EUROPEAN COMMISSION OF HUMAN RIGHTS Application No. 21656/93 James Hamill against the United Kingdom REPORT OF THE COMMISSION (adopted on 2 December 1997)
TABLE OF CONTENTS I. INTRODUCTION (paras. 1-18) 1 A. The application (paras. 2-4) 1 B. The proceedings (paras. 5-13) 1 C. The present Report (paras. 14-18) 2 page II. ESTABLISHMENT OF THE FACTS (paras. 19-28) 4 A. Particular circumstances of the case (paras. 19-27) 4 B. Relevant domestic law and practice (para. 28) 7 III. OPINION OF THE COMMISSION (paras. 29-55) 9 A. Complaints declared admissible (para. 29) 9 B. Points at issue (para. 30) 9 C. As regards Article 6 para. 1 of the Convention (paras. 31-49) 9 CONCLUSION (para. 50) 13 D. As regards Article 6 para. 2 of the Convention (paras. 51-52) 13 CONCLUSION (para. 53)....................14
E. Recapitulation (paras. 54-55) 14 DISSENTING OPINION OF MR E. BUSUTTIL 15 APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION 16
I. INTRODUCTION 1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission. A. The application 2. The applicant is a British citizen born in 1950 and presently detained in HM Prison Maghaberry, Northern Ireland. He is represented by Messrs. McCann & McCann, solicitors practising in Belfast. 3. The application is directed against the United Kingdom. The respondent Government are represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office. 4. The case concerns the applicant's complaints concerning the drawing of inferences at his trial from his refusal to give evidence in his defence. It raises issues under Article 6 paras. 1 and 2 of the Convention. B. The proceedings 5. The application was introduced on 15 April 1993 and registered on 20 April 1993. 6. On 30 August 1993, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits. 7. On 24 January 1994, after two extensions in the time-limit, the Government submitted their observations and on 27 June 1994, the applicant submitted his observations in reply, also after two extensions in the time-limit. 8. On 10 October 1994, the Commission decided to adjourn the application pending the outcome of the case of John Murray v. the United Kingdom before the European Court of Human Rights. 9. On 2 March 1996, the Commission decided to invite the parties' additional observations on the relevance of the John Murray v. the United Kingdom judgment of 8 February 1996 (Reports 1996-I no. 1). 10. On 8 May 1996, after one extension in the time-limit, the Government submitted supplementary observations. 11. On 21 October 1996, the Commission declared the application partially admissible. It invited the parties' submissions on specific questions.
12. On 4 December 1996, the applicant provided a response and on 15 January 1997 the Government submitted further observations. 13. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case. In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected. C. The present Report 14. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present: Mr Mrs Mrs MM Mrs MM S. TRECHSEL, President G.H. THUNE J. LIDDY E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA D. ŠVÁBY G. RESS A. PERENIČ C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIŪNAS E.A. ALKEMA M. VILA AMIGÓ M. HION R. NICOLINI
A. ARABADJIEV 15. The text of the Report was adopted by the Commission on 2 December 1997 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention. 16. The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is 1) to establish the facts, and 2) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. 17. The Commission's decision on the admissibility of the application is annexed hereto. 18. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II. ESTABLISHMENT OF THE FACTS A. Particular circumstances of the case 19. On 6 March 1991, the applicant was found guilty of possession of a firearm in suspicious circumstances and of receiving stolen goods (the firearm in question). He was also acquitted of a further charge of possession of a firearm with intent to endanger life or cause serious injury. The court consisted of a single judge sitting without a jury. 20. The firearm in question, a sawn-off shotgun, had been recovered by police from the garden of a private house in Belfast occupied by Mrs F. The prosecution alleged that the applicant had been driving towards a roadblock and had taken abrupt evasive action on sight of the roadblock, turning with screeching tyres into a side road. When the police arrived in the road, the applicant had left his car, with engine running and car door open and was standing at the front door of Mrs F.'s house, No. 10. Mrs F. called the police officers and took them to her garden, where she had found an object (the firearm) wrapped in newspaper leaning against the step leading to the shed at the rear of the garden. 21. The prosecution case consisted of circumstantial evidence purporting to fix the approximate time at which the firearm was abandoned in the garden and placing the applicant in the vicinity at such time. In addition to this the prosecution invited the trial judge to draw particular inferences from the applicant having turned off the road where the roadblock was located and from his statements to the police both before and after his arrest, which the prosecution claimed contained implausible explanations for his conduct. The evidence as to when the firearm had been left in the back garden of No. 10 came from Mrs F., who made a written statement in which it was stated that she heard a noise
as if something had been thrown into the back garden shortly before the applicant rang her front door bell. Mrs F. refused to give oral evidence to the court, claiming to be afraid to do so. Despite the objections of counsel for the defence, the judge exercised his discretion under Article 3 of the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 to admit, as evidence of the facts contained therein, her out of court statement made to the police. He found the quality of the statement as evidence was good, it was relevant and its admission would not result in any unfairness to the accused. 22. At the conclusion of the prosecution case, the trial judge rejected a submission by counsel for the defence that there was no case to answer and, acting in accordance with Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 ("the 1988 Criminal Evidence Order"), called upon the applicant to give evidence in his own defence. 23. Although a number of witnesses were called on behalf of the applicant, the applicant himself declined to give any evidence on the advice of his counsel. There was evidence before the court of the applicant's statements to the police at the time of their arrival at No. 10. He had stated in answer to their questions that he was looking for a mate, who had been shot by the IRA and had been hanging around in the area prior to going to England. In an interview with the police, he named his friend B. McC. and explained that he was looking for him since he owed him money. He had been told that he was living in that road. He stated that he had not seen the roadblock and that he had a habit of leaving the driver's door of his car open. The judge accepted on the evidence that B. McC. existed and had been kneecapped by the IRA before going to England. 24. In finding the applicant guilty of the two offences referred to above the trial judge stated, inter alia: "In this case <the applicant> gave an explanation of his behaviour and he said that he had given it ad nauseam. If an accused man has given an explanation to the police that is credible or reasonably credible and that is partly accepted by the police inferences should not be drawn against him where he refused to give evidence in court. I could not accept this proposition. It seemed to me and I think it is borne out by Lord Justice Kelly's two judgments that there is no restriction to be placed on the inferences which may be drawn by a Judge save that they are proper inferences. A Judge must have regard to all evidence including anything said by an accused while he was being questioned. There is a great difference between answering questions in a police station and giving sworn evidence and being subjected to cross-examination on the other... The Crown case relies on what <Mrs F.> says, and she had not been crossexamined. <The applicant> referred to what he called her lie, which casts a doubt on her reliability as a witness. One does not know the nature of the noise that she says she heard. Perhaps the noise came from the yards of 8 or 12 or the alleyway. There was nothing to show that the gun had been in the yard for some time before <the applicant> rang the bell. The gun position was more consistent with it having been placed than thrown. There were no marks on the newspaper covering. The forensic evidence shows no connection between <the applicant> and the gun or its covering. The fibres on the gun
indicated contact with someone or something different to both <the applicant> and his car. <The applicant> was not wearing gloves and an examination of the wet newspaper if it had been done would have shown finger prints other than his. <The applicant's> hands were bagged and he should have been swabbed. This was not done. If it was it would have shown in his case an absence of newsprint. He also referred to the evidence of Dr S. in regard to the gun and newspaper covering and Mr W. in regard to his opinion as to access to the yard. I did not give my reasons for refusing Mr Cinnamond's application for a direction at the close of the Crown case but I think they will appear now. I am satisfied, having heard the police witnesses give evidence, that <the applicant> in turning down Eastern Crescent was trying to avoid the police check. This was subject to any evidence which might have been put before the court by the Defence. The case against him in this respect has been confirmed by his not giving evidence, the course which if he had done would have given him an opportunity to explain why he drove as he did. The evidence of the police therefore remains unchallenged. The position of the car outside 14 and the car door open and engine running suggests a man in a hurry. Yet, as <the applicant> says, he was not in a hurry and he has not sought to elucidate this by giving evidence. <The applicant's> lie to the police that he did not see the police road check makes it difficult to accept what is his most improbable explanation for leaving his car door open, namely, that he always did that. Now that he has refused to give evidence I do not accept it at all. I believe he left his car seeking to dispose of the shotgun which he did by throwing it over the wall at the end of the alleyway leading to <Mrs F.'s> yard......i have dealt with the case on the basis that there was no forensic evidence connecting the accused and his car with the wrapping or the gun. Dr S. also said that he would expect some dents or bruises on the gun if it was thrown or some abrasive tearing of the newspaper covering. I think common sense suggests this is true but it is not necessarily so and the evidence is again very speculative. I have given what weight I can to it but I have come to the conclusion that the gun was thrown over the yard wall by the accused and I am satisfied beyond reasonable doubt that he is guilty of being in possession of the shot gun." 25. The applicant was sentenced to nine years' imprisonment. He appealed against his conviction. Although initially a ground of appeal, the applicant did not maintain his challenge to the trial judge's decision relating to the admission of the written statement of Mrs F. Instead the appeal concentrated on the trial judge's weighing of the evidence and his drawing of inferences adverse to the applicant from his failure to give evidence himself. The appeal was dismissed on 30 July 1992. Higgins J., giving the judgment of the Court of Appeal, found, inter alia, as regards the drawing of inferences: "In this case the Crown established a prima facie case against the appellant and from the evidence the trial judge was entitled to infer that the appellant had the shotgun
