PARTLY DISSENTING OPINION OF JUDGE FOIGHEL

I cannot concur in the result arrived at by the majority. In my opinion the reasoning on which it is based is incomplete.

In its essentials, the present case is similar to that of Kostovski v. the Netherlands (judgment of 20 November 1989, Series A no. 166). In both cases the applicants were convicted on the evidence of witnesses who were heard under conditions not reconcilable with Article 6 §§ 1 and 3 (d) of the Convention.

Like Mr Kostovski, the applicants in the present case spent several years in prison as the direct consequence of the establishment of their guilt, which was effected in a manner that did not comply with the requirements of Article 6, particularly of Article 6 § 3 (d) (see the above-mentioned Kostovski judgment, p. 22, § 48).

It follows in my opinion that the applicants were denied a real opportunity to secure for themselves a more favourable outcome of their trial.

Admittedly it is not for our Court to speculate as to what the outcome of the proceedings might have been had it been otherwise. But that is not the point. The point is that Article 6, in so far as it relates to criminal proceedings, is dominated by the presumption of innocence enshrined in the second paragraph, which reads:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

It provides the accused with certain procedural guarantees for a fair trial, which were not afforded the applicants in this case; accordingly, it is by no means established (“until proved guilty according to law”) that the applicants would have received such heavy sentences, or even been convicted, had the proceedings against them met the standards of the Convention.

It is up to the Government to challenge this presumption, if possible. In the instant case the Government did not do so for reasons which it is not for the Court to adjudicate. Accordingly the applicants must continue to benefit from the presumption of innocence and their detention following their conviction by the ’s-Hertogenbosch Court of Appeal on 4 February 1991 was illegal. And indeed even the respondent Government recognised this, by releasing them, by offering to state in the criminal records the reasons why their prison sentences were not executed in their entirety, and by stating that they were prepared to pay them a sum of money (albeit a relatively small one) in compensation.

I consider therefore that the applicants are entitled to financial compensation to be calculated according to the time spent in detention from the day of that court’s judgment. I would consider NLG 150,000 an appropriate sum. This is the same amount the Government of the Netherlands paid Kostovski by way of non-pecuniary damage.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 55/1996/674/861–864. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The third number indicates the case’s position on the list of cases referred to the Court since its creation and the last two numbers indicate its position on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.