SEPARATE OPINION OF JUDGE DE GAETANO

“1. The presumption of innocence when charged with a criminal offence is a sacrosanct principle of Convention law but the wording of Article 6 § 2, when taken alone, is open to different interpretations. What does “Everyone charged” actually mean? Does it mean “Everyone ever charged – no matter how long ago”? Or does it mean “Everyone when charged or likely to be charged with a criminal offence and for as long as such charges are pending”? Is the presumption of innocence “eternally live”, attaching to every person at all times regardless of whether one is actually facing a criminal charge or not? Or is the presumption 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? To my mind, these are not only neat philosophical questions; how they are answered is critical to the determination of this case.

“2. The free-standing, post-acquittal “eternally live” model of interpretation of Article 6 § 2 is appealing and attractive and there is some support for this model in the case law to date – at least where a sufficient “link” exists between the post-acquittal observations of a court and the criminal responsibility of an accused. However, without advocating a rigid and unwavering adherence to the doctrine of “original intent”, 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. Based on that interpretation, I voted with the majority in finding no violation of Article 6 § 2 of the Convention. The alternative would have established, in my view, an unreasonable and potentially unlimited extension of the scope of Article 6 § 2 to civil proceedings.”

[1] Rectified on 21 February 2012: The judgment date has been changed to “15 December 2011”.

[2] Rectified on 21 February 2012: The date of notification has been changed to “15 December 2011”.