PARTLY DISSENTING OPINION OF JUDGE DE GAETANO JOINED BY JUDGE YUDKIVSKA

1. I regret that I cannot share the view of the majority that there has been no violation of Article 6 § 2 of the Convention in this case (point 2 of the operative part of the judgment).

2. In my separate (concurring) opinion in Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 12 July 2013) I have already had occasion to express my concern over the “language” issue in similar cases, particularly when the proceedings subsequent to the applicant ’ s acquittal are civil proceedings for compensation arising from the same facts upon which the criminal charge was based. While it is clear that in such subsequent civil proceedings the mere finding of liability for damages despite a previous acquittal cannot per se give rise to an issue under Article 6 § 2 as otherwise one would have to abolish such civil-liability actions – a point made recently in the case of Vella v. Malta (no. 69122/10, 11 February 2014, § 60) – the fact remains that to speak of “unfortunate language used” and then to distinguish between unfortunate language that is in violation of the presumption of innocence and unfortunate language which is not merely shoves the problem into the realm of the aleatory.

3. In the instant case, the proceedings in issue were not civil proceedings, but collateral proceedings for determination of whether sentence was to be suspended and the applicant released on probation (see paragraphs 9 and 15 of the judgment). In that sense they could be said to be intimately connected with criminal proceedings. In reviewing the post ‑ conviction behaviour of the applicant one would have expected the Regional Court, sitting as an execution of sentence chamber, to be extremely cautious not to suggest, even tangentially, that the applicant had in fact committed the offence against Ms J. What in fact happened was that the court not once but twice suggested that the offence had in fact been committed by the applicant in respect of Ms J. – in its decision of 23 February 1999 (Marburg Regional Court, see paragraph 9) and in its decision of 4 September 2007 (Kassel Regional Court, see paragraph 15). As regards the first decision (which, it must be emphasised, is mentioned in the judgment only by way of background to the case, the “offending” decisions, for the purpose of the instant judgment, being those of September and October 2007), the Marburg Regional Court, although stating that the applicant had attacked Ms J. in the evening of 10 January 1997 (and using the word “perpetrator” to boot), did at least attempt to “decriminalise”, as it were, the facts by adding the perfunctory sentence “irrespective of the qualification of the incident under criminal law” (see paragraph 10). The Kassel Regional Court, on the other hand, in its decision of 4 September 2007, reproduced without the slightest compunction, reservation or criticism the medical expert ’ s view that “... the criminal offence that the applicant had committed to the detriment of Ms J. showed that the applicant was willing to enter into relationships with women once more and that a separation would lead to violent acts for reasons of wounded pride ...” (see paragraph 15). Neither the Kassel Regional Court nor the Frankfurt Court of Appeal (decision of 9 October 2007, see paragraphs 18 and 19) attempted to distance themselves from this clear attribution of criminal liability as regards the incident involving Ms J. It is true that neither court stated explicitly that the applicant had been guilty of a fresh criminal offence, but both clearly implied it by their lack of criticism of the expert ’ s views in this respect.

4. In my view, no amount of pedagogical finger-wagging (see last sentence of paragraph 51) can alter the inevitable conclusion that the decisions of September and October 2007 clearly implied that the applicant had been guilty of the offence of which he was, rightly or wrongly, acquitted way back in February 1999. The cases of A.L. v. Germany and Reeves v. Norway , both cited at the end of paragraph 46 in support of the proposition that “unfortunate language” used may nonetheless not give rise to a breach of the presumption of innocence, are hardly the best examples that could have been adduced. In A.L. the “unfortunate language” used was not part of a public court judgment but was contained in a letter that the presiding judge had sent to the applicant ’ s counsel, and, in any event, in that case the error of the presiding judge had been rectified by the Frankfurt Court of Appeal and by the Federal Constitutional Court (see paragraph 38 of that judgment). As for Reeves , the less said the better – the third but last paragraph of that decision is, in my view, a strained exegetical exercise to defend the indefensible.