LAHTEENMAKI v. ESTONIA - 53172/10 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 554 (21 June 2016)

In the case of Lähteenmäki v. Estonia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 31 May 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 53172/10) 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, Ms Signe Kristiina Lähteenmäki (“the applicant”), on 1 September 2010.

2. The applicant was represented by Mr M. Paabumets, a lawyer practising in Tartu. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3. The applicant alleged that her right to the presumption of innocence had been breached and that she had not received a fair civil trial.

4. On 4 December 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. On 31 January 2006 the applicant submitted a traffic accident report to an insurance company. According to that report she had been involved in a traffic accident in her car on 26 January 2006. On 3 March 2006 the applicant submitted additional explanations to the insurance company. She stated that she had not known the other persons involved in the accident, that she had completed the accident report in her vehicle after the accident and that her friend P. had come to pick her up at the scene of the accident. The insurance company suspected fraud and informed the police. On 6 April 2006 criminal proceedings were opened. The applicant was charged with insurance fraud and inciting P. knowingly to give false testimony. The other accused were P., K., T. and V.

6. On 16 May 2008 a prosecutor drew up a bill of indictment against the applicant, P., K., T. and V. According to the bill of indictment, it had been established in the criminal investigation that the applicant, contrary to her allegations, had not been at the scene of the alleged accident. This was confirmed by the positioning of her mobile phone at the time of the accident, her phone call records and P.’s statement. It was established that the applicant together with the other accused had submitted false information to the insurance company concerning the occurrence of an insured event, the persons who had been involved in the traffic accident, and the circumstances of the accident. The applicant was therefore charged with insurance fraud. In addition, it was established that the applicant had incited P. to give false testimony concerning the fact that she had gone to pick the applicant up at the scene of the accident. This had been confirmed by P.’s statement. The applicant was therefore charged with inciting another person knowingly to give false testimony. It was noted in the statement of charges that no pecuniary damage had been caused by the offences because the insurance company had declined to make the corresponding payout when the suspicion of an offence arose. On the basis of this statement of charges the applicant was committed for trial.

7. On 2 and 3 December 2008 the Tartu County Court held a hearing in the criminal proceedings against the applicant, P., K., T. and V. At this hearing the prosecutor asked the court to discontinue the criminal proceedings against the applicant and P. under Article 202 (1) of the Code of Criminal Procedure (Kriminaalmenetluse seadustik). According to the minutes of the hearing, the prosecutor stated that the applicant had committed offences of a less serious nature (“in the second degree”), that she had been involved in the commission of those offences at the instigation of the co-accused, thereby demonstrating that her guilt was less, and that she had no previous convictions. In requesting the imposition of certain public law obligations, the prosecutor had also taken into account the fact that the applicant had been raising a small child on her own. The applicant and her counsel explicitly accepted this reasoning put forward by the prosecutor in support of discontinuance of the criminal proceedings. They also consented to the prosecutor’s request that the applicant be ordered to pay the procedural costs and perform community service.

8. By a ruling of 3 December 2008 the Tartu County Court discontinued the criminal proceedings in respect of the applicant and P. on the basis of Article 202 (1) and (2) of the Code of Criminal Procedure (the “CCrP”). The applicant was ordered to pay 1,178 kroons (EEK) (75 euros (EUR)) to the public purse and perform eighty hours of community service. In the event of the applicant’s failure to perform these obligations, the court would ‒ at the request of the Public Prosecutor’s Office ‒ resume the criminal proceedings.

9. The County Court’s ruling contained a detailed description of the charges against the applicant and P. It further noted that the prosecutor had requested the discontinuance of the criminal proceedings in respect of the applicant and P. on the basis of Article 202 of the Code of Criminal Procedure since the offence in question had been an offence in the second degree, both the applicant and P. had been involved in it at the instigation of other persons, and neither of them had had a previous criminal record. Their guilt had been negligible and there had been no public interest in the continuation of the criminal proceedings. The prosecutor had requested the imposition on the applicant of the obligations indicated above. The court also noted that both the applicant and P. ‒ as well as their lawyers ‒ had agreed to the discontinuance of the proceedings and the imposition of the obligations requested by the prosecutor. The part of the ruling setting out the County Court’s conclusion read as follows:

“The criminal proceedings in respect of the charges against [the applicant] ... have to be discontinued on the basis of Article 202 (1) and (2) of the [Code of Criminal Procedure] as all the legal requirements have been fulfilled. This is an offence in the second degree, the guilt of the accused is negligible, no proprietary damage has been caused and there is no public interest in the continuation of the proceedings.

