(Application no. 2192/03)
11 July 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Harkmann v. Estonia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Ms L. Mijović,
Mr J. Šikuta, judges,
Mrs J. Laffranque, ad hoc judge,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 20 June 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
By a letter of 24 March 2002 the applicant informed the court that he could not participate in the hearing due to his ill-health. He requested that the hearing be adjourned.
On 26 March 2002 the hearing was adjourned due to the absence of the applicant and a new hearing was scheduled for 13 June 2002. The court decided that the applicant should be compelled by the police to appear before it on that date.
As the police was unable to find the applicant and to secure his attendance at the court hearing on 13 June 2002, the hearing was adjourned until 30 September 2002. The court again decided that the applicant had to be compelled by the police to appear in court.
B. Proceedings related to the applicant’s custody
A copy of the complaint submitted to the Court by the Government bears a handwritten note “Complaint received. Tartu County Court. 10.10.02” and a seal and signature of a judge of the County Court.
According to the complaint, the deprivation of the applicant’s liberty was unlawful, as he had not been presented with the decision of the County Court on the basis of which he had been arrested. Moreover, the decision had been taken by the County Court in his absence. He alleged that the registration of his residence at the address where the City Court had sent the summonses had been cancelled. He noted that, according to the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus), in case the residence of a person could not be determined, the place where he or she was actually staying should be deemed his or her residence. On 2 October 2002 he had stayed in Tallinn and prior to that in Tartu. However, he had not received the summonses. He requested that he be immediately released from custody and that the County Court’s decision concerning his arrest be invalidated.
On the same day the Court of Appeal received the applicant’s amendments to his appeal. He alleged, inter alia, that he had never signed an undertaking not to leave his place of residence and claimed compensation for his unlawful detention.
Under the provisions of the applicable criminal procedure law, the decision of the Court of Appeal was final.
C. Subsequent developments in the criminal case
II. RELEVANT DOMESTIC LAW
“(1) If there is sufficient reason to believe that an accused or a defendant at trial who is at liberty might abscond from an investigation or court proceedings or impede the establishment of the truth in a criminal matter or continue to commit criminal offences, or in order to ensure the enforcement of a court judgment, one of the following preventive measures may be applied with regard to him or her:
1) a signed undertaking not to leave place of residence (allkiri elukohast mittelahkumise kohta);
3) taking into custody;
“(1) In the choice of preventive measure, there shall be taken into account the seriousness of the criminal offence in question, the personality of the suspect, accused, or defendant at trial, the possibility that the suspect, accused, or defendant at trial may abscond from the investigation or from the court proceedings or may impede the establishment of the truth, and the state of health, age, marital status and other facts concerning the suspect, accused or defendant at trial which may be relevant to the application of a preventive measure.
“(1) A signed undertaking not to leave a place of residence means a written commitment obtained from a suspect, accused or defendant at trial not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court.
(2) If the suspect, accused or defendant at trial violates such a commitment, a more severe preventive measure may be applied with regard to him or her, the consequences of which the suspect, accused or defendant at trial shall be warned of at the time of obtaining his or her signature.”
“(1) A preventive custody measure may be applied in respect of a suspect, accused or defendant at trial in order to prevent him or her from evading the criminal proceedings or committing a new offence, as well as to ensure the enforcement of a court judgment.
(4) ... A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of defence counsel ... Such requirements are not applied if the person to be taken into custody is a fugitive, or if his or her whereabouts are unknown.
(5) A preventive custody measure ... shall be granted or refused by a reasoned ruling of a county or city court judge. ...”
“A person taken into custody ... may challenge the custody measure by an appeal lodged within five days...”
(3) A preventive measure applied in respect of a defendant at trial may be altered or annulled by the trial court or a higher court.
“(1) A person who has been summoned ... has to promptly inform ... the court ... if he or she is unable to appear at the time indicated in the summons.
