An important question from the court practice in the ,,Savisaar’’ criminal proceedings
On 30.11.2020 the so-called Savisaar’s criminal case that for a long time was under the public eye, finally got a solution, when the Supreme Court refused to accept the prosecutor’s and some of the attorneys appeals in cassation. Therefore, entered into force the court decisions, with what the courts granted the request of the defenders Aivar and Marko Pilv to terminate the criminal proceedings against Alexander Kofkin due to violation of the requirements of reasonable time of the proceedings.
The judgment is of fundamental meaning in the light of case-law because there was a dispute between the prosecutor and attorneys about the interpretation of the principles of reasonable time period and over the content of the meaning of a legal provision (CCP art 2742 (1)), which will definitely shape procedural principles in the future as well.
Both the county court and the district court agreed with the defenders approach, according to what the criminal proceedings in question, against the defendant, began at least from the end of 2011, when the person at the beginning of the same year became aware of the request for international legal aid against him. The prosecutor however was guided by the principle that the beginning of a reasonable time period should have been considered from autumn 2015 when the search and suspicion took place. The county court’s decision was made on the 14th of January 2020. The approach of the defenders and the prosecutor was completely different in the sense of the reasonable procedural time period in the procedural acts. According to the European Court of Human Rights and the Supreme Court, a reasonable time period for proceedings is considered to be 5-7 years, depending on the complexity of the case.
The court instances agreed with the attorneys arguments that in 2011 with the International Legal Aid Request the defendant had been treated as the person who allegedly committed the crime, despite the fact that there was no suspicion filed against the person.
Courts also agreed with the attorneys’ approach that in a situation where criminal proceedings are started, to investigate individual’s activities and the person becomes aware of the conduct of criminal proceedings against him, the reasonable time period of proceedings must also be taken into account as soon as the person becomes aware of the proceedings that have been started against him. The circuit court also justified the decision, why the county court has rightly left unsolved the question of the possibility of application of CCP art 306 (1) section 61, i.e. whether the commutation should be granted due to exceeding of the reasonable time of proceedings.
The court explained that in a situation where the court determines that a reasonable time of the proceedings has elapsed, the court can terminate criminal proceedings according to the CCP art 2742 or to ease the accused’s punishment on the basis of the CCP art 306 (1) section 61. While giving a decision that a reasonable time period of proceedings has passed and, on that basis, the criminal proceedings is terminated, the question of the application of the penalty could no longer arise. This measure is applicable only if the court finds that a reasonable time period of the proceedings has been violated, but there is no basis for the termination of criminal proceedings according to the CCP art 2742. Because in the present case court instances found that the reasonable time period of the proceedings had elapsed, the consideration of granting a possible commutation could not be justified.
Aivar Pilv / LEADELL Pilv Law Office managing partner