EHRM, 27-02-2014, nr. 17103/10

In the Government's view the applicant could not claim to be a victim of a violation of the right to be presumed innocent in the meaning of Article 34 of the Convention.

The Government submitted in this connection that it followed from section 155 (1) read in conjunction with section 264 (1) of the Code of Criminal Procedure (see Relevant domestic law and practice above) that any decision or finding of guilt by the criminal courts only concerned the accused and the offences referred to in the bill of indictment underlying a particular trial. In the instant case, the Regional Court's judgment had been rendered in separate proceedings against the applicant's co-accused and any finding of guilt was consequently limited to the latter, did not extend to the applicant, and could not be held against him.

The Government further argued that the Regional Court's judgment did not have a binding effect on the courts or the prosecution authorities as regards criminal proceedings pending or to be instituted against the applicant in the future. The principle of the presumption of innocence precluded any prejudgment of the applicant's guilt by the trial court conducting the proceedings against him and under no circumstances could a possible future conviction be based on the impugned statements in the judgment previously rendered against his co-accused. By contrast, the trial court would be under an obligation to impartially assess all available evidence submitted by the prosecution authorities in the applicant's own proceedings. Hence, the impugned passages of the Regional Court's judgment which were of no legal relevance for the applicant's subsequent trial only affected him in an indirect de facto manner resulting, for instance, from the media coverage of the proceedings.

The Government, fully concurring with the Federal Constitutional Court's findings in its decision of 3 September 2009 (see above paragraph 20 et seq.), contended that the presumption of innocence did not protect the applicant from such merely factual and indirect impacts resulting from a judgment rendered in criminal proceedings against third parties which did not contain a determination of the applicant's own guilt or exposed him to disadvantages amounting to a conviction or sentence.

The applicant disputed the Government's argument and emphasised that the narrow interpretation of the principle of the presumption of innocence by the Government and Federal Constitutional Court was not in line with the Court's case-law establishing that the scope of application of Article 6 § 2 was not limited to situations where a person's guilt had been determined by means of a formal judicial decision (citing Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62; Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308; and Borovský v. Slovakia, no. 24528/02, § 45 et seq., 2 June 2009).

In the applicant's view, statements contained in a judgment against third parties with respect to a separately prosecuted suspect that went beyond a necessary description of facts but implied a de facto assessment of the latter's guilt could engage the presumption of innocence. While it was true that the statements and findings in the Regional Court's judgment were not legally binding on the prosecution authorities and trial court involved in the pending or future (preliminary) criminal proceedings against the applicant, they had nevertheless created a factual precedent that could have a significant negative impact on such proceedings and had further led the public to perceive the applicant as the head of a criminal organisation established for fraudulent purposes.

The applicant concluded that, as opposed to the Government's submissions and the Federal Constitutional Court's finding in its decision of 3 September 2009, the incriminating references in the Regional Court's judgment had directly affected his right to be presumed innocent and that he could consequently claim to be a victim of a violation of Article 6 § 2 of the Convention.

The present case concerns the question whether the presumption of innocence may be engaged by statements contained in a judgment directed against co-suspects in separate proceedings that do not have a legally binding effect in pending or future (preliminary) criminal proceedings against the applicant. The Court's task is to determine whether the situation found in this case affected the applicant's right under Article 6 § 2 of the Convention.

The Court notes, firstly, that neither the wording of Article 6 § 2 nor the preparatory works on the provision provide clarification in this respect. Turning to its related case-law, the Court reiterates that the presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair criminal trial required by Article 6 § 1 (see, among others, Daktaras v. Lithuania, n^o 42095/98, § 41, ECHR 2000-X, Janosevic v. Sweden, n^o 34619/97, § 96, ECHR 2002-VII, and Yassar Hussain v. the United Kingdom, n^o 8866/04, § 19, ECHR 2006-III). In its recent judgment of Allen v. the United Kingdom, the Grand Chamber recalled that, viewed as a procedural guarantee in the context of a criminal trial, ‘the presumption of innocence imposes requirements in respect of, inter alia, … premature expressions by the trial court or by other public officials, of a defendant's guilt’ (Allen v. the United Kingdom [GC], n^o 25424/09, § 93, ECHR 2013). The Court has previously held in this context that Article 6 § 2 aims at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. It not only prohibits the premature expression by the tribunal itself of the opinion that the person ‘charged with a criminal offence’ is guilty before he has been so proved according to law, but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see, among other references, Minelli, cited above, § 37; Allenet de Ribemont, cited above, § 35; Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002-II (extracts); Lavents v. Latvia, no. 58442/00, § 125 et seq., 28 November 2002; and Borovský, cited above, §§ 45 et seq., 2 June 2009). The Court has held in this context that the presumption of innocence may be engaged by prejudicial comments relating to a suspect's involvement in the commission of an offence made by public officials at a time when judicial investigations were pending against the suspect but before he had been formally charged with the offence in issue (see Allenet de Ribemont, cited above). The Court has further specified that Article 6 § 2 may apply where a court decision rendered in proceedings that had not been directed against the applicant in his capacity as ‘accused’ but nevertheless concerned and had a link with criminal proceedings simultaneously pending against him, implied a premature assessment of his guilt (see Böhmer v. Germany, no. 37568/97, § 67, 3 October 2002, and Diamantides v. Greece (no. 2), no. 71563/01, § 35, 19 May 2005).

