PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

1. I agree with the majority that there has been a breach of Article 6 para . 1 (art. 6-1) of the Convention, and also that the sum of FRF 100,000, plus VAT, should be paid to the applicant for his costs and expenses.

2. I dissent, however, from the proposition that there has been a breach of Article 6 para . 2 (art. 6-2) of the Convention.

This judgment affirms for the first time that the fundamental right that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law" - "may be infringed not only by a judge or court but also by other public authorities" (paragraph 36). This is the main principle affirmed by this judgment.

3. In the preceding paragraph 35, it is said: "the Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory".

4. My dissent arises from the consideration that this extended interpretation of the presumption of innocence cannot be guaranteed in a practical and effective way. When the violation is committed by the public authorities before the trial of the person charged with a criminal offence, no practical and effective remedy for that violation is afforded if that remedy is sought as soon as the violation takes place. In the instant case, the Court is finding a violation which occurred in 1976, and therefore it can accord a financial remedy. But this is clearly not a practical and effective remedy which can be applied satisfactorily if the violation is established before the trial takes place.

5. To illustrate the difficulty, I wish to refer to a Maltese case.

On 13 April 1972 a bomb exploded on the roof of a house and Giuseppina Formosa , the housewife residing in the property, was torn to bits.

On 28 April 1972 the Commissioner of Police, the Head of the Police Corps, together with four of his officers, called a press conference. This dealt with the general problem of delinquency, the state of the police force and similar matters, and then the Commissioner proceeded to say that the line of investigation pursued in the Formosa bomb case had proved to be fruitful; that Emmanuel Formosa, the husband of the victim, had confessed; that he was going to be charged before the inquiring magistrate on the next day and that the husband had asked for the protection of the police as he was afraid of the reaction of his wife ’ s brothers.

6. Formosa filed an application in the civil court alleging, among other things, the violation of his fundamental right guaranteed by the Maltese Constitution (Article 39 [5]): "Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty."

The application was heard expeditiously by the court and rejected on 5 May 1972. On appeal, the Constitutional Court on 16 April 1973 confirmed the first judgment (DEC. KOST. 1964-1978 GH.ST.LIGI. p. 343). Formosa was afterwards tried and convicted of the homicide of his wife, on 13 July 1973.

7. These facts are very similar to those of the instant case. The difference lies in the fact that in the Maltese case the matter was heard and decided before the criminal trial took place while in the instant case the Court is dealing with the matter after all has been said and done.

8. The reasons for arriving at the conclusions reached by the Maltese courts in not finding a violation are not convincing. There is no consideration of the problem as to whether the guarantee covers only the operations of the judge and the court or whether it also extends to other public authorities. But from them it clearly transpires that if one admits the extension - now affirmed in this judgment - there is no effective and practical remedy for the violation which a court can apply before the actual criminal trial is heard, once the constitutional mechanism of the domestic law is such that the proceedings on the violation can be heard and concluded before the trial and not after.

9. In so far as the Court has laid down such an important principle which may have a substantial impact in the field of criminal procedural law in the various Contracting States, but has not tackled the problem of the practical and efficient remedy for the affirmed violation, I have not found it possible to follow the majority on the point.

[1] The case is numbered 3/1994/450/529.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 308 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.