CONCURRING OPINION OF JUDGE LÓPEZ GUERRA

I agree with the Chamber ' s conclusion concerning the non-violation of article 6 § 2 of the Convention. I consider , h owever, that the f ac t t hat the applicant had already been awarded a sum of money towards his costs and expenses is not the decisive factor (paragraph 43) in this case. In my opinion what really distinguishes this case from the Puig Panella and Tendam cases is that the Court of Appeal ' s determining reasoning in refusing the applicant ' s claims was undoubtedly based on his failure to prove that there had never been any probable cause for the charges against him. The Court of Appeal ' s reasoning stating that the applicant ' s final judgment and acquittal did not show that he was innocent is clearly of a lateral or secondary nature, being an obiter dictum in the judgment of that Court. Certainly, as our judgment states, that reasoning was inappropriate. But I concur with our judgment in that these unnecessary expressions do not represent a violation of the presumption of innocence.

CONCURRING OPINION OF JUDGE POWER

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 [1] . 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.

3 . Th e Court confirmed in Allenet de Ribemont v . France that the presumption of innocence enshrined Article 6 § 2 is one of the elements of a fair criminal trial that is required by Article 6 § 1 [2] . 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 charged with a criminal offence is guilty of that offence before he has been so found in accordance with law. However, the fact that every accused person enjoys the presumption of innocence when charged with a criminal offence does not invalidate the distinction in legal theory between criminal responsibility and civil liability arising out of the same events but involving different standards of proof. [3]

4 . The Court of Appeal, in acquitting the applicant, found that the charges against him had not been “convincingly proven”. Such evidence as was adduced at his criminal trial was insufficient to establish his guilt beyond reasonable doubt. In effect, that evidence failed to rebut the presumption of innocence which he enjoyed in respect of the specific charges and thus, that presumption remained undisturbed.

5 . The applicant was entitled under domestic law to institute separate civil proceedings seeking damages against the State for alleged wrongful conduct on its part. Essentially, he claimed that the State had no reasonable grounds for suspecting him of the offences with which he had, previously, been charged. Once the decision was taken to put the reasonableness or otherwise of his prosecution in issue it was to be expected that, in contentious civil litigation, arguments would arise as to whether or not there had been evidence available for suspecting him of the offences in question. The civil courts found that evidence giving rise to reasonable suspicion had been available to the State and the applicant lost his case.

6 . Where an allegation of wrongdoing is made in a contentious civil action for damages it is the right of every defendant thereto to challenge the allegations made. The Court could not countenance a situation where every acquitted person who subsequently litigates the reasonableness or otherwise of his arrest in separate civil proceedings would have to be awarded damages, failing which a violation of Article 6 § 2 would be found. In civil proceedings, the State, like every other defendant, is entitled to defend itself against claims made and, in this case, the State ' s defence succeeded.

7 . When the events occurred through which the applicant found himself “charged with a criminal offence” the sacrosanct presumption of innocence was triggered. It remained “live” until the determination of the criminal proceedings when its raison d ' être ceased to exist. To speak of a violation of the presumption of innocence when a person is not – or is no longer – facing a criminal charge is to divorce the principle from its purpose. That is the difficulty I have with the “eternally active” model of interpretation of Article 6 § 2.

8 . At the time of the civil proceedings, the applicant was not a person “charged with a criminal offence”. There existed no reason for the presumption of innocence to “trigger” and thus it cannot have been disturbed by the findings of the civil court. I accept that some of the latter ' s observations might have been more elegantly articulated. I do not condone the remarks concerning the necessity for a suspect ' s innocence to be “reasonably obvious” nor the comments concerning the absence of “d isculpatory material” within the criminal file. None of these observations were necessary for determining the civil action and it seems to me that the civil courts confused the concept of the “presumption of innocence” with the concept of “the existence of reasonable cause”. Unfortunate as this confusion was, and inelegant as the articulation might have been, I cannot conclude that these observations resulted in a “finding” of guilt that violates the presumption of innocence as protected under Article 6 § 2 . The inelegantly articulated comments of the Court of Appeal did not in any way jeopardize the fairness of the applicant ' s criminal trial. The reality is that the applicant was not, at that point, a person charged with a criminal offence. The circumstances for which the procedural safeguard was incorporated into the Convention simply did not exist. It was for this reason that I found no violation of Article 6 § 2.