with him in the Sierra and that he threw it into the yard of 10 Easton Crescent to avoid its detection by the police. The appellant had given explanations to the police about the reason for driving into Easton Crescent and for the manner in which he parked the Sierra. But he refused to go into the witness box, when called on by the trial judge, to face crossexamination about his conduct on that occasion and on his explanations. Mr Cinnamond submitted that the appellant had done enough by way of explanation and should not be penalised for not giving evidence. But the giving of an explanation to the police, which may be quite specious and which will not have been subjected to testing by crossexamination, clearly does not absolve an accused person from the consequences of Article 4 after he has been expressly called upon by the court to give evidence in his own defence and has been warned of the consequences if he does not do so. In any event the explanations given by the appellant were self serving, unconvincing and unsatisfactory. It is only common sense to infer in these circumstances from the appellant's failure to give evidence in his own defence that there was no reasonable possibility of an innocent explanation which he could put forward and maintain under cross-examination to rebut the inferences, which could be drawn from the evidence given in Court, and that the inferences which the Crown submitted should be drawn from the evidence, namely that he had the shotgun with him in the Sierra and that he threw it into the yard of 10 Easton Crescent to avoid its detection by the police, were correct. We are satisfied that the trial judge did not err in drawing those inferences and in coming to the conclusion that the appellant was guilty of the offences in Counts 2 and 3 of the indictment." 26. As regards submissions that Mrs F.'s statement was untruthful and unreliable and the judge should not have given it weight, Higgins J. found the allegations unsubstantiated. As regarded the apparent inconsistency as to whether Mrs F. or her daughter answered the door to the applicant, he found that there was no reason why she should have sought to mislead the police by stating her daughter went to the door, if it was in fact herself. While a policeman had given evidence implying that it was Mrs F. who was at the door speaking to the applicant, he noted that due to the obscured view the policeman was likely to have been mistaken. He also found that the judge's decision to admit the evidence was correct. There was no unfairness to the applicant, who could have testified controverting the statement as regarded the noise which Mrs F. stated she heard before he rang the doorbell. 27. The applicant's application for leave to appeal to the House of Lords was refused by the Court of Appeal on 19 February 1993. B. Relevant domestic law and practice 28. Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 provides as relevant: Accused to be called upon to give evidence at trial
4. (1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless - (a) the accused's guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused made it undesirable for him to be called upon to give evidence; but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence. (2) Before any evidence is called for the defence, the court- (a) shall tell the accused that he will be called upon by the court to give evidence in his own defence; and - (b) shall tell him in ordinary language what the effect of this Article will be if question; (i) (ii) when so called upon he refuses to be sworn; having been sworn, without good cause he refuses to answer any and thereupon the court shall call upon the accused to give evidence. (3) If the accused - (a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn; or (b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies. (4) The court or jury, in determining whether the accused is guilty of the offence charged, may - (a) draw such inferences from the refusal as appear proper; (b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.
(5) This Article does not render the accused compellable to give evidence on his behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn. (6) For the purposes of this Article a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless - (a) he is entitled to refuse to answer the question by virtue of any statutory provision, or on the ground of privilege; or (b) the court in the exercise of its general discretion excuses from answering it." III. OPINION OF THE COMMISSION A. Complaints declared admissible 29. The Commission has declared admissible the applicant's complaints that the inferences drawn from his refusal to give evidence in his defence violate his right to a fair trial and his right to be presumed innocent in respect of the charge brought against him. B. Points at issue 30. The issues to be determined in the present case are: - whether the drawing of adverse inferences from the applicant's refusal to give evidence in his defence deprived him of a fair trial contrary to Article 6 para. 1 (Art. 6-1) of the Convention; - whether the drawing of adverse inferences from the applicant's refusal to give evidence in his defence infringed the presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention. C. As regards Article 6 para. 1 (Art. 6-1) of the Convention 31. Article 6 para. 1 (Art. 6-1) of the Convention provides, as relevant: "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...." i. Submissions of the parties 32. The applicant submits that the right to a fair trial includes the right to be presumed innocent and the right not to be forced to incriminate oneself or to give evidence in one's defence.
