DISSENTING OPINION OF JUDGE CREMONA

Whilst agreeing with the judgment as to the rejection of the Government ’ s preliminary objection, I regret I cannot do the same with regard to the conclusion that there was no violation of Article 6 § 2 (art. 6-2) of the Convention in the instant case. Instead, I concur with the unanimous Commission that there was.

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

1.   Firstly, I concur with the judgment that after the termination of the prosecution of the applicant ’ s husband by reason of his death, the decision of the Essen Regional Court - upheld by the Hamm Court of Appeal and the Federal Constitutional Court - refusing to order reimbursement of his necessary costs and expenses and to award any compensation in respect of his detention on remand, forms a natural sequel to the termination of the proceedings, which occurred de facto. Consequently, Article 6 § 2 (art. 6-2) may in principle be invoked with regard to the said decisions (paragraph 35 of the judgment).

2.   Secondly, I also concur with the judgment that neither Article 6 § 2 (art. 6-2) nor any other provision of the Convention grants a person charged with a criminal offence a right to reimbursement of his costs and expenses or a right to compensation in respect of his lawful detention on remand where proceedings against him are terminated by reason of his death. The courts ’ refusal to order such reimbursement or award such compensation does not therefore in itself offend the presumption of innocence (paragraph 36 of the judgment).

3.   Thirdly, I also concur with the judgment that a decision refusing such reimbursement or such compensation in the wake of a termination of proceedings by reason of the accused ’ s death 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 of his guilt) 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 37 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 39 of the judgment), and

(b) that the courts ’ refusal to order reimbursement of the accused ’ s necessary costs and expenses and to award any compensation in respect of his detention on remand did not amount to a penalty or a measure which could be equated with a penalty (paragraph 40 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. In fact, 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 Mr. Nölkenbockhoff, who was charged with a criminal offence, goes much further than that.

In fact, the decision of the Essen Regional Court, in refusing to order reimbursement of the accused ’ s costs and expenses and indemnification in respect of his detention on remand under the applicable domestic legislation, stated, in terms which, unlike my colleagues, I find unambiguous, that if the proceedings had continued "the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld" and that "it was much more likely ... that if the proceedings had continued, the defendant would have been convicted". Moreover, the Hamm Court of Appeal, in dismissing the applicant ’ s appeal, stated, again in unambiguous terms, that "if the proceedings had been pursued until a final decision was handed down, the ... defendant ’ s conviction would almost certainly have been upheld". The decision of the group of three judges of the Federal Constitutional Court rejecting the applicant ’ s constitutional complaint against these decisions was confined to an attempt at interpreting the reasons stated in the decisions without, as the Commission pointed out, altering their meaning or scope.

Thus, in my view, what happened in the instant case is the materialisation of the situation envisaged in paragraph 37 of the judgment (see above). Indeed, we have here judicial decisions refusing, or confirming the refusal of, reimbursement of the accused ’ s costs and expenses and indemnification in respect of his detention on remand, 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 unanimous 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 Mr. Nölkenbockhoff 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 Mr. Nölkenbockhoff ’ 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.

[*]  Note by the Registrar: The case is numbered 10/1986/108/156.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.