AFFAIRE ANDREYEV CONTRE L'ESTONIE

Rezoluția CM/ResDH(2013) 8 [1] Andreyev împotriva Estoniei Executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 48132/07, Hotărârea din 22 noiembrie 2011, definitivă la 22 februarie 2012) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede că el supraveghează executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "menționate mai jos " Convenția" și "Curtea"), Având în vedere hotărârea definitivă, care a fost transmisă de Curte Comitetului în cauza de mai sus și încălcarea constatată (a se vedea documentul DH-DD(2013)21E [2] care reamintește obligația de a se adresa Tribunalului, în temeiul articolului 46 alineatul (3) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor menționate anterior După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte] (a se vedea documentul DH-DD(2013)21E FIȘĂ fiind asigurat că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1); DECLAMENTUL pe care și l-a îndeplinit în temeiul articolului 46 alineatul (2) din Convenție în această cauză și DECIDE d'en . ACȚIUNE REPORT, Andreyev. v. Estonia Application No. 48132/07, Judgment of 22 November 2011 Case description The applicant, a Russian National, was deprived of his right to appeal in the criminal proceseed directd against hi as legal-aid lawyer had failed to lodge an appeal within the appeal applicable time-limit and no subsequent measures adequately remedied the situation (violation of Article 6 § 1 - access to scurt). Individual measures The just satisfaction awarded by the Court for moraly damage (EUR 1,000) was paid on 30/03/2012/. Additional individual Measures apart from payment of just satisfaction are following. Re-opening of the applicicantings infractional proceedings Following the Court judgment of 22 November 2011 the aplicant submitted an application to re-open his criminal case (i.e Viru County Court judgment of 3 November 2006 and Viru Appeal Court judgment of 5 March 2007) to the Estonian Supreme Court. on 9 May 2012 the Supreme Court in review procesings No. 3-1-2-2-12 Decided to grant the application to re-open the above-mentioned criminal case. The Supreme Court in its judgment refered expresly to the Strasbourg Court judgment in the applications case No. 48132/07 when it found under § 366(7) of the Estonian Code of Criminal Procedure that the aplication for re-opening was justificăd. The Supreme Court noted that the violation found by the Strasbourg Court had been raported to thefact that the applicante's advocate had not submitted the appeal in cassation within due time and that the aplicant had prin urmare lost his right to have his case reviewed by the Supreme Court. The Supreme Court decided that such a încălcarea can be remedied by granting the applicant.s advocate access to the Supreme Court. The Supreme Court decided that it does not have to ref the case back to lower instance scurts but it can a anula the Supreme Court mais ruling of 9 May 2007 No. 3-7-1-1-135 by which the advocate. The Supreme Court also decided to adjudicate the respective appeals in casation - both the appeal in casation submitted in 2007 and the new pepeal in cassation submitted in 2012 The Supreme Court in its 9 May 2012 judgment also referred to the Viru County Court ruling of 21 February 2012 in which it had already been decided that only the operative part of the Viru County Court judgment of 3 November 2006 - that foresees imprisonment and not the expulzation as as additional pedepseshment, shall be taken into account when implementing the judgment. The Supreme Court expressly confirmăd in its 9 May 2012 judgment that the applicicants expulzare based on the criminal scurt judgment of 3 November 2006 is out of the question. on 27 July 2012 the Supreme Court decided not to proceded with the above mentioned 2007 and 2012 cassations in the applicant As the Viru County Court had already decided and the Supreme Court had confirmăd that the applicant cannot be expelled upon the criminal scurt judgment (as the aditiv pedepseshment had been anuled), the Supreme Court dd not find any other grounds which would justify the licitation of the appeals in casation. General measures Legislative bazes and amendments According to § 350 (2)1 of the Criminal Procedure Code (CPC) The Supreme Court shall prepare a ruling on refuzal to hear an appeal in cassation and return the appeal to the apelant in cassation if the appeal in cassation was filed after the expiry of the term for appeal in cassation provided for in § 345 of this Code and the apelant in cassation has not restoration of the term or the Supreme Court has refuzed to restore the term. According to § 172(2)1 of the CPC absence which is not raported to absconding from