CEDH · CASELAW;CLIN;ENG — 27 février 2014

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Germany - 17103/10 Judgment 27.2.2014 [Section V] Article 6 Criminal proceedings Article 6-2 Presumption of innocence Statements concerning a suspect under investigation contained in a judgment convicting co-accused tried separately: Article 6 §   2 applicable ; no violation Facts – The applicant was the founder of a Turkish TV station whose programmes were broadcast in Turkey and Germany and the director of its operating company. In 2006 German prosecution authorities started investigations into the activities of the applicant and others like him suspected of fraudulently using donated funds for commercial purposes and their own benefit. In 2008 the preliminary criminal proceedings against the applicant were separated from the investigations against the other suspects. In the same year, criminal investigations against the applicant based on the same allegations of fraud were initiated in Turkey. In 2008 two of the applicant’s co-accused were convicted of aggravated fraud and another of aiding and abetting them. Whilst the applicant had not formally been indicted at that stage, the judgment nevertheless described in detail how the scheme had been organised and the role played by the applicant. It originally indicated the applicant’s full name (although only his initials were used in the Internet version) and explicitly stated that the applicant had played a prominent role in the criminal venture. The introductory remarks to the Internet publication further specified that references and findings in the judgment with respect to the actions of other persons, in particular those separately prosecuted, were not binding in relation to those persons, who still benefited from the presumption of innocence. The media coverage of the proceedings depicted the applicant as having played a main role in the events. In 2009 the applicant lodged a complaint with the German Federal Constitutional Court, arguing that the references in the reasoning of the regional court’s judgment assuming his participation in the fraudulent use of the donated funds had violated his right to be presumed innocent. His complaint was, however, declared inadmissible. In 2013 the applicant’s trials commenced in Turkey and in Germany. At the time the European Court gave its judgment in the present case, those proceedings were still pending. Law – Article 6 § 2 (a)     Admissibility – The Government argued that the applicant could not claim to be a victim of a violation of the right to be presumed innocent as any finding of guilt in the regional court’s judgment was limited to his co-accused. Furthermore, the presumption of innocence did not protect a suspect from merely factual and indirect impacts resulting from a judgment delivered in criminal proceedings against third parties which did not contain a determination of his own guilt or expose him to disadvantages amounting to a conviction or sentence. The Court observed however that, in principle, the presumption of innocence could also be engaged by premature expressions of a suspect’s guilt made within the scope of a judgment against separately prosecuted co-accused. In the applicant’s case, when the regional court’s judgment against his co-accused was handed down, preliminary criminal proceedings had already been instituted against the applicant on allegations of fraud in Germany and Turkey and he had thus been “charged with a criminal offence” within the meaning of Article 6 §   2, even though he had not been formally indicted. In this regard, the statements in the regional court’s judgment, although not binding with respect to the applicant, could nevertheless have had a prejudicial effect on the criminal proceedings pending against him. In circumstances such as this, it was important to remember that a separately prosecuted accused who is not a party to the proceedings against his co-accused is deprived of any possibility to contest allegations with respect to his participation in the crime made during such proceedings. Conclusion : preliminary objection dismissed (unanimously). (b)     Merits – The Court accepted that in complex criminal proceedings involving several persons who could not be tried together, references by the trial court to the participation of third parties, who might later be tried separately, could be indispensable for the assessment of the guilt of those on trial. In this respect, criminal courts were bound to establish facts relevant for the assessment of the legal responsibility of the accused as accurately and precisely as possible and they could not present decisive facts as mere allegations or suspicions. This also applied to facts related to the involvement of third parties. However, where such facts had to be introduced, the trial court had to exercise restraint and provide no more that the information necessary to assess the legal responsibility of the persons on trial. In the present case, the impugned statements in the regional court’s judgment had to be read in the context of German law, which clearly did not allow the drawing of any inferences on the guilt of a person from criminal proceedings in which he or she had not participated. In respect of the domestic court’s reasoning, the Court observed that, in order to assess the extent of the responsibility of one of the co-accused, the regional court had had to examine the role played and even the intentions of all the persons behind the scenes in Turkey, including the applicant. In this context, the mention of such elements in the regional court’s judgment had been unavoidable. Furthermore, the language used and particularly the continuous reference to the applicant as “separately prosecuted” had made it sufficiently clear that any mention of the applicant did not entail a determination of his guilt. Moreover, both the introductory remarks to the Internet version of the regional court’s judgment and the Federal Constitutional Court’s decision in the case had emphasised that it would have been contrary to the presumption of innocence to attribute any guilt to the applicant on the basis of the outcome of the trial against his co-accused. In the light of those considerations, the Court concluded that the domestic courts had avoided as far as possible giving the impression of having prejudged the applicant’s guilt, and so had not violated the applicant’s right to be presumed innocent. Conclusion : no violation (five votes to two). (See also Allen v. the United Kingdom [GC], 25424/09, 12   July 2013, Information Note   165 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes