SECRETARIAT GENERAL

SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES

Contact: Anna Austin Tel: 03 88 41 22 29

Date: 26/11/2014 DH-DD(2014)1445

Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1221 meeting (3-5 March 2015) (DH)

Item reference: Revised action report (19/11/2014)

Communication from Estonia concerning the Saarekallas OÜ group of cases against Estonia (Application No. 11548/04)

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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1221 réunion (3-5 mars 2015) (DH)

Référence du point : Bilan d’action révisé

Communication de l’Estonie concernant le groupe d’affaires Saarekallas OÜ contre Estonie (Requête n° 11548/04) (anglais uniquement)

New revised report of 19 November 2014

GROUP ACTION REPORT

Saarekallas OÜ v. Estonia (application No. 11548/04; judgment of 8 November 2007) Missenjov v. Estonia (application No. 43276/06; judgment of 29 January 2009) Raudsepp v. Estonia (application No. 54191/07; judgment of 8 November 2011) Kiisa v. Estonia (applications nos. 16587/10 and 34303/11; Committee judgment of 13 March 2014) Kiisa v. Estonia (application no. 72999/10, Committee judgment of 13 March 2014)

1) Case description:

These cases concerned the length of either civil or administrative proceedings and lack of respective domestic remedy. In Saarekallas OÜ, Missenjov, Kiisa and Kiisa the Court found a violation of the applicants' right to a fair trial within a reasonable time, on account of the excessive length of civil proceedings (violation of Article 6 § 1) and the lack of an effective remedy in this respect (violation of Article 13). In the case Saarekallas OÜ the period to be taken into consideration began on 11 December 1998 and ended on 14 February 2006. It thus lasted slightly more than seven years and two months for three levels of jurisdiction, namely before the Saare County Court, the Tallinn Court of Appeal and the Supreme Court. In the case Missenjov the period to be taken into consideration began on 19 October 1999 and ended on 29 May 2006. It thus lasted six years, seven months and 20 days for one level of jurisdiction, namely before the Viru County Court (previously named the Narva City Court). In the first case Kiisa (72999/10) the proceedings in question started on 10 October 2003 and came to the end on 1 August 2013 having thus lasted for nine years and nearly nine months for three levels of jurisdiction, namely before the Harju County Court (previously named the Tallinn City Court), the Tallinn Court of Appeal and the Supreme Court. In the second case Kiisa (16587/10 and 34304/11) the proceedings in question started on 25 October 2004 and came to the end on 26 January 2011 having thus lasted for six years and three months for three levels of jurisdiction, namely before the Harju County Court (previously named the Tallinn City Court), the Tallinn Court of Appeal and the Supreme Court. In Raudsepp no violation of the applicant's right to a fair trial within a reasonable time was found (no violation of Article 6 § 1); but lack of an effective remedy in respect of length of administrative proceedings was established (violation of Article 13).

2) Individual measures:

Just satisfaction The just satisfaction awarded by the Court in respect of non-pecuniary damage as well as costs and expenses or, in the case of Missenjov, in respect of costs and expenses only, was paid on time to the applicants in all cases.

Other individual measures The proceedings in all cases were concluded. Therefore no additional individual measures are needed. New revised report of 19 November 2014

3) General measures:

a) violation of Article 6

Measures taken to reduce the length of judicial proceedings The Government would first like to point out that the problem of excessively lengthy proceedings is not of a structural nature but only occurred in few cases, which is demonstrated by the low number of cases belonging to this group as well as by the findings of the Court. Nevertheless, the Estonian authorities have taken the following measures with a view to preventing future cases of excessive length of judicial proceedings:

1) As of 1 January 2013 the amendment to the Courts Act entered into force establishing a new position among the court officials (in addition to assistant judges and consultants) – a position of a judicial clerk (kohtujurist). The position of a judicial clerk was created to raise the qualification level of the court officials working for the judges with the aim to improve the administrative of the courts, to make the proceeding more efficient and ensure the reasonable length of the proceedings. The judicial clerks have to have acquired at least an officially certified Master's degree in the field of law. They assist the judges in the administration of justice: they participate in the preparation of the cases for the proceedings and in the court proceedings to the extent prescribed in the court procedure law either independently or under the supervision of a judge. The first judicial clerks were appointed to the office at the beginning of 2013 within the pilot project of Harju County Court. The sufficient number of judicial clerks for the whole court system should be reached by 2015. 2) The new Court Information System (KIS 2) has been launched. The aim of the KIS 2 is to implement 100% electronic case management process in the Estonian courts. It enables quick and comfortable possibilities for the court officers to insert data regarding the case into the system and later process the data as long as the case is pending. One of the main advantages of the KIS 2 is that all relevant data which is created by the participants to the proceedings or relevant data about the participants should be automatically available in the system. In order to achieve this, the KIS 2 has links to several State Registries which are responsible for administrating data regarding persons and businesses. Participants to the proceedings can submit and access case-related documents through a web-portal (called public e-File) linked to the KIS 2. Once the data is within the system, it is possible to use it for automatic generation of documents. In addition, KIS 2 helps to get a quick and thorough overview of the cases which the judges are dealing with. The system enables automatic case allocation between the judges by taking into account the complexity of the case, the workload of the judges and the rules on specialisation of the judges in order to achieve equal workload between them.