The Court considers, contrary to the Government's submissions, that the presumption of innocence may in principle also be engaged by premature expressions of a suspect's guilt made within the scope of a judgment against separately prosecuted co-suspects, as alleged by the applicant in the instant case. It reiterates in this context that the object and purpose of the Convention, as an instrument for the protection of human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. The Court has expressly stated that this also applies to the right enshrined in Article 6 § 2 (see, for example, Allenet de Ribemont, cited above, § 35; Lavents, cited above, § 126; and Allen, cited above, § 92).

The Court notes in this respect that at the time the Frankfurt am Main Regional Court's judgment against the applicant's co-suspects was rendered, preliminary criminal proceedings had been instituted against the applicant on allegations of fraud in Germany and Turkey and that he had thus been ‘charged with a criminal offence’ in the meaning of Article 6 § 2, although he had not yet been formally indicted (see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, and Šubinski v. Slovenia, no. 19611/04, § 62, 18 January 2007). The relevant passages in the judgment concerned his involvement in the fraudulent use of the donated funds that was also the subject of the parallel criminal investigations instituted against him and consequently had a direct link with these proceedings. The Court finds that such statements, notwithstanding the fact that they are not binding with respect to the applicant, may have a prejudicial effect on the latter's pending proceedings in the same manner as a premature expression on a suspect's guilt made by any other public authority in close connection with pending criminal proceedings (compare Diamantides, cited above, § 44). The Court finds it relevant to note in this context that in a situation like the one underlying the instant application, the separately prosecuted accused, who is not a party to the proceedings against his co-accused, is indeed deprived of any possibility to contest allegations with respect to his participation in the crime made during such proceedings.

In keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the Court therefore concludes that the presumption of innocence applies in the present case and that the applicant may claim to be a victim of a possible infringement of his right to be presumed innocent.

The Government further submitted that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention.

In their opinion, the applicant ought to have awaited the outcome of his own trial and could then have appealed a possible conviction on the ground that the trial court had not independently assessed the available evidence against him. They argued that only upon termination of criminal proceedings ending in a conviction it could be demonstrated whether the trial court's reasoning suggested that it had regarded the applicant guilty in advance, in breach of the presumption of innocence.

The Government further maintained that to the extent the applicant complained about the media attention the Regional Court's judgment had attracted in particular in Turkey, and even assuming that the protection from public attention formed part of the presumption of innocence, he could have been expected to exhaust the appropriate civil law remedies in this respect. In any event, the Government could not be held responsible for statements made in the Turkish media.

The applicant considered that by raising his complaint that the impugned statements in the Regional Court's judgment had infringed his right to be presumed innocent before the Federal Constitutional Court, he had exhausted the available domestic remedies.

He further clarified that he essentially complained about a violation of the presumption of innocence by means of the said statements in the judgment against his co-suspects and that in his view the judgment's subsequent media coverage was not material for a possible finding of a violation of Article 6 § 2. He consequently objected to the Government's submissions that he would have been obliged to challenge the Regional Court's judgment prejudicial media coverage before the civil courts.

The Court recalls that the applicant lodged a complaint against the Frankfurt am Main Regional Court's judgment with the Federal Constitutional Court alleging a violation of his right to be presumed innocent corresponding to the complaint later raised before this Court. It notes that there is nothing to establish, and that the Government have not contended, that the applicant had disposed of any other domestic remedy with a view to directly challenging a violation of his constitutional rights by means of a judgment rendered against third parties. The Court would, moreover, point out that in its decision of 3 September 2009 the Federal Constitutional Court itself did not dismiss the applicant's complaint for lack of exhaustion of domestic remedies but on the ground that in its opinion the impugned decision did not directly affect the applicant's legitimate interests. The Court is therefore satisfied that the applicant has afforded the domestic courts with an opportunity of preventing or putting right the alleged violation of his Convention right before those allegations were submitted to it, in line with the purpose of Article 35 § 1 of the Convention (see, for instance, Slimani v. France, no. 57671/00, § 38, ECHR 2004-IX (extracts), and ASBL Eglise de Scientologie v. Belgium (dec.), no. 43075/08, § 26, 27 August 2013).

