CASE OF TOLMACHEV v. ESTONIA

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.
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.
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.
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.
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.
42. The Court notes at the outset that in the present case the applicant was fined by the police who dealt with the misdemeanour matter in extra-judicial proceedings. Had the applicant not complained to the County Court about the decision made by the police, this decision – and the applicant ’ s conviction – would have become final and the sentence enforceable. It is against that background that the Court proceeds to the examination of the case.
43. In this connection, the Court reiterates that while entrusting the prosecution and punishment of minor offences to administrative authorities is not inconsistent with the Convention, it is to be stressed that the person concerned must have an opportunity to challenge any decision made against him before a tribunal that offers the guarantees of Article 6 (see Kadubec v. Slovakia, 2 September 1998, § 57, Reports of Judgments and Decisions 1998 ‑ VI; Malige v. France, 23 September 1998, § 45, Reports of Judgments and Decisions 1998 ‑ VII; and Öztürk v. Germany, 21 February 1984, § 56, Series A no. 73 ).
44. In the present case the applicant had an opportunity to file a complaint with the County Court against the decision made by the police, and he made use of this opportunity. It has not been put in question that the County Court was a “judicial body that [had] full jurisdiction” (see, for example, Gradinger v. Austria, 23 October 1995, §§ 42 and 44, Series A no. 328 ‑ C, with further references), and the Court sees no reason to hold otherwise. The Court observes that under domestic law the County Court had to examine the matter in its entirety, regardless of the limits of the complaint filed, and as regards both points of fact and law (see paragraphs 13 and 25 above).
45. The Court has had regard to the applicant ’ s arguments related to the service of the summons and scheduling of the hearing for the day following the County Court ’ s pertinent ruling. It notes, however, that these issues were not raised before the Court of Appeal. In any event, the Court observes that the summons for the hearing of 21 March 2013 were sent out in the beginning of February (see paragraphs 8 and 9 above). Against that background, the County Court ’ s ruling of 20 March 2013, by which the hearing was (again) scheduled for 21 March 2013 (see paragraph 10 above), has no relevance to the question whether the applicant was informed of the date of the hearing well in advance. As regards the applicant ’ s argument that the summons was not served on anyone, the Court, having had regard to the pertinent provisions of the domestic law (see paragraph 22 above), has no reason to conclude that the summons that the County Court ’ s security official attempted to serve on the applicant ’ s mother, living at the address indicated by the applicant as his residence (see paragraph 9 above), were not properly served. Furthermore, there is no dispute that the applicant ’ s counsel received summons. Thus, the Court sees no reason to doubt that the applicant was summoned to the court hearing in accordance with domestic law. Furthermore, it notes that the applicant did not deny that he was aware of the date of the hearing. Accordingly, the Court considers that there is no call to further deal with this issue and it proceeds on the presumption that the applicant was or had to be aware of the County Court hearing in due time.
46. The Court further observes that the applicant did not appear at the hearing but instructed his counsel to pursue the case. However, the County Court found that the applicant ’ s presence was required for the resolution of the matter. As he failed to appear and the County Court did not consider it possible to resolve the case in his absence, the County Court refused to examine the applicant ’ s complaint and the decision made by the police became final. Thus, the Court has to determine whether the County Court ’ s decision, in such circumstances, was in accordance with Article 6 of the Convention.
47. The Court reiterates that it is of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses. The legislature must accordingly be able to discourage unjustified absences (see, inter alia, Poitrimol v. France, 23 November 1993, § 35, Series A no. 277 ‑ A; Van Geyseghem v. Belgium [GC], no. 26103/95, § 33, ECHR 1999 ‑ I; Van Pelt v. France, no. 31070/96, § 66, 23 May 2000; and Neziraj v. Germany, no. 30804/07, § 47, 8 November 2012). However, it is also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal. The Court has consistently found that the latter interest prevailed and that, consequently, the fact that a defendant, in spite of having been properly summoned, did not appear, could not – even in the absence of an excuse – justify depriving him of his right under Article 6 § 3 of the Convention to be defended by counsel (see Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297 ‑ A; Pelladoah v. the Netherlands, 22 September 1994, § 40, Series A no. 297 ‑ B; Van Geyseghem, loc. cit.; Van Pelt, loc. cit.; Harizi v. France, no. 59480/00, § 49, 29 March 2005; Kari- Pekka Pietiläinen v. Finland, no. 13566/06, § 31, 22 September 2009; and Neziraj, cited above, §§ 48-49 ). It is for the courts to ensure that a trial is fair and, accordingly, that counsel who attends trial for the apparent purpose of defending the accused in his absence is given the opportunity to do so (see Lala, cited above, § 34; Pelladoah, cited above, § 41; and Kari- Pekka Pietiläinen, loc. cit.)
48. Thus, the right of everyone charged with a criminal offence to be defended effectively by a lawyer is one of the basic features of a fair trial. An accused does not lose this right merely on account of not attending a court hearing. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended (see Van Geyseghem, cited above, § 34; Van Pelt, cited above, § 67; Kari- Pekka Pietiläinen, cited above, § 32; and Neziraj, cited above, § 51).
