AS TO THE ADMISSIBILITY OF
by Kalev KANGUR
The European Court of Human Rights (Fifth Section), sitting on 6 January 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 April 2007,
Having deliberated, decides as follows:
The applicant, Mr Kalev Kangur, is an Estonian national who was born in 1968 and lives in Tallinn. He is represented before the Court by Mr M. Susi and Mr M. Hääl, lawyers practising in Tallinn.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was director general of the Estonian Land Board (Maa-amet) at the material time. On 18 August 2005 a criminal investigation was opened in respect of a number of land transactions involving the acquisition by private persons of plots of land covered by the rules on nature protection and the exchange of these plots for more valuable land owned by the State.
On 1 October 2006 the applicant was charged with abuse of his official position and taking a bribe. On 3 October 2006 he was taken into custody. His detention was authorised by the Harju County Court (maakohus) on 5 October 2006. On 25 October 2006 the Tallinn Court of Appeal (ringkonnakohus) dismissed an appeal by the applicant. That decision was not subject to appeal.
On 28 November 2006 the public prosecutor dismissed a request by the applicant for release. On 11 December 2006 a similar request was dismissed by the Harju County Court. The applicant's release was ordered by the public prosecutor on 21 December 2006.
In the meantime, the applicant appealed to the Supreme Court (Riigikohus), arguing that the provision of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) by which no appeal lay against a County Court decision concerning detention was unconstitutional. On 17 January 2007 the Supreme Court declined to examine the complaint on the merits as in accordance with the Constitution, the Convention and its case-law, it could do so only if the applicant had no other judicial remedy. However, in the case at hand he had had such remedies: his complaint against the County Court decision authorising his detention had been examined by the Court of Appeal and his subsequent request for release had been examined by the County Court.
On 23 January 2007 the Harju County Court, at the public prosecutor's request, suspended the applicant from serving as the director general of the Land Board for the duration of the criminal proceedings. On 15 February 2007 the Tallinn Court of Appeal upheld the decision, finding that his suspension had been lawful and well-founded as his continuing service would have adverse effects on the criminal proceedings. The Court of Appeal noted:
“... [S]uspension from office in the present case is a proportionate remedy as it is possible for [the applicant] to continue the commission of analogous criminal offences (on ... võimalik jätkata analoogsete kuritegude toimepanemist) specifically in connection with the post he holds; cooperation between [the applicant] and his subordinates is also complicated as the subordinates are witnesses in the present case.
The Court of Appeal finds that as criminal offences relating to abuse of power are involved, remaining in service in the same post would enable the suspect to continue the commission of criminal offences of the same kind (võimaldab ... samalaadsete kuritegude toimepanemist jätkata). ...”
That decision was not subject to appeal.
B. Relevant domestic law
Article 141 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides as follows:
“A suspect or accused shall be suspended from office at the request of the Public Prosecutor's Office and on the basis of an order of a preliminary investigation judge or a court ruling if:
(1) he or she may continue to commit criminal offences (võib jätkuvalt toime panna kuritegusid) in the event that he or she remains in office;
(2) his or her remaining in office may prejudice the criminal proceedings.”
The applicant complained that the statement by the Court of Appeal in the proceedings concerning his suspension from office that he might “continue the commission of analogous criminal offences” had gone beyond the voicing of a suspicion of his guilt and amounted to a violation of Article 6 § 2 of the Convention.
The applicant contested the authorities' finding that his detention had been necessary in order to prevent him from interfering with the investigation and committing new offences. He argued that the criminal proceedings had already lasted for a long time and that the authorities had had enough time to secure the evidence. Moreover, the decisions concerning his detention had been poorly reasoned. He relied on Article 5 § 1 (c).
He further complained under Article 6 § 1 that the equality of arms principle had been violated in the detention proceedings as the defence had not had access to the criminal case file the prosecution had submitted to the court and the prosecutor had had a private discussion with the judge before the hearing had started.
He also complained that the examination of his request for release by the County Court on 11 December 2006 had been purely formal and the court had merely repeated the reasons given in the initial decision authorising his detention. He relied on Article 5 § 3.
He complained that there had been no possibility of appealing against the County Court decision of 11 December 2006 whereby his request for release had been dismissed. He argued that the refusal of the Supreme Court to examine on the merits his appeal against that decision had been contrary to Article 13.
Finally, the applicant complained under Article 2 that as a result of his suspension from office his life had been put in danger as he was no longer covered by health insurance.
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Court reiterates that the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 of this Article. It will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see, among other authorities, Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308, and Minelli v. Switzerland, 25 March 1983, § 47, Series A no. 62). The Court has also emphasised the importance of the context in determining whether a statement of a public official was in breach of the principle of the presumption of innocence (see Daktaras v. Lithuania, no. 42095/98, §§ 41-45, ECHR 2000 X, and Adolf v. Austria, 26 March 1982, §§ 39-41, Series A no. 49).
Turning to the present case, the Court considers that the issue raised by the Court of Appeal decision could have been avoided by the use of somewhat more precise wording, focusing, for example, on the need to avoid prejudice to the criminal proceedings or to the element of reasonable and strong suspicion against the applicant giving rise to the need to take measures to prevent the commission of any future offences similar to those he was suspected of. It notes, however, that the wording used by the Court of Appeal followed quite closely that of Article 141 § 1 (2) of the Code of Criminal Procedure, which provides that a suspect or accused may be suspended from office if he or she “may continue to commit criminal offences” in the event of remaining in office. The Court is mindful that in proceedings originating in an individual application, it has to confine its attention, as far as possible, to the issues raised by the concrete case before it and that it is not its task to review in abstracto under the Convention provisions of domestic law but to review the manner in which these provisions were applied to the applicant (see Adolf, cited above, § 36, with further references). However, the Court points out in this context that Article 5 § 1 (c) of the Convention also refers to situations when there is “reasonable suspicion” that a person has “committed an offence or when it is reasonably considered necessary to prevent his committing an offence”.
The Court considers that the Court of Appeal decision in the present case was given in a specific context where the court was not at all called upon to decide on the applicant's guilt and did not do so; it merely had to decide whether it was necessary, given the charges against him, to suspend him from service in order to prevent him committing offences similar to those he had been suspected of. Such a reading would be in compliance with the Convention, being directly applicable in Estonia, and with the provisions of domestic law guaranteeing the presumption of innocence (Article 22 of the Constitution and Article 7 of the Code of Criminal Procedure). Moreover, the Court notes that in the Court of Appeal decision the applicant was explicitly referred to as a suspect.
In conclusion, the Court finds no appearance of a violation of the applicant's presumption of innocence guaranteed under Article 6 § 2 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
It follows that this part of the application is manifestly ill-founded and must also be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen