FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11423/03 
by Ain PELLO 
against Estonia

The European Court of Human Rights (Fourth Section), sitting on 5 January 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr M. Pellonpää
 Mr R. Maruste
 Mr K. Traja
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 7 March 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ain Pello, is an Estonian national, who was born in 1981. He is currently serving his sentence in Murru prison. He is represented before the Court by Mrs M. Lust, a lawyer practising in Tallinn. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

In the evening of 1 October 2000, next to a shop in Saue, a man who had been beaten died on the spot as a result of head injuries. On 2 October 2000 the Harju police initiated criminal proceedings. Charges were brought against the applicant and M.K.

Following the conclusion of the preliminary investigation the criminal case-file was sent to the Harju County Court (Harju Maakohus). According to the summary of charges the applicant and M.K. had been consuming alcohol in a train from Tallinn to Saue. In Saue they had walked to a shop in front of which they met T.N. They had entered the shop. After having bought beer the applicant and M.K. left the shop together. Outside the shop they had met O.U. and the victim. The former had entered the shop, the latter stayed outside. The victim, being under the influence of alcohol, had had an argument with the applicant and M.K. They had attacked the victim and beat him, as a result of which he died. When O.U. had left the shop and saw his friend on the ground, he approached the applicant and M.K. for clarification. After a brief scuffle O.U. had run away from the applicant and M.K. and again had entered the shop. Witness R.L., the shop assistant, had locked the door of the shop.

The summary of charges relied on the statements of U.T., the father of the victim; O.U., the man together with whom the victim had come to the shop; R.L., the shop assistant; T.N., a man who had stayed in the shop during the offence; K.K., a man who had passed by the scene of the offence with a car and had seen two men beating a third one; and K.E., a nearby inhabitant who had heard voices while being at home in the evening of the offence. In addition, reliance was placed, inter alia, on the plan and report concerning the scene of the offence, photos, a forensic expert opinion, a report on the comparison of K.K.’s statements with the circumstances and a report concerning the confrontation of K.K. and the applicant.

In August 2001 the criminal case was joined with another case in which the applicant was also accused. Altogether there were five defendants in the criminal case.

On 19 September 2001 the hearing was adjourned by the County Court.

At the hearing of 6 November 2001 the prosecutor presented amended charges in the part not relating to the present case. The applicant’s lawyer requested that the hearing be adjourned and that all the witnesses and the forensic expert be summoned. She also requested that additional questions be put to the forensic expert. The prosecutor informed the court that witness K.K. had died. The court adjourned the hearing.

The County Court heard the case on 29 November 2001 and on 4 April 2002.

At the hearing of 29 November 2001 the applicant’s lawyer found that the participation of witnesses O.U., T.N., R.L. and K.E. was necessary. She noted that she had made a request to the effect that the forensic expert be called to the hearing. The court heard the applicant, M.K. and U.T. In addition, the court disclosed the written records of statements made by witnesses K.K. and R.L. during the preliminary investigation, the record concerning the interrogation of M.K., the report concerning the confrontation of the applicant and K.K. and the report on the comparison of K.K.’s statements with the circumstances. The County Court granted the request to call witnesses O.U., T.N. and R.L. and ordered that an additional opinion from the forensic expert be obtained. The expert submitted an additional opinion on 29 January 2002.

On 4 April 2002 the County Court held the next hearing. Witness R.L. was heard and the written record of his statements given during the preliminary investigation was read out. Witnesses O.U. and T.N. failed to appear. The court had summoned them but the letters had been returned to the County Court by the postal service due to the expiry of the term for which mail was held. In addition, the court disclosed the written records of statements made by witnesses K.K., the report concerning the confrontation of the applicant and K.K. and several other materials. The applicant’s lawyer insisted that the personal attendance of witnesses O.U. and T.N. at the hearing was necessary. The County Court dismissed the request and closed the hearing on the same day.

The Harju County Court delivered its judgment on 10 April 2002. Under Article 107 § 2 (1) and (2) of the Criminal Code the applicant was convicted of the intentional causing of an extremely serious bodily injury which had been life-threatening and which due to negligence had caused the death of the victim and which had been committed in a manner motivated by hooliganism. The court sentenced him to three years’ imprisonment. It relied on the forensic expert opinion together with annexes, the statements of witnesses K.K. and K.E., given during the preliminary investigation, and the statements of witness R.L. It further relied on the report concerning the scene of the offence together with a sketch plan and photos appended to it, the report concerning the examination of the material evidence together with photos, the victim’s death certificate and documents concerning the funeral expenses.

