LUNDKVIST v. SWEDEN
Inadmissible
Matti Pellonpää
The applicant, Mr Tommy Lundkvist, is a Swedish national, who was born in 1949 and lives in Kvicksund. He is represented before the Court by Mr J. Södergren, a lawyer practising in Stockholm. The respondent Government were represented by Mrs I. Kalmerborn of the Ministry for Foreign Affairs, as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. In the evening of 24 June 1994, the so-called “midsummer night”, a row broke out between the applicant and his wife in the couple’s home. Later, on 25 June, at around 2 a.m., a fire ravaged the home, a wooden house owned by the applicant, which burned down to the foundation walls. The applicant was subsequently charged under Chapter 3, Article 5 of the Penal Code, with ill-treating his wife, and under Chapter 13, Article 1 with arson for setting his house on fire. In August 1994 the Västerås District Court convicted the applicant on the first count and sentenced him to one month’s imprisonment. On the second count, it acquitted him, finding that, notwithstanding the existence of strong arguments supporting the prosecution’s case, it had not been shown beyond reasonable doubt that the applicant was guilty of the offence. On 14 December 1994 the Svea Court of Appeal upheld the judgment. As regards the arson charge, it observed: “As found by the District Court, there are strong reasons for believing that [the applicant] started the fire in his villa. However, there is nothing in the investigation that directly links him to this act. Nor does the investigation exclude the possibility that the fire was caused by an accident or had been started by another person. Since it cannot therefore be regarded as established beyond reasonable doubt that [the applicant] started the fire, the charge must be rejected.” Subsequently, the applicant instituted civil proceedings against his insurance company, Länsförsäkringar Bergslagen, requesting a declaratory judgment to the effect that the latter was obliged under the insurance contract to pay him compensation for the damage caused by the fire to his house and personal belongings. The Västerås District Court, sitting with a different bench from the one in the criminal case, held an oral hearing during which evidence was heard from the applicant, the witnesses who had given evidence during the criminal trial and a number of new witnesses. The written evidence adduced by the parties was to a large extent the same as had been submitted in the criminal proceedings. In its judgment of 24 January 1997, the District Court found for the insurance company and against the applicant. The judgment contained an introductory section entitled “Background”, in which the District Court quoted the Court of Appeal’s above-cited conclusion, and a summary of the parties’ submissions (“Yrkande mm”). This was followed by the District Court’s reasoning (“Domskäl”), which gave an itemised description of the written and oral evidence, reiterated the contents of some of the new oral evidence, and set out the District Court’s assessment. It first reiterated the standards of proof applicable to cases of insurance compensation, noting that it was not disputed here that an insured event had occurred, but only whether the matter fell within the exception clause in H 4.3 of the insurance policy, cf. section 32 of the Consumer Insurance Act (konsumentförsäkringslagen), which it was for the insurance company to prove. In this connection the District Court emphasised that a factor that was significant for distinguishing the assessment of evidence in the civil case from that of the criminal case was the applicant’s silence. The District Court then examined, at quite some length, the evidence, including that from experts, as to the possible natural causes of the fire, notably the house’s electrical installations and heating system, in particular a combined wood-and-oil burner and the chimney. It concluded that such causes could be excluded and that there were therefore weighty reasons for considering that the cause must lie somewhere else. It went on: “As already stated, [the applicant] for his part has not been able to contribute with any explanation as to the origin of the fire. He had good opportunities to start the fire. According to the investigation, shortly before the fire, he went in and out of the house several times. The District Court considers that no person other than [the applicant] can be suspected of having started the fire. The information provided by [his wife] to the police during the first interview makes the suspicion against him particularly strong. During the police interview she had stated inter alia that [the applicant] threatened to burn the house down if she and her son were to move. The evidence obtained at the police interviews must be given particular evidential value. Subsequently she has provided new and different information in a curious manner. Her new statement does not seem credible. She has strong personal reasons for trying to save the family’s financial situation. The new information could be explained, or at least seen, in the light of the fact that, as she admits, she talked with [the applicant] about the circumstances relating to the origin of the fire before the Court of Appeal hearing. Even during the hearing in the previous case Mrs Lundkvist gave barely credible explanations for departing from the information that she had spontaneously provided during the first police interview and has not convincingly presented her new version, inter alia that she should have been inside the house immediately before the fire and seen smoke in the house, amongst other things. She has been further examined on these points and has stated that she did ‘not know how she should reply’. What first and foremost indicated that [the applicant] started the fire is that, in connection with a row with his wife, he expressed a threat to burn the house down, plus the fact that his state of mind was clearly such that, in a fit of desperation, he could very well be believed to have started the fire by using the inflammable liquids that were in the house. His disposition for taking dramatic steps is confirmed by the suicidal thoughts that he expressed immediately after the fire. The assumption that [the applicant] himself started the fire with the help of inflammable liquids is supported by the development of the fire as witnessed by several eye witnesses and, with the exception of Mr Andersson, by the evidence heard from technical experts on fire incidents. One of the apparent factors which likewise suggests that [the applicant] started the fire is that, as pointed out by the District Court in its judgment of 5 August 1994, immediately before the fire [the applicant] carried his son from his room in the house out to the lorry and the fact that [the applicant] was in the house, in the cellar, at the precise moments that the smoke became apparent. Furthermore, it should be taken into consideration that [the applicant] himself, voluntarily, raised the question of arson with Mr Mats Eriksson [police officer] when the police intervened against him after the fire. The District Court finds that the circumstances adduced in support of the submission that [the applicant] intentionally started the fire outweigh other possible causes of the fire to such a high degree that insurance compensation should not be paid. The appeal shall therefore be rejected.” The applicant appealed to the Svea Court of Appeal. That court, too, sat in a different composition from that in the criminal case. The applicant relied mainly on the same evidence as before the District Court. The Court of Appeal heard evidence from the applicant at his own request and from several expert witnesses and heard tape recordings of a number of witness statements taken by the District Court, including those of the applicant’s wife and mother, at their request. In its judgment of 17 March 1998 the Court of Appeal upheld the District Court’s judgment. Like the District Court, the Court of Appeal first considered the various possible technical causes of the fire and endorsed the District Court’s findings that such causes had to be excluded. “[The applicant]’s behaviour during the midsummer night and the disquiet and anxiety that he aroused in Mrs Lundkvist and his mother indicate that he was mentally highly imbalanced. The information that Mrs Lundkvist finally provided in order to protect him appears, as the District Court held, not to be credible. Furthermore regard should be had to the fact that the statements initially made by [the applicant] about the fire during the police interviews – the first time, when he had not yet been informed that he was under suspicion of having committed an offence – are not supported by the remainder of the investigation. Thereafter he has not been able to contribute any explanation. The Court of Appeal draws the same conclusion as the District Court from the fact that after the initial police interview [the applicant] has given hardly any information about the event. Against this background and having regard to the case as a whole, there is no possibility of considering that the fire was started by any person other than [the applicant]. In view of these considerations the insurance company must be considered to have shown – in accordance with the standard of proof applicable to civil cases of this kind – that [the applicant] started the fire. His request for a declaratory judgement shall therefore be rejected and the District Court’s judgment shall stand.” The applicant sought leave to appeal against the Court of Appeal’s judgment. On 11 November 1998 the Supreme Court refused leave. Chapter 13, section 1, of the Penal Code (brottsbalken) provides: “If a person starts a fire, which entails a danger to another person’s life or health or extensive damage to another person’s property, he or she shall be convicted of incendiarism and be sentenced to imprisonment of between two and eight years. Where the offence is less serious, the person shall be sentenced to imprisonment of between one and three years.” Chapter 1, section 2, first sub-paragraph of the Penal Code reads: “Unless otherwise specifically provided, an act shall be considered a criminal offence only if it has been committed with intent.” “If you have caused the insured event by intent you shall not receive any compensation for your part. The same applies if another person acted with your consent or if the person has significant financial interests in common with you (for example your spouse) and there are no particular reasons to the contrary. This is also the case - except where it concerns a third party insurance - if the insured event has been caused by gross negligence and there are no particular reasons to the contrary.” It is not claimed that the above-cited policy clause conflicted with the relevant provisions of the Consumer Insurance Act, section 32 of which provides that no insurance cover will be provided in favour of an insured person who has intentionally caused the insured event and that the cover may on certain conditions be reduced if an insured event has been caused by gross negligence or negligence which is not insignificant. Different standards of proof apply to criminal and civil cases. In a criminal case the burden of proof is entirely on the prosecutor, who must establish beyond any reasonable doubt that the defendant has committed the act in question and that he did so with the necessary intent or negligence. In a civil case, the burden of proof is normally on the plaintiff. The standard of proof in a civil case differs according to the type of case and the circumstances that have to be proved, but is less strict than in a criminal case. According to examples of Supreme Court case law submitted by the Government (see, e.g., NJA 1984 p. 501, NJA 1986 p. 3, NJA 1986 p. 358, NJA 1986 p. 470 and NJA 1990 p. 93), in cases concerning insurance compensation to consumers it is for the policyholder to show that, having regard to the circumstances as a whole, it is more likely than not that an insured event has occurred. The policyholder’s burden of proof is viewed as somewhat more lenient than the ordinary civil burden of proof. If the insurance company responds that no compensation shall be granted because the policyholder has intentionally caused the insured event, the burden shifts onto the company, which has to prove this in accordance with the ordinary civil standard.