PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGE VALTICOS

(Translation)

I consider that there has been a breach of A rticle 6 paras . 1 and 2 (art. 6 1, art. 6-2) of the Convention.

With the majority I voted in favour of holding that there had been a breach of Article 6 para . 1 taken together with paragraph 3 (c) (art. 6-1+art. 6-3-c), because the applicant was denied access to a solicitor and the benefit of the effective assistance of a lawyer, at least at the end of the period of police custody.

Nevertheless, on this point I note, in relation to paragraph 66 of the judgment, that the British system, instead of laying down in law the arrangements for access to a solicitor during police custody, leaves the responsibility to the police authorities.

As regards the common-law procedural background, I agree with the comments of Judge Walsh:

"In a criminal prosecution the burden of proof of guilt beyond reasonable doubt always rests on the prosecution. Therefore a prima facie case means one in which the evidential material presented by the prosecution, if believed and not rebutted, is sufficient in law to establish the guilt of the accused.  In adjudicating on this point the trial judge need not at that stage disclose, or arrive at, his own view as to the truth but he must be satisfied that it is, if believed, objectively sufficient in law to warrant a verdict of guilty if not rebutted.

...

To rely upon it afterwards appears to me to negative the whole intent of Article 6 para . 2 (art. 6-2).  To permit such a procedure is to permit a penalty to be imposed by a criminal court on an accused because he relies upon a procedural right guaranteed by the Convention.  I draw attention to the decision of the Supreme Court of the United States in Griffin v. State of California (1965) 380 US , 609 ..."

I refer, like Judge Walsh, to the decision of the Northern Ireland Court of Appeal and to the Miranda decision (United States Supreme Court).

The right to silence is a major principle.

Any constraint which has the effect of punishing the exercise of this right, by drawing adverse inferences against the accused, amounts to an infringement of the principle.

The reasoning would be similar in the procedure of continental legal systems.  The fact that the trial or appeal court can base its judgment on its innermost conviction is no obstacle to respecting the right to silence, since in its reasoning the court could not derive, from the fact that the accused had remained silent, any information amounting to incriminating evidence.  A person charged is free to incur a risk of his own choosing, just as he is free to confess or not to confess, and this is a form of respect for human dignity.

The principle also corresponds to the doctrine on unlawfully or unfairly obtained evidence.  Similar findings have been made in comparative law (see Procédures pénales en Europe , ed. M. Delmas -Marty, Thémis , PUF).

The level of certainty to be reached by the judge under the "innermost conviction" system or the "beyond reasonable doubt" system, which is essential in order to arrive at a fair judgment, must not be achieved by a form of coercion to speak that would lead to a confession.  Only in this way are the presumption of innocence and the status of the accused fully respected, both of which are central to the democratic conception of a criminal trial.