JOINT DISSENTING OPINION OF JUDGES LEMMENS, TURKOVIĆ AND RAVARANI

1. We regret that we cannot share the view of the majority that there has been a violation of Article 6 § 1 of the Convention in this case. We consider that the majority apply Article 6 § 1 in a way that is wholly inconsistent with the Court ’ s case-law and disregards the limits of the res judicata effect.

The proceedings at issue

2. In order to analyse the legal issues raised by the complaint, it is important to correctly determine the facts, in particular the scope of the proceedings at issue.

On 14 August 2009 a road accident took place, involving P.C., the driver of a car, and the applicant, the driver of a bus owned by V.B.

On the same date the chief inspector of the traffic police found that P.C. had violated the traffic rules and imposed a fine on him. Seeking to be relieved of criminal responsibility and exempted from the imposed fine, P.C. challenged that decision. He was unsuccessful before the District Court of Anenii Noi (judgment of 29 September 2009), but eventually won his case before the Court of Appeal of Bender (judgment of 19 November 2009). The latter court held that the applicant had not observed the traffic rules and that he was responsible for the accident. The court accordingly annulled the decision of the chief inspector.

We would like to underline that the judicial proceedings brought by P.C. were aimed solely at obtaining a ruling on the “criminal” liability of the one accused person, namely P.C. himself. The applicant was not a party in those proceedings as there had not been any charge against him and there had not been any request by any of the parties to join him to the proceedings.

On 22 January 2010 the chief inspector of the traffic police issued a new decision. Basing himself on the judgment of the Court of Appeal, he declared the applicant guilty of a breach of the traffic rules, but did not apply any sanction, the reason for this being that the criminal prosecution was time-barred. The applicant did not challenge that decision.

3. In his application, the applicant also mentioned the civil consequences of the decision to hold him responsible.

He indicated that after the decision of the chief inspector of 14 August 2009, P.C. ’ s insurer paid 2,702 Moldovan lei (MDL) (approximately EUR 124) to V.B. for the damage to the bus. Following the decision of the chief inspector of 22 January 2010, P.C. sought payment of his car repairs from V.B. ’ s insurer. The insurance company replied that it would await the decision of our Court in the present case. The applicant calculated that the insurer would compensate only part of the damage, leaving himself liable for MDL 40,894 (approximately EUR 1,870). P.C. ’ s insurance company, for its part, indicated that it expected V.B. to pay back the money which he had received.

None of the claims of P.C. or his insurer seems to have led to any civil proceedings.

Inapplicability of Article 6 § 1 to the proceedings before the Court of Appeal

4. The majority hold that Article 6 § 1 is applicable in the instant case (see paragraphs 18-23 of the judgment).

We have no problem accepting that the proceedings which started with the chief inspector ’ s decision of 14 August 2009 concerned a “criminal charge” within the meaning of Article 6 § 1. The “criminal” nature of a charge based on the traffic rules and resulting in an administrative fine being imposed is also not disputed by the Government. However, this is not the point at issue. The question is whether the relevant proceedings concerned a charge against the applicant .

Indeed, “charge”, for the purposes of Article 6 § 1, is defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the suspect has been substantially affected (see Deweer v. Belgium , 27 February 1980, § 46, Series A no. 35; Eckle v. Germany , 15 July 1982, § 73, Series A no. 51; Reinhardt and Slimane-Kaïd v. France , 31 March 1998, § 93, Reports of Judgments and Decisions 1998 ‑ II; Escoubet v. Belgium [GC], no. 26780/95, § 34, ECHR 1999 ‑ VII; and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010). In their submissions, the Government referred to the Court ’ s case-law, and argued on that basis that Article 6 § 1 was not applicable.

There is no doubt that the proceedings before the Court of Appeal concerned a charge brought against P.C. The latter had a right to respect for the guarantees provided by Article 6 § 1. By contrast, as indicated above (see paragraph 2), there had been no charge against the applicant in those proceedings. The procedural guarantees of Article 6 § 1 were therefore totally irrelevant for him.

In our opinion, the Government ’ s objection based on the incompatibility ratione materiae of the application with the Convention is well-founded. In so far as the applicant complains of a violation of Article 6 § 1 as a result of the decision of the Court of Appeal, the application should have been declared inadmissible.

Effects of the findings of the Court of Appeal with respect to the applicant

5. In finding that there was a violation of Article 6 § 1 as a result of the Court of Appeal ’ s decision, the majority refer to the fact that that court determined that the applicant, not P.C., was responsible for causing the accident, and that this decision was res judicata in respect of both P.C. and the applicant (see paragraph 27 of the judgment). The majority thus consider that the decision of the Court of Appeal had a far-reaching erga omnes effect attached to each and all of its findings.

We note, first of all, that the majority ’ s decision is based on an interpretation of the domestic rules on res judicata in criminal cases. However, the contents and scope of domestic law on this point have not been discussed by the parties. In our opinion, it is questionable whether the majority are correct in assuming that the chief inspector was obliged to conform to the Court of Appeal ’ s judgment to the extent that he could not have reached any other decision on the applicant ’ s conduct in the light of the applicable traffic rules.

6. Indeed, res judicata is generally attached only to those findings that form the necessary basis for the court ’ s conclusion. The proceedings before the Court of Appeal concerned the “criminal” liability of P.C. The decision that P.C. was not guilty of having violated the traffic rules is undoubtedly a decision that constitutes res judicata . We are not sure that the same can be said about any findings with respect to the applicant. Should not all findings other than the ones relating to the “criminal” liability of P.C. be considered obiter dicta , with no binding force at all? Should this not be particularly true of findings relating to a third party who was not charged and who accordingly was not able to defend himself against any charge?

