procedural act for which the restoration was requested had to be performed at the same time.

Article 67 § 2 of the 2006 Code provided that a request for restoration of a time-limit could be filed within fourteen days of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist, but not later than six months after the expiry of the time-limit.

The applicant complained under Article 6 § 1 of the Convention about a lack of effective legal assistance in lodging an appeal with the Supreme Court.

The Government were of the opinion that the applicant had not exhausted available domestic remedies and had lodged his application with the Court more than six months after the final domestic decision.

Firstly, the applicant had failed to contest the final relevant domestic decision in time. According to the Government, the Supreme Court’s ruling of 27 September 2006 did not breach the applicant’s rights. It had been made in response to a request by the applicant that lacked any legal basis. The Government considered that the final decision in the applicant’s case was the Supreme Court’s letter of 1 March 2006 by which the court had returned to the applicant’s lawyer her request for restoration of the time-limit. Pursuant to Article 67 § 2 of the 2006 Code the time-limit for filing an appeal in cassation had theoretically expired on 2 July 2006 at the latest (that is six months from 2 January 2006, the original time-limit for appeal), but the time-limit for filing a request for restoration of the time-limit for appeal had expired on 3 May 2006 at the latest (that is, fourteen days from 19 April 2006, the date by which the applicant, at the latest, had become aware of the Supreme Court’s letter of 1 March 2006 and of the fact that the appeal in cassation had not been filed by his lawyer).

Secondly, the Government argued that the applicant had not contested the decision of the Court of Honour of the Bar Association in the domestic courts and thus the Estonian courts had had no opportunity to assess its lawfulness or justifiability, which theoretically could have resulted in the restoration of the time-limit for filing the appeal in cassation. Thus, the applicant had failed to exhaust domestic remedies in this respect.

Thirdly, the Government submitted that the applicant had also failed to exhaust domestic remedies in that he had not filed with a domestic court a claim for damages against the advocate or his or her law firm and/or insurer.

The applicant considered that the Supreme Court’s decision of 27 September 2006 was the final domestic decision within the meaning of Article 35 § 1 of the Convention. He further submitted that there had been no mention in the decision of the Court of Honour of the Bar Association that it could be challenged before an administrative court.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system (see, for example, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 IV; Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports 1998 VIII; and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004 II (extracts)). However, the only remedies which must be exhausted under Article 35 § 1 of the Convention are those that relate to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999 V, and Akdivar, cited above, § 66).

Furthermore, the Court observes that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such correlation (see Hatjianastasiou v. Greece, no. 12945/87, Commission decision of 4 April 1990, unreported; Berdzenishvili, cited above; and Dolenec v. Croatia, no. 25282/06, § 191, 26 November 2009).

In respect of the six-month time-limit, the Court reiterates that the purpose of this rule is to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. Finally, it should ensure the possibility of ascertaining the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see, for example, Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports 42, p. 205, and Berdzenishvili, cited above).

The Court points to its extensive case-law to the effect that extraordinary remedies, such as an application for retrial or other means of reopening judicial proceedings in a case cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see, for example, Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007; and Martynets v. Russia (dec.), no. 29612/09, ECHR 2009 ...). Furthermore, remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999, and Gurepka v. Ukraine, no. 61406/00, § 60, 6 September 2005). Similarly, remedies which have no precise time-limits, thus creating uncertainty and rendering nugatory the six-month rule contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of that Article (see Denisov, cited above; Galstyan, cited above, § 39; and Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009).

Lastly, the Court reiterates that where no domestic remedy is available in respect of an act alleged to be in violation of the Convention, the six-month time-limit laid down in Article 35 § 1 in principle starts to run from the date on which the act complained of took place or the date on which the applicant was directly affected by, became aware or could have become aware of such an act (see Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000 III (extracts); Gongadze v. Ukraine, no. 34056/02, § 155, ECHR 2005 XI; and Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006).

Turning to the present case, the Court notes at the outset that the Government argued that the application should be declared inadmissible because of the applicant’s failure to exhaust domestic remedies. In this context, the Court recalls that the applicant’s main complaint concerns an alleged violation of his right of access to the Supreme Court owing to the omissions of his legal-aid lawyer, as well as the malfunction of the legal aid system in that the authorities failed to inform him that a legal-aid lawyer had been appointed for him. The Court is unable to see how the remedies referred to by the Government – a complaint against the decision of the Court of Honour of the Bar Association or a civil claim against the lawyer or his or her law firm or insurer – could have secured the applicant’s access to the Supreme Court. The Court notes that the Government did not refer to any domestic case-law where after such proceedings the time-limit for filing an appeal in cassation to the Supreme Court was restored. Thus, the Court is not convinced of the effectiveness in the present case of the remedies proposed by the Government. It further observes that there were no specific legal provisions in force which would have secured a person in receipt of legal aid access to the Supreme Court in the case of an omission by the legal aid-lawyer, as in the present instance. The Court must therefore proceed to examine whether the application was lodged within six months of the date on which the applicant became aware of the alleged violation of his rights.

The Court observes that the time-limit in the domestic law for filing an appeal in cassation expired on 2 January 2006. Thus, since there were no further remedies for causing the lawyer to act or for having the time-limit restored, this date should, in principle, be taken as the starting point of the six-month period.

However, the Court observes that on 21 December 2005 the Court of Appeal, in reply to the applicant’s request that the time-limit for appeal be extended, informed him that it was not possible to extend the time-limit but that a request for its restoration could be made after its expiry. Even if the Court were to assume that in the particular circumstances of the present case a request for restoration of the time-limit could have had certain prospects of success – bearing in mind the late appointment of the lawyer and the failure of the authorities to inform the applicant that the lawyer had been appointed – a request for restoration of the time-limit had to be filed within fourteen days of the date on which the impediment ceased to exist but no later than six months after the expiry of the original time-limit (Article 67 § 2 of the 2006 Code). The Court does not need to decide whether the request for restoration of the time-limit filed by the applicant’s lawyer on 9 February 2006 complied with the fourteen-day time-limit, or whether this request was of any importance at all, given that no appeal had been filed with it and no security had been paid. Be that as it may, the applicant became aware on 19 April 2006 at the latest, when he asked the Court of Honour to resume the proceedings, that the Supreme Court had declined to deal with the request for restoration of the time-limit. Even if at that point it could have been expected, as the applicant’s behaviour appears to suggest, that the lawyer could be caused to amend her submissions to the Supreme Court or be replaced, the Court notes that pursuant to Article 67 § 2 of the 2006 Code any complete request for restoration of the time-limit should have been filed with the Supreme Court on 2 July 2006 at the latest (six months from 2 January 2006). Accordingly, the six-month period within the meaning of Article 35 § 1 started to run on 2 July 2006 at the latest.

The Court considers that any subsequent petition to the Supreme Court had no reasonable prospects of success and cannot be considered a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. Thus, the Supreme Court’s decision of 27 September 2006, made in response to the applicant’s petition which had no legal basis, was not capable of bringing the application, lodged on 24 March 2007, within the six-month time-limit laid down in Article 35 § 1.

It follows that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Ulari METSAVEER v Estonia - 16343/07 [2011] ECHR 1037 (14 June 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1037.html Cite as: [2011] ECHR 1037