JOINT CONCURRING OPINION OF JUDGE S O ’ LEARY, H Ü SEYNOV AND GUYOMAR

1 . We voted in favour of finding a violation of Article 6 § 2 of the Convention in this case, albeit not without a degree of hesitation.

2 . We agree with the well-established general principles relating to this article of the Convention according to which, in essence, a premature expression by a court that an accused is guilty will fall foul of the principle of the presumption of innocence ( see the case-law cited in §§ 68 – 69 of the judgment).

3 . However, we consider it important to emphasise that, while the strictness to which the Court ’ s existing case-law lends itself is both understandable and legitimate, it gives rise to two risks. Firstly, there is a risk that the principles are applied too rigidly, with an impugned statement being read too literally, in isolation and out of context. The Court has emphasised the relevance of context where, in cases of “unfortunate language”, it has considered it necessary to look at the context of the proceedings as a whole and their special features (see, for example, Pasquini v. San Marino (no. 2), no. 23349/17, § 51, judgment of 20 October 2020). Secondly, there is a risk that the general principles may be applied, over time, in an ever more demanding fashion, with the result that a violation of Article 6 § 2 of the Convention in one set of circumstances is read as requiring a violation in another, despite differences in the nature and context of the judicial statements made or the judicial proceedings to which they relate.

4 . In the present case, the impugned statement, which appeared in an order of the Baku Court of Appeal rejecting the applicant ’ s request to have his pre-trial detention discontinued, read as follows: “having regard to the degree of public dangerousness of the criminal offence committed by Zeynalov Avaz Tapdig oglu , [ ... ]”.

5 . There was, as such, a judicial expression of guilt while the investigation was still pending. However, the order of the Court of Appeal, reproduced in its entirety in § 24 of the judgment, reveals that the impugned statement was accompanied by many others: “the accused [ ... ] was charged with the criminal offences”; “an alternative preventive measure may be imposed on a person who is charged with a criminal offence [ ... ]; the accused [ ... ] is a person who is charged with criminal offences [ ... ] and “the investigation was pending”.

6 . Viewed in the overall context of the order, and the domestic proceedings, did the one statement challenged represent the applicant as a person who had committed a criminal offence without any qualification or reservation ( see § 73 of the Savov judgment, cited in § 70 of the judgment)?

7 . In the particular circumstances of the present case, two factors led us to vote in favour of a violation. Firstly, the statement was made by a court of appeal, not merely by an official, and one which should have known the Convention standards by which such a statement would be judged. Statements by judges are subject to stricter scrutiny than those by investigative authorities ( see Pandy v. Belgium , no. 13583/02, § 43, judgment of 21 September 2006). Secondly, and most importantly, that court order reflected a sort of “template” reasoning, such that, were the Court not to point out the error it contained, there is a risk that such standard expressions would continue to be repeated without due regard to the requirements of the presumption of innocence. It is important that the domestic courts express themselves with requisite care.

8 . However, we do consider it necessary to emphasise the need, in cases related to Article 6 § 2 of the Convention, to assess impugned statements case by case and with careful attention to their wording, context and the proceedings in which they are made in order to ensure that strict scrutiny does not become blinkered scrutiny.