JOINT DISSENTING OPINION OF JUDGES VILLIGER AND YUDKIVSKA

We regret that we cannot follow the conclusion of the majority. Rather, we find that the impugned statements in the reasoning of the Frankfurt am Main Regional Court ’ s judgment of 17 September 2008 did indeed violate the applicant ’ s right to be presumed innocent.

We acknowledge, like the majority, that in complex criminal proceedings involving several suspects who cannot be tried together, references to the participation of separately prosecuted co-suspects by the trial court may be indispensable for assessing an accused ’ s guilt. The applicant himself conceded that such references were necessary with a view to establishing the circumstances of a case involving several accused and in order to determine their individual contribution to the commission of an offence.

We further accept that in the proceedings at issue the Frankfurt am Main Regional Court was not called upon to determine the applicant ’ s guilt and that its jurisdiction, in line with the provisions of domestic law on criminal procedure, was limited to assessing the criminal responsibility of those accused within the particular trial conducted by it.

However, in our view these considerations are not sufficient to conclude that the impugned references to the applicant ’ s contribution in the investigated crime did not breach the principle of the presumption of innocence, one of the fundamental principles enshrined in the Convention.

In this context we would refer to the Court ’ s case-law according to which, in determining whether a judicial decision or a statement by a public official amounts to a prejudgment of a person ’ s guilt, a fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. While the choice of words by public officials is of critical importance in this respect (see, among other references, Daktaras v. Lithuania , no. 42095/98, § 41, ECHR 2000 ‑ X), the Court has emphasised i n its recent judgment in the case of Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013) that even the use of some unfortunate language may not be decisive when regard is had to the nature and context of the particular proceedings (ibid. , § 126).

The presumption of innocence implies that a moral and legal qualification of an accused ’ s acts may only be given by a court and only within the scope of adversarial judicial proceedings. In the present case, however, the court gave an assessment and legal qualification of the applicant ’ s actions in the separate proceedings against his co-accused . Contrary to the majority, we consider that the references to the applican t ’ s participation in the organis ed crime and the language employed by the Regional Court in this respect, even when considered in the context of the particular proceedings, amounted to a prejudgment of the applicant ’ s guilt.

Not only does the Regional Court ’ s judgment cite the applicant ’ s full first and last name s on numerous occasions, it also clearly follows from these references read in conjunction with the passages describing the contribution of the further perpetrators abroad that “the persons behind the scenes” in Turkey pulled the strings in the criminal enterprise and that the applicant played “a preeminent role” in this respect.

Thus the Regional Court established the actus reus of the applicant ’ s actions in the course of the separate proceedings against his co-accused , whilst the sole task of the court in such proceedings was to establish whether the co- accused had committed a crime. It is true that these issues are connected and interdependent to some extent, and cross-reference is inevitable as mentioned above. However, in order to establish the proven limits of the co-accused ’ s actions the court was not obliged to determine with precision the role of the applicant ; reference to an alleged role of the separately prosecuted person would have been sufficient.

We would emphasi s e in this respect that the Regional Court stated in the judgment that the circumstances of the case ( Sachverhalt ) , including the applicant ’ s role, “ha [d] been established” ( steht fest ) on the basis of the available means of evidence (see p. 22 of the Regional Court ’ s judgment). There can be no clearer statement!

In view of these considerations, we find that the relevant passages in the judgment ’ s reasoning were not limited to the description of a mere “state of suspicion” against the applicant and consequently went beyond what was necessary for establishing the accused ’ s guilt. They implied, by contrast, that the Regional Court had found it established that the applicant had been one of the main perpetrators involved in the joint criminal enterprise, thus prejudging the outcome of future criminal proceedings against him. The statements taken as a whole could not but have encouraged the public to perceive the applicant as the head of a criminal organisation established for fraudulent purposes – and all this despite the fact that the applicant was not a party to the criminal proceedings.

In our view, the qualification of the applicant ’ s status in the judgment ’ s reasoning as “separately prosecuted” does not constitute a sufficient reservation in this respect , and nor could the introductory comments to the judgment ’ s subsequent I nternet publication reverse the prejudicial effect of the judgment ’ s reasoning.

We therefore conclude that the relevant passages of the Frankfurt am Main Regional Court ’ s judgment taken together and viewed as a whole ran contrary to the applicant ’ s right to be presumed innocent and that there has accordingly been a violation of Article 6 § 2 of the Convention.