The applicant’s lawyer appealed against the County Court’s judgment. She challenged the County Court’s refusal to summon witnesses O.U. and T.N., finding that their statements could have been in favour of the applicant. She also complained that the findings of the County Court had been incompatible with the factual circumstances, pointing out, inter alia, that the statements of those witnesses on which the court had relied had been contradictory. She requested that witnesses O.U. and T.N. be summoned to the court and that the applicant be acquitted in respect of the charge concerned.

On 12 June 2002 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) delivered its judgment on the appeal. It established that the County Court had repeatedly sent summonses to the witnesses O.U. and T.N. Since the letters had been returned to the County Court by the postal service, the Court of Appeal concluded that the whereabouts of these witnesses had been unknown. It had been lawful for the County Court to disclose their statements. As the County Court had disclosed the statements and examined them at its hearing, it had used these statements as evidence in compliance with the law. The Court of Appeal noted that the applicant’s lawyer had failed to specify, either before the County Court or in her appeal, what information she would have wished to obtain from these witnesses. The Court of Appeal rejected the appeal in respect of the alleged lack of evidence and incompatibility of the County Court’s conclusions with the factual circumstances, relying on the statements of witness K.K., given during the preliminary investigation and disclosed at the County Court’s hearing, and the statements of witness R.L., given prior to the trial and confirmed by him at the hearing. The Court of Appeal noted that the County Court had been justified in disregarding the statements of the accused. It also referred to the statements of U.T., given at the County Court’s hearing, and to the forensic expert opinion. The court upheld the County Court’s judgment in its relevant part in substance, omitting, however, the element of hooliganism in the behaviour of the applicant and M.K. (Article 107 § 2 (2) of the Criminal Code). The prosecutor’s appeal concerning the sentence was upheld in part and the applicant was sentenced to five years’ imprisonment under Article 107 § 2 (1) of the Criminal Code.

The applicant’s lawyer lodged an appeal with the Supreme Court (Riigikohus). She repeatedly challenged the County Court’s refusal to summon witnesses O.U. and T.N., finding that the mere fact that the witnesses had not picked up the letters sent to them from the post office did not enable the conclusion to be drawn that their place of residence had changed and that their whereabouts had been unknown to the court. She noted that the County Court had not ordered the police to secure the attendance of the witnesses at the hearing.

The Supreme Court rejected the appeal on 16 October 2002. It held that the County Court had failed to employ all possible means to guarantee the applicant a fair trial in accordance with Article 6 § 1 of the Convention, in that the County Court had failed to secure the witnesses’ attendance by ordering the police to compel them to appear in court (sundtoomine). By disclosing the statements given by O.U. and T.N. during the preliminary investigation, without the applicant having had an opportunity to put questions to them, the County Court had also failed to observe the requirements of Article 6 § 3 (d). However, after having analysed at length the case-law of the European Court of Human Rights, the Supreme Court found that there was no ground for quashing the judgments of the County Court and the Court of Appeal, since the conviction of the applicant had not been based entirely or to a decisive extent on the statements of witnesses O.U. and T.N.

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that he had not received a fair trial and that his defence rights had been violated. He had had no opportunity to examine two of the witnesses. Questioning of these witnesses would have led to his acquittal.

THE LAW

The applicant complained that he did not have a fair trial and that his rights of defence had been violated, since he had had no opportunity to examine witnesses O.U. and T.N. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which, in so far as relevant, provide:

“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:

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The Government were of the opinion that the applicant essentially wished to contest his conviction by the domestic courts. They noted that the Supreme Court had dealt with all the applicant’s complaints, analysing also the relevant case-law of the European Court of Human Rights. It had found that the applicant’s conviction had not been based solely or to a decisive extent on the statements of witnesses O.U. and T.N. Furthermore, the Government recalled that it was not the Court’s task to substitute its own assessment of the facts for that of the domestic courts. They also argued that Article 6 § 3 (d) did not grant the accused an unlimited right to secure the appearance of witnesses in court. The Government found that in the present case the criminal proceedings as a whole had been fair and compatible with the requirements of Article 6 § 1.

The applicant did not comment on the Government’s observations.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

PELLO v. ESTONIA DECISION


PELLO v. ESTONIA DECISION