This article reviews the judgments *1 and decisions *2 that have been made by the European Court of Human Rights (ECHR) towards Estonia. It does not analyse every single case decided by the ECHR in the time span addressed here but instead looks at certain groups of decisions and judgments. First, it should be noted that in 2005 several cases were decided where the applicants complained about similar convention violations — about the refusal to grant residence permits to Russian nationals having served in the Soviet military or security forces, and their families. In these decisions, the ECHR adopted an approach to substantiating the inadmissibility of the applications that is largely novel from the perspective of general Strasbourg case law. Secondly, there is a group comprising decisions that address the question of whether Estonian courts when convicting some individuals for crimes against humanity for their actions in the late 1940s and early 1950s acted in accordance with the convention’s requirements. These decisions do not offer significant new aspects from the perspective of Strasbourg case law development but do place Estonia into the group of former Soviet bloc countries from which cases dealing with crimes of former state officials have reached Strasbourg. *3
After consideration of these groups of decisions and judgments, the article proceeds to examine whether some areas where Estonia has before been found in violation of human rights continue to be problematic and whether any new patterns of this sort can be noticed. *4
The total number of judgments and decisions made in January 2005 through January 2006 *5 and entered into the HUDOC (Human Rights Documents) database is 15. *6 The total number of entries in the database through January 2006 is 51. This figure by itself is not informative, as cases that are finally decided on their merits are included in the database on multiple occasions — first when the decision is made about admissibility and then for the judgment on the merits. However, the number of entries in the HUDOC database may be indicative of a possible growing frequency with which individual applicants from Estonia seek the protection of the ECHR. The first entry is from 1998, and for the years between 1998 and 2004, inclusive, the annual number of entries in the HUDOC database has been between two and eight. *7 Without the month of January 2006, in 2005, there were 12 entries made in the HUDOC database. This is around 50% more than in the previous year and a significant increase over the figures for 2001 through 2003. *8 At the time of the writing of this article (May 2006), there were 11 judgments on the merits included in the HUDOC database. *9 Four of these were made in 2005, which is slightly under one third of all cases decided towards Estonia. The trend is certainly growing. *10
It is important to note that — leaving aside one case out of the 11 where judgment was made on the merits (this case being one where the parties reached a friendly settlement *11 ) — there are 10 cases to consider where the Strasbourg court ruled on the merits of the case. In eight of these cases, the court ruled in favour of the applicant, establishing a convention violation as having occurred, and in only two cases was there found to be no violation of the convention.
It is possible to draw some preliminary conclusions through examination of these statistics. First, there is a growing trend in the decisions and judgments of the European Court of Human Rights towards Estonia. *12 And, secondly, at the time of this writing, 80% of the judgments made by the ECHR towards Estonia on the merits had established occurrence of a convention violation. It may therefore be safe to state that at this stage a decision by the ECHR that declares an application admissible is in itself more than half of a victory for the applicant, as the finding of a violation is likely to follow. This finding can be justifiably accorded additional weight by means of comparative data for Estonia’s neighbouring countries of Latvia and Lithuania. *13 The current experience of the Baltic countries with the Strasbourg judicial system involves, on average, 85% of the cases declared admissible ending with the finding of a convention violation. *14 The other side of the coin is, as shall be demonstrated below, that often in decisions where a case is declared inadmissible, the ECHR also provides a comprehensive analysis of the case with references to relevant Strasbourg case law. This trend may be prompted by the need to economise on time and the human resources of the court while at the same time giving the applicants the opportunity to understand the position and reasoning of the ECHR on their particular case. *15
It cannot be excluded that the practice by which the decision to admit an application means the strong likelihood of establishing a Convention violation, is a way by the Court to address the concerns of long proceedings within the Strasbourg system. When the future of Protocol No. 14 to the Convention, which is meant to considerably increase the effectiveness of the ECHR, is not at all clear, there is a need for temporary measures to shorten the time of uncertainty connected with the waiting of the final judgment. *16 This practice undoubtedly affects the majority of applicants. Recent statistics for 2005 show, that the ECHR made 28,581 decisions on the admissibility and at the same time handed down only 1105 judgments on the merits. *17
During the period under review in this article, three applications were decided upon by the ECHR where complaints from former officers of the Soviet Army and the Russian Army are concerned. *18
In all three cases, the male applicant (the head of the family) had agreed to participate in the aid programme established in April and July 1993 by the president of the United States of America and the president of Russia, under which it was agreed to provide 5,000 units of housing for Russian military officers demobilised from the Baltic countries or elsewhere outside Russia. The former military officers were provided with funds by the US government to enable them to obtain a ‘housing certificate’ allowing them to purchase or construct an appropriate dwelling in Russia. *19 In order to become eligible for the programme, the former officers had to present a signed application “containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests”, according to the court. *20 The applicants indeed were able to obtain living space in Russia, but when in the early 2000s they wished to renew their temporary residence permits for Estonia, these requests were denied. Domestic courts upheld the respective decisions of the authorities. The applicants (the former officers and their wives) were forced to leave Estonia. The applicants complained to the ECHR of various violations of the convention, of which the most comprehensive was the violation of article 8 of the convention — the claim being that the refusal to extend the residence permits violated their right to respect for their private and family life. It also deserves attention that they complained of violation of article 14; in the view expressed by the applicants in the Dorochenko and Mikolenkocases, many other individuals in comparable situations had received extension of their residence permits, the applicants thus receiving discriminatory treatment and, secondly, the wives of the applicants believed that their residence permits were not extended due to their marriage to the former Soviet Army officers.
Although the Strasbourg court had not ruled on comparable complaints from Estonia before 2005, it had made a major decision in a case from Latvia. On 9 October 2003, the Grand Chamber of the ECHR, by a vote of 11 to six, established that a violation of the convention’s article 8 had occurred in the case of Slivenko v. Latvia. *21 Here, the ECHR relied on analysis of the circumstances of the case from the perspective of the well‑known principle of the margin of appreciation doctrine. *22 The Slivenko case may be considered among the most significant ones decided by the Strasbourg court towards Latvia and addressing the somewhat sensitive question of ‘Russian minorities’ in the former Soviet bloc countries. As Michael Hutchinson has pointed out, the ECHR has often relied on the principle of the margin of appreciation in its more important and controversial judgments *23 — this was confirmed in the Slivenko case. According to the case law of the ECHR, three questions need to be asked in determining whether the state has violated the convention rights of individuals under its jurisdiction and overstepped its responsibilities under the margin of appreciation doctrine: whether the interference with the convention right has been “in accordance with the law”, whether it pursued a legitimate aim, and whether the interference was “necessary in a democratic society”. *24 The Strasbourg court decided that, although in the case of Slivenko the Latvian state acted in accordance with the law and pursed a legitimate aim when removing the applicants from the country, these actions were not necessary in a democratic society. *25
The Strasbourg never got to those questions in the Estonian cases. *26 The ECHR simply declared all of the applications concerning the alleged convention violations manifestly ill‑founded. The reasoning of the Strasbourg court was substantially different from that applied in the Slivenkocase — according to the ECHR, the applicants had ‘waived’ their rights to the protection extended by article 8 of the convention to their staying in Estonia. *27
The Strasbourg court does not mention even with one word the margin of appreciation doctrine in these three decisions. This cannot be an oversight *28 towards cases from Estonia; it must be indicative of a substantive and new approach of the ECHR in addressing matters where an individual can be claimed to have waived a convention right. This approach seems to suggest that, before one may consider the usual three questions related to the bounds of the state’s margin of appreciation, it needs to be answered whether the applicant him- or herself has ‘waived’ the convention right in question. If the latter is deemed to be the case and the applicant may have waived the right, no further analysis is necessary and no violation has occurred.
The concept of the waiver of a convention right is not frequently encountered in the case law of the ECHR. The court has not used this concept, as far as is known to the author of this article, when deciding cases that impose upon states an obligation to refrain from interfering with the convention rights of individuals under their jurisdiction. It needs to be noted that in the articles and monographs analysing the concept of the margin of appreciation it is not mentioned that an individual could waive his or her rights and in this way step out from under the protective ‘umbrella’ of the convention. *29 One of the most popular handbooks for practitioners in Strasbourg proceedings suggests that according to Strasbourg case law it may be possible for an individual to waive his or her right to the impartiality of the court, to his or her own presence in court, and to a public hearing. *30 It is not theoretically clear whether an individual may waive his or her rights under the convention at all, nor to what extent or exactly which convention rights may be waived. *31 Where the instances mentioned by Karen Reid— all of which are related to article 6 (1) of the convention as to the fairness of the proceedings — are concerned, the author of this article wishes to refer to the principle whereby the ECHR looks at the fairness of the proceedings as a whole. It follows hence that the waiver of a procedural or fair trial right does not necessarily mean that the individual ‘waives’ the right under the convention to a fair trial in its entirety.
The ECHR uses the following formulation of the ‘waiver of a convention right’: “Admittedly neither the letter nor the spirit of this provision prevents a person from waiving from his own free will, either expressly or tacitly, the entitlement to have his case heard in public.” *32 In addition to the principal question discussed above, here are presented two additional issues. The first is related to the timing of the ‘waiver’. The applicants decided to participate in the aid programme in 1995. This was one year before Estonia ratified the convention. It is hard to disagree with the view that an individual cannot waive a right that he or she does not yet possess. *33 The second issue is related to the question of whether the wives of the applicants in the Dorochenko and Mikolenko cases indeed fully knew what obligations their husbands had accepted when signing their applications to participate in the aid programme. The ECHR paid attention to this matter and stated that it was not convinced that the wives of the main applicants never consented to participate in the aid programme, even though they never signed the petitions. The ECHR also noted that this issue had never been raised during the domestic proceedings. *34
Finally, both applicants argued that the Estonian authorities had granted “a huge number” of residence permits to persons in situations similar to those of the applicants. It is interesting to note that the ECHR does not comment on this statement at all. This is despite the fact that, for example, the counsel of Mr and Mrs Dorochenko in the letter of 10 February 2005 again directed the attention of the ECHR to the differential treatment of the applicants — however, by referring to only one particular case. *35 Failure to present concrete factual evidence as to this violation may have prevented the Estonian courts likewise from taking a stance in relation to this complaint. *36
In summary of these three cases there can also be three different explanations answering the question of why the ECHR decided against admitting the applications. *37 First, it is possible that by introducing the concept of the waiver of a convention right the Strasbourg court introduced a major novelty in its case law. This would be almost akin to establishing a prior ‘threshold test’ *38 that needs to be passed by an applicant (by demonstrating that he or she has not waived the convention right in question) before the ECHR or domestic courts start to analyse the case from the perspective of the margin of appreciation doctrine. The second explanation can emerge from a more general question of international law in relation to the practices of states in protecting refugees. As Ryszard Piotrowicz and Carina van Eikhave asked, “the question remains, to what extent is that practice based on obligation rather than goodwill alone?” *39 Can it be the case that the good will of the Strasbourg court toward the former Soviet Army officers and their families had simply withered away? The third possible explanation cannot be overlooked either. In all cases that are decided on their merits, a High Contracting Party of the Convention one of whose nationals is an applicant shall have the right to submit written comments and take part in hearings. *40 The Russian government exercised this right in the Slivenkocase. The three cases from Estonia never passed the admissibility phase, and thus no question related to the intervention of the Russian government emerged.
Two cases falling into the category of cases concerning crimes against humanity were decided upon during the 13-month period reviewed in this article: the cases of Penart v. Estonia* 41 and Kolk and Kislyiy v. Estonia. *42 The applicant in the first case had been involved in planning and directing the killing of several civilians hiding in the woods, whereas the applicants in the second case had been involved in the deportation of civilian citizens. The acts of the first applicant took place in the years 1953 to 1954 and of the second and third applicant in 1949. All of them were convicted by the Estonian courts for crimes against humanity. Their complaint to Strasbourg stated that their conviction had been based on the retroactive application of criminal law. *43
Both applications were declared inadmissible as manifestly ill-founded. The Strasbourg court simply stated that it was satisfied that the Estonian courts had found that the acts of the applicants constituted crimes against humanity under international law at the time of their commission. *44 By doing this, the Strasbourg court continued the approach it had taken in similar cases before — not to interfere in the judgments of the domestic courts on matters related to crimes against humanity at times when the convention had not yet been adopted and not to provide a comprehensive analysis of the exception provided in article 7 (2) of the convention. *45
The ECHR devotes some attention to the question of whether the applicants should have been aware that their acts constituted crimes against humanity. This question is one of the central issues in the application of article 7 (1) of the convention in situations where the applicants have made an argument that the law was not clear enough for them to understand which conduct can bring about criminal liability. *46 The ECHR had avoided addressing this question of foreseeability in previous, French cases and did not change its course in the Estonian cases. *47 It did, however, point out that from the formal point of view the crimes of which the applicants were convicted were described in relevant provisions of international documents. It referred to the Charter of the International Military Tribunal, adopted in 1945; to Resolution 95 of the General Assembly of the United Nations Organisation, adopted in 1946; and to the Principles of the Nuremberg Trial, formulated by the International Law Commission of the United Nations Organisation in 1950. *48 With these referrals the ECHR wished to demonstrate that the idea of the actions of the applicants as offences was grounded in earlier law. An oversight in the ECHR decisions is referral to the Principles of the Nuremberg Trial, which were adopted in 1950. These principles had been passed by the time Penart committed his acts in 1953 and 1954, but in 1949 — when Kolk and Kislyiy participated in the deportations — they had not yet been passed and accusation of the applicants could not in any court be based on this international document. *49
The matter of accessibility of criminal legislation *50 also has certain aspects that remain unaddressed in the decisions under review here. The question is whether the international documents referred to above were adequately accessible to individuals under Soviet jurisdiction. The ECHR has this answer: “As the Soviet Union was a member state of the United Nations Organization, it cannot be claimed that these principles were unknown to the Soviet authorities. Thus, the Court considers groundless the applicant’s allegations […] that he could not reasonably be expected to have been aware of that.” *51 In a way, the Strasbourg court is right: certainly these principles were known to Soviet authorities — at least to some of them. Whether this awareness was limited to a small number of high‑level authorities and whether this awareness also meant the possibility of being introduced to the text of these international documents remains unanswered.
There were two cases from Estonia before the Strasbourg court between January 2005 and January 2006 that dealt with the issue of questioning of witnesses in a public trial. One of them — the case of Taal v. Estonia — was decided on its merits, and the ECHR unanimously established that violations of article 6 (1) and 6 (3) d) had taken place. *52 Another case was declared admissible. *53
The Taal v. Estonia case received a great deal of publicity when the offences took place and subsequently when Mr. Taal was convicted in the Estonian courts. According to the charge, Taal had made, on several occasions, phone calls with bomb threats to a supermarket in one of the seaside living districts of Tallinn (Pirita). His conviction was based on witnesses supposedly recognising his voice from the tape recordings. All of the witnesses failed to appear at the first-instance court hearing, despite the requests of the defence. The court judgment relied on the statements that the witnesses had given during the pre-trial investigation. The Court of Appeal dismissed the appeal, and the Supreme court refused to grant the applicant leave to appeal. *54
Usually, cases decided by the ECHR with reference to violation of article 6 (3) d) are not so black and white. *55 It was easy for the Strasbourg court to conclude that “the applicant’s conviction was based to a decisive extent on the statements of witnesses he had been unable to question”. *56 To the inability of the applicant and his lawyer to question the witnesses was added the fact that even the court did not question the witnesses directly. *57
The facts in the case of Pello v. Estonia are not so clear-cut. Here the domestic court questioned some of the witnesses at the public hearing. However, the applicant claimed that he had been unable to question two witnesses whose statements might have been decisive for his defence. *58 The developments in this case and the final position of the ECHR are interesting not only from the perspective of the individual applicant. It is noteworthy that the Supreme court, when analysing the appeal, considered in depth the Strasbourg case law. It referred to 10 Strasbourg cases, in total. *59 On the basis of its analysis of the facts and the case law of the ECHR, the Supreme court concluded that the conviction of the applicant had not been based entirely or to a decisive extent on the statements of the witnesses not questioned at the public court hearing. *60 Thus the judgment on merits by the Strasbourg court in this case is going to be also, in a way, an assessment of the Estonian Supreme court’s interpretation of the Strasbourg case law.
