25/10/2002 CONCURRING OPINION OF JUDGE TULKENS

(Translation)

1. In principle, the fact that a civil action for damages may be brought after a person has been acquitted by a criminal court on the same facts does not in itself give rise to any particular problem in relation to Article 6 § 2 of the Convention. In other words, under that provision an acquittal does not prevent a court from considering whether the same act, divested of all the circumstances which gave it a criminal character, does not at least constitute prejudice such that the accused incurs civil liability if fault is established. It is, of course, important that the court in which the action for damages is brought should specify the wrongful act on which its decision is based, as distinct from the criminal offence in respect of which a final judgment has been given. In thus accepting the argument that criminal and civil wrongs are separate, I agree with the position expounded by the Court, namely: “[W]hile the exoneration from criminal liability ought to stand in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof ... Furthermore, the purpose of establishing civil liability to pay compensation was, unlike that of establishing criminal liability, primarily to remedy the injury and suffering caused to the victim” (see paragraphs 38-39 of the judgment).

2. The fundamental principle enshrined in Article 6 § 2 is that no person may be treated by representatives of the State as guilty of an offence until this has been established in accordance with the law by a competent court. Furthermore, this provision must be interpreted in such a way as to ensure that the scope of the presumption of innocence is not theoretical and illusory but practical and effective. Accordingly, Article 6 § 2 of the Convention will be applicable if the judicial authorities’ assessment of the conduct of an applicant or a defendant in a civil action for damages undermines the fact that he has been finally acquitted on all the charges against him. The Court expressly acknowledges this in pointing out: “If the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention ” (see paragraph 38 of the judgment). To that end, “the right to the presumption of innocence is binding not only on the criminal courts trying a case but also on courts which are not directly involved in determining the criminal charge” (see Hentrich v. France , judgment of 22 September 1994, Series A no. 296-A, opinion of the Commission, p. 38, § 85).

3. The Court’s task is therefore to ascertain whether, in practice, civil proceedings for damages brought on the basis of the same facts as those in respect of which criminal proceedings have been conducted contain imputations whose nature and scope are such as to establish a link with the criminal proceedings, thereby making Article 6 § 2 of the Convention applicable. That was not the case in this instance. The Supreme Court’s judgment of 5 June 1996 ordering the applicant to pay compensation for non-pecuniary damage under section 3-5(1)(b) of the Damage Compensation Act neither stated nor implied that the applicant was criminally responsible for the offences of which he had been acquitted. That judgment was not incompatible with the applicant’s final acquittal, and the finding that there has been no violation of Article 6 § 2 of the Convention is therefore justified.

25/10/2002 DISSENTING OPINION OF JUDGE COSTA

(Translation)

It seems clear to me that the right to presumption of innocence may continue to apply even after the criminal action has been terminated or the accused has been acquitted, as the Court has held on many occasions, for example in the cases of Minelli v. Switzerland (judgment of 25 March 1983, Series A no. 62), Sekanina v. Austria (judgment of 25 August 1993, Series A no. 266-A), Rushiti v. Austria (no. 28389/95, 21 March 2000) or indeed O. v. Norway , Hammern v. Norway and Y. v. Norway (judgments delivered on the same date as the present judgment).

It also seems clear to me that, as my colleague Judge Tulkens rightly states in her concurring opinion, civil and criminal liability do not fully overlap and there may be a civil wrong, entailing an obligation to redress the damage sustained by the victim on account of the accused, even if the latter has been finally acquitted and has therefore lawfully been declared innocent in the criminal proceedings.

However, in my opinion the civil wrong still has to be distinct from the criminal wrong and the acts regarded as wrongful and prejudicial in civil law must not be exactly the same as those of which the defendant was accused in the criminal proceedings. Otherwise, both the presumption of innocence and the finding that the person acquitted was not guilty would be deprived of any useful purpose if judgment were given against that person in civil proceedings, as it would be paradoxical to protect a mere presumption for as long as it had not been rebutted by a ruling and yet to disregard the proof which reinforced that presumption.

What, then, is the position in the present case? The applicant, who was charged with the sexual abuse of a minor, was acquitted by the High Court after the jury had found him not guilty, and the High Court consequently dismissed the victim’s claim for compensation. The Supreme Court subsequently quashed that decision on appeal, basing its judgment on the following grounds, cited in paragraph 19 of the judgment: “Justice Gjølstad found that the evidence satisfied the standard of proof, establishing that sexual abuse had occurred [emphasis added] and that, on the balance of probabilities, it was clear that the applicant was the abuser [ idem ].”

Admittedly, Justice Gjølstad added: “This decision was taken independently of the decision in the criminal case and ... it did not undermine the acquittal.”

However, these carefully chosen words do not persuade me. Of course, in law an acquittal is irrevocable, but in the present case the acquittal was, in reality, seriously disregarded.

The grounds given for the Supreme Court’s judgment, as set out above, are manifestly indissociable from the judgment’s operative provisions. They form the ratio decidendi of the judgment and have the same binding effect as the operative provisions themselves.

What benefit, then, did the applicant derive from his acquittal (apart from the important fact that he was not subject to criminal penalties)? He was told that he had been acquitted of the offence with which he had been charged, but he was subsequently told (on the basis of the same facts) that it was clear that he had committed the offence , and ordered to pay compensation to the victim. Where is the legal certainty in all that?

I have therefore reached a different conclusion from my colleagues in the majority. I do not consider this case to be distinguishable from those of O. , Hammern and Y. ; I am of the opinion that Article 6 § 2 is also applicable in this case and that it has, moreover, been breached.

I can, of course, appreciate the national courts’ legitimate concern about the interests of victims (who, by definition, are innocent) and of their beneficiaries. That is why, by applying standards of proof that are, in principle, stricter in criminal cases (precisely because of the presumption of innocence) than in civil cases, those courts may seek to establish the civil liability of a person who has been acquitted in criminal proceedings, the view being that the person is essentially liable but not guilty. It is difficult, however, to assert one thing and then the opposite: it cannot simultaneously be maintained that a man has been lawfully declared innocent of an offence (in this case, sexual abuse of a minor) and that he nonetheless probably did commit the offence (even if the probability is only 51%!) and should pay for it.

A fortiori , it cannot be asserted, as in this case, that an innocent person is clearly a criminal. In my opinion, a better means of achieving the aim of fairness in such situations would be to set up a compensation fund for the victims of crimes which remain unpunished or whose perpetrators are not identified. Just as revenge is not justice, compassion is no ground for circumventing justice.