DISSENTING OPINION OF JUDGE Zupančič

1. I beg to disagree with the majority ’ s finding that there has been no violation of the provisions of Article 6 (1) and (3)(d) – Right to a fair trial. For me, the relevant provisions are Article 6 (2) and (3)(d) which read as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

2. Prior to the applicant ’ s trial and pursuant to section 170 (2) of the German Code of Criminal Procedure , t he investigation proceedings against G. and H. were discontinued by decision of the Public Prosecution Office . Section 170 (2) of the German Code of Criminal Procedure provides :

“(1) If the investigations offer sufficient reason for proffering public charges, the P ublic Prosecution O ffice shall proffer them by submitting a bill of indictment to the competent court.

(2) In all other cases , the Public Prosecution Office shall terminate the proceedings . ... ” [ E mphasis added ]

3. Apparently, pursuant to German law, a decision under the above section 170 (2) is reversible , i.e., the proceedings may be resum ed .

4. Germany has not ratified Article 4 of Protocol N o . 7 to the Convention but the Court has rendered decisions with respect to other countries that have similar procedural provisions in their domestic Codes of Criminal Procedure in relation to the ne bis in idem (double jeopardy) procedural human right: in the case s of Müller v. Austria (dec. no. 28034/04, 18 September 2008) and Sundqvist v. Finland (dec. no. 75602/01, 2 2 November 2005).

5. As regards Germany, the Court had the opportunity to examine the provisional discontinuation of criminal proceedings under Article 6 (2) of the Convention in the cases of Niedermeier v. Germany (no. 37972/05, decision of 3 February 2009) and Matterne IV v. Germany (no. 408 99 /05, decision of 3 February 2009) ; however, these relate d to provisional discontinuation by a court decision and not by decision of the Public Prosecution Office , as in this case .

6. Her e we have a slightly different situation , in which G. and H., the two co- defendants, were accorded , during the applicant ’ s trial, the right to withhold their testimony on the basis of potential self-incrimination.

7. Since they had previously been subject ed to prosecution – which prosecution had, however , been discontinued – they were in the instant case, namely the applicant ’ s trial , entitled to abstain from testifying and from being subject ed to cross-examination by the applicant ’ s defence.

8. Whe re , to use the language of the German Code of Criminal P rocedure, the Public Prosecution Office “ terminates the proceedings ” , this , although reversible in German law, remains in any event an ex parte decision . It is taken by the prosecutorial authorities.

9. The logical implication here can be phrased as a question concerning the nature and the basis of that decision. Such a decision is made – where we are dealing with merits and not with procedural impediments such as immunity etc. , to which double jeopardy in any event does not attach – essentially on the basis of the presumption of innocence .

10. Since it is merely a lack of sufficient evidence which is the only imaginable procedural institute capable of providing the procedural basis for the decision to stay the prosecution , this is a logically unavoidable conclusion.

11. T he presumption of innocence is consubstantial with and thus inseparable from the banning of double jeopardy ( ne bis in idem ).

12. In the relatively recent case s of Sundquist v. Finland 75602/01 of 2 2 November 2005 and Mü ller v. Austria, decision no. 28034/04 of 18 December 2008, this confluence of presumption of innocence on the one hand and the proscription of double jeopardy on the other was in fact dealt with by this Court. Although Germany ha s not ratified Art icle 4 of Protocol No. 7 to the Convention, the Court has nevertheless rendered some decisions in respect of other countries having similar procedural provisions in their domestic codes of criminal procedure.

13. W hat is the real purpose of all presumptions in all procedures, i.e., not mere ly the presumption of innocence?

14. The function of presumptions in law is to enable the judge, and this goes back to Roman law, always to make a decision , i.e., even in cases where there is insufficient proof.

15. The reverse implication of any presumption is thus that the burden of proof is on the side that does not profit from the presumption . It also means that the risk of non-persuasion is on that same side.

16. In adversarial proceedings as intended by the Convention, this implies that throughout the criminal proceedings the prosecutor carries the complete burden of proof and must take the risk of non-persuasion ( in dubio pro reo ) as to every element of the definition of the crime (in German: der Tatbestand ) . If the prosecution does not satisfy the burden of proof as defined by the Tatbestand – which is its true purpose! – the prosecution will not obtain a conviction.

17. The function of the presumption of innocence is therefore not , as in the major ity of our cases, simply the instruction as to how to treat as innocent s omebody who has not been finally convicted . The function is, on the contrary , a very specific procedural – indeed epistemological – d evic e.

18. The presumption authori s es final decisions in cases where there is otherwise insufficient evidence as to what the plaintiff or the prosecution is actually asserting. In civil procedure preponderance of evidence will suffice , whereas in criminal procedure, we require proof beyond reasonable doubt.

19. If we now turn to the question concerning the preliminary stages of criminal procedure and the question as to when double jeopardy will attach, the issue arises as to what is the real nature of the decision taken by the prosecutor to stay the prosecution.

20. In German criminal procedure, as pointed out above, this decision is wholly reversible. Historically, we are familiar with such reversibility. In the purely inquisitorial criminal procedure, straightforwardly incompatible with the spirit of the Convention, there existed a legal institute called absolutio ab instantia ; it permitted t he inquirens (akin to the investigating judge) if sufficient evidence, in his view, subsequently accumulated , to recommence the investigation against a particular defendant.

21. Since it is in violation of the defendant ’ s procedural guarantees, absolutio ab instantia is largely considered as unacceptable, and in strong violation, I dare say, of the applicant ’ s human rights, in the light also of Article 4 of Protocol No. 7.

22. Given the reversibility of a prosecutorial discontinuance decision and the possibility of further prosecution, absolutio ab instantia will hang almost indefinitely, like the sword of Damocles, over the head of the criminal suspect, barring the statute of limitations.

23. The conceptual link between the presumption of innocence on the one hand and the principle of ne bis in ide m (double jeopardy) on the other depends on the underlying, more basic question, as to whether the decision to discontinue the proceedings on the part of the Public Prose cution Office under section 170 (2) of the German Criminal Procedure, is actually a decision .

24. The procedural norm may, of course, provide anything, and, inter alia , that re-starting of the prosecution is permitted if new evidence against somebody is thereafter gathered. However, the question is decidedly not a positivist one and especially not so before the European Court of Human Rights. The outstanding question is: “Is this logical?”

25. The decision to terminate the proceedings (this is the official language of section 170 (2)) is, after all, a decision. It follows inexorably that this decision to terminate the proceedings is inescapably based, as it must be, on the presumption of innocence! If it is a decision, albeit a temporary one, the decision to suspend the prosecution cannot logically be based on a simple lack of sufficient evidence. This is obvious for the simple reason that a lack of sufficient evidence cannot by definition be in itself a basis for any kind of decision.

26. If we go back to Roman law, we begin to understand that the judge (praetor) in any kind of procedure (mostly, of course, private-law procedures) was always obliged to arrive at a decision. Yet he may not have had sufficient available information (evidence) on the basis on which to be able to make the decision in the first place. Under the phrase of non liquet , the praetores were mostly forbidden to take the “ I don ’ t know ” position, i.e., a decision had to be taken, one way or the other, - because decision making in the adversarial context is in fact the basic function of legal conflict resolution. The proof that this was even then understood as essential lies in the first rule of the Leges XII Tabularum: Si in ius vocat ito ... !

27. Thus the law from its very beginning provided for the possibility that there would not be sufficient evidence and not enough truth available for the judge to make an informed decision.

28. It was here that the presumptions ( presumptiones j ur is) helped and were intended precisely for this purpose, i.e., for situations in which the whole truth about the subject matter at stake in the procedure was simply not available. This was the original and authentic purpose of all presumptions, which in turn implies in every adversarial context, that the burden of proof is always on the plaintiff ( Ei incubit probatio , qui dicit, non qui negat ... ).

29. It is therefore logical to assume – and this is the connection between the presumption of innocence on the one hand and the double jeopardy proscription on the other hand – that any decision based on any lack of evidence is always based on a presumption and is thus of necessity a final decision.

30. Here we have to include the understanding that a decision is by its very nature something final , i.e., a decision that can at anytime be reversed is not a decision. Even in strictly positivist and narrow terms, the quoted language of paragraph 2 of section 170 of the German Code of Criminal Procedure, which speaks of “ terminating the proceedings ,” inexorably implies that there has been a (final?) decision made on the part of the Prosecutorial Office.

31. The moment, however, the decision based on the presumption of innocence is made, correspondingly by the Public Prosecution Office, the previously refutable presumption of innocence ( praesumptio juris ) of necessity metamorphoses into an irrefutable one ( praesumptio juris et de jure ).

32. In fact, many countries have been logically consistent and have taken the position that double jeopardy attaches in the preliminary phases of procedure; the decision to dismiss the prosecution – as for example in the recent case against Dominique Strauss-Khan in New York – cannot be reversed, which in turn implies that double jeopardy has definitely attached to the “ res judicata ” nature of the prosecutorial ex part e decision . In other words, the whole world would be quite surprised if the prosecutor in the above-mentioned aborted case were sub sequently to be permitted to re ‑ initiate the proceedings.

33. The situation in the present case, however, is completely analogous. The majority, in turn, has implicitly ratified the German absolutio ab instantia “logic” and has, moreover, sacrificed to this very ratification the applicant ’ s right to cross-examine.

34. Because of the problem we have described, the co-defendants in this particular case could have “taken the Fifth”, i.e., could have invoked their privilege against self-incrimination because, obviously, there was a real possibility that the Public Prosecution Office would re-commence the proceedings.

35. Nevertheless, the eventual blocking of the applicant ’ s right to cross ‑ examine the hostile witnesses, and the resort to the Court ’ s ‘ totality of circumstances ’ explanation in paragraphs 63-66 of the majority judgment, derives from a concealed double jeopardy problem, as described above.

36. If there is a fault in the system of criminal procedure of a particular country, it is in my opinion unacceptable to deny the defendant his explicit human right to have the wit nesses against him submitted to cross ‑ examination or to be able to cross-examine them himself or through his defence lawyer.

37. Here, the balancing of the essential human right to cross-examine one ’ s witness as against the ‘ totality of circumstances ’ and the fairness of the trial as a whole turns out to be a false dilemma.