In view of its finding that the presumption of innocence may be engaged even in the absence of a formal finding of a defendant's guilt (see paragraphs 40–44 above), the Court rejects the Government's argument that the applicant ought to have awaited the outcome of the criminal proceedings pending against him before challenging a possible violation of his right to be presumed innocent. The Court finds that while such objection may be valid in the event an applicant complains about a violation of the procedural guarantees enshrined in Article 6 §§ 1 and 3 in the context of a criminal trial itself and where it would be the Court's task to evaluate the fairness of the criminal proceedings taken as a whole (see, for instance, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010), it does not preclude an applicant from raising a complaint of a violation of his right to be presumed innocent prior to the conclusion of the proceedings pending against him.

The Court further does not share the Government's view that the applicant should have had recourse to the remedies available under civil law as far as the media coverage of the Regional Court's judgment was concerned. The Court notes that the purpose of such civil proceedings would have been different from the subject matter of the present application as submitted by the applicant (see above paragraph 49), namely whether or not the relevant passages in the Regional Court's judgment had violated the applicant's right to be presumed innocent. They would thus not have constituted an effective remedy in this regard (see Shuvalov v. Estonia, no. 39820/08 and 14942/09, § 73, 29 May 2012).

The Court is therefore satisfied that the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention.

In the applicant's submissions the incriminating statements in the Frankfurt am Main Regional Court's judgment rendered against his separately prosecuted co-suspects clearly suggested that the court regarded him guilty of the alleged crime. He had been described as occupying a leading role in the organisation of the offence without having been granted an opportunity to comment on the accusations brought against him. The judgment had not only set a factual precedent as regards the further course of the proceedings against him in Germany and Turkey but also had led the public to perceive him as the head of a criminal organisation established for fraudulent purposes.

The applicant conceded that references to the participation of separately prosecuted co-suspects in judgments by the criminal courts were necessary with a view to establishing the circumstances of a case involving several suspects and in order to determine their individual contribution in the commission of an offence. He contended that, however, any such references should remain limited to the description of a state of suspicion with respect to the involvement of separately prosecuted suspects but not amount to a finding of their guilt.

In his view, the Regional Court's judgment had not only comprised a determination of the convicts' guilt but also contained statements on the applicant's criminal responsibility that went beyond a mere description of a state of suspicion. The judgment's reasoning was not confined to a neutral description of the applicant's alleged participation in the offence but also made reference to his motivation, intent and other subjective elements underlying his involvement in the events in issue. Furthermore, the Regional Court had had recourse to legal terms and expressions that clearly implied that the applicant's involvement qualified as fraud under criminal law committed jointly with the convicts.

The impugned statements in the judgment's reasoning taken as a whole were thus tantamount to a finding of the applicant's guilt that infringed his right to be presumed innocent.

The Government argued that since there existed a factual connection between the accusations brought against the applicant's co-suspects and his own role in the events underlying their conviction, references to his participation in the crime had been indispensable with a view to assessing the contribution of each co-accused in the commission of the offence and, consequently, in order to determine their respective guilt and corresponding sentence. This was the usual approach applied by the criminal courts in complex proceedings involving several suspects where it was hardly ever possible to conduct and terminate the proceedings against all the accused simultaneously. For instance, when determining the guilt of suspects charged in separate proceedings with having instigated or aided and abetted a crime (Anstifter oder Gehilfen) the trial court was obliged to establish that the crime itself had been actually committed, a mere assumption was not sufficient in this regard. Such approach further complied with the principle enshrined in the rule of law that criminal proceedings had to be conducted expeditiously, in particular where they involved an accused's detention on remand, as it had been the case with respect to the applicant's co-suspects in the present case.

The Government maintained that, moreover, the references to the applicant in the Regional Court's judgment mainly concerned the position the applicant had held within the various enterprises and associations involved in the organisation and concealment of the crime at issue. They emphasised that any such references were limited to the neutral description of facts and made no link to his criminal responsibility. The reasoning of the Frankfurt am Main Regional Court did at no point create the impression that the applicant, who was referred to as ‘separately prosecuted’ throughout the judgment, was presumed guilty of having committed a particular crime.

This was all the more evident when considering that the proceedings before the Regional Court had not been directed against the applicant and had thus not required the determination of his criminal responsibility. The Regional Court's judgment did not have any binding effect on the pending criminal proceedings against the applicant or any other future proceedings to which he might become a party and did consequently not have a prejudicial effect in this regard. Any finding of the applicant's guilt was reserved for his own trial on the occasion of which he would also have the opportunity to contest the facts underlying the Regional Court's preceding judgment against his co-suspects. For this reason, it had also not been necessary to hear the applicant in the proceedings against the co-suspects.

The Government finally submitted that by specifying in the introductory remarks to the judgment's internet publication on 25 November 2008 that any references and findings with respect to separately prosecuted co-suspects were not binding and that the latter still benefited from the presumption of innocence, the national authorities had ensured that the applicant could not be prematurely perceived as guilty by the public.