On the basis of Article 202 (2) points 1 and 2 of the [Code of Criminal Procedure] the obligations requested by the prosecutor have to be imposed on the applicant ... ”

10. By a judgment of 3 December 2008, in settlement proceedings concerning the same criminal case, the Tartu County Court convicted K., T. and V. of insurance fraud. It was noted in the judgment that V. and the applicant ‒ whose name was replaced with initials in the judgment ‒ had not been present at the scene of the alleged accident. It was also stated that the applicant and K. had drafted and that the applicant, T. and V. had signed and submitted to the insurance company documents containing false information about the traffic accident. It was further stated that by these acts K., the applicant, T. and V. had jointly created the illusion of the occurrence of an insured event with the aim of claiming an insurance payout.

11. On 4 March 2009 the applicant claimed EEK 190,282.71 (EUR 12,161) from the insurance company by way of compensation related to the traffic accident that had given rise to the above criminal proceedings. The insurance company rejected the claim, arguing that it had been established by the Tartu County Court’s judgment of 3 December 2008 that the traffic accident had been staged.

12. By 23 May 2009 the applicant had performed the obligations imposed on her in the ruling of 3 December 2008.

13. On 2 June 2009 the applicant brought a civil suit against the insurance company. In support of her insurance claim, the applicant submitted as evidence to the court the claims sent to the insurance company after the event in 2006, a copy of the 3 December 2008 ruling ordering discontinuance of the criminal proceedings, and documents proving the extent of the damage. The insurance company, for its part, submitted to the court the 3 December 2008 judgment in the criminal case (see paragraph 10 above). The defendant argued that the judgment, together with the ruling ordering discontinuance of the proceedings, was sufficient to negate the applicant’s claim that a genuine traffic accident had taken place as she alleged.

14. The applicant’s claim was dismissed by a judgment of Tartu County Court on 23 December 2009. The court held as follows:

“Tartu County Court established by a final judgment in the criminal case ... that the traffic accident which, according to the [applicant’s] allegations, had taken place on 26 January 2006, had been staged. According to the judgment ... three individuals were found guilty of having staged a collision between an Opel Ascona, an Audi A6 and a Volvo S60 allegedly driven by the [applicant] at around 9 p.m. on 26 January 2006. The [applicant] made a claim to the [insurance company] for compensation for the damage caused to the vehicle by the alleged traffic accident ... . According to the claim the [applicant] had been driving the car that was involved in the accident. It was established by the Tartu County Court’s ruling of 3 December 2008 ... that the [applicant] had not been at the scene of the traffic accident and that it had been staged. Nevertheless, ... the [applicant] submitted to the [insurance company] a statement containing false information and a claim for compensation for damage caused by an alleged insurance event. The [applicant] was charged with an offence under Article 212 § 1 of the [Penal Code], namely intentionally causing an insured event to happen and creating the illusion of the occurrence of an insured event with the intention of obtaining compensation from the insurer. The prosecutor requested ... the discontinuance of the criminal proceedings on the basis of Article 202 of the [Code of Criminal Procedure] since it was an offence in the second degree, the guilt of the accused was negligible, and there was no public interest in the continuation of the proceedings. The [applicant] erroneously concluded that, because of the [prosecutor’s] request and the discontinuance of the criminal proceedings, [she] had a right to claim the insurance payout. An insurance payout is made by an insurer only if an insured event has occurred. In the present case it had been established by a judgment and a ruling of a court that no insured event had occurred and that the traffic accident had been staged. The [applicant] therefore had no grounds for claiming the payout ... from the [insurance company]. ... In the present case, no accident took place.

The [applicant] is wrong in her understanding that she is not guilty because of the discontinuance of the criminal proceedings against her [on the basis of] Article 202 § 2 (1) and (2) [of the Code of Criminal Procedure]. Article 202 § 1 [of the Code of Criminal Procedure] provides that if the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and he or she has remedied or has begun to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or has assumed the obligation to pay such expenses, and there is no public interest in the continuation of the criminal proceedings, the Public Prosecutor’s Office may request discontinuance of the criminal proceedings by a court with the consent of the suspect or accused. It follows from this provision that the person’s guilt exists but it is negligible and that he or she has begun to remedy it or has assumed the obligation to pay the expenses relating to the criminal proceedings.”

15. The applicant appealed, complaining, inter alia, about the breach of her right to the presumption of innocence by the County Court. Although there had been no judgment finding her guilty in connection with the traffic accident of 26 January 2006, the County Court in its judgment of 23 December 2009 in a civil case had regarded her as being guilty of the offence. She argued that her consent to pay the expenses relating to the criminal proceedings did not mean that she had committed the offence. By its judgment of 3 December 2008 in a criminal case the Tartu County Court had convicted K., T. and V. but not the applicant.

16. On 3 May 2010 the Tartu Court of Appeal dismissed the appeal and upheld the County Court’s judgment, holding as follows:

“7. The [applicant] is mistaken in arguing that the County Court had wrongly interpreted the legal nature and the evidentiary value, in respect of the person’s admission of guilt, of the ruling ordering discontinuance of the criminal proceedings.

The County Court has correctly found, relying on what was established by the Tartu County Court’s ruling and judgment of 3 December 2008, that the [applicant] took part ... in the staging of a traffic accident the aim of which was to cause an insured event to happen and to create the illusion of the occurrence of that insured event with the intention to obtain compensation from the insurer.

According to Article 272 § 2 of the [Civil Code] court decisions in other cases are deemed to be documentary evidence.

...

8. ...

Discontinuance of criminal proceedings under Article 202 § 1 of the [Code of Criminal Procedure] does not prove that the suspect or the accused has not committed the act he or she is accused of. The premise of the discontinuance of the criminal proceedings according to the provision referred to is that the object of the criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and that he or she has remedied or has begun to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or has assumed the obligation to pay such expenses, and that there is no public interest in the continuation of the criminal proceedings, but that the act as such was nevertheless committed.

The Court of Appeal finds that the fact that the applicant committed the act consisting of causing the insured event to happen and creating the illusion of the occurrence of an insured event with the intention of obtaining compensation from the insurer was established by the Tartu County Court’s ruling of 3 December 2008. If the [applicant’s] position was that she did not commit the act, she would have submitted evidence to prove her argument, but she has not done so. The mere assertion by the [applicant] that she did not commit the act referred to in the Tartu County Court’s ruling of 3 December 2008 does not imply the conclusion that the applicant did not participate in an insurance fraud aimed at obtaining compensation.

9. ...

In the present case it is established that the [applicant] as the policyholder intentionally caused the insured event and the [insurance company] is therefore exempted from the obligation to satisfy the claim.”

17. The applicant appealed to the Supreme Court repeating, inter alia, her complaint about a breach of her right to the presumption of innocence.

18. On 22 June 2010 the Supreme Court decided not to examine the appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. The Code of Criminal Procedure (Kriminaalmenetluse seadustik), in so far as relevant, provides as follows:

Article 202 - Discontinuance of criminal proceedings where there is no public interest in the proceedings and only negligible guilt

“(1) If the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and he or she has remedied or has begun to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or has assumed the obligation to pay such expenses, and there is no public interest in the continuation of the criminal proceedings, the Public Prosecutor’s Office may request discontinuance of the criminal proceedings by a court with the consent of the suspect or accused.

(2) In the event of discontinuance of criminal proceedings, the court may impose the following obligations on the suspect or accused at the request of the Public Prosecutor’s Office and with the consent of the suspect or accused within the specified term:

1. to pay the expenses relating to the criminal proceedings or compensation for the damage caused by the criminal offence;

2. to pay a fixed amount into the public purse to be used for specific purposes in the interest of the public;

3. to perform between 10 and 240 hours of community service. The provisions of Article 69 §§ 2 and 5 of the Penal Code apply to community service.

(3) The period allowed for the performance of obligations listed in paragraph 2 of this Article shall not exceed six months.

(4) A request from the Public Prosecutor’s Office shall be adjudicated by a ruling by a judge sitting alone. If necessary, the prosecutor and the suspect or accused and, at the request of the suspect or accused, also the counsel shall be summoned before the judge for the adjudication of the request from the Public Prosecutor’s Office.

(5) If the judge does not consent to the request submitted by the Public Prosecutor’s Office, he or she shall return the criminal matter, on the basis of his or her ruling, for continuation of the proceedings in question.

(6) If a person with regard to whom criminal proceedings have been discontinued pursuant to paragraph 2 of this Article fails to perform the obligation imposed on him or her, the court, at the request of the Public Prosecutor’s Office, shall resume the criminal proceedings by an order. In imposing a punishment, the part of the obligations already performed by the person shall be taken into consideration.

...”

20. In its judgment of 2 June 2008 in civil case no. 2-07-10411, the Tartu Court of Appeal noted that it had been correct to state that discontinuance of criminal proceedings under Article 202 of the CCrP is not the same as a judgment of conviction. However, the Court of Appeal emphasised that the County Court in that case had not argued that it had been a conviction. At the same time, the Court of Appeal also stated that it had been erroneous for the plaintiff to believe that discontinuance of criminal proceedings under Article 202 of the CCrP amounted to acquittal.

21. In its judgment of 14 April 2010 in criminal case no. 3-1-1-19-10, the Supreme Court held that the prerequisite for discontinuance of criminal proceedings under Article 202 of the CCrP is the establishment, within those criminal proceedings, of the preconditions for the punishability of an act, that is to say the existence of the necessary elements of an offence, unlawfulness, and guilt in the behaviour of the accused. Under the rule of law, only the commission of an act having the characteristics of an offence justifies ‒ under certain conditions ‒ the imposition of obligations of a penalising nature on a suspect or an accused without their having been convicted by a court.

22. In its judgment of 3 November 2010 in criminal case no. 3-1-1-84-10 the Supreme Court reiterated that the application of Article 202 of the CCrP presupposes that the elements of a criminal offence, along with unlawfulness and guilt, have been established in the behaviour of a suspect or an accused. The court went on to state that discontinuance of criminal proceedings under Article 202 of the CCrP therefore has a certain inculpatory effect in respect of the person concerned. The Supreme Court also explained that even though the discontinuance of criminal proceedings under Article 202 of the CCrP has an inculpatory effect of this nature in respect of the person, a ruling on the discontinuance of the criminal proceedings under Article 202 of the CCrP is not founded on the same kind of evidentiary basis and legal analysis as that required for court judgments. Therefore, when making a judgment on the merits (in respect of another party to the proceedings), it may emerge that the prosecution version on the basis of which the criminal proceedings were discontinued was not in fact true and the person’s behaviour did not actually involve any elements of a punishable act. In this situation, relying on the principle of legality, it is necessary that the person against whom the ruling ordering discontinuance of the criminal proceedings has been made should have the possibility of requesting revision of that ruling. Such revision is possible through a reopening of the proceedings.

23. In its ruling of 10 February 2011 in criminal case no. 3-1-1-113-10 the Supreme Court held that a court ruling made on the basis of Article 202 of the CCrP means deciding on the criminal case as a whole, because if the person complies with the obligations imposed on him, reopening of the criminal proceedings is not possible and the ruling will remain the final reaction within the criminal proceedings to the commission of the alleged criminal offence. The fact that the ruling in question was not subject to appeal was justifiable first and foremost by the consent given by the accused. Giving consent meant that the accused was entirely aware of all the consequences of the discontinuance of the criminal proceedings - by giving consent to the discontinuance of the proceedings the accused also agreed that his case would not be examined in general or summary proceedings and no substantive judgment concerning the issue of their guilt would be made. Thus, the decision made under Article 202 of the CCrP meant arrival at a final consensus and the achievement of a legal settlement in the particular case. Giving a party the right of appeal for the purpose of contesting such a decision would have been contrary to the aims sought by the legislator. The Supreme Court observed that the precondition for such an interpretation is that in cases of discontinuance of criminal proceedings for reasons of expediency, the accused must be notified of all the circumstances with regard to which the court must express an opinion. If the court has any doubt with regard to the notification in question, it has the right to return the criminal case to the prosecutor’s office for continuation of the proceedings. Also, as regards the right of appeal against a ruling on the discontinuance of criminal proceedings under Article 202 of the CCrP, regardless of the general prohibition on appeal, appeal lies against a ruling ‒ or a part thereof ‒ which was made without the consent of the accused.

24. According to Article 272(2) of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) decisions delivered in other court cases are deemed to be documentary evidence.

25. In its judgment of 11 May 2005 in civil case no. 3-2-1-41-05 the Supreme Court held that the evidence collected and a judgment made in criminal proceedings could be used as documentary evidence for proving facts in support of claims to be assessed by the court, together with the other evidence collected in respect of the matter in question.

26. In its judgment of 19 March 2007 in criminal case no. 3-1-1-113-06 the Supreme Court noted that under Article 272(2) of the CCrP judgments made in other court cases constitute only documentary evidence and in principle, therefore, the factual acts (or omissions) of the accused established in criminal proceedings may be contested in civil proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

27. The applicant complained that the reasoning of the domestic courts in the judgments refusing to award her compensation violated her right to be presumed innocent under Article 6 § 2 of the Convention. Article 6 § 2 provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. Admissibility

1. The parties’ submissions

28. The Government submitted, firstly, that Article 6 § 2 was not applicable in the present case and, secondly, that the complaint was manifestly ill-founded.

29. As to the inapplicability of Article 6 § 2, the Government argued that there had been no link between the discontinued criminal proceedings and the subsequent civil proceedings. Relying on Ringvold v. Norway (no. 34964/97, ECHR 2003-II) and Lundkvist v. Sweden ((dec.), no. 48518/99, ECHR 2003-XI), the Government pointed out that in the present case, as in those cases, the outcome of the criminal proceedings had not been decisive for the civil case. The civil case had been decided by a different composition of judges and according to the rules of civil procedure. Under those rules, it had been for the parties to present evidence to the courts to support their claims and allegations. A decision delivered in criminal proceedings was ‒ according to these rules ‒ treated as documentary evidence on an equal footing with any other piece of evidence. The civil courts relied on the aforementioned decisions only because the applicant had not presented in the civil proceedings any evidence on her part to prove that an insured event had in fact occurred, even though she had been at liberty to do so. The applicant’s failure to produce such evidence and the ensuing reliance of the civil courts on the decisions delivered in the criminal proceedings could not be held as a reproach against the respondent State.

30. The applicant did not submit separate comments on the Government’s objections to the admissibility of the complaint.

2. The Court’s assessment

31. Regarding the applicability of Article 6 § 2 in the present case, the Court points out that in addition to being a procedural guarantee in the context of a criminal trial, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they were in fact guilty of the offence charged (Allen v. the United Kingdom [GC], no. 25424/09, §§ 93-94, ECHR 2013).

32. The Court has in the past been called upon to consider the application of Article 6 § 2 to judicial decisions given following the conclusion of criminal proceedings - whether by way of discontinuance or after an acquittal - in proceedings concerning the refusal of civil claims lodged by an applicant against insurers (see Allen v. the United Kingdom, cited above, § 98; Lundkvist v. Sweden (dec.), no. 48518/99, ECHR 2003-XI, and Reeves v. Norway (dec.), no. 4248/02, 8 July 2004).

33. More recently, in Allen v. the United Kingdom (cited above, §§ 103-104) the Grand Chamber formulated the principle of the presumption of innocence in the context of the second aspect of Article 6 § 2 as follows:

“... the presumption of innocence means that where there has been a criminal charge and the criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of criminal proceedings in order to ensure that, as regards any charge which was not proven, the innocence of the person in question is respected. This overriding concern lies at the root of the Court’s approach to the applicability of Article 6 § 2 in these cases.

Whenever the question of the applicability of Article 6 § 2 arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link, as referred to above, between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant’s possible guilt.”

34. Turning to the facts of the present case, the Court points out that the civil courts’ judgments referred explicitly to the decisions made in the criminal case and contained statements about the applicant’s guilt (see paragraphs 14 and 16 above).

35. The Court has taken due note of the Government’s argument that the civil courts only referred to the decisions delivered in the criminal proceedings because the applicant had failed to present any evidence in support of her own arguments, despite being required to do so under the burden of proof rules of civil procedure. However, in the Court’s view this does not alter the fact that the civil courts were in fact required to examine the outcome of the criminal proceedings, to engage to a certain degree in an evaluation of the evidence gathered in those criminal proceedings as it was reflected in the decisions, and to assess the applicant’s participation in the events resulting in the criminal charge. Nor does it affect the fact that the domestic courts included in their judgments some wording referring to the applicant’s guilt (see Allen, cited above, § 104).

36. For the reasons stated above, the Court considers that a link existed between the criminal and civil proceedings in question. As a result, Article 6 § 2 is applicable in the context of the civil proceedings at issue. The application is therefore not incompatible ratione materiae with the provisions of the Convention. The Court accordingly dismisses the Government’s first objection to the admissibility of the complaint.

37. As to the second objection to the admissibility of the complaint, in the Court’s view the applicant’s complaint raises issues of law and fact which require an examination of the merits. It follows that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The second objection must therefore also be dismissed.

