The civil liability of an acquitted driver for driving under the influence of alcohol did not violate his presumption of innocence
JUDGMENT
Ilias Papageorgiou v. Greece 10.12.2020 (app. no. 44101/13)
SUMMARY
Presumption of innocence and civil trials. Civil decisions against the applicant despite the fact that he was acquitted in criminal proceedings for the same facts. The applicant was involved in a car accident and his passenger was injured. He took two breathalyzer tests, with scores of 0.67 and 0.57 mg / l, but was later acquitted by the criminal court for driving under the influence of alcohol.
Lawsuit of the passenger against the applicant and his insurance company. The insurance company brought an action against the applicant. The civil court of first instance ordered the applicant and the insurance company to pay compensation to the passenger, but rejected the insurance company’s claim against the applicant. On appeal, the Athens Court of Appeal ruled that it was not bound by the applicant’s acquittal in the criminal courts and that, under the terms of the insurance contract, the applicant’s conduct relieved the insurance company of its liability. The Supreme Court held that Article 6 § 2 of the ECHR did not require the civil courts to be bound by the judgment of the criminal courts and therefore the Court of Appeal had not questioned the presumption of innocence of the applicant.
The ECtHR found, in particular, that:
a) His acquittal had not relieved the applicant of his civil liability, since the civil case is separate from the criminal case and different rules of proof apply.
b) The criminal exemption should not preclude the determination of civil liability for the payment of compensation arising from the same facts on the basis of less strict burden of proof.
c) The civil proceedings in the case were not an extension of the criminal proceedings.
(d) The insurance company had the right to rely on the terms of the insurance contract independently of the applicant’s acquittal in the criminal court, and
e) The civil courts did not in any way imply the applicant’s guilt or criminal liability.
The ECtHR did not find a violation of the presumption of innocence (Article 6 § 2 of the ECHR).
PROVISION
Article 6 § 2
PRINCIPAL FACTS
The applicant, Ilias Papageorgiou, is a Greek national who was born in 1974 and lives in Athens.
In 2005 the applicant had a car accident. His passenger was injured. The applicant took two
breathalyser tests, with results of 0.67 and 0.57 mg/l. In 2007 he was acquitted in criminal
proceedings of drink driving in a final judgment.
The passenger lodged an action against the applicant and his insurance company. The insurance
company took an action against the applicant, claiming that he, rather than the company, was
responsible as he had been over the alcohol limit at the time. The first-instance court ordered the
applicant and the insurance company to pay compensation, but dismissed the insurance company’s
claim vis-à-vis the applicant. On appeal, the Athens Court of Appeal held that it was not bound by
the applicant’s acquittal in the criminal courts and that, under the terms of the insurance contract,
the applicant’s conduct exempted the insurance company from liability.
The Court of Cassation rejected an appeal on points of law by the applicant, finding that the Athens
Court of Appeal had taken into account the acquittal.
Relying on Article 6 § 2 (presumption of innocence) of the Convention, the applicant complained
that the civil court’s holding that he had been drink driving despite already having been acquitted of
that offence had violated his rights.
THE DECISION OF THE COURT…
Turning to the present case, the Court observes that on 24 October 2007 the applicant was acquitted of driving under the influence of alcohol, an offence provided for in Article 42 of Law no. 2696/1999. No remedies were exercised against that judgment which, thus, became final. Following the applicant’s acquittal, the civil courts were called to rule on the applicant’s civil responsibility arising from the possible breach of his insurance contract. At the appeal stage, the Athens Court of Appeal issued judgment no. 4800/2010 by which it concluded that the applicant was driving under the influence of alcohol and thus, his conduct was excluded from the insurance contract he had signed with the insurance company. That judgment was upheld by the Court of Cassation in its decision no. 215/2013.
The Court firstly notes that it does not share the applicant’s view that the acquittal decision itself should automatically exonerate him of any civil responsibility. On the contrary, it has repeatedly held that, while exoneration from criminal liability ought to be respected in civil 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.
The Court notes that in the present case not only were the civil proceedings instituted later, but they also took place before a different court with a different composition of judges. They were therefore neither an accessory to the criminal proceedings (a contrario, Lagardère v. France, no. 18851/07, §§ 7 and 81, 12 April 2012) nor merely a continuation of the criminal proceedings.
In this regard, the Court observes that, while the conditions for applying the impugned insurance policy clause could in certain respects overlap, depending on the circumstances, with those for establishing criminal liability, the insurance company’s submission that the applicant, on account of his conduct, was liable for the damages they would be required to pay to D.S., was nevertheless to be determined on the basis of the principles that were proper to the civil law of tort (see Lundkvist v. Sweden (dec.), no. 48518/99, ECHR 2003‑XI). By reference to the relevant articles of the joint ministerial decision, which for its part referred to the relevant article of the Traffic Code, the Court of Appeal made it clear that it had to examine an exemption clause of the insurance contract and no acknowledgment of criminal liability was intended. The Court also notes that, according to the rules of domestic law, the outcome of the criminal proceedings was not decisive for the civil case. The insurance company had a right to rely on the exemption clause, regardless of whether the defendant was convicted or, as here, acquitted, and the compensation issue was to be the subject of a separate legal assessment based on criteria and evidentiary standards which differed in several important respects from those applicable to criminal liability.
In addition, the civil jurisdictions determined the issue on the basis of the evidence presented before them. Unlike criminal procedural law, the civil courts had to rely on the evidence presented by the parties and rules on the burden of proof applied. While some of that evidence had also been the evidence presented before the criminal jurisdictions, such as the measurements of the alcohol in the applicant’s blood, the civil jurisdictions were required to examine and re-evaluate the elements therein. Furthermore, these elements were accompanied by other evidence, the totality of which was brought to the courts’ attention in adversarial conditions, and it was on the basis of that totality of evidence that the Court of Appeal ruled and its decision was later upheld by the Court of Cassation (see, mutatis mutandis, Vella v. Malta, no. 69122/10, § 59, 11 February 2014). In particular, it follows from the Athens Court of Appeal’s conclusions that it took into account the measurements of the applicant’s alcohol levels, but also his testimony before it and the speed of his car at the time of the accident in order to conclude that the insurance exemption clause should apply. The Court of Appeal made a separate assessment of the facts in order to determine whether the constitutive elements of an offence had been fulfilled, but also assessed the additional elements for establishing civil liability. It did not set out first to demonstrate that the applicant had in fact committed a criminal offence in order then to be able to rule on the compensation claim.
The Court reiterates that the language used by the decision-maker is of critical importance in assessing the compatibility of the decision and its reasoning with Article 6 § 2. In the circumstances of the present case, it notes that the Athens Court of Appeal used the expression “was driving under the influence of alcohol”, as provided for by Article 42 of the Traffic Code. In the Court’s view this does not in itself present a problem, as the expression is not reserved for the criminal-law sphere but is equally used in the civil law of tort as certain elements of a penal provision could be the basis for both criminal and civil liability. Read in context of the judgment as a whole, the use of the said expression by the Court of Appeal in the instant case cannot reasonably be read as an affirmation imputing criminal liability on the part of the applicant. The Court also notes that the applicant himself has not put forward any allegations as regards the wording of the reasoning in the Court of Appeal’s judgment or in that of the Court of Cassation which upheld the judgment of the Court of Appeal.
In view of the above, the Court does not discern in the Court of Appeal’s reasoning any element in its description of the facts in respect of which it found the applicant civilly liable to pay compensation or in its assessment of those facts that could be viewed as amounting to the establishment of criminal guilt on the applicant’s part. Nor did the Court of Appeal’s reasoning contain any statement suggesting, either expressly or in substance, that all the conditions were fulfilled for holding the applicant criminally liable with respect to the charges of which he had been acquitted.
In the light of the foregoing, the Court reiterates that particular care ought to be exercised when formulating the reasoning in a civil judgment after the discontinuation of criminal proceedings. However, taking into account the nature and context of the civil proceedings in the present case, it considers that the finding of civil liability was not contrary to the presumption of innocence. Those terms could not reasonably have been read as an affirmation imputing criminal liability. There has accordingly been no violation of Article 6 § 2 of the Convention.
