PARTLY DISSENTING OPINION OF JUDGE POWER-FORDE

I voted against the admissibility of the applicant’s complaint under Article 6 § 2 and, consequently, for no violation of the applicant’s right to the presumption of innocence. I have previously set out my view on the Court’s jurisprudence as it has developed in relation to the presumption of innocence. [1] I have certain difficulties with the free-standing, post-acquittal “eternally live” model of interpretation of Article 6 § 2. This model holds that an accused person who has been acquitted at trial continues to enjoy the presumption of innocence even after the trial has ended once there exists a sufficient “link” between the post-acquittal observations of a court and the criminal responsibility of an accused. [2]

To my mind, common sense and the overall “fair trial” context within which the presumption of innocence is articulated within the Convention lead me to the view that the “events occurring” model of interpretation is the better one. This model considers the presumption as something that is “triggered”, that only becomes legally meaningful, when events occur through which a person is, in reality, facing or likely to be facing a criminal charge which has not, as yet, been determined.

The Court affirmed in Allenet de Ribemont v. France that the presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair criminal trial that is required by paragraph 1. [3] The principle of presumption of innocence is, above all, a procedural safeguard in criminal proceedings and it imposes obligations on all State authorities to ensure that no suggestion is made that an accused person charged with a criminal offence is guilty of that offence before he has been so found in accordance with law.

I readily accept that what transpired in the instant case was unfair in that the applicant was penalised in circumstances where he had no opportunity to answer his accusers and, consequently, I voted for a violation of Article 6 § 1. I cannot, however, accept that the presumption of innocence which heretofore in the case-law attached only to an accused person either charged with a criminal offence or subsequently acquitted thereof, can now be passed on to the applicant as the successor of such a person. The applicant was never facing a criminal charge. The proceedings in which he suffered a violation of Article 6 § 1 of the Convention were not criminal proceedings. The applicant’s complaint is that his father suffered breach of the presumption of innocence—which may well have been the case. However, his father is not and never was an applicant before this Court. The presumption of innocence as a procedural safeguard in criminal proceedings is not a chattel which forms part of a person’s estate and which can be passed from a deceased to his successors. To my mind, the majority in finding a violation of Article 6 § 2 has extended, beyond recognition, the purpose of the presumption of innocence as set forth in the Convention. Perhaps it is time to reconsider the direction which the Court’s case-law is taking on this important point of principle.

[1] See concurring opinion in Bok v. the Netherlands , no. 45482/06, 18 January 2011.

[2] See, inter alia , Sekanina v. Austria , 25 August 1993, § 30, Series A no. 266 ‑ A; Rushiti v. Austria , no. 28389/95, § 31, 21 March 2000; Y v. Norway , no. 56568/00, §§ 39-47, ECHR 2003 ‑ II (extracts); O. v. Norway , no. 29327/95, §§ 33-41, ECHR 2003 ‑ II; and Orr v. Norway , no. 31283/04, §§ 47-55, 15 May 2008.

[3] Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308.