38. The Court finally notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

39. The applicant maintained that her right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention had been violated. She had not been convicted in connection with the traffic accident by a final judgment on the merits. Nevertheless, the civil courts, in their judgments, had treated her as being guilty of a criminal offence. This had occurred because the civil courts had misinterpreted the legal nature and evidentiary value of the decisions delivered in the criminal proceedings. The applicant pointed out that discontinuance of the criminal proceedings had meant that no substantive judgment on the issue of her guilt had been handed down (see paragraph 23 above). She further pointed out that the ruling ordering discontinuance of the criminal proceedings against her had not been based on the same level of evidential and legal analysis as a judgment on the merits would have been (see paragraph 22 above). It could therefore have become apparent in the subsequent proceedings that she had not committed the offence of which she had been accused. The applicant also stressed that she had never pleaded guilty to the charges against her. She alleged that the only reason she had consented to the discontinuance of the proceedings and had never contested the imposition of public law obligations was to prevent a long trial, additional discomfort and further costs. She had done so because at the time she had been raising a small child on her own. As to the subsequent civil proceedings and, more precisely, to the burden of proof in those proceedings, the applicant considered that, in the light of the foregoing, the decisions delivered in the criminal proceedings had not constituted sufficient evidence to prove that she had staged the traffic accident. The insurance company had therefore failed to prove that she had staged it.

40. The Government disputed the applicant’s contention that her right to be presumed innocent had been violated.

41. The Government explained at the outset that the discontinuance of the criminal proceedings under Article 202 (1) of the CCrP presupposes the following: firstly, the object of the criminal proceedings must be the commission of a criminal offence of lesser severity; secondly, the guilt of the accused must be negligible; thirdly, the accused must have remedied or begun to remedy the damage caused by the criminal offence or have paid the expenses relating to the criminal proceedings, or assumed the obligation to pay such expenses; fourthly, there must be no public interest in the continuation of the criminal proceedings; fifthly and lastly, the accused must consent to the discontinuance of the proceedings. The Government pointed out that the Supreme Court had repeatedly affirmed that the discontinuance of criminal proceedings under this provision requires that the general conditions for punishment for an act (namely the elements of a criminal offence, unlawfulness and guilt) have been established (see paragraphs 21 and 22 above). The Government further emphasised that according to the case-law, the discontinuance of criminal proceedings under this provision did not amount to acquittal and that it had a certain inculpatory effect (see paragraphs 20 and 22 above). This was subject to the accused’s being aware of the conditions and the consequences of the discontinuance of criminal proceedings under this provision and having explicitly consented to these.

42. With regard to the applicant’s case, the Government stated that at the domestic court hearing both the applicant and the defence counsel of her own choosing had consented to the arguments the prosecutor had put forward justifying the discontinuance of the criminal proceedings (see paragraph 7 above). This was also reflected in the County Court’s ruling of 3 December 2008, alongside the court’s confirmation of the existence of the conditions for discontinuing criminal proceedings under the provision in question (see paragraph 9 above). The Government drew attention to the fact that the applicant had in no way been compelled to consent to the discontinuance of the proceedings under these conditions. They also pointed out that the applicant’s involvement in the commission of the fraud had been reflected in the same way in both the County Court ruling and the judgment convicting the applicant’s co-accused (see paragraph 10 above).

43. Regarding the subsequent civil proceedings, the Government observed that in those proceedings the key question had been whether or not a genuine traffic accident, and therefore an insured event, had taken place. The Government explained that under the rules of civil procedure the applicant, as plaintiff, had had to prove that the accident had taken place as she alleged. The Government further explained that the decisions delivered in the criminal proceedings concerning the accident had been treated as documentary evidence in the civil proceedings (see paragraphs 24 and 25 above). In the civil proceedings the applicant had not submitted any information to the domestic courts to prove the opposite of what had been established about the events in the ruling ordering discontinuance of the criminal proceedings against the applicant and the judgment of 3 December 2008. She had merely stood by her argument that the ruling ordering discontinuance of the proceedings had meant that she had not been involved in an insurance fraud. However, this position had been incorrect in the light of the applicable law and her consent to the discontinuance of the proceedings. The domestic courts had thus had only two pieces of evidence concerning the alleged insured event: the 3 December 2008 ruling ordering discontinuance of the criminal proceedings against the applicant and the judgment of the same date whereby the three co-defendants were convicted. On the basis of the evidence put before them, the domestic courts had rightly found that the applicant had not succeeded in proving her allegations about the traffic accident. The Government also emphasised that the Court’s case-law did not preclude refusal to pay compensation in civil proceedings on the basis of the same facts in respect of which criminal proceedings have been discontinued (compare Allen, cited above, § 123).

44. Regarding the language used in the decisions of the domestic courts in the civil case, the Government pointed out that the County Court had merely reflected the wording of Article 202 (1) of the CCrP in its judgment. The Court of Appeal had not referred to the applicant as having been guilty of a crime. It had relied on the fact of the commission of the act as had been established in the decisions in the criminal case. As to the reference that “if the [applicant’s] position was that she did not commit the act, she would have submitted evidence to prove her argument, but she has not done so”, this had been in conformity with the principle that in civil proceedings it is normally the plaintiff who bears the burden of proof (see Bok v. the Netherlands, no. 45482/06, §§ 43-47, 18 January 2011). Against this background, the Court of Appeal had not itself imputed any criminal liability to the applicant beyond that which had already been found in the criminal case. Lastly, the Government contended that even if the language used were to be considered unfortunate, no violation of the right to be presumed innocent had occurred.

2. The Court’s assessment

45. Once it has been established that there is a link between the two sets of proceedings, the Court must determine whether, in all the circumstances of the case, the right to the presumption of innocence has been respected. The Court in Allen explained that where Article 6 § 2 applies, the compatibility of the proceedings with that Article will depend on their nature and context, and the language used by the decision-maker will be of critical importance (cited above, §§ 125-126). However, considering the nature and context of particular proceedings, even the use of some unfortunate language may not be decisive (see Allen, cited above, § 126, and the case-law cited therein; A.L.F. v. the United Kingdom, (dec.), no. 5908/12, § 24, 12 November 2013; Adams v. the United Kingdom, (dec.), no. 70601/11, § 41, 12 November 2013; and Vella v. Malta, no. 69122/10, § 61, 11 February 2014).

46. In the present case, the Court must assess whether the language that the domestic courts employed was compatible with the presumption of innocence. The Court must assess this taking into account the context of the ruling ordering discontinuance of the criminal proceedings against the applicant, and the nature of the task that the domestic courts were required to carry out in the civil proceedings.

47. Turning to the context of the discontinuance of the criminal proceedings, the Court observes the following. Firstly, the discontinuance decision was delivered by an independent and impartial court which held a hearing to examine the prosecutor’s request to discontinue the proceedings (see paragraph 7 above). Both the applicant and the defence counsel of her own choosing were able to take part in that hearing. Secondly, at that hearing the prosecutor explicitly stated that the applicant had committed offences of minor importance. Thirdly, the prosecutor explicitly described the applicant’s guilt as negligible, because she had participated in the commission of the offence at the instigation of the co-accused. Fourthly, the applicant and her counsel explicitly agreed with the reasons for and conditions of the discontinuance of the proceedings that the prosecutor had put forward. Fifthly, the applicant has not questioned the compatibility of criminal proceedings with the requirements of a fair trial. Nor has the Court any reason to do so.

48. The Court has taken note of the applicant’s argument that she had consented to the discontinuance because she had been raising a small child alone and had sought to avoid the additional costs and discomfort which could have been caused by protracted proceedings. However, it also observes that the fact that the applicant had been raising a small child alone was taken into account by the prosecutor as one of the reasons for requesting the discontinuance of the proceedings. Moreover, the applicant never voiced those considerations in the domestic proceedings, nor did she otherwise complain in those proceedings that she had had to give her consent to the discontinuance because of some external constraint.

49. The Court has also taken note of the applicant’s argument and the Government’s counter-argument related to the nature and consequences of the discontinuance of criminal proceedings under Article 202 of the CCrP (see paragraphs 39 and 41 above). The Court observes that this disagreement concerns a question of interpretation of domestic law. It is primarily a matter for the national authorities, in particular the courts, to interpret and apply domestic law. The Court is required to verify whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190-91, ECHR 2006-V). It has to examine the circumstances of how this provision was applied in the applicant’s case. That is to say that the Court has to examine how exactly the criminal proceedings against the applicant were discontinued in practice (see paragraphs 47 and 48 above). Nevertheless, it can be gleaned from the plain wording of the article in question (see paragraph 19 above) that the discontinuance required, among other things, an assessment of whether or not an offence had been committed and the conclusion that the guilt of the accused had been negligible. It also required the consent of the accused and that the ruling ordering discontinuance be delivered by a judge acting at the request of a prosecutor. Domestic case-law shows that, while discontinuance under this provision does not amount to conviction, it does not amount to an acquittal either, and that discontinuance has some inculpatory effect (see paragraphs 20-23 above). The Court is satisfied that the applicant, who was represented by a defence counsel of her own choosing, was aware, or at least ought to have been aware, of the potential nature of the discontinuance in accordance with this provision.

