The petition of a criminal court that a minor witness has committed the offense without being an accused can not produce a res judicata in a civil case and base its decision on that.
Kožemiakina v. Lithuania 02.10.2018 (no. 231/15)
The civil court convicted the applicant of compensation for acts of her minor child, found on the basis of petitions in criminal proceedings in which her son was merely a witness and did not have the status of a party, nor of the accused. The courts examining the civil claim were based on the criminal case file, where the applicant’s son confessed that he had beaten the victim but claimed to have done so in a state of self-defense. Since he was not a defendant, the courts in the criminal proceedings did not have the right to prove and examine his guilt. However, the national courts had ruled that the applicant’s son “confessed” and that his “guilt” had been proven.
The ECtHR held that the national courts prevented the applicant from challenging the facts on which its civil liability was based, since it had no opportunity to do so either during the criminal proceedings. Thus the civil proceedings against the applicant were not “fair” within the meaning of Article 6 § 1. Violation of the right to a fair trial.
Article 6 § 1
The applicant, Irina Kožemiakina, is a Lithuanian national who was born in 1969 and lives in Klaipėda (Lithuania).
The case concerned a civil compensation award that was awarded against her and her son, a minor, after the son was involved in an assault on a man.
The applicant’s son, A.K., argued that he had acted in self-defence in the assault, which took place in February 2012. The first-instance court in November 2012 ultimately found a friend of A.K.’s guilty of attacking the man, stating that the applicant’s son had participated in the attack. As a minor below the age of sixteen, the son could not be prosecuted and no finding of guilt was made against him.
The man who had been assaulted made a civil compensation claim against the applicant and her son in May 2013, which led to an award against them. They argued that the criminal court’s judgment on the assault had never assessed her son’s guilt and thus the courts in civil proceedings could not rely on the criminal courts’ findings, but their arguments and appeals against the compensation claim were dismissed in 2014.
Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, the applicant complained that the damages proceedings had been unfair because they had relied on criminal proceedings in which her son had only had the status of a witness and she had not had any procedural status.
THE DECISION OF THE COURT
Article 6 § 1: In cases concerning civil proceedings for compensation following an acquittal or the discontinuation of criminal proceedings, the Court usually examined an applicant’s complaint from the perspective of Article 6 § 2. One of the key questions in such cases was whether the courts in the civil proceedings had made any statements imputing criminal liability to an individual who had not been held liable in criminal proceedings. It had not been alleged, either in the criminal or in the civil proceedings, that the applicant herself had committed any unlawful acts. The applicant’s case therefore did not concern her right to the presumption of innocence guaranteed by Article 6 § 2. Nonetheless, the Court considered that the principles developed in its case-law under that provision were relevant.
In cases involving civil compensation claims lodged by victims, regardless of whether the criminal proceedings had ended in discontinuation or acquittal, the Court had 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. The same principle was applicable in situations such as the applicant’s, in which her minor son could not be held criminally liable because of his age. Consequently, establishing the applicant’s and her son’s joint civil liability arising out of the assault in respect of which her son had not been held criminally liable was not in itself incompatible with Article 6. The question was whether the civil proceedings had been conducted in line with the requirements of a fair hearing.
The courts which had examined the civil claim had relied on the case-file material of the criminal proceedings. In those proceedings the applicant’s son had admitted to having hit the victim but had claimed to have done so in self-defence. Since he had not been the accused, the courts in the criminal proceedings had not been allowed by law to establish his guilt in respect of any criminal acts. Nonetheless, the first-instance court had stated that the applicant’s son had “confessed” and that his “guilt” had been proved. The regional court which had examined the appeals held that it was not necessary to carry out a fresh assessment of the applicant’s son’s role in the assault because it had already been established. In particular, while the applicant had explicitly argued that the judgments given in the criminal proceedings should not have had a res judicata effect in the civil proceedings because they had not concerned her son’s criminal liability, the regional Court rejected that argument and held that the courts in the criminal proceedings had established that unlawful actions had been committed by the applicant’s son and that thus, in line with Article 182 § 3 of the Code of Civil Procedure, those actions did not need to be proved.
The Supreme Court of Lithuania had held in its case-law that not all facts established in final judgments in criminal proceedings had a res judicata effect in subsequent civil cases. A court examining a civil case did not need to establish afresh the criminal acts, their consequences and whether they were committed by the individual with respect to whom the judgment had been given; by contrast, any other facts established in criminal proceedings had been found not to have a res judicata effect in a subsequent civil case.
The domestic courts had considered the applicant’s son’s actions to have been definitively established in the criminal proceedings in which he had been a witness, and had therefore made it impossible for the applicant to question the facts on which her civil liability was based – an opportunity which she had not had in the criminal proceedings either, since those proceedings had not concerned the actions of her son. In such circumstances, the Court could not accept that the civil proceedings against the applicant had been “fair” within the meaning of Article 6 § 1.
Violation of Article 6 § 1
Just satisfaction: 3,000 euros (EUR) (non-pecuniary damage) and EUR 876 (costs and expenses)(echrcaselaw.com editing)