The finding of civil liability is not contrary to the presumption of innocence, when based on additional evidence.


Fleischner v. Germany 3/10/2019 (no. 61985/12)

see here


Civil and criminal liability, obligation to pay damages.

The applicant was charged with four others for abductions. The criminal proceedings against him were adjourned as ruled unfit to stand for trial, but the Civil Courts recognized the applicant’s civil liability and his obligation to pay damages despite the criminal case being set aside. The domestic courts dismissed his appeals.

The Court found that the civil proceedings did not relate to the ‘same facts’ and, although the events giving rise to the applicant’s civil liability were linked to events for which he had been charged in the criminal proceedings, the civil courts’ decision to award civil damages liability was based on additional evidence, so the recognition of civil liability was not contrary to the presumption of innocence.


Article 6§2


The applicant, Gerhard Fleischner, is a German national who was born in 1942 and lives in Schliersee (Germany).

The case concerned his civil liability being established in a kidnapping case, despite the earlier discontinuation of the criminal proceedings against him.
The applicant and four co-accused, including his wife, were indicted on kidnapping charges. The other defendants were convicted but the charges against the applicant were discontinued as he was found unfit to plead in August 2011.

Subsequently, the kidnapping victim’s civil proceedings against the applicant and the other accused were successful. In December 2011 the civil court relied on findings of fact set out in the judgment delivered by a criminal court namely, that the applicant and the other accused had fulfilled certain constituent elements (Tatbestand) of the crime of kidnapping. The civil court was thereby able to establish the applicant’s civil liability despite the criminal proceedings against him being discontinued.

In April 2012 the Regional Court unanimously rejected the applicant’s appeal without an oral hearing. The Federal Constitutional Court dismissed a final complaint lodged by the applicant.
Relying in substance on Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights, the applicant complained in particular that he had been held liable for a criminal offence even though the criminal proceedings against him had been discontinued.


The Court reiterates that the presumption of innocence does not only apply in the context of pending criminal proceedings, but also protects individuals in respect of whom criminal proceedings have been discontinued from being treated by public officials and authorities as though they are in fact guilty of the offence charged .

The Court must therefore determine whether the District Court’s reasoning was in compliance with the presumption of innocence under Article 6 § 2 of the Convention. It reiterates that there is no single approach to ascertain the circumstances in which Article 6 § 2 of the Convention will be violated in the context of proceedings which follow the conclusion of criminal proceedings. Much will depend on the nature and context of the proceedings in which the impugned decision was adopted. In this context, the Court has repeatedly emphasised 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 . Nevertheless, it emerges from the Court’s case-law that the language used by the domestic courts is of critical importance . A distinction has been drawn between cases where a final acquittal judgment has been handed down and those where criminal proceedings have been discontinued. In cases after an acquittal, the voicing of suspicion regarding an accused’s innocence is no longer admissible. In contrast, the presumption of innocence will only be violated after a discontinuation, when a judicial decision concerning him reflects an opinion that he is guilty .

With regard to the language used, the Court observes that the District Court’s judgment contained the statement that the applicant’s actions had “fulfilled the constitutive elements of deprivation of liberty under Article 239 of the Criminal Code and of coercion under Article 240 of the Criminal Code”. This was not a statement about the applicant’s criminal guilt. The District Court deliberately used the technical legal term “constitutive elements” (Tatbestand) to make it clear that it had solely assessed certain elements of a penal provision that could be the basis for both criminal and civil liability . It limited itself to that finding and did not expressly find that the applicant had committed the offences of which he had been accused and in relation to which the criminal proceedings had been discontinued

Lastly, although the District Court based its findings on the submissions and witness testimony reproduced in the criminal judgment concerning the four co-accused as documentary evidence, it had been required to examine and re-evaluate the submissions therein. In this context, it must be reiterated that even though the events resulting into the applicant’s civil liability were connected with those in respect of which the applicant had been charged in the criminal proceedings, compensation was primarily awarded for retrieving A’s money. That had been not the subject of the criminal proceedings. Thus, the civil proceedings did not concern the “same facts”. Since the outcome of the criminal proceedings was not binding for the civil courts, the District Court 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.

In the light of the foregoing, the Court reiterates that extra 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 as well as the well-established meaning and effect under domestic law of the concrete legal terms used, 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(


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