The KIS 2 is a comfortable and efficient tool for its user. First estimates indicate that the court officials use at least 20% less time to complete certain procedures (compared to the previous system); and in some cases, like automatic generation of documents, nearly 100% less time. This also means that the court officials, including judicial clerks will have more time to assist the judges in the substantial work.

3) According to § 45 (11) of the Courts Act (in force as of 1 September 2011) if a judge without a good reason fails to perform a necessary procedural act, inter alia fails to appoint a hearing in due time to ensure the conducting of court proceedings within a reasonable period New revised report of 19 November 2014 of time, or if it is evident that the time planned by the judge for performing the procedural act or other organisation of proceedings does not ensure the conducting of proceedings within a reasonable period of time, a chairman of a court shall decide on the implementation of such measure organising the administration of justice, which presumably provides the opportunity to finalise the proceedings within a reasonable period of time. The chairman of the court may, inter alia: 1) establish a reasonable term for the judge to perform the procedural act or finalise the proceedings depending on the circumstances; 2) provide the judge with other organisational guidelines for conducting the proceedings and organising the work and working time; 3) redistribute the court cases among the judges taking account of the division of tasks plan; 4) in exceptional case, also deviate from the division of tasks plan in the distribution of work, primarily taking into account the peculiarities of the case, the specialisation of the judge and different workload of the judges.

§ 45 (2) of the Courts Act foresee that the Minister of Justice shall exercise supervisory control over the performance of the duties by the chairmen of courts of first instance and chairmen of courts of appeal. The Minister of Justice may demand explanations from the chairman of a court concerning the administration of justice in a court pursuant to the requirements. According to § 46 of the Courts Act courts of the first instance and courts of appeal shall submit a statistical report on cases to the Ministry of Justice. The Minister of Justice shall approve the standard format for reporting and the term for submission thereof.

With reference to the above provisions, the Minister of Justice has adopted the reporting procedure on old cases by its Order no. 105 of 14 November 2013. The dates by which such reporting by the courts to the Ministry of Justice should be done annually, as well as dates of regular control of the effectiveness of the measures taken are set forth in the Order. According to the Order “old cases” are cases that have been pending for more than 3 years (for the beginning of a reporting year). The responsibility of the reporting lies with the chairman of each court. In the appendix to the Order the data which should be included in the reports is listed (including reasons for the delays and measures foreseen to improve the situation). The aim of that exercise is to find out the reasons of the delays in the proceedings as quickly as possible and based on the findings find quick and proper solutions.

b) violation of Article 13

Legislative amendments Regarding the lack of an effective remedy, the Estonian Parliament adopted amendments to the Code of Criminal Procedure, to the Code of Civil Procedure and to the Code of Administrative Procedure, introducing an effective remedy concerning the excessive length of proceedings in line with Article 6 and 13 requirements. The amendments – which foresee a possibility to expedite court proceedings – entered into force on 1 September 2011 (see also § 34 of the Raudsepp judgment). The Government note that these legislative possibilities have already been used and that this is an effective measure in force for the pending and future proceedings (see below).

Case-law developments regarding the compensatory measures The Court has referred in Raudsepp (§§ 36-42) as well as in the Kiisa judgments (§§ 36-37 and §§ 51-52 respectively) to the Supreme Court Constitutional Review Chamber ruling of 30 December 2008 (case No. 3-4-1-12-08) where it was stated that there is a recourse to the administrative court; and to the Supreme Court plenary judgment of 22 March 2011 (case no. New revised report of 19 November 2014

3-3-1-85-09, Osmjorkin case), in which case the Supreme Court declared the State Liability Act unconstitutional in so far as it did not provide for compensation in the circumstances in question (length of pre-trial proceedings) and awarded the complainant a pecuniary compensation. The Court in Kiisa judgments (§ 38 and § 53 respectively) has also referred to the Supreme Court decision of 23 May 2011 (civil case no. 2-04-1159) where it was explained that a claim for compensation for damage for excessive length of proceedings had to be lodged with the administrative court. Thereafter lower instance courts have based their judgments on the principles set forth in the Supreme Court decisions when awarding non- pecuniary damages for the length of proceedings (§§ 39-41 and §§ 54-56 of the Kiisa judgments). Thus, the violations established in Kiisa judgments were found only because the applicants in question did not have an effective remedy at the time of lodging their applications to the Court and not because there is still a lack of effective remedy in respect of the length of proceedings.

