DISSENTING OPINION OF JU D GE CASADEVALL

(Translation )

1 . I cannot agree with the majority ' s approach in this judgment, as it is my belief that there was a violation of the applicant ' s right to the pr e s u mption of innocence , for the reasons given below .

2 . It has been the Court ' s well-established case-law , since the Minelli judgment [4] , that the pre s u mption of innocence will be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty , even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty . The scope of the presumption of innocence protected by Article 6 § 2 “is thus not confined to criminal proceedings which are pending but also encompasses judicial de cisions pronounced after proceedings have been terminated” [5] , be they d e cision s of civil courts or of administrati ve courts . The operative part of a judgment pronouncing an acquittal must be respected by any authority referring directly or indirectly to the criminal responsibility of the interested party [6] .

3 . I agree with the judgment (pa ragraph 37) that neither Article 6 § 2 nor any other provision of the Convention gives a person “charged with a criminal offence” the right to the reimbursement of his costs or the right to compensation for lawful pre-trial detention , and that refusal by a domestic court to award an applicant such re imb ursement or compens ation does not in itself violate the presumption of innocence . Most European l e gislations which provide for the payment of such compensation subject it to certain conditions concerning the conduct of the int e res ted party , either before or during the proceedings , or leave it to the discretion of the court , which, again, is not contra ry to the pr o visions of the C onvention. I also agree with the conclusion expressed in paragraph 38 of the judgment . The problem is therefore not the refus al , in itself , to award monetary compensation, but the reasoning behind the refus al o r the lang u age used in the arguments for the d e cision.

4 . In Sekanina v . Au s tri a the Linz Court of Appeal concluded: “The jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion ' s being dispelled. ” The Cour t found that such affirmations – not corroborated by the judgment acquitting the applicant or by the record of the jury ' s deliberations – left open a doubt both as to the applicant ' s innocence and as to the correctness of the Assize Court ' s verdict, a doubt which was incompatible with the presumption of innocence, and it accordingly found a violation [7] .

5 . In Puig Panella v . Spain , the Ministry of Justice rejected the applicant ' s claim for damages, arguing that he “... had not really proved that he did not take part in the offences with which he was charged ( ... ) and such compen sation could be awarded only in the event of absolute certainty as regards the innocence of the person remanded in custody ( ... ) ” . The Cour t held that that reasoning , subsequently upheld by the relevant domestic courts , was incompatible with the pr e s u mption of innocence , and found a violation [8] .

6 . More r e ce ntly , in Tendam v. Spain , in rejecting the applicant ' s claims the Minist ry of Justice again argued that he had been acquitted on appeal “ no t because of the objective or subjective inexistence of the offending act” but because of the lack of sufficient proof on which to base a conviction, and that “the applicant ' s involvement in the offence had not been sufficiently established” . The Cour t reiterated that the domestic courts , in upholding that reasoning, had failed to remedy the problem . It accordingly found a violation [9] .

7 . Even if the circ um stances in each of these cases differ , they all have one thing in common which led to the finding of a violation: the wording used by the domestic authorities to defend their decisions not to award the applicants compensation .

8 . In the present case the Court of Appeal (paragraph 18) states that it “agrees with the Regional Court that the criminal investigation – the final judgement or otherwise – does not show that (the applicant) was innocent ( onschuldig ) of the crimes charged. The Court of Appeal notes that such a conclusion can only be drawn if the suspect ' s innocence is reasonably obvious. This is not the case here ( ... )”. I find it very difficult to see any distinction between these remarks and those referred to in the judgments mention ed above .

9 . The majority distinguishes this case from the Puig-Panella and Tendam cases because the applicant, in previous proceedings, was awarded a sum of money towards his costs and expenses, adding that “The Court finds this latter distinction to be decisive”, and further stating that in civil proceedings it is normally the plaintiff in a defended action who bears the burden of proof (paragraphs 42 and 43). Clearly I am not disputing that princip l e of civil law . But I find the distinction artifici al . The fact of having received costs and expenses has nothing to do with a claim for compensation for alleged non-pecuniary damage. The probl em is not the rejection of the applicant ' s claim for damages ( the civil court might well have its reasons for that decision ), but rather , as in the cases cited above , the reasoning given by the Court of Appe al.

10 . The majorit y confines itself to acknowledging that “the use of expressions stating the lack of any appearance of the applicant ' s innocence and the absence of disculpatory material ( ... ) was unfortunate and, given the confusion which those expressions caused, inappropriate”, but it did not draw what I consider were the necessary conclusions in this case . Furthermore, the phrase “This applies also for those cases in which the accused has been acquitted, because an acquittal does not always mean that an accused was innocent” in the Explanatory Memorandum to the “Bill on compensation” (paragraph 30) triggers certain misgivings about the future . This statement strikes me as being in flagrant contradiction with the lett er and the sp i rit of A rticle 6 § 2 of the Convention.

[1] See, inter alia , Sekanina v. Austria , 25 August 1993, § 30 , Series A no. 266 ‑ A; Rushiti v. Austria , no. 28389/95, § 31 , 21 March; Lamanna v. Austria , no. 28923/95, § 38 , 10 July 2001 ; and Hammern v. Norway , no. 30287/96, § 48 , 11 February 2003; though these cases are distinguishable from the instant case on their facts and not least insofar as this case involved entirely separate civil proceedings instituted post-acquittal.

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

[3] See, for example, M.C. v. the United Kingdom , no. 118 82/85, Commission decision of 7 October 1987, D.R. 54, p. 162; and Ringvold v. Norway , no. 34964/97, § 38, ECHR 2003 ‑ II.

[4] Minelli v. Switzerland , 25 March 1983, § 37 , Series A no. 62 .

[5] Puig Panella v. Spain , no. 1483/02, § 51 , 25 April 2006 .

[6] Vassilios Stavropoulos v. Greece , no. 35522/04, § 39 , 27 September 2007 .

[7] Sekanina v. Austria , 25 August 1993, §§ 29 and 30 , Series A no. 266 ‑ A .

[8] Puig-Panella v. Spain , §§ 30 and 57.

[9] Tendam v. Spain , no. 25720/05 , §§ 18 and 40 , 13 July 2010 .