PODOLINSKI A KAER proti Estonsku

THIRD SECTION

DECISION

Applications nos. 45087/19 and 45248/19
Jevgeni PODOLINSKI against Estonia
and Vitali KAER against Estonia

The European Court of Human Rights (Third Section), sitting on 13 December 2022 as a Committee composed of:

Georgios A. Serghides, President,
Jolien Schukking,
Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the applications to the Estonian Government (“the Government”) represented initially by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights and subsequently by Mr T. Kolk, her successor in that office;

the second applicant’s observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicants’ allegations of excessive length of their pre-trial detention, which lasted approximately four and half years, in breach of Article 5 § 3.

2. Mr Podolinski (“the first applicant”) and Mr Kaer (“the second applicant”), both accused, inter alia, of being members of a criminal organisation, were arrested on 6 April 2015 and remanded in custody by a preliminary investigation judge on 8 April 2015. They remained in custody until their conviction by the first-instance court on 21 August 2019.

3. After the completion of the pre-trial investigation, the defence lawyers were given time to examine the criminal files on 30 November 2015, and on 22 January 2016 the statement of charges was sent to the court. Following two preliminary hearings, the applicants were committed for trial on 8 March 2016).

4. Charges were brought against eighteen persons in respect of various offences in addition to their suspected membership of a criminal organisation (including use of physical abuse against persons, illegal entry, unlawful handling of a silencer, embezzlement and large-scale VAT fraud with an international dimension). The applicants were suspected of having belonged to the criminal organisation at least since 2012. The prosecutor had applied to examine more than a hundred witnesses, victims and third parties.

5. During both the pre-trial and trial stages the domestic courts examined at regular intervals (once every six months at most) whether the applicants’ pre-trial detention continued to be justified, either of their own motion or in response to requests by the applicants to that effect or requests by the prosecutor’s office to extend the detention. On each occasion the courts confirmed that there was reasonable suspicion that the applicants had committed the offences they were accused of. As grounds for their detention, the courts relied on the risks of the applicants reoffending and obstructing the proceedings by influencing witnesses or otherwise tampering with evidence.

6. For example, when verifying the risk of obstruction of proceedings, the domestic courts not only referred to the fact that in cases concerning organised criminal groups such a risk was by nature particularly high, but also noted – on the basis of the information in the criminal file – that disobedient members of the organisation were subject to physical punishment. Not all members of the criminal organisation in question were remanded in custody during the proceedings. Furthermore, in a number of decisions the domestic courts referred to the stage reached in the examination of evidence (for instance, noting at the end of the pre-trial proceedings that personal evidence was generated directly at the court hearings). While the courts did not expressly state that the risk of the applicants obstructing the proceedings had at some point ceased to exist, they stopped relying on that ground of detention in mid-2018, when the examination of the prosecution’s evidence had been completed.

7. With regard to the risk of reoffending, the courts referred to the nature of the offence of membership of a criminal organisation (including the rules and behavioural patterns that characterise such organisations), the applicants’ supposed long-term membership of the organisation in question, their previous criminal records and their habit of living off the proceeds of illegal activities. Given the available evidence, the courts considered it unlikely that the applicants would sever their ties with other members of the criminal organisation.

8. The courts considered but dismissed the applicants’ requests for pre‑trial detention to be lifted or replaced by a prohibition on leaving their place of residence, noting that a prerequisite for the latter measure would also be that the grounds for pre-trial detention had ceased to exist. Moreover, in the context of such a measure it would be impossible to check with whom and on which topics the accused communicated and there would thus be insufficient prospects of reducing the risk of the applicants continuing to organise the activities of their criminal enterprise.

9. During the trial a total of 128 hearings were held in a regular manner, with reasonably short intervals between them, on a monthly or almost monthly basis. In setting the hearing dates, the availability of the defendants’ lawyers and of the prosecutor was taken into account, which at the beginning of the trial (from March to June 2016) resulted in a longer break between scheduled hearings. Extended breaks in hearings also resulted from some of the defendants (albeit not the applicants) notifying the court shortly before the scheduled hearings in early June 2016 that their client agreements with their chosen lawyers had been terminated and that they needed to have legal-aid lawyers. At least one of the appointed lawyers requested extra three months to examine the case file. On another occasion one of the defendants’ defence lawyers died, making it necessary to find a replacement. On both occasions the new lawyers were granted time extensions to acquaint themselves with the case file. The first applicant twice applied for his legal-aid lawyer to be removed from the proceedings, applications which the courts rejected.

10. On other occasions, the hearings had to be postponed or adjourned either because some of the defendants, their lawyers and – on one occasion –a lay judge fell sick, or because the accused or their counsel did not appear at the hearings. Three hearings were cancelled because the prosecutor was unavailable. Twice the domestic courts granted a break from hearings so that plea-bargain negotiations could be conducted. Since the mother tongue of some of the defendants was not Estonian, an interpreter was present at the hearings.

11. The applicants complained under Article 5 § 3 of the Convention that their detention on remand had been excessively long.

THE COURT’S ASSESSMENT

12. The general principles regarding the application of Article 5 § 3 of the Convention have been set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, 102, ECHR 2016), and Merabishvili v. Georgia ([GC], no. 72508/13, §§ 222 and 225, 28 November 2017); for a more recent application of those principles, see Štvrtecký v. Slovakia (no. 55844/12, 5 June 2018, and Havik and Vaik v. Estonia ((dec.) [Committee], nos. 9044/17 and 48545/17, 12 May 2020).

13. The applicants’ detention on remand, in so far as relevant for the purposes of the present case, lasted for approximately four and a half years from their remand in custody until their conviction by the first-instance court (see Buzadji, cited above, § 85). A period of such duration is a matter of great concern requiring very strong justification (see Štvrtecký, cited above, § 57, and Trifković v. Croatia, no. 36653/09, § 121, 6 November 2012).

14. The Court accepts, and the applicants did not argue otherwise, that the reasonable suspicion that they had committed the offences with which they had been charged persisted throughout the criminal proceedings leading to their conviction. This was verified by the domestic courts on each occasion when they reviewed the applicants’ continued detention.

15. As to the grounds for the applicants’ (continued) detention – namely the risk of reoffending and of obstructing the proceedings – the Court observes that while the domestic courts referred to them consistently during the proceedings, their references were not stereotyped or abstract. It cannot be said that the courts referred to these grounds without showing how they applied to the specific circumstances of the applicants’ case (see paragraphs 6-7 above).

16. Having examined the case file, the Court finds that the domestic courts gave relevant and sufficient reasons for the applicants’ detention during the investigation and trial.

17. As to the conduct of the proceedings, the Court notes that they were of considerable scope and complexity, regard being had to the international dimension of the case, the number of defendants involved, and the duration of the activities of the criminal organisation under investigation (see paragraph 4 above). The proceedings required individual determinations to be made of the criminal responsibility of a number of the defendants in relation to a variety of separate criminal acts.

18. While the pre-trial proceedings could not be considered to have lasted an excessively long period of time, the trial proceedings lasted for approximately three and half years.

19. However, in the light of the course of the trial proceedings (see paragraphs 9-10 above), the Court considers that there were no considerable delays or periods of inactivity in the proceedings that could be attributed (exclusively) to the State. Thus, although the applicants’ pre-trial detention lasted for a considerably long period of time, the authorities and courts handled the applicants’ case with “special diligence”.

20. Given that the case concerned an example of organised crime, the Court is willing to accept that it presented, by definition, particular difficulties for the investigating authorities, and later for the courts, in relation to determining the facts and the degree of responsibility of each member of the group. According to the Court’s case-law, in such instances longer periods of detention may be considered as reasonable (see Štvrtecký, cited above, § 58, and the cases cited therein).

21. Having regard to the above, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 26 January 2023.

Olga Chernishova Georgios A. Serghides
Deputy Registrar President

Appendix

​List of cases: