DISSENTING OPINION OF JUDGE CREMONA

Whilst agreeing with the judgment as to the rejection of the Government ’ s preliminary objection and as to the applicability of Article 6 § 2 (art. 6-2) of the Convention in the instant case, I regret I cannot do the same as to the question of compliance with that provision, and in fact, like the majority of the Commission, I find a violation of it.

In order to clear the ground at once of certain matters, I would premise the following:

1.   Firstly, I concur with the judgment that neither Article 6 § 2 (art. 6-2) nor any other provision of the Convention gives a person charged with a criminal offence a right to reimbursement of his costs where proceedings against him are discontinued, and that the domestic courts ’ refusal to order such reimbursement to the applicant does not therefore in itself offend the presumption of innocence (paragraph 59 of the judgment).

2.   Secondly, I also concur with the judgment that a decision refusing such reimbursement following a stay of proceedings may, however, raise an issue under Article 6 § 2 (art. 6-2) if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to a determination ( constat ) of the accused ’ s guilt (which I understand in the sense of an assessment thereof) without his having previously been proved guilty according to law and in particular without his having had an opportunity to exercise his defence rights (paragraph 60 of the judgment).

Having premised that, I consider that the conclusion of non-violation in this judgment rests essentially on two points:

(a) that the contested judicial pronouncements of the domestic courts described only "a state of suspicion" and did not involve a finding of guilt (paragraph 62 of the judgment), and

(b) that the courts ’ refusal to order reimbursement of the accused ’ s necessary costs and expenses did not amount to a penalty or a measure which could be equated with a penalty (paragraph 63 of the judgment).

As to the first point, clearly an element of suspicion is inherent in the very fact that a person is criminally charged, but that is of course inseparable from the essential machinery of the criminal trial itself. Indeed, among the cases where a person may be deprived of his liberty, provided this is done in accordance with a procedure prescribed by law, the Convention itself mentions "the lawful arrest and detention of a person effected for the purpose of bringing him before the competent authority on reasonable suspicion of having committed an offence" (Article 5 § 1 (c)) (art. 5-1-c).

In the present case, however, the clear and explicit wording used by the courts in their judicial decisions concerning the applicant, who was charged with a criminal offence, goes much further than that.

In fact, the decision of the Heilbronn District Court, in staying the proceedings against the applicant and concurrently refusing to order reimbursement of his costs and expenses under the applicable domestic legislation, stated, in terms which, unlike my colleagues, I find unambiguous, that "as the file [stood], the defendant would most probably have been convicted". Moreover, the Regional Court in Heilbronn , in dismissing the applicant ’ s appeal, stated, again in unambiguous terms, that had the prosecution not been statute-barred, "the defendant would almost certainly have been found guilty of an offence". That court also supported its decision by referring to the applicant ’ s admission of certain facts to the police. The decision of the group of three judges of the Federal Constitutional Court in no way altered the situation.

Thus, in my view, what happened in the instant case is the materialisation of the situation envisaged in paragraph 60 of the judgment (see above). Indeed, we have here judicial decisions discontinuing proceedings for an offence and refusing, or confirming refusal of, reimbursement of the accused ’ s costs and expenses, the supporting reasoning of which (which cannot be dissociated from the operative provisions) amounts in substance to a determination ( constat ) of the accused ’ s guilt (which, as already stated, I understand in the sense of an assessment thereof) without his having been previously proved guilty according to law and in particular without his having had an opportunity to exercise his defence rights.

Like the majority of the Commission, I find that the above reasoning of the aforesaid courts is perfectly capable of being understood as meaning that the accused was in fact guilty of a criminal offence. Indeed this is the ordinary meaning conveyed by the wording actually used, and when it comes to such a basic principle as that of the presumption of innocence, what really matters is not the possible intent with which certain words were uttered in judicial decisions concerning the accused, but the actual meaning of those words to the public at large. What is decisive is that at the end of the day one is left with the impression that the courts did consider that the applicant was in fact guilty. The net result is in my view a surrogate conviction of the accused without the benefit of the protection afforded by Article 6 § 2 (art. 6-2).

Incidentally, the offending wording at the centre of this case is not substantially dissimilar from that which was at the centre of the Minelli case, in which this Court did find a violation of that provision. An attempt has been made to distinguish the two cases on the basis of a "punishment content", and this brings me to the second point on which the finding of non-violation in the present judgment relies.

As to this question of the absence of a penalty or a measure which can be equated with one, I would say that of course the application of such penalty or measure would have reinforced my conclusion, but absence thereof in no way invalidates it. The principle of the presumption of innocence can be violated independently of the application of such penalty or measure. That presumption accompanies a person charged with a criminal offence throughout the whole trial until conviction. Indeed this cardinal principle of the modern criminal trial would have been lamentably improvident if its scope had to be confined to the non-application of a penalty or, to use again the wording of the judgment, a measure which can be equated with one. Punishment is usually only the last stage in the unfolding of a criminal trial and modern criminal legislation also envisages convictions without punishment or a measure which can be equated with it (cf. for instance in the British system "absolute discharge").

What is decisive for the present purpose is not the non-application of punishment, but the fact of a judicial assessment of the applicant ’ s guilt, and in the instant case it is this that the wording of the judicial decisions in question in fact entails.

I therefore find a violation of Article 6 § 2 (art. 6-2) of the Convention.