“(1) Compulsory attendance (sundtoomine) may be ordered ... by a court with regard to ... an accused ..., if he or she fails to appear before ... the court and the summons indicates that the person concerned may be compelled to attend in case of failure to appear.
(2) Compulsory attendance is effected by the police.
(3) A person subject to compulsory attendance who is staying in the same district as ... the court may be detained for up to eighteen hours prior to the commencement of ... a court session. In the case of the compulsory attendance of a person who is staying in another district, the term of detention shall not exceed forty-eight hours.
“(1) A criminal matter shall be heard in a session of a court of first instance in the presence of the defendant at trial whose appearance in court is mandatory.
“If the defendant at trial fails to appear in a court session, a court shall adjourn the hearing of the criminal matter ... . The court shall impose a fine on a defendant at trial who fails to appear ... and shall decide on the application of compulsory attendance or other preventive measures with regard to the defendant at trial.”
“In the course of a court hearing of a criminal matter, the court has the right to choose, amend or annul ... the preventive measures previously chosen with regard to the defendant at trial.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
1. Whether the deprivation of liberty was justified under sub-paragraphs (b) or (c) of Article 5 § 1
The Government noted that the domestic courts had found that the interest in holding a judicial hearing outweighed the applicant’s deprivation of liberty for a short period of time.
Article 5 § 1 contains an exhaustive list of permissible grounds of deprivation of liberty. However, the applicability of one ground does not necessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub paragraph (see, for example, Eriksen v. Norway, judgment of 27 May 1997, Reports of Judgments and Decisions 1997 III, pp. 861-62, § 76 and Enhorn v. Sweden, no. 56529/00, § 34, ECHR 2005 ...). Taking into account that the applicability of sub-paragraph (c) of Article 5 § 1 triggers also the protection provided by Article 5 § 3, which constitutes an important additional guarantee for an arrested person, the Court considers it appropriate to analyse first whether this sub-paragraph is applicable to the present case.
2. Whether the guarantees provided by Article 5 § 3 were complied with
Article 5 § 3 is aimed at ensuring prompt and automatic judicial control of police or administrative detention ordered in accordance with the provisions of Article 5 § 1 (c) (see De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, Series A no. 77, p. 24, § 51 and Aquilina, cited above, §§ 48-49).
The Court has pointed out that under Article 5 § 3, there is both a procedural and a substantive requirement. The procedural requirement places the “officer” under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons (see Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, pp. 13-14, § 31, with further references).
Moreover, the Court recalls that, according to its case-law, the judicial control foreseen by Article 5 § 3 must meet certain requirements, one of those being that the judicial officer must himself or herself actually hear the detained person before taking the appropriate decision (see De Jong, Baljet and Van den Brink, cited above, p. 24, § 51 and Aquilina, cited above, § 50). The Court notes that in the present case the applicant – unlike his lawyer – chose not to appear before the County Court when the decision concerning his arrest was taken. This fact in itself does not give rise to an issue under Article 5 § 3, as a requirement cannot be derived from the Convention to the effect that a person who is evading court proceedings should be present at the court hearing where authorisation for his or her arrest is dealt with (see Harkmann v. Estonia (dec.), no. 2192/03, 1 March 2005). However, the Court observes that the applicant had no chance to present the court with possible personal reasons militating against his detention after his actual arrest on 2 October 2002, despite the authorities’ obligation under Article 5 § 3 to give him a possibility to be heard.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court further recalls that once an individual has been released Article 5 § 4 ceases to be applicable, save in so far as he complains about the speediness with which the lawfulness of his detention was considered by the relevant national court (see Tyrrell v. the United Kingdom, no. 28188/95, Commission decision of 4 September 1996, unreported).
The Court considers that the applicant was released before an issue under Article 5 § 4 could arise (see, for comparison and mutatis mutandis, Letellier v. France, judgment of 26 June 1991, Series A no. 207, p. 22, § 56).
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Estonian kroons at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza