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FIRST
SECTION
CASE OF SHUVALOV v. ESTONIA
(Applications
nos. 39820/08 and 14942/09)
JUDGMENT
STRASBOURG
29 May
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shuvalov v.
Estonia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
Oliver Kask, ad hoc
judge,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 39820/08 and 14942/09)
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 an Estonian
national, Mr Ardi Shuvalov (“the applicant”), on 11
August 2008 and 3 March 2009 respectively.
- The
applicant was represented by Mr A. Repnau, a lawyer practising in
Tallinn. The Estonian Government (“the Government”) were
represented by their Agent, Ms M. Kuurberg, of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that his presumption of innocence
had been infringed.
- On
30 March 2010 the Court joined the applications, declared them partly
inadmissible and decided to communicate the complaint concerning the
infringement of the presumption of innocence to the Government. It
also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
- On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above applications
were assigned to the newly composed First Section.
- Julia
Laffranque, the judge elected in respect of Estonia, was unable to
sit in the case (Rule 28). On 17 May 2011 the President of the
Chamber decided to appoint Oliver Kask to sit as an ad hoc
judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Tallinn.
- The
applicant served as a judge at the Harju County Court at the material
time. From 2003 he was in charge of a criminal case where D.,
a businessman, was one of the defendants. The case involved several
charges including tax evasion, money laundering, aggravated breach of
public order and bribery.
- On
5 January 2006 the security police received D.’s statement
according to which his business partner N. – who had owed D.’s
company a substantial sum of money – had refused to pay back
the loan for an extended period. Instead, N. had said that he knew
the applicant well, having shared a dormitory room with him during
their law studies, and that a judgment in D.’s favour could be
arranged as long as he did not insist on the repayment of the loan.
Furthermore, N. had demanded 200,000 Estonian kroons (EEK)
(approximately 12,780 euros (EUR)) as a “Christmas good-will
gesture” and a further EEK 900,000 (EUR 57,520) for D.’s
acquittal.
- On
5 January 2006 the police initiated criminal investigation in respect
of the offences of accepting and arranging a bribe.
- On
10 January 2006 a prosecutor authorised the covert surveillance of N.
and on the following day the president of the Harju County Court
authorised the interception and undercover audio recording of N.’s
conversations. On 24 January and 7 February 2006 similar
authorisations were given in respect of the applicant. The
authorisations were subsequently extended on several occasions.
- On
26 January 2006 the president of the Harju County Court authorised a
simulation of the offence of giving a bribe by D. in order to
entrap the applicant and N. as an intermediary.
- On
27 February 2006 D. gave N. EEK 200,000 (EUR 12,780).
- On
6 April 2006 D. gave N. EEK 400,000 (EUR 25,560). Within moments,
N.’s car was stopped by the police; he was arrested and the
money was seized.
- Immediately
thereafter, N. was interviewed as a suspect. In response to the
question as to whether he had demanded money from D. for transferring
it to the applicant as a bribe for a judgment in D.’s favour,
he replied that he had not demanded any money from D. but had just
communicated to him what the applicant had demanded. According to N.,
the applicant had said that if D. paid him EEK 900,000, he would give
a judgment in D.’s favour. Under instructions from the security
police, N. arranged a meeting with the applicant later the same day.
- On
6 April 2006 at 2.30 p.m. the president of the Harju County Court
authorised a simulation of the offence of arranging a bribe by N. in
order to entrap the applicant.
- Also
on 6 April 2006 N., equipped with recording devices, met up with the
applicant and gave him EEK 200,000. Some hours later the applicant
was arrested and detained as a suspect. In the course of a search
carried out on the following day he surrendered EEK 200,000. The
applicant was released on 7 April 2006.
- On 9 April 2006 the following press release was
published on the Internet site of the Public Prosecutor’s
Office under the title “A judge suspected of accepting a
bribe”:
“On Thursday evening, in the course of a
simulation of an offence, officers of the security police arrested a
judge of the Harju County Court suspected of accepting a large bribe.
The judge is suspected of demanding a large bribe from
an accused person through an intermediary for making a more
favourable judgment in respect of [him]. The exact amount of the
bribe cannot be disclosed at the moment in the interests of the
investigation. On the evening of 6 April the judge suspected of
bribery accepted part of the sum [he had been demanding] from a
person involved in the simulation of the offence and the security
police and the State Prosecutor’s Office conducting the
investigation decided to arrest him shortly after accepting the
money. The judge suspected of bribery did not have time to make the
judgment in respect of the accused person.
On Friday investigators carried out necessary
investigative steps after which the suspect was released.
The criminal proceedings concerning the suspicion in
question were initiated some time ago. The security police and the
State Prosecutor’s Office conducting the preliminary
investigation do not consider it possible at present to disclose
other details related to the suspicion referred to. The Penal Code
stipulates that accepting a large bribe is punishable by imprisonment
of up to ten years. According to the laws and legal acts in force a
bribe comprises a large amount of at least three hundred thousand
(300,000) kroons.”
- Within
a few days the identity of the judge suspected of having accepted a
bribe became known. Prosecutor V. who was dealing with the case was
subsequently quoted directly or indirectly on several television
programmes and in several newspaper articles. These included, among
others, the following extracts.
- On 10 April 2006 in a news programme on Eesti
Televisioon, a public television channel, prosecutor V. was shown
saying:
“Suspicion that [the applicant] might accept a
bribe emerged when the person from whom the bribe was allegedly
demanded made a statement to that effect to the security police.”
- On the same day in a news programme on Kanal 2,
a private television channel, prosecutor V. was shown saying:
“The case commenced when the security police were
contacted by a person from whom the judge allegedly demanded the
bribe.”
In
respect of the simulation of the offence carried out by the security
police, prosecutor V. noted:
“The simulation [of the offence] was successful.
Unfortunately I cannot mention any specific amounts at the moment.
...”
- On 11 April 2006 the daily newspaper Postimees
published an article by R.K. containing the following passage:
“[Prosecutor V.], who is in charge of the criminal
investigation, [emphasised] to Postimees yesterday that the
case had not been [made up] or provoked by [officers] of the security
police. ‘Surveillance activities related to the suspected
bribery of a judge commenced in January,’ V. said. ‘The
criminal proceedings were initiated on the basis of very specific
information when a person turned to the security police with his
[problem].’”
- On the same day the newspaper Äripäev
published an article by A.O. containing the following passage:
“‘[I do] not comment or rebut,’ said
prosecutor [V.], who is in charge of the investigation and who
parried all [questions relating to the] facts of the bribery scandal.
‘A simulation has been carried out and the main evidence as
such has been gathered. I expect that additional interviews and
technicalities may take some weeks,’ [V.] added.”
- On 20 April 2006 the weekly newspaper Eesti
Ekspress published an article by M.K. containing the following
passages:
“Prosecutor [V.] is asserting that it was [the
applicant] himself who was demanding the money.
...
‘We are not [fishing] to see whether a judge
accepts a bribe or not,’ prosecutor [V.] noted, [adding that]
[the applicant] was ‘very careful’.”
- On
19 May 2006 a public prosecutor requested permission from the Supreme
Court to draw up a bill of indictment against the applicant. On
6 June 2006 the Supreme Court made a proposal in this regard to
the President of the Republic who gave his authorisation on 13 June
2006.
- On
5 October 2006 the Public Prosecutor’s Office submitted the
bill of indictment to the Viru County Court. The applicant was
charged under Article 294 § 2 (2) and (4) of the Penal Code
(Karistusseadustik) with an aggravated offence of demanding a
large bribe (in excess of EEK 300,000 (EUR 19,170)).
- The bill of indictment, which extended to ten pages,
contained a detailed description of the facts as deemed established
by the prosecution, a list of a number of documents and other items
attached to it, such as written and recorded evidence and records of
various procedural acts, and a statement of the charges. The factual
part, entitled “Circumstances of the offence”, contained,
inter alia, the following passages:
“At the end of 2005... [the applicant] proposed
that [D.] paid him 900,000 kroons through an intermediary, [N.], as a
bribe for which the judge ... would take procedural decisions in
favour of him and also acquit him.
...
... [N.] passed on [the applicant’s] demands for a
bribe according to which 200,000 kroons had to be paid as a first
instalment and a further 900,000 kroons were to be paid later.
...
On 6 April 2006 [D.] called [N.] ... . When they met,
[D.] gave [N.] 200,000 kroons. [N.] looked at the money and said that
it was not enough. [D.] handed over a further 200,000 kroons.
...
On the same day ... [N.] sent a text message to [the
applicant] asking to meet him ... . ... N. got into [the
applicant’s] car ... . ... [The applicant] signalled that the
money could be passed over. [N.] took a paper bag containing 200,000
kroons from his inside pocket and placed it between the two front
seats. ...”
- The
nature and amount of damage caused by the offence was formulated as
follows in the bill of indictment:
“No pecuniary damage has been caused by the
offence committed by [the applicant]. The offence was committed by a
judge who made use of his official position and breached an important
principle of a State governed by the rule of law, according to which
justice is administered by an independent, impartial and honest
court. The reputation of the law-enforcement agencies of the Republic
of Estonia as a whole has been discredited.”
- The statement of charges against the applicant
included the following passages:
“[The applicant] is charged with accepting a
large bribe which involved demanding the bribe ... under Article 294
§ 2 (2) and (4) of [the Penal Code].
...
... When the car stopped [the applicant] took from [N.],
as agreed, the first part of the sum of the bribe that had been
demanded, cash in the amount of 200,000 kroons, which [D.] had given
... to [N.] to pass on to [the applicant] for taking decisions in
favour of [D.] in the criminal case ... and for acquitting him later.
Payment of the remaining sum – 900,000 kroons – was to
take place later.
...
... By demanding a bribe from [D.] and accepting part of
it, that is 200,000 kroons, through the intermediary [N.], [the
applicant] breached an important principle of a State governed by the
rule of law, according to which justice is administered by an
independent, impartial and honest court, whereby [he] committed an
offence under Article 294 § 2 (2) and (4) of [the Penal Code].”
- On 6 October 2006 a press release titled “The
judge’s criminal case has arrived at the court” was
published on the Internet site of the Public Prosecutor’s
Office. It read:
“The state prosecutor [V.] has sent a criminal
case to court in which [the applicant], a judge of the Harju County
Court, is charged with having demanded a large bribe.
The facts established by the security police in the
course of the preliminary investigation give ground to charge [the
applicant], who served as a judge of the Harju County Court, with
demanding a large bribe from an accused person through an
intermediary. In return, the judge promised to take decisions in
favour of the accused in the course of the court proceedings and also
to acquit him. [The applicant] did not have time to make a judgment
in the case in question as, because of the present criminal
proceedings, the case was transferred to another division of the
court.
The judge wanted to receive the money from the accused
in two instalments. At the end of last year [the applicant] wanted to
receive 200,000 kroons from the accused in addition to the 900,000
kroons that had already been requested through the intermediary. On 6
April 2006 the judge accepted the 200,000 kroons in cash from the
intermediary.
Officers of the security police arrested [the
applicant], who was serving as a judge, on suspicion of having
accepted a large bribe on 6 April this year, after he had accepted
200,000 kroons in cash from the intermediary.
[The applicant], having demanded and partly accepted a
bribe from an accused, committed [the offence of] demanding a large
bribe. The precise classification of the offence with which [the
applicant], a former judge of the Harju County Court is charged, is
Article 294 § 2 (2) and (4) of the Penal Code. In the event that
he is convicted, two to ten years’ imprisonment may be imposed
as punishment.
[The applicant], a judge, made use of his official
position and breached an important principle of a state governed by
the rule of law, according to which justice is administered by an
independent, impartial and honest court. ”
- By
the Viru County Court’s decision of 24 October 2006 the
applicant was committed for trial. The first hearing was scheduled
for 23 November 2006.
- On 20 November 2006 Postimees published an
article based on a press release from a news agency, BNS,
which included the following passage:
“According to the [public] prosecutor, [the
applicant] asked [D.] for the total sum of 1.1 million kroons, of
which he received 200,000 in the course of the simulation of the
offence through an intermediary, [D.’s] business partner [N.].
‘[The applicant] wished to receive the money in instalments,’
[V.] noted.”
The
online version of the article on the newspaper’s website also
contained the following sentence:
“‘According to the information gathered
during the investigation, the initiative of asking for the money came
from the judge and there was no provocation,’ [V.] affirmed
...”
- On
23 November 2006 the trial started at the Viru County Court.
- On the same day Eesti Ekspress published an
article by M.K. entitled “A judge asked for bribe in a
jacuzzi”. Although no reference was made to the sources of
information in the article, the applicant submitted that the
information, which involved private information and delicate personal
data, had originated from prosecutor V. The article does not contain
an assessment by the prosecutor of the applicant’s guilt.
- On the same day in a news programme on Eesti
Televisioon prosecutor V. was shown saying:
“[The applicant] is charged with having demanded a
large bribe from an accused person in criminal proceedings of which
he was in charge. In return he promised to take decisions in favour
of the accused in the course of the criminal proceedings and also to
acquit him.”
Apparently
in reply to a journalist’s question, she continued:
“Indeed, as these names have already been
mentioned in the press, it can be affirmed that the person from whom
he demanded the bribe was [D.]. The total sum the judge wanted was
1.1 million kroons.”
Apparently
in reply to a question about the applicant’s possible motives,
the prosecutor said:
“He has indeed made statements during the
preliminary investigation but I cannot comment on their content as
this might cause damage to the exercise of his defence rights.”
- At
the hearing of 23 November 2006 the applicant requested the removal
of the public prosecutor V. arguing that she had engaged in a hostile
campaign against the applicant and presented to the public a detailed
version concerning the circumstances of the case as well as
concerning the applicant’s guilt. The court dismissed the
request. It examined the newspaper articles submitted by the
applicant and found that they contained information received from the
prosecutor. However, the court found that the articles did not
indicate that the prosecutor had treated the applicant as being
guilty. Furthermore, it considered that increased public interest in
the case where the suspect was a judge was understandable and
justified.
- At
the hearing of 15 August 2007 the applicant again requested the
removal of the prosecutor on similar grounds as on the previous
occasion. The court refused to examine the request finding that it
had already dismissed a similar request and no new arguments had been
put forward.
- At
the hearing of 26 October 2007 the prosecutor dropped the charges in
respect of the element of demanding the bribe. She also requested
that the applicant be convicted of an attempted offence.
- On
31 January 2008 the Viru County Court delivered a judgment by which
the applicant was convicted of attempting to accept a bribe
(Article 294 § 1 of the Penal Code). He was sentenced to
three and a half years’ imprisonment.
- The
court noted that in 2004 N. had already made the applicant an offer
concerning the bribe. On 4 April 2006 the applicant consented to
accepting the bribe and took the money on 6 April 2006, being aware
that it had come from D. in connection with the criminal case in
which he was a defendant. The court relied on the statements of N.
and D. as well as the undercover recordings and surveillance reports.
It found that the charges concerning the applicant’s alleged
demand for a bribe of EEK 1,100,000 had not been proven. These
charges had been based on the statements of N. and were only partly
supported by D.’s submissions who, in turn, relied on what he
had heard from N. The court considered that N. had not only
transferred information between the applicant and D. but had also
pursued his own agenda. It considered it probable that N. had
presented the applicant’s readiness to accept a bribe to D. as
a demand for bribe. Applying the principle that any reasonable doubt
should benefit the accused, the court only considered it established
that the applicant had agreed to accept, and had accepted, a bribe of
EEK 200,000. Furthermore, the court classified it as an attempted
offence.
- The
applicant filed an appeal with the Viru Court of Appeal against the
County Court’s judgment.
- On
20 March 2008 the applicant requested that the Court of Appeal remove
the prosecutor. The court dismissed the request. It noted, inter
alia, that the newspaper articles had not influenced the court
and that the County Court had in fact dismissed certain charges
against the applicant.
- By
a judgment of 28 March 2008 the Viru Court of Appeal upheld the
County Court’s judgment.
- On
9 June 2008 the Supreme Court declined to examine the applicant’s
appeal.
- In
the meantime, in December 2006 the applicant lodged a claim for
compensation for non-pecuniary damage against the Public Prosecutor’s
Office with the Tallinn Administrative Court. Referring to the press
releases, newspaper articles and television programmes quoted above
(see paragraphs 18, 20 to 24, 30, 32, 34 and 35), he argued that the
prosecutor’s public statements made during the criminal
proceedings had not respected his presumption of innocence and that
his right to respect for his private life had been infringed. The
applicant contended that the prosecutor, being an authoritative
source, had given a legal assessment that the applicant had committed
a crime. She had addressed matters such as the classification and
degree of the offence as well as possible provocation and presented
her opinion on these matters to the public as a statement of fact.
The applicant was dissatisfied that in the interviews given in April
2006 the prosecutor had given the impression that the criminal
proceedings had been successful and everything was clear, the
evidence had been gathered and what had remained had only been
technicalities. The prosecutor had persuaded the public that it had
been the applicant who had demanded the bribe and had disclosed the
amounts of the bribe in question. Prosecutor V. had also given a
number of interviews after the commencement of the court proceedings
from which it could be understood that the whole matter was an
extremely simple and clear story.
- The
Public Prosecutor’s Office objected. It contended that under
the Public Information Act (Avaliku teabe seadus) it was
required to disclose to the media information concerning criminal
proceedings in respect of which public interest could be anticipated.
The applicant had not been named in the press release of 9 April
2006. Furthermore, the choice of words by prosecutor V. in various
interviews had made it unequivocally clear that the applicant had
been a suspect. The press release of 6 October 2006 had been based on
the bill of indictment which represented the position of the Public
Prosecutor’s Office to be proved in court. The Public
Prosecutor’s Office had sought to disclose a minimal amount of
precise information to the public.
- In
a written statement to the Administrative Court by the head of the
public relations department of the Public Prosecutor’s Office
it was noted that the press release of 9 April 2006 had been prompted
by a telephone call from a journalist who had heard about the arrest
of a judge and had sought confirmation of that information. It was
considered that rumours could have caused damage to the
investigation, the suspect and the judiciary as a whole. The press
release had been based on facts and contained no personal references.
On the following days several media channels interviewed prosecutor
V. who gave no further information than was contained in the press
release. It was noted that the media had also used sources other than
the Public Prosecutor’s Office. In respect of the press release
of 6 October 2006 it was noted that the Public Prosecutor’s
Office usually gave information concerning criminal cases that had
attracted public interest. In order to secure equal treatment of
different media channels, press releases summarising the content of
the charges were issued.
- On
5 December 2007 the Tallinn Administrative Court dismissed the
complaint, finding that the Public Prosecutor’s Office had
released the information in compliance with the Code of Criminal
Procedure (Kriminaalmenetluse seadustik). Furthermore, it held
as follows:
“7.4. In assessing the lawfulness of
the actions of the Public Prosecutor’s Office, it is necessary
to clarify on which considerations they were taken. According to the
submission of [the Public Prosecutor’s Office], [its] press
officers and prosecutor [V.] acted in order to give to the media,
which demonstrated extraordinarily high interest in the criminal case
in question, information that was as precise and as minimal as
possible.
The court agrees with the [Public Prosecutor’s
Office] that there was elevated public interest in the criminal case
in question. This is already demonstrated by the fact that the
criminal proceedings were extensively covered by the press. [This is]
also [confirmed] by journalists’ numerous [requests for
information] to the [Public Prosecutor’s Office] ... . There is
no dispute between the parties about the fact that the criminal case
was extensively covered by the press and this can also be concluded
on the basis of the materials of the case. As the criminal
proceedings were being conducted in respect of a judge who had also
been arrested as a suspect, the court considers that the elevated
interest of the public in the criminal case was justified. The court
considers it a matter of general knowledge that the press, in
particular the part of it that qualifies as non-quality press, also
tends to publish untrue information. Therefore the court agrees with
the [Public Prosecutor’s Office] that [its] ... communication
with the media is also very important in order to avoid, or at least
minimise, the spread of misinformation.
7.5. The court has not established that the
information released by the Public Prosecutor’s Office to the
press in the course of the preliminary investigation of the criminal
case ... went beyond what was objectively necessary for informing the
public or that the applicant’s interests were excessively
interfered with.
It appears from the materials of the case that the
Public Prosecutor’s Office declined to release detailed
information on the circumstances of the offence at the time when [the
applicant] had the status of suspect. The press release of the Public
Prosecutor’s Office of 9 April 2006 and the disclosure of
information (interviews) by [the prosecutor] in charge of the
criminal proceedings to the programmes Aktuaalne Kaamera of
[Eesti Televisioon] and Krimi of Kanal 2 as well
as the newspapers Postimees, Äripäev and
Eesti Ekspress ... fell within this period. It can be clearly
understood from the press release and the public prosecutor’s
statements that [the Public Prosecutor’s Office] merely
suspected the applicant of having accepted a bribe. The [applicant’s]
allegation that the identity of the judge in respect of whom the
proceedings were being carried out was disclosed by the Public
Prosecutor’s Office is incorrect. ... [In] the Harju County
Court’s press release of 10 April [2006] it is stated that ‘the
judge suspected of accepting a large bribe who was arrested by the
security police in the course of the simulation of the offence is
[the applicant]’... . Thus, the identity of the judge suspected
of the offence was already known to the public when [the prosecutor]
used [the applicant’s] name in communication with the media.
Therefore the use of [the applicant’s] name by [the prosecutor]
after the Harju County Court’s press release of 10 April [2006]
did not aggravate [the applicant’s] situation.
Information about the classification and degree of the
offence and the amounts of the bribe were disclosed by the Public
Prosecutor’s Office only after the drawing up of the bill of
indictment when [the applicant’s] status had changed to an
accused. Proceeding from Article 226 § 1 of [the Code of
Criminal Procedure], the drawing up of the bill of indictment
demonstrates the conviction of the Public Prosecutor’s Office
that all the necessary evidence had been gathered. Publication of the
press release of 6 October 2006 by the Public Prosecutor’s
Office and disclosure of information (interviews) by [the prosecutor]
in charge of the criminal proceedings to the news agency BNS,
newspaper Eesti Ekspress, and the programme Avatud Toimik
on [Eesti Televisioon] ... fall within this period. The
press release and the subsequent imparting of information were based
on the official bill of indictment. The court agrees with the [Public
Prosecutor’s Office] that giving more detailed information
about the bill of indictment than the suspicion is legitimate since
the bill of indictment represents the result of the pre-trial
proceedings and indicates that the criminal proceedings are about to
resume in court.
The court does not agree with [the applicant’s]
position that the Public Prosecutor’s Office violated the
principle of the presumption of innocence. The presumption of
innocence is protected by Article 22 of the Constitution and Article
6 § 2 of the European Convention on Human Rights ... .
Nevertheless, addressing criminal proceedings in the media before
passing a judgment is not completely restricted by the presumption of
innocence. It has been found in the case-law that covering a case in
the media during the pre-trial proceedings may result in a violation
of the presumption of innocence but this does not mean that nothing
about the pre-trial proceedings may be published in the media (see
the judgment of 15 October 1996 of the Criminal Chamber of the
Supreme Court in case no. 3-1-1-109-96). The content of what is
disclosed to the media about the criminal proceedings is decisive –
if only objective information reaches the public, the court considers
that the publication of such information does not interfere with the
presumption of innocence. It has not been established in the present
case that the Public Prosecutor’s Office informed the public
about the criminal proceedings in a subjective manner or gave an
opinion about [the applicant’s] guilt. [The European Convention
on Human Rights] does not prohibit informing the public about
proceedings when no opinion about the guilt is given (Worm v.
Austria, 29 August 1997, Reports of Judgments and
Decisions 1997 V).
7.6. In sum, the court considers that the
Public Prosecutor’s Office objectively informed the public
about the criminal proceedings. The information given to the press
did not exceed the limits of the objective need to inform the public,
nor did it excessively damage the interests of [the applicant]. As
the actions of the Public Prosecutor’s Office were lawful there
is no ground to allow the claim for damages ... .”
- On
5 June 2008 the Tallinn Court of Appeal upheld the Administrative
Court’s judgment. It held, inter alia, as follows:
“The public interest and the interest of the
person concerned have to be assessed in the specific circumstances.
[The applicant’s] position that in the present case the
statements of the Public Prosecutor’s Office related to an
individual case in respect of which there could be no public interest
cannot be sustained. In the case in question there was a suspicion
that a judge had committed an offence of accepting a bribe. [The
Public Prosecutor’s Office] correctly notes that the initiation
of criminal proceedings related to the suspected acceptance of a
bribe by a judge concerns the exercise of functions by a high
official. The suspicion that a high official expected to enjoy public
confidence has accepted a bribe is an important event justifying
elevated public interest. It also justifies the Public Prosecutor’s
Office informing the public of such an important event.
The Administrative Court concluded that the information
disclosed about the criminal proceedings had not exceeded the limits
of the objective need to inform the public and that the presumption
of innocence had not been violated. The Court of Appeal agrees with
that assessment. [The applicant] validly argues that the [case of
Worm], referred to in the judgment, concerns the disclosure of
information in respect of ongoing criminal proceedings. However, the
case-law of the [European Court of Human Rights] does not prohibit
disclosure of information concerning pre-trial proceedings and the
Supreme Court in case no. 3-1-1-109-96 has also admitted that media
coverage of a case during pre-trial proceedings may in itself result
in a violation of the presumption of innocence, but this does not
mean that nothing at all may be disclosed about pre-trial
proceedings.
... [The] Court of Appeal agrees with the position of
the first-instance court that there is no ground to allow the claim
for damages since the actions of [the Public Prosecutor’s
Office] in disclosing the information were lawful and this was done
without excessive damage to the rights of [the applicant].”
- On
24 September 2008 the Supreme Court declined to examine the
applicant’s appeal.
II. RELEVANT DOMESTIC LAW
- Article
22 § 1 of the Constitution of the Republic of Estonia (Eesti
Vabariigi põhiseadus) and Article 7 § 1 of the Code
of Criminal Procedure (Kriminaalmenetluse seadustik) provide
that no one shall be considered guilty of a criminal offence before a
convicting judgment has entered into force in respect of him or her.
- According
to Articles 49 and 53 of the Code of Criminal Procedure a suspect or
an accused may request the removal of a prosecutor if he or she lacks
impartiality but has not withdrawn himself or herself. In pre-trial
proceedings such a request is resolved by the State Prosecutor’s
Office and in court proceedings by the court dealing with the case.
- The
State Liability Act (Riigivastutuse seadus) sets out the rules
concerning compensation for non-pecuniary damage (mittevaraline
kahju) in section 9, which stipulates as follows:
“(1) A natural person may claim
financial compensation (rahaline hüvitamine) for
non-pecuniary damage resulting from wrongful (süüline)
harm to his or her dignity, damage to health, deprivation of liberty,
violation of the inviolability of the home or private life or of the
confidentiality of correspondence, or defamation of the person’s
honour or good name.
(2) Non-pecuniary damage shall be compensated
for in proportion to the gravity of the offence (õiguserikkumine)
... .”
- Article
6 § 3 (2) of the Code of Administrative Court Procedure
(Halduskohtumenetluse seadustik), as in force at the material
time, provided that a claim for compensation for damage caused in
public law relationships could be lodged with an administrative
court.
- Paragraph
2 of section 134 of the Obligations Act (Võlaõigusseadus),
as in force at the material time, provided:
“In the case of an obligation to compensate for
damage arising from ... violation of a personality right, in
particular from defamation, the obligated person shall compensate the
aggrieved person for non-pecuniary damage only if this is justified
by the gravity of the violation, in particular by physical or
emotional distress.”
- Section
1045 of the Obligations Act stipulates that the causing of damage is
unlawful if, inter alia, the damage is caused by the violation
of a personality right of the victim. The Obligations Act further
provides:
Section 1046 – Unlawfulness of damaging
personality rights
“(1) The defamation of a person, inter
alia by passing undue judgment, by the unjustified use of the
name or image of the person, or by breaching the inviolability of the
private life or another personality right of the person, is unlawful
unless otherwise provided by law. Upon the establishment of
unlawfulness, the type of violation, the reason and motive for the
violation and the gravity of the violation relative to the aim
pursued thereby shall be taken into consideration.
(2) The violation of a personality right is
not unlawful if the violation is justified considering other legal
rights protected by law and the rights of third parties or public
interests. In such cases, unlawfulness shall be established on the
basis of the comparative assessment of different legal rights and
interests protected by law.”
Section 1047 – Unlawfulness of disclosure of
incorrect information
“(1) The violation of personality
rights or interference with the economic or professional activities
of a person by way of disclosing incorrect information or by the
incomplete or misleading disclosure of information concerning a
person or the activities of the person is unlawful unless the person
who discloses such information proves that, upon the disclosure
thereof, he or she was not aware and was not required to be aware
that such information was incorrect or incomplete.
(2) The disclosure of defamatory information
concerning a person, or information which may adversely affect the
economic situation of a person, is deemed to be unlawful unless the
person who discloses such information proves that the statement is
true.
(3) Regardless of the provisions of
subsections (1) and (2) of this section, the disclosure of
information is not deemed to be unlawful if the person who discloses
it or the person to whom such information is disclosed has a
legitimate interest in the disclosure, and if the person who
discloses the information has verified it with a thoroughness which
corresponds to the gravity of the potential violation.
(4) In the case of the disclosure of
incorrect information, the victim may demand that the person who
disclosed it acknowledge that it is incorrect or publish a correction
at his or her own expense, regardless of whether the disclosure of
the information was unlawful or not.”
Section 1055 – Prohibition on damaging actions
“(1) If unlawful damage is caused
continually or a threat is made that unlawful damage will be caused,
the victim or the person who is threatened has the right to demand
that behaviour which causes damage be terminated or the making of
threats of such behaviour be refrained from. In the case of bodily
injury, damage to health, violation of the inviolability of personal
life or any other personality rights, it may be demanded, inter
alia, that the tortfeasor be prohibited from approaching others
(restraining order), the use of housing or communication be
regulated, or other similar measures be applied.
(2) The right to demand that behaviour which
causes damage as specified in subsection (1) of this section be
terminated does not apply if it is reasonable to expect that such
behaviour can be tolerated in human coexistence or that it is
justified by significant public interest. In such a case the victim
still has the right to make a claim for compensation for damage
caused unlawfully.
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION
- The
applicant complained that the public statements of the Public
Prosecutor’s Office and the prosecutor’s statements to
the press (see paragraphs 18, 20 to 24, 30, 32, 34 and 35 above) had
infringed his presumption of innocence. He considered that these
statements had rendered the criminal proceedings unfair. He relied on
Article 6 §§ 1 and 2 of the Convention, which read as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by a ... tribunal....
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
- The
Government contested that argument.
- The
Court considers it appropriate to examine the complaint first under
the second paragraph of Article 6, which is a specific aspect of the
right to a fair trial enshrined in the first paragraph of this
Article.
A. The parties’ submissions
1. The Government
- In
respect of the media coverage, the Government argued that the
applicant could have brought a civil claim against the publishers
concerned and that in any event Article 6 § 2 of the Convention
was inapplicable to the matter (see A. v. Norway, no.
28070/06, § 46, 9 April 2009). Alternatively, they argued that
the application was manifestly ill-founded or that there had been no
violation of Article 6 of the Convention.
- The
Government noted that the Court had found in its partial decision in
the present case that the information disclosed by the Public
Prosecutor’s Office had been a short summary of a factual
nature that had concerned a matter of general interest and that the
applicant’s right to respect for private life had not been
infringed (see Shuvalov v. Estonia (dec.), nos. 39820/08 and
14942/09, 30 March 2010). This finding was also important from
the aspect of the presumption of innocence.
- In
respect of the press release of 9 April 2006, the Government noted
that according to the submissions of the Public Prosecutor’s
Office to the Administrative Court it had reacted to media interest
and sought to minimise misinformation being spread. The name of the
judge had not been disclosed and in the text of the press release
reference to the “suspicion” and “suspect”
had been made.
- In
the press release of 6 October 2006 it was mentioned that the
prosecutor had sent the applicant’s case to the court and that
the applicant was accused of demanding a large bribe. The press
release contained information from the bill of indictment submitted
to the court. It had been clear that it represented the position of
the prosecution subject to an assessment by the court. The Public
Prosecutor’s Office had explained in its submissions to the
Administrative Court that it usually informed the public of the fact
that a criminal case which had attracted public interest was being
sent to the court. In order to treat all media channels equally,
press releases briefly describing the content of the charges were
issued in such cases.
- In
the Government’s opinion the press releases of the Public
Prosecutor’s Office and the prosecutor’s statements to
the press had contained no assessments. They had been of a general,
informative character and had been based on the suspicion (in April
2006) and on the bill of indictment (in November 2006).
- Lastly,
the Government pointed out that the statements in question had been
made one and a half to two years before the delivery of the judgments
in the applicant’s criminal case and that there was no
indication that the judges had been influenced by the prosecutor’s
statements or the media or that they had demonstrated any bias in
resolving the case. The judgment of the County Court had been upheld
by the Court of Appeal comprising three professional judges.
2. The applicant
- The
applicant argued that the public statements of the Public
Prosecutor’s Office and the prosecutor’s statements to
the press had amounted to the declaration of his guilt and infringed
his presumption of innocence. He considered that these statements had
rendered the criminal proceedings unfair. He maintained that
prosecutor V. had started a virulent media campaign against him.
- In
respect of the statements of the Public Prosecutor’s Office and
prosecutor V. in April 2006, the applicant argued that they had
predetermined the results of the police investigation that officially
ended on 6 October 2006. The statements had influenced the decisions
of the Supreme Court and the President of the Republic to lift the
applicant’s immunity.
- The
applicant disagreed that the press release of 6 October 2006 was a
brief description of the offence of which he had been accused
according to the bill of indictment. The press release stated that
the applicant had demanded a bribe of EEK 1,100,000 in two
instalments and accepted a bribe of EEK 200,000. The public had been
given a precise classification of the criminal offence. This was a
clear declaration of his guilt.
- The
applicant rejected the Government’s view that the case had been
of major public interest. The prosecutor’s statements had not
informed the public about the fight against corruption in general but
concerned the applicant who had been a first-instance judge unknown
to the public.
- Lastly,
the applicant contested the Government’s argument that the
statements of the Public Prosecutor’s Office in 2006 had had no
influence on the judgments delivered in 2008.
B. The Court’s assessment
1. Scope of the case and admissibility
- The
Court notes at the outset that the applicant’s complaints
concerning the disclosure of information about the suspicion and
charges against him by the Public Prosecutor’s Office and
statements of prosecutor V. to the press related to the breach of his
presumption of innocence and his right to a fair trial (Article 6 §§
1 and 2), as well as an infringement of his right to respect for his
private life (Article 8). However, in so far as Article 8 of the
Convention is concerned, the complaint has been declared inadmissible
(see Shuvalov, cited above). Thus, the Court’s
examination at the present stage is limited to an alleged violation
of Article 6 §§ 1 and 2 of the
Convention.
- In
respect of the Government’s argument that the complaint is
incompatible ratione materiae with the provisions of the
Convention, the Court notes that, in contrast to the case of A. v.
Norway, referred to by the Government, in the present case the
applicant was charged with and convicted of a criminal offence.
Therefore, Article 6 §§ 1 and 2
is applicable in this case and the Government’s objection has
to be dismissed.
- As
concerns the Government’s argument that the applicant could
have brought a civil claim against the publishers concerned, the
Court notes that the applicant did request on several occasions the
removal of the prosecutor and initiated administrative court
proceedings related to the disclosure of information and the
prosecutor’s statements made during the criminal proceedings.
Indeed, the applicant’s complaints were directed against the
prosecutor and not against the media. Therefore, the Court considers
that the applicant was not required to bring a civil claim against
the publishers. A corollary of this, however, is that the Court’s
examination of the case is limited to the statements attributable to
the prosecutor or the Public Prosecutor’s Office and it does
not extend to the context into which these statements were placed by
the media.
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- The
Court reiterates that the presumption of innocence enshrined in
Article 6 § 2 of the Convention is one of the elements of a fair
criminal trial required by Article 6 § 1. It will be violated if
a statement of a public official concerning a person charged with a
criminal offence reflects an opinion that he is guilty before he has
been proved so according to law. It suffices, even in the absence of
any formal finding, that there is some reasoning to suggest that the
official regards the accused as guilty (see, mutatis
mutandis, Allenet de Ribemont v. France, 10 February 1995,
§ 35, Series A no. 308, and Minelli v. Switzerland,
25 March 1983, § 37, Series A no. 62). The Court
has emphasised the importance of the choice of words by public
officials in their statements before a person has been tried and
found guilty of an offence (see Daktaras v. Lithuania,
no. 42095/98, § 41, ECHR 2000 X). Furthermore,
the principle of presumption of innocence may be infringed not only
by a judge or court but also by other public authorities, including
prosecutors (see Allenet de Ribemont, § 36, and Daktaras,
§ 42, both cited above, and, more recently, Konstas v.
Greece, no. 53466/07, § 32, 24 May 2011). The question
whether a statement of a public official is in breach of the
principle of the presumption of innocence must be determined in the
context of the particular circumstances in which the impugned
statement was made (see Daktaras, cited above, § 43),
taking into account that the statements of judges are subject to
closer scrutiny than those made by the investigative authorities such
as the police or the prosecutor’s office (see Pandy v.
Belgium, no. 13583/02, § 43, 21 September 2006, and
Kampanellis v. Greece, no. 9029/05, § 27, 21 June 2007).
- Turning
to the present case, the Court shall first examine whether the
principle of the presumption of innocence was breached by the
statements made in the press releases issued by the Public
Prosecutor’s Office on 9 April and 6 October 2006.
Thereafter, it will analyse the statements in the media attributable
to the prosecutor.
- As
concerns the press release of 9 April 2006, the Court notes that the
applicant was not named in it. Reference was only made to a judge of
the Harju County Court. Furthermore, even though certain elements
were mentioned in the press release as established facts (“the
judge suspected of bribery accepted part of the sum [he had been
demanding]”), it cannot be overlooked that the phrase in
question involved a clear reference to the suspicion (“the
judge suspected of”) (see paragraph 18 above).
- In
respect of the press release of 6 October 2006, the Court observes,
on the one hand, that it included phrases clearly referring to
suspicions and charges. Formulations such as “[the applicant]
... is charged”, “facts established ... give ground to
charge [the applicant]”, “[police officers] arrested [the
applicant] ... on suspicion”, “[i]n the event that he is
convicted” were used. On the other hand, phrases without any
reference or qualification as to the status of the applicant as a
person merely charged of the commission of the offence were used as
well: “[t]he judge wanted to receive the money”, “the
judge accepted the 200,000 kroons in cash”, “[the
applicant] ... committed [the offence of] demanding a large bribe”,
“[the applicant], a judge, made use of his official position
and breached an important principle of a state governed by the rule
of law, according to which justice is administered by an independent,
impartial and honest court” (see paragraph 30 above).
- The
Court notes in this context that the information contained in the
press release of 6 October 2006 and most of the formulations used in
it were directly based on the bill of indictment drawn up and
submitted to the court by the Public Prosecutor’s Office (see
paragraphs 27 to 29 above). Indeed, the press release served the
purpose of informing the public of the submission of the bill of
indictment to the court.
