PARTLY DISSENTING OPINION OF JUDGE Sir Nicolas BRATZA JOINED BY JUDGE VAJIĆ

While I agree with the majority of the Court in their conclusion that there has been no violation of the Convention in the present case, I cannot fully share the reasoning of the majority in respect of the complaint under Article 6. In particular, I cannot accept the majority’s view that Article 6 § 2 had no application to the confiscation proceedings against the applicant.

The view of the majority is based on the proposition that, while Article 6 § 2 governs criminal proceedings in their entirety and not solely the examination of the merits of the charge, once an accused has been proved guilty of the offence charged Article 6 § 2 can have no application in relation to allegations made about the accused’s character and conduct as part of the sentencing process, unless the allegations are of such a nature and degree as to amount to the bringing of a new “charge” within the autonomous meaning of Article 6.

In my opinion, this is to take too narrow a view of the role of Article 6 § 2 in the context of proceedings relating to a criminal charge.

In his judgment in the Privy Council in H.M. Advocate and Advocate General for Scotland v. McIntosh , Lord Bingham of Cornhill correctly observed that the European Court’s judgment in Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22) was “plainly unhelpful” to the respondent, suggesting as it did in the passage quoted from paragraph 90 of that judgment that Article 6 § 2 becomes irrelevant once a person is found guilty according to law, and that, as part of the sentencing process, a court can take into account facts, including those suggesting the commission of other criminal offences, without the risk of violating the requirements of that paragraph.

However, the passage from Engel and Others should, I consider, be read with some caution for several reasons.

It is clear from the passage that the facts which were taken into account in fixing the sentence were not in dispute – they were “established facts the truth of which [the two applicants] did not challenge”. In this respect they did not differ materially from other “facts” which a sentencing court routinely takes into account in fixing sentence, as for instance a defendant’s previous convictions. In Engel and Others , the undisputed “facts” in question were the distribution by the applicants on previous occasions of two writings which had been “provisionally forbidden under the ‘Distribution of Writings Decree’ ”. These prior examples of misconduct on the part of the applicants were taken into account by the sentencing court in fixing the sentence only as being an “indication of [the applicants’] general behaviour”, that is, apparently, a readiness to break rules and a general disrespect for authority. Hence the Court’s reference to their being “factors

relating to the individual[’s] personality”.

Here the situation, as the applicant correctly argues, is very different. The essential “facts”, namely whether property or assets in the applicant’s possession were the proceeds of drug trafficking, are directly in issue. They are at the heart of the confiscation proceedings and are facts which the sentencing court is required to determine. Moreover, unlike the position in Engel and Others , the underlying facts are determined and taken into account not merely for the purpose of assessing the applicant’s personality in fixing the period of detention, but for the purpose of stripping him of substantial sums of money which the court determines, with the assistance of the statutory presumptions, have been derived from essentially criminal activities.

Engel and Others was in any event decided in the relatively early days of the Court and was the first case in which Article 6 § 2 had been directly addressed. The scope and field of application of paragraph 2 of Article 6 have undergone substantial development in the more recent case-law. In particular, in Minelli v. Switzerland (judgment of 25 March 1983, Series A no. 62) and Sekanina v. Austria (judgment of 25 August 1993, Series A no. 266-A), Article 6 § 2 was held to have an application even after the acquittal of a person on a criminal charge and where the proceedings against the defendant were at an end.

Perhaps more importantly, in Engel and Others the Court considered the complaint concerning the violation of presumption of innocence exclusively under paragraph 2 of Article 6 and did not view that paragraph in the light of the general obligation of a fair trial in paragraph 1. Since the Court’s decision in that case there have been two important developments.

In the first place it is now well established that the general requirements of Article 6 apply at all stages of criminal proceedings until the final disposal of any appeal, including questions of sentencing. This was established by the Court in Eckle v. Germany (judgment of 15 July 1982 , Series A no. 51) in relation to the requirement that proceedings should be determined within a reasonable time. This principle was applied in Findlay v. the United Kingdom (judgment of 25 February 1997 , Reports of Judgments and Decisions 1997-I) in the context of a complaint about the independence and impartiality of a tribunal before which the applicant pleaded guilty and where the only issue was one of sentence. More recently, it was applied in T. v. the United Kingdom ([GC], no. 24724/94, 16 December 1999, unreported) and V. v. the United Kingdom ([GC], no. 24888/94, ECHR 1999-IX), where the fixing of the tariff was held to be part of the determination of a criminal charge, which therefore had to be carried out by a judicial body satisfying the requirements of independence and impartiality.

The other development has been the readiness of the Court to see the requirements in other paragraphs of Article 6 as but specific aspects of the requirements of fairness in paragraph 1. This is particularly so as regards the provisions of paragraph 3, where the Court has invariably considered complaints of violations of the requirements of individual sub-paragraphs in conjunction with the overall requirement of fairness in paragraph 1. Admittedly, one does not find case-law which so clearly spells out the link between paragraph 2 and paragraph 1. But such a link plainly exists, the presumption of innocence being a fundamental element of a fair trial. Moreover, there are clear indications to this effect in the Court’s case-law. In Lutz v. Germany (judgment of 25 August 1987, Series A no. 123, p. 22, § 52), the Court noted that it had “consistently held paragraph 1 to embody the basic rule of which paragraphs 2 and 3 represented specific applications”. In John Murray v. the United Kingdom (judgment of 8 February 1996, Reports 1996-I), the drawing of adverse inferences from an accused’s silence was considered by the Court in terms of both paragraphs 1 and 2, the right to silence, the right not to incriminate oneself and the principle that the prosecution should bear the burden of proof being seen as aspects of a fair trial in paragraph 1, as well as specific requirements of the presumption of innocence in paragraph 2. Closer to the present case, in Salabiaku v. France (judgment of 7 October 1988, Series A no. 141-A) and Pham Hoang v. France (judgment of 25 September 1992, Series A no. 243), the Court examined the applicants’ complaints about the application of presumptions against them under both paragraphs, noting in the former case that it started its examination under paragraph 2 because “the presumption of innocence, which is one aspect of the right to a fair trial secured under paragraph 1 of Article 6 ... is the essential issue in the case” (paragraph 25; see also paragraph 31).

It is true that in Salabiaku and Pham Hoang , in contrast to the present case, the Court was concerned with the application of presumptions not at the stage of sentencing but in the course of a trial on the merits and before the applicants had been convicted. However, as the Court of Appeal pointed out in R. v. Benjafield and Others , the European Court in Minelli emphasised that Article 6 § 2, like Article 6 § 1, “governs criminal proceedings in their entirety irrespective of the outcome of the prosecution and not solely the examination of the merits of the charge”. More specifically, I see a close relationship between cases where presumptions are applied at the trial stage for the purpose of determining a defendant’s guilt of the offence charged and cases such as the present where presumptions are applied after conviction and as part of the sentencing process for the purposes of determining what assets of the defendant are to be regarded as derived from the proceeds of drug trafficking and thus liable to confiscation. In my view, the Court of Appeal in Benjafield and Others was correct in holding that the confiscation procedure had to be considered on the basis that it was subject to the requirements of both paragraph 1 and paragraph 2 of Article 6 read together and in seeing the requirement of “fairness” in this context as substantially importing the requirements laid down by the Court in Salabiaku and Pham Hoang .

As to the question whether the statutory presumptions as applied in the applicant’s case exceeded the reasonable limits within which they are required to be confined and whether the rights of the defence were respected, I fully share the conclusion and reasoning of the majority of the Court.