SEPARATE OPINION OF JUDGE DE GAETANO

1. I agree that in this case there has been no violation of Article 6 § 2 of the Convention. However the judgment leaves unresolved the question – perhaps the most important question from a domestic court’s point of view – of what may or may not be said in civil compensation proceedings arising from the same facts which had given rise to the criminal prosecution or investigation.

2. In Ashendon and Jones v. the United Kingdom (revision) (nos. 35730/07 and 4285/08, 15 December 2011) I had expressed the hope that the Court would one day reassess Article 6 § 2, particularly in the light of the difficulties our case-law has created for national courts in dealing with post-acquittal proceedings. In the instant case, however, the majority have opted for a mere compilation of cases (see paragraph 98(e) of the judgment) and the generic statements contained in paragraphs 101, 102 and 123.

3. To state that it all depends on whether “the national decision on compensation [contains] a statement imputing criminal liability to the respondent party” (see paragraph 123) – which in effect means “it all depends on what you say and how you say it” – is just playing with words and most unhelpful. It is as much as saying that the question “whether the reasons [given in the civil judgment] gave rise to an issue under Article 6 § 2 must be viewed in the context of the proceedings as a whole and their special features” (see Reeves v. Norway (dec.), no. 4248/02, 8 July 2004).

4. The reality is that in most proceedings for civil compensation following an acquittal in criminal proceedings (or, indeed, when there has been no criminal prosecution at all), for the national court to find for the plaintiff and against the defendant it must find not only that the material element ( actus reus ) of the offence was committed by the defendant, but that the intentional or moral element ( mens rea ) of that offence was also present. It is true that in the civil proceedings the standard of proof will be less strict than in criminal proceedings – on a balance of probabilities, and not beyond reasonable doubt – but that is not really saying much as far as popular perception of guilt or innocence, and therefore of the existence or otherwise of criminal liability, is concerned. This issue was very clearly highlighted in Judge Costa’s dissenting opinion in Ringvold v. Norway (no. 34964/97, ECHR 2003-II). Indeed in that case two judges took a diametrically opposed view on the same passages of the Norwegian Supreme Court’s judgment. The concurring opinion of Judge Tulkens reflects the theoretical – dare I say, academic – approach to the question of Article 6 § 2 in collateral civil proceedings, whereas the dissenting opinion of Judge Costa is a stark reminder of pragmatic reality: “[The applicant] was told that he had been acquitted of the offence with which he had been charged, but he was subsequently told (on the basis of the same facts) that it was clear that he had committed the offence , and ordered to pay compensation to the victim.”

5. I still have difficulty in reconciling the judgment in Ringvold with the later judgment in Orr v. Norway (no. 31283/04, 15 May 2008). The present judgment in no way alleviates that difficulty. I still believe that Article 6 § 2 has no place whatsoever in civil compensation proceedings, whether following upon acquittal in criminal proceedings or where no criminal proceedings have ever been initiated.