THIRD SECTION

DECISION

Application no. 47456/18 Nikolai TEPLJAKOV against Estonia

The European Court of Human Rights (Third Section), sitting on 6 July 2021 as a Committee composed of:

Dmitry Dedov, President, Darian Pavli, Andreas Zünd, judges,

and Olga Chernishova, Deputy Section Registrar ,

Having regard to:

the application (no. 47456/18) 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 Nikolai Tepljakov (“the applicant”), on 1 October 2018;

the decision to give notice to the Estonian Government (“the Government”) of the complaint concerning the right to freedom of expression under Article 10 of the Convention and to declare the remainder of the application inadmissible;

the parties ’ observations;

Having deliberated, decides as follows

THE FACTS

1 . The applicant was born in 1946 and lives in Sindi. He was represented before the Court by Ms B. Mõttus, a lawyer practising in Pärnu.

2 . The Government were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 27 September 2016 the police conducted a search at a property that they believed belonged to the applicant ’ s son J.T. The applicant ’ s son and the applicant ’ s ex-wife, S.K., were present from the start of the search. The applicant arrived at the scene while the search was in progress, wanting to access the property.

5 . According to the information that the applicant submitted in his initial application to the Court, he had wanted to access the property, but a police officer had acted arrogantly and had pushed him in the chest (where he had recently had a pacemaker installed). In his observations submitted to the Court during the proceedings, the applicant described how he had been confused during the events in question (including owing to a language barrier and because the police officers were not in uniform) and had not understood why he was not allowed onto the property. He added that while he was trying to move past the police officers, some physical contact might have occurred. He stated that he might have made some hand gestures, but that he had not been aggressive.

6 . The Government, relying on the domestic courts ’ decisions (see paragraphs 14 - 15 below), stated that there had not been any physical contact between the applicant and a police officer.

7 . There is no medical record of the applicant having been injured as a result of the alleged physical contact between him and the police officer.

8 . On 6 October 2016 the applicant lodged an application ( avaldus ) with the district prosecutor ’ s office . The application stated as follows:

“I would like to know whether the behaviour of the police last week, on 27 September 2016, at ... was standard and lawful ... namely, the ... police officer [P.T.] behaving arrogantly, laughing and pushing me several times. Firstly, how can anyone possibly push a person of my age, not to mention that this was done by someone wearing a uniform? Secondly, I recently had major surgery, during which a pacemaker was installed ... The police officer [P.T.] pushed me in the area of the pacemaker; I felt physical pain and the consequences could have been even more serious.

The police officer [P.T.] laughed in my face, behaved arrogantly [ ülbitses ] and called J.T. a thief. ...

I would like to see the district police officer [P.T.] punished for her behaviour, as she did not behave respectfully [ lugupidavalt ] towards a person who is much older than her and caused physical pain which is punishable under Article 121 of the Penal Code.”

9 . The application was forwarded to the West Prefecture of the Police and Border Guard Board (PBGB). The Internal Control Bureau of the PBGB conducted an investigation, asking for written reports ( ettekanne ) from all the police officers who had been present during the search. The various reports, including the one by the police officer in question, stated that the police officer P.D. (whom the applicant had mistakenly referred to as P.T.), had not hit, pushed or touched the applicant. It was noted in the reports (parts of which had been redacted) that the applicant had been irritated, had yelled and gesticulated with his hands, and had tried to push past the police officers, who had been standing shoulder to shoulder.

10 . During a meeting on 20 October 2016 at the PBGB, the applicant explained that the house where the search had been conducted belonged to him. He had been approaching the scene of the search when the police officer, without introducing herself, had stepped towards him and – without explaining anything – pushed him in the chest with both hands. The push had not been forceful, but had caused the applicant great pain as the police officer ’ s hand had touched the exact area of his body where the pacemaker had recently been installed.

11 . On 21 October 2016 the PBGB, referring to the material gathered during the investigation, decided not to initiate criminal proceedings against P.D ., as no elements of a statutory offence had been established. As the applicant ’ s application relating to the incident in question was considered to possibly contain elements of the offence of false accusation under Article 319 of the Penal Code, it was forwarded to the district prosecutor ’ s office. The applicant did not appeal against the decision not to have criminal proceedings initiated, nor did he complain that some of his initial complaints had not been investigated.

12 . On 21 June 2017 the prosecutor ’ s office filed a statement of charges against the applicant with the Harju County Court, charging him with knowingly making a false accusation. He was committed for trial on 5 September 2017. The court accepted four of the five defence witnesses proposed by the applicant. The one witness that the court refused to accept was the applicant ’ s daughter. At a later stage the applicant asked the court to change his State-appointed legal aid lawyer, alleging that the lawyer had not proposed his son J.T., who had been present during the search, as a defence witness. The court dismissed the request for a change of lawyer, but explained that both the prosecution and the defence had the right to submit evidence at any time during the court ’ s examination of the case ( kohtuliku uurimise vältel ).

13 . At a hearing on 31 October 2017, the police officer P.D. (as the victim) and the applicant were heard. The Harju County Court also heard six other police officers, and  as a defence witness  the applicant ’ s ex-wife, S.K. The applicant withdrew his request to have three other defence witnesses examined as they had not been at the scene of the search. The police officers stated either that there had not been any physical contact between the applicant and P.D. or that they had not seen any such contact. S.K. said that P.D. had run towards the applicant, but that she had not seen whether there had been any physical contact between the two. She stated that she had seen the applicant lean back against a trailer nearby to maintain his balance. The applicant described how he had approached the scene of the search, and how the police officer had “surged towards him” ( lendas mulle peale ) and had pushed him in the chest with one hand. He had grabbed his chest (where the pacemaker had been installed) and had leaned back against a trailer, as he would otherwise have fallen over. In reply to the prosecutor ’ s question about how many times the police officer had pushed him, the applicant said: “Definitely a couple of times, maybe more.”

14 . On 7 November 2017 the Harju County Court convicted the applicant under Article 319 § 1 of the Penal Code of having knowingly submitted a false accusation. The court noted that that Article protected the interests of the administration of justice and the interests of the person in respect of whom the false accusation had been made. The court noted that in order to be considered a criminal complaint, the information set out in it had to be such that would make the initiation of criminal proceedings possible, that is to say, that it had to indicate the circumstances and the nature of the alleged criminal offence. In the instant case that criterion had been met: in his application to the police, the applicant had specifically named P.D. and had wanted to see her punished under Article 121 of the Penal Code. After analysing all the evidence before it, and after assessing the credibility of the witness statements, the court concluded that P.D. had not pushed the applicant. The court further found that the applicant had known that P.D. had not pushed him and had thus knowingly – with direct intent – made a false accusation. He had known, or had at least tacitly accepted ( möönnud ), that such a complaint could lead to the institution of criminal proceedings against P.D. and possibly her conviction.

As to the witnesses, having regard to how the situation had unfolded and where the various persons had been positioned, the court found it unlikely that J.T. could have provided a witness statement of any value.

The court took into account the fact that the applicant had no previous criminal record, and that he had understandably been upset by the ongoing criminal proceedings involving his son. The court imposed a fine on him close to the minimum rate permitted by law – that is, 350 euros (thirty-five daily rates) – and allowed the fine to be paid in twelve instalments, given his limited income as a pensioner.

15 . On 3 January 2018 the Tallinn Court of Appeal dismissed an appeal by the applicant and upheld his conviction. The court emphasised that the applicant had not merely assessed the situation incorrectly but had described the events completely differently from how they had taken place in reality. The court also noted that no request to call J.T. as a defence witness had been made either in the statement of defence or during the hearing at the Harju County Court.

16 . On 25 April 2018 the Supreme Court refused to examine an appeal on points of law by the applicant.

17 . Under Article 44 § 1 of the Penal Code ( karistusseadustik ), a court may impose a pecuniary sanction ranging from thirty to five hundred daily rates as punishment for a criminal offence.

18 . Article 319 § 1 provides that the making of knowingly false accusations concerning the commission of a criminal offence by another person is punishable by a pecuniary sanction or by a term of imprisonment of up to one year.

19 . Article 194 § 1 of the Code of Criminal Procedure ( kriminaalmenetluse seadustik ) provides that the basis for the commencement of criminal proceedings is a criminal-offence report ( kuriteoteade ) or other information indicating that a criminal offence has taken place.

20 . Article 195 § 2 adds that a report in which a person is accused of a criminal offence is a criminal complaint ( kuriteokaebus ).

21 . Article 228 § 1 provides that before a statement of charges is prepared, a participant in proceedings or a person not subject to the proceedings has the right to lodge an appeal with the prosecutor ’ s office against a procedural act or order of the investigative body if he or she considers that a violation of the procedural requirements in the performance of the procedural act or preparation of the order has resulted in a violation of his or her rights.

22 . Section 86 of the Police and Border Guard Act ( politsei ja piirivalve seadus ) lists acts that are considered to be disciplinary offences, namely: (i) wrongful non-performance or unsatisfactory performance of functions; (ii) wrongfully causing damage to the property of an administrative agency or wrongfully causing a risk of such damage; and (iii) an indecent act, that is to say, a wrongful act which is in conflict with generally recognised moral standards or ethical standards set for officials, or which discredits an official or administrative agency, regardless of whether the act is committed during or outside the performance of official duties.

COMPLAINT

23 . The applicant complained that the criminal proceedings against him and his subsequent conviction had violated his right to the freedom of expression under Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

THE LAW

Alleged violation of Article 10

(a) The Government

24 . The Government argued that making a false accusation against a police officer had to be considered an abuse of rights under Article 17 of the Convention and thus did not warrant protection under Article 10 of the Convention. Even if Article 10 were found to be applicable, the restriction of the applicant ’ s right to the freedom of expression had been in accordance with the Convention. It had had a legal basis (Article 319 of the Penal Code) and it had pursued the legitimate aim of protecting the interests of the administration of justice and the rights and freedoms of the person against whom the false accusation had been made. The interference had been proportionate.

25 . It was irrelevant whether an application or complaint was formally entitled a “criminal complaint” (see paragraphs 19 - 20 above). If it pointed to the elements of a criminal offence, it was to be treated as a criminal complaint and an investigation had to be initiated. In the case at hand, the applicant had pointed to a specific police officer who had allegedly pushed him and whom he had wanted to see punished. He had also referred to a specific Article of the Penal Code. It had been unequivocally established in the domestic proceedings that there had not been any physical contact between the applicant and the police officer in question. Moreover, the punishment had not been overly severe (a fine rather than a prison sentence) and had taken into account the applicant ’ s personal circumstances (see paragraph 14 above). The Government admitted that individuals had the right to lodge various complaints, but they had to be based on true facts. The Government stated that the case was to be distinguished from instances of insulting or defaming public officials.

(b) The applicant

26 . On the application form, under the heading “Statement of the Facts”, the applicant stated that the application he had lodged with the district prosecutor ’ s office on 6 October 2016 could not be seen as a false accusation as the events described therein had actually taken place. He added in his application that when he had tried to access the property, the police officer in question had used force to stop him and had pushed him in the chest, causing him physical pain. In the same section of the application form the applicant also stated that his application to the district prosecutor ’ s office was not a false accusation but a mere request for clarifications ( selgitustaotlus ). Under the heading “Statement of alleged violations of the Convention”, the applicant complained that his right to express a belief (or an opinion) that the police officer had pushed him in the chest – of which he had truly been convinced ( tõsikindlalt veendunud ) – had been violated. He also mentioned that his request to call a witness had been refused, that his son J.T. had not been called as a defence witness and that thus the full scope of the case was not elucidated in the domestic proceedings.

27 . In his observations submitted to the Court during the proceedings, the applicant argued that his intention, when lodging the application with the district prosecutor ’ s office on 6 October 2016, had not been to initiate criminal proceedings against anyone. He had merely wanted to enquire whether the police officer ’ s conduct in general had been acceptable and he had expected an official response. The police officer ’ s behaviour could simply have been deemed unethical or inappropriate. Thus, the application had not been a criminal complaint and he had not wanted to accuse P.D. of a criminal offence, let alone knowingly make a false complaint. The domestic investigation, which had focused solely on the aspect of possible physical contact between the police officer and the applicant, had been too narrow in scope and thus insufficient. Domestic law provided for an opportunity to make complaints about the actions of public officials and a possibility of initiating disciplinary proceedings against such officials (see paragraphs 21 and 22 above). Owing to the nature of their work, police officers had to be prepared for the possibility that complaints could be lodged against them. The applicant pointed out that his mother tongue was Russian and that he could not be expected to have known how to lodge a correct application in such circumstances. He added that the situation had been confusing for him and that when a police officer had specifically tried to prevent him from moving forward, “physical contact could still have taken place” which he had interpreted as a push.

28 . The applicant was convicted and punished for having lodged a complaint that the courts found to have been a false accusation within the meaning of Article 319 § 1 of the Penal Code.

29 . The Government argued that such false accusations should not fall within the scope of Article 10 of the Convention.

30 . The Court notes that it has in its previous case-law addressed matters such as submitting a criminal complaint containing misleading information to the authorities or making unfounded accusations of unlawful and improper conduct by a prosecutor as falling within the scope of Article 10 of the Convention (see LeÅ¡ník v. Slovakia , no. 35640/97, ECHR 2003 ‑ IV, and Fuchs v. Germany (dec.), nos. 29222/11 and 64345/11, 27 January 2015). It does not discern any reason to hold otherwise in the case at hand. It thus holds that the facts of the present case are covered by the scope of Article 10.

31 . The Court further finds that the conviction of the applicant constituted an “interference”, in the form of a “penalty”, with the exercise of his right to freedom of expression (see Lešník , cited above, § 41; Shahanov and Palfreeman v. Bulgaria , nos. 35365/12 and 69125/12, § 54, 21 July 2016).

32 . It is not disputed that the interference had a legal basis, namely Article 319 § 1 of the Penal Code, and that the relevant law was accessible and foreseeable.

33 . The Court agrees with the domestic courts that the interference was intended to protect the rights of others, as well as to protect the interests of the administration of justice (and thus contributed to the prevention of disorder or crime). It therefore pursued legitimate aims.

34 . It remains to be analysed whether the interference was “necessary in a democratic society” to achieve those aims.

35 . The Court reiterates that there is no doubt that in a democratic society, individuals are entitled to comment on and criticise the administration of justice and the officials involved in it. However, such criticism must not overstep certain limits (see Lešník , cited above, § 55). In that connection the Court has stated that it is open to the authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith, and that public servants, in particular, may need protection from offensive, abusive and defamatory attacks calculated to affect them in the performance of their duties and to damage public confidence in them and the office they hold (see Shahanov and Palfreeman , cited above, § 58). The Court has also observed that the States Parties to the Convention are entitled to penalise the deliberate submission of misleading information to public prosecutors in order to safeguard the function of the public prosecution service in preventing disorder or crime (see Fuchs , cited above, § 40).

36 . The Court has held that the Contracting States have a certain margin of appreciation in assessing whether there exists a pressing social need for an interference, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks attributed to the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Lešník , cited above, §§ 51-52).

37 . Turning to the facts of the present case, the Court notes that the domestic courts based the applicant ’ s criminal conviction on the consideration that he had knowingly submitted a criminal complaint that contained false information about a police officer having pushed him and having caused him pain. The Court emphasises, however, that the applicant ’ s conviction was not an automatic conclusion that the domestic courts drew from the fact that the PBGB had refused to initiate criminal proceedings against P.D. (compare and contrast, mutatis mutandis , Klouvi v. France , no. 30754/03, § 48, 30 June 2011, which addressed, albeit in the context of Article 6 § 2 of the Convention, a (statutory) presumption of a person having lodged a false accusation).

38 . On the contrary, the Harju County Court heard the applicant, the police officer P.D. and several other police officers who had been present at the scene of the search, as well as – as a defence witness – the applicant ’ s ex-wife. The domestic court ’ s decisions regarding the hearing of various witnesses do not appear to have been arbitrary (see paragraphs 12 - 15 above).

39 . The domestic courts found, examining all the evidence before them, that the applicant ’ s accusation about the police officer having pushed him had been unsubstantiated and that such an incident had not actually taken place. There is no information before the Court to indicate that this finding was contrary to the facts of the case or otherwise arbitrary.

40 . The domestic courts also analysed the contents of the application that the applicant had submitted to the district prosecutor ’ s office. The Harju County Court specifically took note of the fact that the applicant had lodged a complaint against a clearly identifiable police officer, claiming that she had pushed him several times in the area of his pacemaker, and had wanted her to be punished under Article 121 of the Penal Code. They concluded that the applicant had known that the facts that he had alleged had not been true and that he had at least tacitly accepted ( möönnud ) that such a complaint might lead to the initiation of criminal proceedings against P.D. (see paragraph 14 above).

41 . The Court is satisfied that the reasons given by the domestic courts as to why they considered that the applicant had submitted a false accusation within the meaning of Article 319 § 1 of the Penal Code were relevant and sufficient.

42 . As to the applicant ’ s allegation that he had not intended to lodge a criminal complaint but had simply sought an official response and clarifications from the prosecutor ’ s office, the Court observes that under the domestic law, a “criminal complaint” is defined as a report in which a person is accused of a criminal offence regardless of the title given to the report. The Court considers, moreover, that it is first and foremost for the domestic authorities to determine, on the basis of its content, how an application to the authorities is to be classified and processed. In his application to the authorities the applicant expressly referred to misconduct by the named police officer, alleged that she had pushed him and had caused him physical pain and qualified her behavior as criminal (see paragraph 8 above). In such circumstances, there is no doubt that the consequences of such accusations for the said police officer were sufficiently serious (see Lešník , cited above, § 59 ).

43 . The Court observes, in addition, that although in the domestic proceedings the applicant had alleged, as a matter of fact, that he had been pushed several times (see paragraphs 8 and 13 above), it was only in his observations submitted to the Court that he stated that he had been confused and that “some physical contact” between him and the police officer “could have taken place”. The Court finds that such a change in the applicant ’ s claims during the proceedings does not inspire confidence that he was acting in good faith when informing the authorities of the alleged misconduct of the police officer (compare and contrast with Marin Kostov v. Bulgaria , no. 13801/07, § 45, 24 July 2012, and Marchenko v. Ukraine , no. 4063/04, § 47, 19 February 2009).

44 . As to the proportionality of the sanction, the Court notes that the domestic courts ruled on a fine rather than a prison sentence. Moreover, the amount of the fine was close to the minimum allowed under the law and the applicant was permitted to pay it by instalments, taking into account his income as a pensioner. Against that background, the Court does not find that that the sentence imposed on the applicant was disproportionate to the aim pursued.

45 . Taking into account the above reasoning, the Court accepts that the interference with the applicant ’ s right to freedom of expression was justified under paragraph 2 of Article 10 as being necessary in a democratic society for the prevention of disorder or crime and for the protection of the rights of others.

46 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 July 2021 .

             {signature_p_2}

Olga Chernishova Dmitry Dedov Deputy Registrar President