Until recently, there were no judgments or decisions from Strasbourg related to the prison conditions in Estonia. There is one now — in the case of Alver v. Estonia. *61 It was established that for several periods during the detention of the applicant after he was sentenced to imprisonment by the domestic court the conditions of the imprisonment violated article 3 of the convention. The judgment lists in detail the apparent facts of the prison conditions from June 1996 to March 2000 — evidently, the applicant had kept good records of conditions. The Estonian government did not respond at all to some allegations, which led the ECHR to conclude: “The Court considers that it can legitimately draw inferences from the Government’s failure to provide more specific information on this point.” *62
There is nothing surprising in this judgment, as the prison conditions were to some degree a legacy of the socialist regime. However, what about the other individuals who stayed in the same conditions as Alver and whose prison conditions probably also violated convention requirements? If they wished to receive comparable monetary satisfaction to that enjoyed by Alver (the ECHR awarded him 3,000 EUR), would they have to turn to Strasbourg, or would there be a national remedy available for them? The issue of whether member states of the convention need to provide a national remedy for systematic convention violations is of great importance for the functioning of the principle of subsidiarity between the international court and domestic judicial systems. For example, the ECHR requires the member states to provide an effective remedy in their legal system in cases of complaints of unreasonable delay. The court has made the following observation and request of the member states: “If article 13 is, as the Government has argued, to be interpreted as having no application to the right to a hearing within a reasonable time as safeguarded by article 6 § 1, individuals will systematically be forced to refer to the Court in Strasbourg complaints that would otherwise, and in the Court’s opinion more appropriately, have to be addressed in the first place within the national legal system. In the long term the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention is liable to be weakened.” *63 Following this same reasoning, we find it only justified to suggest that the Estonian judicial system would also need to provide a remedy for individuals who can legitimately claim to be victims of human rights abuses due to their detention conditions. Until now, such cases have not proceeded in Estonia and the Supreme court has not had the opportunity to rule on this matter.
The period of January 2005 through January 2006 has signified new developments in the Strasbourg case law towards Estonia.
First, the number of decisions and judgments is on the increase.
Second, the concept of the waiver of a convention right (used in the cases of former officers of the Soviet Army who wished to extend their residence permits) with reference to article 8 of the convention is a novel approach in the context of general Strasbourg case law. It raises the question of whether the court wishes to introduce a new judicial paradigm to complement the concept of the margin of appreciation or whether it relied on the concept of a waiver for practical reasons — on account of the need to find a reason for declaring the applications inadmissible.
Third, with the decisions in the cases related to offences in the late 1940s and early 1950s the ECHR reinforced its position that it will not intervene in the judgments of the domestic courts with respect to crimes against humanity.
Fourth, the violation of article 6 (3) d) in the failure of the Estonian courts to provide opportunities for the accused and his counsel to question the witnesses in a public court hearing may appear to be a newly emerging area of systematic convention violations by the Estonian courts. One anticipates with great interest the judgment of the ECHR on a case *64 related to the violation of this article that was declared admissible and where the Estonian Supreme court provided a comprehensive analysis of the Strasbourg case law.
Fifth and finally, although there is nothing surprising in the fact that Estonian prison conditions in the 1990s were not in accordance with the convention’s requirements, there emerges a question as to whether the national judicial system provides remedy at a national level for potential complaints about the prison conditions.