FIRST SECTION
 
 
 
 
 
 
CASE OF TOLMACHEV v. ESTONIA
 
(Application no. 73748/13)
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
9 July 2015
 
 
FINAL
 
09/10/2015
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tolmachev v. Estonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Elisabeth Steiner, President,
 Khanlar Hajiyev,
 Mirjana Lazarova Trajkovska,
 Julia Laffranque,
 Paulo Pinto de Albuquerque,
 Linos-Alexandre Sicilianos,
 Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 16 June 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 73748/13) 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 Kirill Tolmachev (“the applicant”), on 16 November 2013. 2. The applicant was represented by Mr O. Nishaev, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. The applicant alleged that his right to a fair trial and to defend himself through legal assistance of his own choosing had been violated as a court refused to examine his complaint in respect of a misdemeanour fine because he had been absent from the hearing although his counsel had been present. 4. On 11 February 2014 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1990 and lives in Narva. 6. On 17 September 2012 the applicant, in misdemeanour proceedings, was fined 80 euros (EUR) by a police officer of the East Prefecture of the Police and Border Guard Board for a breach of public order (breaking a glass panel of a bus shelter). 7. The applicant contested this decision before the Viru County Court. He argued that he had not committed the act in question and challenged the assessment of witness statements. He complained about the failure of the police to present him to a witness for identification. Lastly, he complained that the police had not indicated in its decision the specific provisions of the local rules on public order which he had allegedly breached. 8. The County Court sent summons to the applicant for a hearing scheduled for 21 March 2013 at 12.30 p.m. It was noted in the summons that the applicant’s participation in the hearing was mandatory. Furthermore, it was noted, with reference to Article 126 § 2 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik), that if a complainant failed to appear at the hearing, although he had been notified of the obligation to participate, and the hearing was not adjourned, the court would refuse to examine the complaint. The applicant’s counsel, a representative of the police prefecture and witnesses were also summoned. 9. The summons sent to the applicant’s address, which he had used throughout the proceedings and which had been indicated in his complaint, could not be served on him personally as he was not present on 4 February 2013 when the court’s security officer attempted to serve the summons. His mother refused to accept the summons and said that the applicant was living abroad. The applicant’s counsel received the summons on 8 February 2013. The witnesses also received the summons in the beginning of February. 10. On 20 March 2013 the County Court issued a ruling by which the applicant’s complaint was admitted for the proceedings. According to the ruling the hearing was scheduled for 21 March 2013 at 12.30 p.m. and the names of persons to be summoned to the hearing were set out. 11. On 21 March 2013 the County Court held its hearing. The applicant did not appear. His counsel asked the court to examine the matter without the applicant’s presence as the applicant was abroad and it was not known when he would return to Estonia. According to the applicant’s father, who was in the courtroom as a spectator, the applicant was not to return to Estonia within the next five years. The County Court refused to examine the applicant’s complaint. It delivered its decision in writing on 2 April 2013. 12. According to the County Court’s decision, the applicant had failed to inform the authorities of his new address. However, as the applicant’s father was aware of the time of the court hearing and of the applicant’s intention not to return to Estonia within the next five years, the court concluded that the applicant’s parents were communicating both with the applicant and his counsel. Thus, the applicant must have been aware of the court hearing and summons sent to him. 13. The County Court found that in view of the substance of the misdemeanour case and the court’s duty to hear a misdemeanour matter in its entirety, regardless of the limits of the complaint filed, and to verify the factual and legal circumstances on the basis of which the body conducting the extra-judicial proceedings (that is, the police) had made its decision, it was not possible to examine the case without the applicant’s participation. It noted that one of the complaints made by the applicant had been that the body conducting the extra-judicial proceedings had not presented the applicant for identification to the witness. Thus, interviewing of the applicant and presenting him for recognition to the witness were important steps for the adjudication of the matter which could not be accomplished without the applicant’s participation. The court considered that adjourning the hearing would serve no purpose since the applicant was not to return to Estonia within a month – the time-limit for which a hearing could be adjourned under the law of procedure. Moreover, the applicant’s counsel had not requested an adjournment but examination of the complaint without the applicant’s presence. However, for the above reasons the court did not consider it possible to examine the case without the applicant. Relying on Article 126 § 2 of the Code of Misdemeanour Procedure – which provided that if a complainant failed to appear at the hearing although he had been notified of the obligation to participate in the court hearing – the County Court refused to examine the complaint. 14. The applicant’s counsel appealed, relying, inter alia, on Article 6 § 3 (c) of the Convention according to which a person had the right to defend himself through legal assistance of his own choosing. The receipt of the summons was not disputed. 15. On 23 May 2013 the Tartu Court of Appeal dismissed the appeal and upheld the ruling of the first-instance court. It noted that under Article 126 § 1 of the Code of Misdemeanour Procedure the court could decide on a discretionary basis whether a complainant’s participation in the court hearing was necessary and, if needed, oblige the person in question to appear. In the case at hand the County Court had given reasons as to why the applicant’s participation was required and it was not possible to examine the case in his absence. The Court of Appeal pointed out that the applicant had challenged in his complaint to the County Court the failure of the police to present him to witnesses for identification. It was, however, unclear, how the County Court could have eliminated this deficiency in the applicant’s absence. 16. No appeal lay against the Court of Appeal’s ruling. II. RELEVANT DOMESTIC LAW AND PRACTICE
17. Pursuant to the Code of Misdemeanour Procedure (Väärteomenetluse seadustik), misdemeanour cases are examined in extra-judicial proceedings (kohtuväline menetlus) or in court proceedings (kohtumenetlus). It is determined by law which misdemeanours are dealt with in extrajudicial proceedings and which ones in court proceedings. 18. In cases to be examined in extra-judicial proceedings, the bodies conducting the extra-judicial proceedings are the police or other agencies of the executive power. The bodies conducting extra-judicial proceedings are authorised to fine the person who has committed a misdemeanour. Such decision becomes final and enforceable unless the persons subject to the proceedings files a complaint with a county court. If a complaint is filed, the county court examines the misdemeanour matter in full, including the questions of fact and law. An appeal on points of law and procedure can be filed with the Supreme Court. 19. In cases to be examined in court proceedings, jurisdiction lies with the county courts. An appeal lies to the courts of appeal and thereafter to the Supreme Court. 20. Furthermore, the Code of Misdemeanour Procedure contains the following provisions summarised below. 21. Article 21 § 2 of the Code provides that counsel has the right to participate in the proceedings together with the person subject to the proceedings or independently. 22. Article 41 of the Code stipulates that summons is served on a person against signature. If a summons cannot be served on the person being summoned, it can be served on a family member who lives together with the summoned person. If a person refuses to certify the receipt of the summons by a signature, the refusal to accept the summons and the date of the refusal is indicated in the notice. The person is deemed to have received the summons on the date of refusal to accept the summons. Upon service of the summons on counsel chosen by the person subject to proceedings, the summons is deemed to be served also on the principal. 23. Article 42 of the Code provides that if a person cannot appear at the body conducting the proceedings at the time specified in the summons, he or she must immediately give notice thereof. Good reasons for failure to appear include absence of the person summoned which cannot be considered evasion of the misdemeanour proceedings, belated receipt of the summons, or other circumstances considered to be a good reason by the body conducting the proceedings. 24. Article 43 of the Code provides that if a person subject to proceedings who has received summons in which mandatory appearance is indicated fails to appear in court, the court may fine the person (§ 1). The court may also order his or her compelled attendance effected by the police (§§ 3 and 4). 25. Pursuant to Article 123 § 2 of the Code a county court hears a misdemeanour matter in its entirety, regardless of the limits of the complaint filed, and verifies the factual and legal circumstances on the basis of which the body which conducted the extra-judicial proceedings had made its decision. 26. Article 125 § 1 of the Code provides that at the reasoned request of a party to the court proceedings the court may adjourn the hearing once for a period of up to one month. 27. Article 126 § 1 of the Code stipulates that a complainant and an official of a body conducting extra-judicial proceedings shall participate in the hearing in court if the court considers their participation necessary. Article 126 § 2 of the Code provides that if a complainant fails to appear at the hearing although he was notified of the obligation to participate in the hearing in the summons sent to him and the hearing of has not been adjourned pursuant to Article 125 of the Code, the court refuses to examine the complaint. 28. The Government provided several examples of court decisions by which the courts had refused to examine complaints in misdemeanour proceedings where the complainants had failed to appear at the hearing. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
29. The applicant complained that his complaint was not examined by the court because of his absence and that his right to defend himself though counsel was breached. He invoked Article 6 §§ 1 and 3 (c) as well as Article 13 of the Convention. The Court considers that the case falls to be examined under Article 6 of the Convention, which in relevant part reads as follows:
“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:
... (c)  to defend himself in person or through legal assistance of his own choosing ...”
30. The Government contested that argument. A. Admissibility
31. The Government called on the Court to declare the application inadmissible in accordance with Article 35 § 3 (b). They argued that the applicant had not suffered a significant disadvantage, the respect for human rights did not require the examination of the case and the applicant’s case had been duly considered by domestic tribunals. 32. The applicant did not comment on that argument. 33. The Court notes that the applicant complained that his complaint against a decision taken in the misdemeanour proceedings by the police was not examined by the court and that his right to defend himself through counsel was violated (compare Flisar v. Slovenia, no. 3127/09, § 28, 29 September 2011, where the Government’s inadmissibility plea under Article 35 § 3 (b) was rejected because the applicant had complained precisely about not having his case properly examined by the domestic courts). The Court also notes that it has not yet had a chance to examine similar complaints against the respondent State. Therefore, leaving aside the question whether the applicant can be considered as having suffered a significant disadvantage on account of his conviction of a misdemeanour and imposition on him of a fine of EUR 80, the Court considers that respect for human rights and the disputed issue of whether the case was duly examined by a domestic tribunal do not allow it to reject the complaint under Article 35 § 3 (b). 34. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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
35. The applicant considered that his right to a fair trial and to defend himself in person or through legal assistance of his own choosing, guaranteed under Article 6 §§ 1 and 3 (c) of the Convention, had been violated. 36. The applicant submitted that as he had had to leave Estonia for a prolonged period, he had instructed counsel to defend his rights in court. Furthermore, he argued that he could not be present at the hearing as the court ruling admitting his complaint for the proceedings and determining the date of the hearing had only been issued on the day before the hearing (see paragraph 10 above). In such circumstances the court could have adjourned the hearing. As regards the summons, the applicant contended that it was not served on anyone as her mother had not accepted it. 37. The applicant also pointed out that his counsel had requested at the court hearing to proceed with the examination of the case without the applicant’s presence as he was abroad and it was not known when he would return. According to the applicant he had the right, not obligation, to take part in the hearing. The same applied to the statements – a participant in the proceedings had the right to give statements but was not obliged to do so. In this connection he referred to the accused’s right to remain silent. The applicant considered that under the domestic law the court could have read out his statements made to the police at an earlier stage of the proceedings. 38. The Government considered that there had been no violation of Article 6 §§ 1 and 3 (c) in respect of the applicant. They submitted that the County Court had considered the applicant’s appearance in the court mandatory and the applicant had been warned in the summons that the court would refuse to examine his complaint if he failed to appear at the hearing. Summons had been duly served to the address indicated by the applicant as well as on his counsel. Thus, the applicant was ensured access to the court and fair trial in accordance with Article 6 § 1 of the Convention. 39. Furthermore, the Government contended that in the case at hand it was of utmost importance that the court could not examine the matter without the applicant’s participation. The applicant had contested the substance of the decision of the police of 17 September 2012, he had challenged the witness statements and complained about the failure of the police to present him to a witness for identification. The applicant has not explained how it would have been possible to examine his complaint, in such circumstances, without his participation in the hearing. Furthermore, the County Court had the duty to hear the misdemeanour matter in its entirety, regardless of the limits of the complaint, and to verify the factual and legal circumstances on the basis of which the body conducting the extra-judicial proceedings had made its decision. Thus, it was not possible to hear the case without the applicant’s presence. The Government were of the view that the fact that the person subject to the proceedings had the right, not the duty, to give statements did not relieve him from the duty to appear at the hearing if the court had made it mandatory. The person’s presence allowed the court to make a judgment based on directly examined evidence. 40. The Government also pointed out that the applicant’s counsel had not requested the adjournment of the hearing or given reasons as to why the applicant’s hearing in person was not required. The Government considered that the applicant’s behaviour could be seen as being malicious and an obstruction of the judicial proceedings which could have led to the expiry of the misdemeanour matter and to delaying other court cases. 41. The Government considered that the applicant was able to defend himself through counsel of his choice and no restrictions on exercising the rights of defence were imposed on counsel in the proceedings. The applicant’s obligation to participate in the hearing was not related to the exercise of the right of defence but constituted a legitimate requirement that the defendant had to attend the court hearing and the foreseeable consequence of the failure to comply with this obligation was the refusal to examine the complaint. The Government noted that counsel could not give statements about the misdemeanour matter at the court hearing instead of the applicant. 2. The Court’s assessment
42.

Article of the Convention at issue: Article 6
Outcome: violation