the criminal proceeding is a good reason (i.e valid grounds) for allowing a term for appeal to expire. According to § 172(2)2 of the CPC the investative body, Prosecuters Office or scurt are authorised to decide whether any other Circumstances existentd that were good reasons for allowing a term for appeal to expire. § 267 of the CPC regulates the measures applicable to persons who violate order in a court hearing. According to new sub-clauses (4 )-(4 ) which entered into force on 1 September 2011, the court may remove an advocate from the court room if the advocate is not represent the client properly or has showed himself/herself as dishonest, incompetent or iresponsibil; as well as when he/she has ofensatiously hindered the corecte and speedy licitation or has repeatedly not compliment with the pers ) of the State Legal Aid Act, in force from 1 January 2010, also foresees that a court shall, at the request of a recipient of legal aid or on its own motion, remove an advocate from the provision of state legal aid by a ruling if the advocate has demonstrated incompetence or negligence. În advance, the Court may request a submission of explanations from the recipient of state legal aid and the advocate. The Court shall forward the ruling priving the removal of the advocate from the provision of state legal aid to the Bar Association for the start of proceseedings of its scurt of honour and, if necessary, for the adjutant of a new provider of state legal aid. The purpose of the new provision is to guarantee that a person is not represented by an advocate who does not fulvil his/her tasks. Cases where a casation is not submitted because of the wrongful failure of an advocate should thus be avoided or at least minimised. In any case scurts can always take into account the wrongful failure when deciding on the restoration of the term of cassation which is evident from the case-law referred to below. Case-law developments The Supreme Court judgment of 9 May 2012 in the applicant shows clearly that domestic scurts take into account thefact that the applicant.s advocate had not submitted the appeal in casation within due time and that the aplicant had prin urmare lost his right to have his case reviewed by the Supreme Court. These Circumstances were clearly taken as a bazas to renew the term for appeal in casation and review the cassations in question. The Supreme Court in its judgment of 16 May 2011 in civil case No. 3-2-1-40-11 has explained that the assessment of Although the Supreme Court in the 16 May 2011 judgment did not accept the explanations that the applicant The above-mented judgments are as they probas that scurts have the discretion to assess different reasonings and are authorised to take into account various reasons for the restoration of a term for appeal in cassation. It also shows that not only maigood reasons of the aplicant but also tose of his/her legal counsel can be taken into account. Publication and dissemination: The judgment of the Court was translated into Estonian and publicityshed on the web-site of the Ministry of Foreign Affairs (http://www.vm.ee/?q=taxonomy/term/229 ) and widely disseminated, inclusivding to the authorities directly vised. Concluzii of the respondent State Estonia has paid the applicant the just satisfaction provided in the judgment in due time. The applicant had and el used the right to re-opening of his criminal procesed, which the Supreme Court granted. In the cource of the re-opened criminal proceedings the Supreme Court established that the additional pedepseshment to expel the aplicant is invalid; thus the aplicant does not fait expulzation. The convingere itself and the respective imprison stated in force. Conferning the general measures the Government stres that all procesdural codes give the domestic scurts discretion to assessment and decided case-by-case whether there exists mais a good reasons to restore the term for casation. It has also been acknowledged that the wrongful failure by an advocate could be one of the good reasons to restore respective term. Existing legislation which does not give an exhaustiv list of În plus, new legislative provisions are in force from 1 January 2010 and 1 September 2011 that foresee the possibility to remove an incompetent advocate from the scurt already at early stagiis of the proceseedings. This should minimalise the risk that negligent advocates represent clients in the Supreme Court proceedings. Estonia finds that the judgment is implemented properly and fully and asks to close the examination of the case. [1] Adoptată de Comitetul de Miniștri la 7 martie 2013 cu ocazia celei de-a 1164-a reuniuni a Delegaților miniștrilor. [2] Numai în limba engleză