The Court of Human Rights has accepted that the developing case-law meet the requirements of Article 13 of the Convention in its inadmissibility decision in case Treial v. Estonia (application no. 32897/12) of 28 January 2014. The Court in Treial accepted that the Government have taken sufficient general measures and that there exists an effective remedy regarding cases which concern the length of all proceedings because a person may receive compensation either from the Ministry of Justice or by the recourse to the administrative court.

Namely, a person may receive compensation without recourse to the court by submitting a claim for damages for the unreasonable length of proceedings to the Ministry of Justice; or if no agreement is reached, the person may have recourse to the administrative court which is competent to assess the relevant claims for damages. The Court in Treial accepted the existence of such practise. First the Court referred in Treial (§ 41) to the inadmissibility decision of 7 May 2013 in the case Mets v. Estonia (application no. 38967/10) where it had already decided that the applicant had lost its victim status in respect of his complaint under Article 6 § 1 due to the compensation awarded in the domestic legal order and that the applicant had had at his disposal an effective remedy developed by the practice of the domestic administrative courts, which he had made use of (Mets, §§ 27-37).

Further in Treial (§ 42) the Court noted that the cases decided by the domestic administrative courts concerned the length of criminal proceedings, similarly to the Supreme Court’s judgment in the case of Osmjorkin (of 22 March 2011) on which the administrative courts relied. Thus, in the context of the Treial case the question aroused whether the same principles also apply to civil proceedings. The Court observed in this connection that, according to the Supreme Court in Osmjorkin, Articles 14 and 15 of the [Estonian] Constitution provide for a right to proceedings within a reasonable time, and that the Supreme Court relied on Article 25 of the Constitution in awarding the complainant compensation for the excessively lengthy nature of the proceedings. The Court noted that the provisions and principles relied on by the Supreme Court were of a general nature and not specific to criminal proceedings. Therefore, the Court couldn’t see how a different conclusion could be reached in respect of a complaint concerning the excessive length of civil proceedings. This approach also appeared to be supported by the Supreme Court’s decision referring an appellant in a civil case to the administrative courts for filing a compensation claim for damage caused by lengthy civil court proceedings.

In this connection, the Court reiterated in Treial (§ 43) that if doubt exists as to the effectiveness of a domestic remedy, an attempt to use that remedy must be made. Thus, the New revised report of 19 November 2014

Court found that a newly established remedy in respect of length-of-proceedings complaints had to be exhausted, regardless of the lack of pertinent case-law […] The Court reiterated that the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on the national authorities and that the mechanism of applying to the Court is thus subsidiary to the national systems safeguarding human rights. Therefore, and in order to allow the domestic judicial authorities to further develop the available remedies, the Court considered that the domestic courts should have been given an opportunity to rule on a case like the present one before it was brought to Strasbourg.

Therefore the Court in Treial (§§ 44-45) came to the conclusion that the applicant had to have recourse to the administrative courts in order to comply with the requirement of exhaustion of domestic remedies. However, as the applicant had not availed himself of this remedy, which appeared to be still open to him, the complaint was rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. This conclusion is valid for all similar future cases and it means that there exists an effective domestic remedy that should be exhausted first.

c) Publication and dissemination

For the purposes of publication and dissemination, the judgments were translated into Estonian and published on the web-site of the Ministry of Foreign Affairs (http://www.vm.ee/?q=taxonomy/term/229) and in the “Riigi Teataja” (in that gazette of official online publications the Estonian legislation and all other legal instruments, domestic court decisions, legal news etc. are published https://www.riigiteataja.ee/viitedLeht.html?id=3). They were also widely disseminated, including to the authorities directly concerned.

4) Conclusions of the respondent State:

Estonia has paid the applicants the just satisfaction provided in the judgment in due time.

General measures have also been taken – new legislation has been adopted and the case-law of the Estonian courts proves that non-pecuniary damage for lengthy proceedings is awarded by the Ministry of Justice or by the administrative courts upon the Constitution and the Convention.

Estonia finds that the judgments are implemented properly and fully and asks to close the supervision of this group of cases as the Court itself in its recent decision in Treial v. Estonia has accepted that Estonia has sufficient domestic remedy against unreasonable length of civil, administrative and criminal proceedings and has clearly stated that that remedy has to be exhausted before turning to the Strasbourg Court.