49. The Court considers that the right to be defended by a lawyer is intertwined, in the present case, with the right of effective access to the court and the right to a hearing in one ’ s presence. Indeed, the Court has emphasised in a number of cases that the duty to guarantee the right of a criminal defendant to be present in the courtroom ranks as one of the essential requirements of Article 6 (see, among others, Hermi v. Italy [GC], no. 18114/02, §§ 58- 59, ECHR 2006 ‑ XII ).
50. At the same time, the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy ( dec. ), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol, cited above, § 31). Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II, and Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A).
51. The Court observes that in the present case the County Court dealt with the misdemeanour matter in complaints proceedings – it formally examined the applicant ’ s complaint against a decision taken by the police. The Court has held that the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Hermi, cited above, § 60, and Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168 ). However, having regard to the special features of the proceedings involved and taking account of the entirety of the proceedings in the domestic legal order (see Hermi, loc. cit.; Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134; and Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115), the Court considers that the County Court ’ s role in the present case was not the same as that of a traditional court of appeal. Although the proceedings were set in motion by the applicant ’ s complaint against a decision by the police by which he had been sanctioned, and this decision would have become final and enforceable if not challenged or if the County Court declined to examine the complaint – as it happened in the instant case –, the County Court ’ s role, nevertheless, was similar to that of an ordinary first-instance court. It had to examine the matter in its entirety without being bound by the limits of the complaint filed or facts established by a lower instance. In these circumstances, the Court is of the view that the applicant ’ s presence at the County Court ’ s hearing was important in order to secure him a fair trial.
52. The Court observes that the County Court found, on the basis of the case-file and issues raised in the applicant ’ s complaint, that it could not decide the case without the applicant ’ s presence. It is not for this Court to overrule such an assessment which was reasoned, had regard to the County Court ’ s role in the examination of the complaints in the misdemeanour proceedings and lacked any signs of arbitrariness. The Court considers that the trial court, in such circumstances, was better placed to assess whether it could proceed with the case merely with the participation of the applicant ’ s counsel or whether it was imperative for the applicant to be present. The Court also emphasises in this connection that the proceedings conducted by the police in respect of the applicant, taken separately, did not offer the fair trial guarantees enshrined in Article 6 of the Convention. The Convention requirements could only be complied with on the condition that the applicant had an opportunity to challenge the decision of the police before a tribunal in proceedings that did offer the fair trial guarantees of Article 6. The Court has no reason to doubt that the County Court ’ s finding that it could not resolve the case in the applicant ’ s absence proceeded from and was in line with the fair trial requirements including the principle of immediacy (see, for example, P.K. v. Finland ( dec. ), no. 37442/97, 9 July 2002).
53. However, the Court notes that the County Court ’ s refusal to proceed with the examination of the applicant ’ s complaint resulted in the discontinuation of the court proceedings and entering into force of the sanction imposed on the applicant by the police. In the light of the case-law summarised above ( see paragraphs 47 and 48 ), the Court considers that such an outcome was not compatible with the Convention. Assuming that the applicant waived his right to take part in the hearing – an issue which the Court does not need to determine in the present case –, there is nothing to indicate that the applicant waived his right to be defended through legal assistance of his own choosing, a distinct right protected under Article 6 § 3 (c) of the Convention.
54. The Court observes, in this connection, that the applicant ’ s counsel was present and ready to defend the applicant at the County Court ’ s hearing of 21 March 2013. He submitted that the applicant was abroad and could therefore not take part in the hearing, and asked the court to examine the matter without the applicant ’ s participation. Nevertheless, as mentioned above, the County Court decided to refuse to examine the complaint because of the applicant ’ s absence. The Court has taken note of the Government ’ s argument that the applicant ’ s complaint mainly related to factual circumstances where counsel could not have substituted the applicant. However, it is not for the Court to speculate whether the applicant ’ s counsel would have also put forward any legal issues to be dealt with, had the hearing on the merits of the case taken place, or to what extent the factual circumstances could have been examined in the applicant ’ s absence. It merely notes that it does not appear that the County Court asked the applicant ’ s counsel how in his view, having regard to the arguments raised in the complaint, the case could have been resolved without the applicant being present. The Court considers that it would have been precisely in the course of the examination of the case at a court hearing when the applicant ’ s counsel could have provided such explanations – an opportunity he was not given.
55. As regards the Government ’ s argument that the applicant ’ s counsel had not requested the adjournment of the hearing, the Court considers that such a request would not have been pertinent, having regard to the applicant ’ s position that the case should have been examined in his absence. If the domestic courts came to the conclusion that the applicant ’ s presence was imperative – as they did in the present case –, there was nothing to prevent them from adjourning the hearing and ascertaining whether the applicant ’ s attendance could be secured regardless of his alleged residence abroad. The Court notes in this connection that pursuant to the Code of Misdemeanour Procedure a defendant who failed to appear at a hearing regardless of being ordered to do so could be subject to a fine or compelled attendance (Article 43 of the Code of Misdemeanour Procedure, see paragraph 24 above).