PARTLY DISSENTING OPINION O F JUDGE POPOVIĆ

I voted along with the majority of colleagues in finding a violation of Article 6 § 2 of the Convention in this case. However, I voted against the proposal to award a certain amount of money to the applicant in just satisfaction. The finding of violation suffices in my opinion and in terms of Article 41 of the Convention I do not find it necessary to award a sum of money to remedy the violation of human rights in this particular case.

The Labour Court used an inappropriate language and by doing so it violated the applicant ' s rights under the Convention. At the same time the Labour Court ordered the applicant to repay the missing money to the bank, which had been the applicant ' s employer. The Labour Court judgment was confirmed by the Court of Cassation of Turkey . That is why I accept the argument put forward by the respondent Government, as reported in paragraph 4 9 of the judgment, that awarding a sum of money in just satisfaction to the applicant in this case would in a certain sense lead to an unjust enrichment of the applicant.

DISSENTING OPINION O F JUDGE SAJÓ

Contrary to the judgment, I could not find that the Trabzon Labour Court violated the requirements of the presumption of innocence when it denied by its judgment of 13 October 2005 the applicant ' s claim to receive compensation for his dismissal. The Trabzon Court referred to an earlier suspension of a criminal procedure by the Istanbul Assize Court . The Istanbul Assize Court ' s decision stated that the applicant had committed the crime of breach of trust but his case was to be suspended. I do not find that this reference was decisive in the rejection of the applicant ' s labour law compensation claim. The Trabzon Court , relying on findings of its own – findings which originate in evidence that emerged in the criminal procedure – came to the conclusion that the applicant had embezzled the money in question. This is not a finding of a criminal nature but a description of the act that the applicant had committed; in fact, the applicant was charged with breach of trust in the criminal case. The fact that the applicant as a driver of a security van was unable to bring to the bank the money that he was supposed to deliver had been established on the basis of the examination of documents produced during the criminal investigation, including the statement of one of the accused, namely that he “forgot to return” the sum in question.

The Court of Cassation quashed the original judgment of the Trabzon Court , indicating that the error consisted, inter alia , in the lack of examination of the Istanbul Assize Court ' s case file. After a fresh trial by the Trabzon Court resulting in the judgment of 13 October 2005, the Court of Cassation found that this second judgment of the Trabzon Court satisfied the requirements it had set in its earlier cassation decision.

It is not for this Court to review the appropriateness of the evaluation of facts carried out by the domestic court. Given that the Trabzon Court did not base its judgment on the (non-existing) finding of guilt but on facts established during the procedure, which have an independent probatory force in a civil case which is different from what is required in a criminal court, I see no violation of the presumption of innocence. Reliance on evidence collected in a suspended criminal procedure does not amount to unconditional reliance on a finding of guilt. Evidence gathered in a non-final procedure can be taken into consideration in a dispute over a civil right without attributing guilt to the person whose acts are evaluated in a civil/labour procedure.

Even where there are certain negative consequences attached to a non-acquittal which is due to the fact that the case is suspended and “the definitive finding on the merits has not yet become final” [see para. 27 of the judgment], there is no violation of the presumption of innocence, as the negative consequences do not follow from a non-final finding of guilt and do not amount to a “measure that can be equated with a penalty” ( Lautscher v. Netherlands , judgment of 22 February 1996, § 29, Reports 1996-II). Further, there were no formal declarations of the applicant ' s guilt which could prejudge the assessment of the facts by the competent judicial authority (see in regard to prosecutors, Daktaras v. Lithuania , no. 42095/98, ECHR 2000-X; see, mutatis mutandis , Allenet de Ribemont v. France , judgment of 10 February 1995, § 41, Series A no. 308).