Résolution CM/ResDH(2013)8

[1]

Andreyev contre Estonie

Exécution de l’arrêt de la Cour européenne des droits de l’homme

(Requête n

o

48132/07, arrêt du 22 novembre 2011, définitif le 22 février 2012)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit qu’il surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif, qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et la violation constatée (voir document

DH-DD(2013)21E

)

[2]

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

;

et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer aux obligations susmentionnées

;

Ayant examiné le bilan d’action fourni par le Gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour] (voir document

DH-DD(2013)21E

)

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées

;

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

ACTION REPORT, Andreyev. v. Estonia

Application No. 48132/07, Judgment of 22 November 2011

1)

Case description

:

The applicant, a Russian national, was deprived of his right to appeal in the criminal proceedings directed against him as his legal-aid lawyer had failed to lodge an appeal within the applicable time-limit and no subsequent measures adequately remedied the situation (violation of Article 6 § 1 - access to court).

2)

Individual measures

:

The just satisfaction awarded by the Court for non-pecuniary damage (EUR 1,000) was paid on 30/03/2012.

Additional individual measures apart from payment of just satisfaction are following.

Re-opening of the applicant’s criminal proceedings

Following the Court judgment of 22 November 2011 the applicant submitted an application to re-open his criminal case (i.e Viru County Court judgment of 3 November 2006 and Viru Appeal Court judgment of 5 March 2007) to the Estonian Supreme Court.

On 9 May 2012 the Supreme Court in review proceedings No. 3-1-2-2-12

decided to grant the application to re-open the above-mentioned criminal case. The Supreme Court in its judgment referred expressly to the Strasbourg Court judgment in the applicant’s case No. 48132/07 when it found under § 366(7) of the Estonian Code of Criminal Procedure that the application for re-opening was justified.

The Supreme Court noted that the violation found by the Strasbourg Court had been related to the fact that the applicant’s advocate had not submitted the appeal in cassation within due time and that the applicant had therefore lost his right to have his case reviewed by the Supreme Court. The Supreme Court decided that such a violation can be remedied by granting the applicant’s advocate access to the Supreme Court. The Supreme Court decided that it does not have to refer the case back to lower instance courts but it can annul the Supreme Court’s ruling of 9 May 2007 No. 3-7-1-1-135 by which the advocate’s cassation had been disregarded and returned due to the expiry of the term for cassation. The Supreme Court also decided to adjudicate the respective appeals in cassation - both the appeal in cassation submitted in 2007 and the new appeal in cassation submitted in 2012 – itself and initiated respective pre-trial proceedings in the Supreme Court.

The Supreme Court in its 9 May 2012 judgment also referred to the

Viru County Court ruling of 21 February 2012

in which it had already been decided that only the operative part of the Viru County Court judgment of 3 November 2006 - that foresees imprisonment and not the expulsion as an additional punishment, shall be taken into account when implementing the judgment. The Supreme Court expressly confirmed in its 9 May 2012 judgment that the applicant’s expulsion based on the criminal court judgment of 3 November 2006 is out of the question.

On 27 July 2012 the Supreme Court

decided not to proceed with the above mentioned 2007 and 2012 cassations in the applicant’s criminal case. As the Viru County Court had already decided and the Supreme Court had confirmed that the applicant cannot be expelled upon the criminal court judgment (as the additional punishment had been annulled), the Supreme Court did not find any other grounds which would justify the adjudication of the appeals in cassation.

3)

General measures

:

Legislative basis and amendments

:

According to

the Supreme Court shall prepare a ruling on refusal to hear an appeal in cassation and return the appeal to the appellant in cassation if the appeal in cassation was filed after the expiry of the term for appeal in cassation provided for in § 345 of this Code and the appellant in cassation has not requested restoration of the term or the Supreme Court has refused to restore the term. According to

absence which is not related to absconding from the criminal proceeding is a good reason (i.e valid grounds) for allowing a term for appeal to expire. According to

the investigative body, Prosecutor’s Office or court are authorised to decide whether any other circumstances existed that were good reasons for allowing a term for appeal to expire.

regulates the measures applicable to persons who violate order in a court hearing. According to new

sub-clauses (4

1

)-(4

2

) which entered into force on 1 September 2011, the court may remove an advocate from the court room if the advocate is not able to represent the client properly or has showed himself/herself as dishonest, incompetent or irresponsible; as well as when he/she has vexatiously hindered the correct and speedy adjudication or has repeatedly not complied with the court’s orders.