50. Turning to the nature of the task that the domestic courts were required to carry out in the civil proceedings, the Court observes at the outset that the applicant instituted those proceedings after the criminal proceedings against her had been discontinued in the circumstances referred to in paragraphs 47 to 49 above. In those proceedings it had been established that the applicant’s car had been involved in a staged accident and that the applicant had submitted false information about the event to the insurance company and the authorities. The applicant’s civil action also followed the performance of the obligations imposed on her in the ruling ordering discontinuance of the criminal proceedings. It is because of this and the circumstances referred to in paragraphs 47 to 49 above that the present case differs from cases where the subsequent proceedings followed on from a discontinuance of criminal proceedings because of insufficient evidence (Capeau v. Belgium, no. 42914/98, ECHR 2005-I) or because of want of proof and the prosecution having been time-barred (Grabchuk v. Ukraine, no. 8599/02, 21 September 2006). For the same reasons the present case is different from Panteleyenko v. Ukraine (no. 11901/02, 29 June 2006), where the proceedings were discontinued because of the insignificance of the offence, but where the decision to discontinue was taken at the pre-trial stage by a prosecutor, and the applicant at all times actively denied having committed the offence.

51. The Court further observes that in the civil proceedings the applicant had to bear the burden of proof in respect of her allegation that a genuine traffic accident had occurred. The task of the civil courts was to assess, based on the evidence put before it in adversarial proceedings, whether on the balance of probabilities the applicant’s allegations that a genuine traffic accident had happened were supported by sufficient proof. The Court does not find it unreasonable that the applicant was required to prove the truth of her allegations. The discontinuance of the criminal proceedings against the applicant could not result in a dispensation from the obligation of having to prove her insurance claim in accordance with the applicable domestic rules regarding the burden of proof.

52. With regard to the proof, the sole piece of evidence the applicant submitted in the civil proceedings by way of proof that she had not been involved in staging the accident was the ruling ordering discontinuance of the criminal proceedings against her. The applicant argued that the fact of the discontinuance of the criminal proceedings had in itself amounted to sufficient proof of her position. As is apparent from the documents submitted to the Court, the applicant did not submit any other evidence in support of her assertion that a genuine traffic accident had taken place. At the same time, the defendant in the civil proceedings, that is to say the insurance company, submitted to the courts the judgment by which the applicant’s co-accused had been convicted. The defendant argued that those two decisions from the criminal proceedings, taken together, were sufficient to refute the applicant’s assertion that there had been a genuine traffic accident. The domestic courts, which were required to decide whether the applicant had properly discharged her burden of proof, were thus faced with mutually exclusive arguments regarding the assessment of the same evidence. As to the evidentiary value in civil proceedings of the decisions delivered in criminal proceedings, the Court accepts that those decisions must be treated on an equal footing with other types of evidence (see paragraphs 24 and 25 above). It also notes that the findings in those decisions constituted rebuttable positions (see paragraph 26 above).

53. In the light of the circumstances related to the discontinuance of the criminal proceedings and the nature of the evidence submitted to the courts regarding the alleged occurrence of a genuine traffic accident, the Court finds that the wording of the domestic courts’ reasoning cannot be deemed unacceptable. Firstly, to a large extent the language simply followed that of Article 202 of the CCrP and the Supreme Court’s understanding of the same provision. Secondly, the domestic courts’ judgments, and especially that of the Court of Appeal, did not refer to the applicant as a convicted person. Thirdly, the Court of Appeal’s judgment leaves no doubt that the applicant’s claim was rejected due to her failure to discharge her burden of proof. The Court of Appeal’s clarification of what at first sight appeared to follow from the decisions taken in the criminal proceedings was necessary in order to explain what the applicant had failed to disprove.

54. In conclusion, the Court does not consider that the language used by the domestic courts in the judgments at issue, when viewed in the context of the ruling ordering discontinuance of the criminal proceedings against the applicant, and the nature of the task that the domestic courts were required to carry out in the civil proceedings, can be said to indicate that the applicant was treated in a manner inconsistent with the presumption of innocence.

55. There has accordingly not been a violation of Article 6 § 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

56. The applicant complained that the domestic courts had failed to take into account the evidence she had submitted to them. The applicant relied on Article 6 § 1 of the Convention.

57. The Government contested that complaint as unfounded.

58. The Court has examined this complaint and finds that the domestic courts duly considered the evidence submitted to them concerning the occurrence of the alleged insured event. The Court therefore concludes that there is no appearance of a violation of the provision cited. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 6 § 2 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 2 of the Convention.

Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LAHTEENMAKI v. ESTONIA - 53172/10 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 554 (21 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/554.html Cite as: [2016] ECHR 554