CASE OF LÄHTEENMÄKI v. ESTONIA
No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
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.