1

) of the State Legal Aid Act,

in force from 1 January 2010, also foresees that a court shall, at the request of a recipient of legal aid or on its own motion, remove an advocate from the provision of state legal aid by a ruling if the advocate has demonstrated incompetence or negligence. In advance, the court may request a submission of explanations from the recipient of state legal aid and the advocate. The court shall forward the ruling concerning the removal of the advocate from the provision of state legal aid to the Bar Association for the commencement of proceedings of its court of honour and, if necessary, for the appointment of a new provider of state legal aid.

The purpose of the new provisions is to guarantee that a person is not represented by an advocate who does not fulfil his/her tasks. Cases where a cassation is not submitted because of the wrongful failure of an advocate should thus be avoided or at least minimised. In any case courts can always take into account the wrongful failure when deciding on the restoration of the term of cassation which is evident from the case-law referred to below.

Case-law developments

:

The Supreme Court judgment of 9 May 2012 in the applicant’s review proceedings No. 3-1-2-2-12

shows clearly that domestic courts take into account the fact that the applicant’s advocate had not submitted the appeal in cassation within due time and that the applicant had therefore lost his right to have his case reviewed by the Supreme Court. These circumstances were clearly taken as a basis to renew the term for appeal in cassation and for review the cassations in question.

The Supreme Court in its judgment of 16 May 2011 in civil case No. 3-2-1-40-11

has explained that the assessment of “the good reason” is a discretionary decision as procedural codes do not foresee an exhaustive list of reasons. “The good reason” shall be objective and it shall proceed from an event that the applicant himself/herself cannot influence. Although the Supreme Court in the 16 May 2011 judgment did not accept the explanations that the applicant’s advocate’s failure to submit an appeal in due time was “a good reason” for restoring the term of the appeal, it nevertheless acknowledged that errors in computer systems, incl. law office’s computer systems might be grounds for restoration of the term.

The above-mentioned judgments are relevant as they prove that courts have the discretion to assess different reasonings and are authorised to take into account various reasons for the restoration of a term for appeal in cassation. It also shows that not only “good reasons” of the applicant but also those of his/her legal counsel can be taken into account.

Publication and dissemination:

The judgment of the Court was translated into Estonian and published on the web-site of the Ministry of Foreign Affairs (

http://www.vm.ee/?q=taxonomy/term/229

) and widely disseminated, including to the authorities directly concerned.

4)

Conclusions of the respondent State

:

Estonia has paid the applicant the just satisfaction provided in the judgment in due time. The applicant had and he used the right to request the re-opening of his criminal proceedings, which the Supreme Court granted. In the course of the re-opened criminal proceedings the Supreme Court established that the additional punishment to expel the applicant is invalid; thus the applicant does not face expulsion. The conviction itself and the respective imprisonment stayed in force.

Concerning the general measures the Government stress that all procedural codes give the domestic courts discretion to assess and decide case-by-case whether there exists “a good reason” to restore the term for cassation. It has also been acknowledged that the wrongful failure by an advocate could be one of the good reasons to restore respective term. Existing legislation which does not give an exhaustive list of “good reasons” gives to all courts, including to the Supreme Court, sufficient flexibility and possibilities to restore a (cassation) term if justified.

In addition, new legislative provisions are in force from 1 January 2010 and 1 September 2011 that foresee the possibility to remove an incompetent advocate from the court already at early stages of the proceedings. This should minimise the risk that negligent advocates represent clients in the Supreme Court proceedings.

Estonia finds that the judgment is implemented properly and fully and asks to close the examination of the case.

[1]

Adoptée par le Comité des

Ministres le 7 mars 2013 lors de la 1164e réunion des Délégués des Ministres.

[2]

En anglais uniquement