It is true that in order to relieve P.C. of responsibility the Court of Appeal stated that the applicant was the only one of the two drivers involved in the accident who was responsible for the accident. However, it seems to us that this statement concerning the applicant ’ s responsibility would fit within the category of obiter dicta , as that finding was not necessary for assessing P.C. ’ s criminal liability. Indeed, the acquittal of P.C. was not dependent on a finding that the applicant was criminally liable. To hold otherwise would ignore the whole spectrum of situations that might arise in concreto , in which neither party may be responsible or where certain circumstances may exclude the criminal responsibility of both drivers, such as force majeure .

Moreover, contrary to what the majority suggest (see paragraph 27 of the judgment), even in the event of a car accident involving two drivers, the acquittal of one driver on the basis that the accident was caused by the other driver does not necessarily mean that that other driver is criminally liable.

7. A consequence of the right to adversarial proceedings is that the quality of res judicata cannot be invoked against a person with respect to assessments of fact or law made in proceedings to which that person was not a party. Assessments made in a given case must remain relative and their effect limited to those proceedings (see Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 105, 23 February 2016; see also, from the point of view of the right to a court having jurisdiction to examine all the factual and legal issues relevant to the determination of the dispute before it, Beaumartin v. France , 24 November 1994, § 38, Series A no. 296 ‑ B; Terra Woningen B.V. v. the Netherlands , 17 December 1996, § 54, Reports of Judgments and Decisions 1996 ‑ VI; and Chevrol v. France , no. 49636/99, § 82, ECHR 2003 ‑ III). Accordingly, in the present case it would not be compatible with the right to a fair trial if a criminal or civil court were automatically to follow the Court of Appeal ’ s view that the applicant was responsible for the accident without full and proper examination at a trial in which the applicant would be able to challenge that view.

However, the present application does not lend itself to an examination of whether either Moldovan law or any subsequent decision by a Moldovan authority complies with this aspect of the right to a fair trial.

In the first place, while the chief inspector, following the judgment of the Court of Appeal, found the applicant guilty of a breach of the traffic rules, the applicant did not challenge that decision. He therefore did not avail himself of the opportunity to challenge any alleged automatic reliance by the chief inspector on the Court of Appeal ’ s statement before a competent court. In addition we note that the Court is not required to examine the impugned legislation in abstracto , but must confine itself to the circumstances of the case before it. In any event, as stated above, the parties have not discussed the contents and scope of domestic law relating to res judicata in criminal cases.

Secondly, no civil claim has yet been brought against the applicant, either by P.C. or by P.C. ’ s insurer (see paragraph 3 above). His complaint in this respect is premature. At the present time the applicant cannot claim to be already a victim of a violation of his right to a fair trial with respect to the possible civil consequences of the Court of Appeal ’ s finding. It is in this sense that we also understand the objection of the Government, who argue that the applicant has not exhausted all remedies at his disposal to obtain compensation for the damage he may have sustained himself or to defend himself against claims for compensation for the damage sustained by other parties (see paragraph 16 of the judgment, which, however, in our opinion expresses the objection too narrowly). In so far as the applicant complains about the civil consequences of the Court of Appeal ’ s decision, the Government ’ s objection should have been accepted and the application declared inadmissible.

Respect for the applicant ’ s right to presumption of innocence?

8. The foregoing does not necessarily exclude the possibility that the applicant is already in a position to complain of a violation of his human rights as a result of the decision of the Court of Appeal.

Indeed, Article 6 § 2 of the Convention guarantees the right to be presumed innocent. This provision is relevant with respect to premature statements made by public authorities or public officials suggesting that a person is guilty before that person has been charged and his guilt established by the competent judicial authority (see, among many others, Allenet de Ribemont v. France , 10 February 1995, § 35, Series A no. 308, and Lavents v. Latvia , no. 58442/00, § 125, 28 November 2002). The presumption of innocence may be infringed on account of premature expressions of a person ’ s guilt made within the scope of a judgment against another person, for instance a separately prosecuted co-accused (see Karaman v. Germany , no. 17103/10, § 42, 27 February 2014).

In a case about the criminal liability of a person involved in a situation in which other persons are also involved, it may be indispensable for the assessment of the guilt of the person who is on trial to refer to the role of third persons. However, if facts relating to the role of third persons have to be introduced, the court should avoid giving more information than necessary for the assessment of the criminal responsibility of the person who is accused in the trial before it (see Karaman , cited above, § 64; see also Bezek v. Germany ( dec. ), nos. 4211/12 and 5850/12, § 36, 21 April 2015, and Navalnyy , cited above, § 104).

9. The applicant did not allege a violation of Article 6 § 2. We therefore will not discuss whether an issue could be said to have arisen in the present case. We would like to point out, however, that in order to assess whether or not there has been a violation of Article 6 § 2, regard would have to be had not only to the language used by the Court of Appeal, but also to the nature and the context of the proceedings before that court (see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013).

For the purposes of the present opinion it is sufficient to note that if the majority had seen a problem, they could only have examined that problem from the point of view of Article 6 § 2 (provided that the application lent itself to such an examination) and not, as they did, from the point of view of Article 6 § 1.