- The
Court considers that the wording of some of the formulations quoted
above, especially if assessed separately, may be understood as
referring to the commission by the applicant of the offence with
which he was charged as an established fact. Nevertheless, these
formulations were introduced by and intertwined with expressions that
made it clear that the applicant had merely been charged with the
offence in question (compare Gaforov v. Russia, no. 25404/09,
§§ 212-13, 21 October 2010). This interpretation is
supported by the fact that the press release originated from the
Public Prosecutor’s Office which in substance can be understood
to have informed the public that it had in its possession sufficient
material to charge the applicant and which disclosed information
about certain factual elements it considered to have been
established. The Court notes that it was not explicitly indicated in
the press release that it was based on the bill of indictment.
Nevertheless, it must have been clear that the press release issued
by the Public Prosecutor’s Office commencing with the words
“[t]he state prosecutor [V.] has sent a criminal case to court
in which [the applicant] ... is charged with having demanded a large
bribe” represented the position of the Public Prosecutor’s
Office in the criminal proceedings, subject to judicial scrutiny.
Thus, although the wording used in the press release of the Public
Prosecutor’s Office could have been more careful, given the
importance of the principle of presumption of innocence, the Court is
unable to conclude that the press release, read as a whole, gave the
impression that the applicant was regarded as guilty before being so
proved according to law.
- As
concerns the statements in the press that were attributable to the
prosecutor, the Court notes that they were limited to short quotes or
references mostly extending to no more than one or two sentences and
did not add much to what had been disclosed in the press releases of
the Public Prosecutor’s Office. Thus, in the articles and
interviews published in April 2006, reference was made to the
suspicion that the applicant had accepted a bribe, the fact that the
criminal case had been initiated on the basis of information received
from the person from whom the applicant had demanded a bribe (as
alleged by that person), the fact that a simulation of the offence
had been carried out, that most of the evidence deemed necessary by
the prosecution had been gathered and that there had been no
provocation on the part of the security police. The prosecutor’s
alleged assertion to Eesti Ekspress of 20 April 2006 that
the applicant himself had been demanding the money can be understood
as referring to the element of the suspicion of “demanding”
a bribe. Moreover, that statement was not presented as a direct quote
in the newspaper (see paragraphs 20 to 24 above). In the article in
Postimees of 20 November 2006, reference was made in substance
to the information already disclosed in the press release of 6
October 2006 or in the underlying bill of indictment and the
prosecutor further expressed her opinion that there had been no
provocation (see paragraph 32 above). The Court finds nothing in the
content of the prosecutor’s statements or in her choice of
words that would amount to a breach of the applicant’s
presumption of innocence. As concerns the article in Eesti
Ekspress of 23 November 2006, the Court notes that although
it was based on information received from the prosecutor, it
contained no judgment by the prosecutor in respect of the applicant’s
guilt (see paragraph 34 above). Lastly, in an interview shown on
Eesti Televisioon on 23 November 2006, the prosecutor first
quoted the charges against the applicant and then, apparently in
reply to a journalist’s question, indicated the name of the
person from whom the bribe had been demanded and the sum of money in
question. It can be understood from the context that even the latter
elements were disclosed on the basis of the charges as set out in the
bill of indictment (see paragraph 35 above).
- The
Court has also had regard to the applicant’s argument
concerning what he considered a virulent media campaign against him
instigated by prosecutor V. The Court accepts that, in certain cases,
a virulent press campaign can adversely affect the fairness of the
trial and involve the State’s responsibility (see Jespers v.
Belgium, no. 8403/78, Commission decision of 15 October 1980,
Decisions and Reports 22, p. 100). This is so with regard to the
impartiality of the court under Article 6 § 1 as well as
with regard to the presumption of innocence embodied in Article 6 §
2 (see Ninn-Hansen v. Denmark (dec.), no. 28972/95,
ECHR 1999 V, and Anguelov v. Bulgaria (dec.), no.
45963/99, 14 December 2004). However, it does not seem that the
media coverage of the present case amounted to a virulent press
campaign aimed at hampering the fairness of the trial, nor is there
any indication that the interest of the media in the matter was
sparked by the prosecutor. In the Court’s opinion the media
coverage of the present case did not extend beyond what can be
considered informing the public about serious charges against a judge
and the state of the criminal proceedings.
- Having
regard to the foregoing, the Court considers that the applicant’s
right to be presumed innocent has not been violated in the present
case.
- There
has accordingly been no violation of Article 6 §§ 1 and 2
of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the infringement of the presumption of innocence admissible;
- Holds by five votes to two that there has been
no violation of Article 6 §§ 1 and 2 of the Convention.
Done in English, and notified in writing on 29 May 2012 pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
N. Vajić and L. A. Sicilianos is annexed to this
judgment.
N.A.V.
A.M.W.
PARTLY DISSENTING OPINION
OF JUDGES VAJIĆ AND
SICILIANOS
With
all due respect for the opinion of the majority, and while accepting
most of the reasoning of the above judgment, we are unable to
subscribe to the conclusion that there has been no violation of the
presumption of innocence (Article 6 § 2 of the Convention) in
the present case. In our view, the press release titled “The
judge’s criminal case has arrived at the court”,
published on the Internet site of the Public Prosecutor’s
Office on 6 October 2006 (see paragraph 30), contains expressions
which are problematic under Article 6 § 2. In view of the
case-law of the Court and in particular its judgment in the Konstas
v. Greece case (no. 53466/07, §§ 32 and 33, 24 May
2011), formulations by State authorities leaving no doubt that the
applicant has committed the offences he is accused of are
incompatible with the presumption of innocence guaranteed under the
above provision. Therefore, we consider that there has been a
violation of Article 6 § 2 of the Convention in the present
case.
