CONCURRING OPINION OF JUDGE DEDOV

I voted for a finding of no violation of Article 6 § 2 of the Convention for reasons other than those set out in the judgment. In the light of the separate opinions produced by in previous similar cases Judges Costa and Tulkens ( Ringvold v. Norway , no. 34964/97, ECHR 2003 ‑ II ) and Judge Gaetano ( Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013 ), in which they expressed serious doubts and concerns about the non-applicability of the presumption of innocence in civil compensation proceedings, it would appear that the issue of legal methodology has still not been resolved in a manner compatible with the rule of law.

Indeed, the possibility of awarding compensation in connection with criminal proceedings after acquittal cannot be justified by general reference to “the interests of economy of procedure” (see paragraph 26 of the judgment) or to the civil law of tort (paragraph 40) or to “a lesser strict burden of proof” (paragraph 45) or to “a clear probability – civil standard of proof – that the applicant ... had ill-treated ... the children” (paragraph 47).

In the above-mentioned separate opinions, Judge Tulkens stated that “the accused incurs civil liability if fault is established”, while Judge Costa stressed that “the presumption of innocence may continue to apply even after the criminal action has been terminated or the accused has been acquitted” and that if the person “was told that he had been acquitted of the offence with which he had been charged”, this person cannot be “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”.

Thus, if the presumption of innocence must apply in terms of personal guilt, it follows that different grounds – which exclude applicability of the presumption of innocence – must be used for the purpose of liability. Such methodology requires that liability should not be based on the defendant ’ s personal involvement. This approach cannot be satisfied by the High Court ’ s view that “her consent to the acts was sufficient [to make] her liable”, because at the same time the High Court “left open the identity of the person... who inflicted the damage” (see paragraph 47). If the applicant consented to ill-treatment, then the investigators should, as a rule, identify the person to whom she gave her consent. The Court concludes that the term “aiding and abetting” is used in the civil law of tort, unlike “violence” and “ill-treatment” (see paragraph 48). Again and again, however, the discussion revolves around the issue of whether personal guilt is to be established.

However, the civil law of tort is normally based on other grounds when obliging a person who did not commit harmful acts to compensate damage. Such persons may not have been directly involved in the actions in question, but objective reasons exist which give rise to their liability. For example, an employer is liable for his/her employees ’ actions, and an owner of dangerous equipment is liable for damage inflicted by that equipment on third persons. This approach is consistent with that set out in the Principles of European Tort Law:

“Article 1:101. Basic norm

(1) A person to whom damage to another is legally attributed is liable to compensate that damage.

(2) Damage may be attributed in particular to the person

(a) whose conduct constituting fault has caused it; or

(b) whose abnormally dangerous activity has caused it; or

(c) whose auxiliary has caused it within the scope of his functions.

Article 4:103. Duty to protect others from damage

A duty to act positively to protect others from damage may exist if law so provides.

Article 4:202. Enterprise Liability

(1) A person pursuing a lasting enterprise for economic or professional purposes who uses auxiliaries or technical equipment is liable for any harm caused by a defect of such enterprise or of its output unless he proves that he has conformed to the required standard of conduct ...

Article 6:101. Liability for minors or mentally disabled persons

A person in charge of another who is a minor or subject to mental disability is liable for damage caused by the other unless the person in charge shows that he has conformed to the required standard of conduct in supervision.

Article 6:102. Liability for auxiliaries

(1) A person is liable for damage caused by his auxiliaries acting within the scope of their functions provided that they violated the required standard of conduct ... ”

In the Allen judgment, cited above, the Grand Chamber accepted a different (statutory) ground where the presumption of innocence was not to apply, namely where the conviction by a court had occurred without any miscarriage of justice and the person was released on the basis of a new circumstance which was wholly or partly attributable to the person (ibid., § 49). More specifically, the Court made its assessment in paragraph 128 of the Allen judgment:

“128. It is also important to draw attention to the fact that section 133 of [the Criminal Justice Act 1988] required that specified criteria be met before any right to compensation arose. These criteria were, put concisely, that the claimant had previously been convicted; that she had suffered punishment as a result; that an appeal had been allowed out of time; and that the ground for allowing the appeal was that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice. The criteria reflect, with only minor linguistic changes, the provisions of Article 3 of Protocol No. 7 to the Convention, which must be capable of being read in a manner which is compatible with Article 6 § 2. The Court is accordingly satisfied that there is nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicant ’ s criminal guilt”.

In the instant case the Court did not use the above methodology and found it unnecessary to make any reference to paragraph 128 of the Allen judgment. Instead, it referred to the Allen judgment in a different context (see paragraphs 39 and 41 of the present judgment).

It is noteworthy that both this case and the Allen case concern similar circumstances: damage was caused to children and the issue of their parents ’ liability for this damage was raised before the domestic courts. Thus, liability is , in general , to be based on the positive obligation to protect the life and well-being of those who are under the control of third persons , and, in particular, parents ’ liability is based on their obligation to take care of their children. This approach is consistent with a duty under Article 4:103 of the Principles of European Tort Law to act positively to protect others from damage , and with the Court ’ s case-law on the State ’ s responsibility for alleged ill-treatment of those placed under the control of the State authorities. This approach requires that the burden of proof should be shifted to such a person. The Court has reiterate d in such cases that “it is incumbent on the State to provide a plausible explanation of how those injuries were caused” (see Selmouni v. France [GC], no. 25803/94 , § 87, ECHR 1999 ‑ V, with further references).

Returning to this case, the position of the national first-instance court is very close to this approach. The City Court found that the parents did not “prevent the acts of violence carried out against the children in regard to whom they had a duty of care” ( see paragraph 7 of the judgment ).