CONCURRING OPINION OF JUDGE SILVIS JOINED BY JUDGE LÓPEZ GUERRA

1. A distinguishing feature of this case is that the authority responsible for the decision to discontinue the criminal investigation as well as the courts upholding that decision are reproached by the applicant for breaching his right to be presumed innocent, while many cases of alleged violations of Article 6 § 2 of the Convention are concerned with the voicing of suspicion by authorities other than those responsible for the decision to end the proceedings without dealing with the merits.

2. Since the charges against the applicant had become time-barred, the Sibiu Prosecutor ’ s Office decided to discontinue the criminal investigation. Apparently the prosecution regretted this ending, since it also expressed the view that, on the basis of the documentary, testimonial and expert evidence in the file, as produced during both the previous investigation and the trials, the applicant was guilty of the offences for which he had been prosecuted. The applicant appealed against the decision to discontinue the proceedings, claiming that he should be acquitted after examination of the case in a court. The Sibiu District Court dismissed the appeal and upheld the prosecutor ’ s decision. In a final judgment, the Bacău County Court dismissed the applicant ’ s appeal on points of law. The County Court held, on the basis of the available documentary, testimonial and expert evidence, that the applicant had committed the offences of complicity in fraud and forgery of privately signed documents, but concluded that the case was correctly found to be time-barred. To my mind it is beyond controversy that the domestic courts operated within their margin of appreciation when finding that the case could not have been discontinued on the ground that no unlawful act had been committed. However, the wording used by the domestic courts concerning the applicant ’ s guilt breaches his right to the presumption of innocence (Article 6 § 2).

3. In the early case of Minelli v. Switzerland (25 March 1983 , Series A no. 62), which concerned an order requiring the applicant to pay prosecution costs following discontinuance of criminal proceedings, the Court set out the applicable principle as follows:

“37. In the Court ’ s judgment, the presumption of innocence will be violated if, without the accused ’ s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.”

4. In a number of cases with which the Court has had to deal concerning applications by a former accused for compensation or for defence costs, the Court has drawn on the principle set out in Minelli , explaining that a decision whereby compensation for detention on remand and reimbursement of an accused ’ s necessary costs and expenses were refused following termination of proceedings might raise an issue under Article 6 § 2 if the supporting reasoning, which could not be dissociated from the operative provisions, amounted in substance to a determination of the accused ’ s guilt without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence (see Englert v. Germany , 25 August 1987, § 36, Series A no. 123; Nölkenbockhoff v. Germany , 25 August 1987, § 37, Series A no. 123; and Lutz v. Germany , 25 August 1987, § 60, Series A no. 123). All three cases, as was clearly observed in Allen v. the United Kingdom ( [GC], no. 25424/09, § 121, ECHR 2013) concerned prior criminal proceedings which had ended in discontinuance, rather than acquittal. In finding no vi olation of Article 6 § 2 in those cases, the Court explained that the domestic courts had described a “state of suspicion” and that their decisions did not contain any finding of guilt.

5. In the subsequent case of Sekanina v. Austria (25 August 1993, Series A no. 266-A), the Court drew a distinction between cases where the criminal proceedings had been discontinued and those where a final acquittal judgment had been handed down, clarifying that the voicing of suspicions regarding an accused ’ s innocence was conceivable as long as the conclusion of criminal proceedings had not resulted in a decision on the merits of the accusation, but that it was no longer admissible to rely on such suspicions once an acquittal had become final. Thus the Sekanina principle appears to seek to limit the principle established in Minelli to cases where criminal proceedings have been discontinued. The distinction made in Sekanina between discontinuance and acquittal cases has been applied in most of the cases concerning acquittal judgments which followed Sekanina (see, for example, Rushiti v. Austria , no. 28389/95, 21 March 2000, § 31; Lamanna v. Austria , no. 28923/95, § 38, 10 July 2001; Weixelbraun v. Austria , no. 33730/96, 20 December 2001, § 25; Tendam v. Spain , no. 25720/05, § 36, 13 July 2010, §§ 36-41; but compare and contrast Del Latte v. the Netherlands , no. 44760/98, § 30, 9 November 2004, and Bok v. the Netherlands , no. 45482/06, §§ 37-48, 18 January 2011 ).

6. More recently, as was also observed in the Allen v. the United Kingdom judgment (cited above, § 102) the Court has expressed the view that following discontinuance of criminal proceedings the presumption of innocence requires that the absence of a criminal conviction be preserved in any other proceedings of whatever nature. It has also indicated that the operative part of an acquittal judgment must be respected by any authority referring directly or indirectly to any criminal responsibility of the interested party. However, the case at hand can be distinguished from those cases in that the voicing of (particularly strong) suspicion is here part of the reasoning in the discontinuance decision itself, while it is subsequently repeated by the courts that are called upon to review the prosecutor ’ s decision.

7. To my mind Article 6 § 2 should not prevent prosecutors from voicing their conviction concerning the guilt of an applicant when they acknowledge that further examination of the case has become time-barred. But they should be careful in choosing their wording in order to avoid presenting their (professional) conviction as if it were equivalent to a case proven in court. Courts may confirm that the reason for discontinuing a case is merely technical in nature. By doing so they may thereby indicate a point of reference relevant to subsequent proceedings dealing with compensation claims on behalf of the accused person. However, the reasoning in such a context is a delicate matter. In the case of Schreurs v. the Netherlands ((dec.), no. 73058/13, 14 April 2015), a court had acquitted the applicant on technical grounds, noting that a different characterisation of the facts by the prosecution would have led to a different result. The applicant did not challenge that reasoning but came to our Court only when the domestic court in subsequent proceedings refused to award him compensation for having been in pre-trial detention , in support of which the court merely cited the reasoning underlying the earlier acquittal. Whatever the merits of that applicant ’ s complaint concerning a violation of the right to be presumed innocent, his application was lodged too late, more than six months after the acquittal judgment containing the alleged voicing of suspicion.

8. Any suggestion by a court – confronted with justified discontinuance of a case – that an investigation of the merits would have resulted in a finding of guilt, breaches the right to the presumption of innocence of the person formerly charged. That is why I do agree with the majority in finding a breach of that right in the present case. Although I would have preferred to conclude that the finding of a violation sufficiently compensates the applicant, I see no reason to dissent on such a secondary issue where the majority think it more appropriate to grant a modest monetary award.