33. The applicant contends that the de facto position under Article 4 of the 1988 Criminal Evidence Order is that the accused is compelled to give evidence and to incriminate himself. A refusal to give evidence can result in adverse inferences being drawn against an accused irrespective of how weak the prima facie case is. Where the accused is called to give evidence by a tribunal under Article 4, he is likely to be looked on unfavourably if he fails to do so. If he does accede to the judge's order and is sworn in, a refusal to answer any question put to him in the witness box, whether potentially incriminatory or not, would render him liable to prosecution for contempt of court, while if he lied under oath he could be prosecuted for perjury. 34. The applicant submits that, as regards the Government's claim that inferences can only be drawn when "common sense permits it" or when "it is proper", this in fact gives a tribunal full power to decide when to draw such inferences, there being no clear definition as to the circumstances in which inferences can be drawn. There were no adequate safeguards to protect the rights of the defence, having regard to the limited and inadequate evidence supporting the prima facie case put forward by the prosecution. Unfair weight was given to the applicant's silence, the drawing of inferences playing a crucial and determinative role in the findings of guilt. 35. The applicant further submits that the fact that Article 4 entitles a judge to draw the inference that the accused must be guilty of the offence charged from his refusal to give evidence, demonstrates that the burden of proof has been reversed, such that the applicant cannot have been presumed innocent. Consequently the prosecution has not discharged the burden of proving the guilt of the accused and only proved a prima facie or provable case. The role that the adverse inference played in determining guilt was of such significance as to "prove" the case, and in these circumstances it cannot be said that the applicant was presumed innocent. By the trial judge putting pressure on the applicant to give evidence and so effectively asking him to prove his innocence, the burden of proof was reversed. 36. In addition, the applicant submits that the role played by the inferences was unfair having regard to the unsatisfactory nature of the evidence in the case. He refers to the fact that the evidence of one of the main prosecution witnesses, Mrs F., was submitted by way of a sworn written statement, and that he had no chance to cross-examine her, inter alia, as to the nature, timing and source of the noise which she had heard before the ringing of her door bell and why she had said that the conversation on the doorstep was between the accused and her daughter, not herself, as police evidence had established. He submits that her statement was untruthful and unreliable and no weight should have been placed on it. Conversely,the judge failed to give any or sufficient weight to the defence argument that it was more likely that the gun had been placed against the step rather than thrown across a high wall. He points out that there was no forensic evidence to connect the applicant to the gun and refers to the fact that he accounted for his actions and presence to the police at the scene in Easton Crescent and that he gave a full account to the police when he was interviewed more than eight times over a period of two days.
37. The Government submit, inter alia, that the provisions of the 1988 Criminal Evidence Order did not operate to deprive the applicant either of a fair hearing or of the presumption of innocence. They refer to the safeguards provided in Article 4 of the 1988 Criminal Evidence Order: no inference may be drawn unless the suspect/accused has been warned in advance of the possible effects of remaining silent; before any inference is drawn the prosecution must have established a prima facie case against the accused; the trier of fact has a discretion whether to draw an inference and may only draw such inferences as appear proper. They claim that the 1988 Criminal Evidence Order merely allows the trier of fact to draw such inferences as common sense dictates and the prosecution is still required to prove the case against the applicant to the usual standard, beyond reasonable doubt. 38. The Government further submit that the applicant had a right to remain silent since Article 4(5) of the 1988 Criminal Evidence Order expressly provides that an accused cannot be compelled to give evidence and is not subject to any fine, imprisonment or any other punishment for failing to do so. As to the indirect compulsion to give evidence, the Government state that there is a real distinction between, on the one hand, compelling an accused to speak on pain of criminal sanctions and, on the other, conferring a discretion on the trier of fact, in appropriate cases and subject to important safeguards, to draw inferences from the accused's decision not to offer any explanation of the evidence establishing a prima facie case against him. 39. The Government submit that in all cases where an inference is drawn under Article 4 of the 1988 Criminal Evidence Order by the domestic court, it will be because the situation is one which the court considers clearly calls for an explanation from the accused, as in this case. The fact that the applicant had made prior explanations to the police did not change this position. 40. The Government further submit that the requirement that, if an accused does give evidence, he does so on oath and subject to his account being probed in crossexamination (the most effective way of enabling the trier of fact to judge whether or not an accused is telling the truth) is an important corollary to the right of an accused to give evidence and does not render the trial unfair. 41. The Government reject allegations that the nature of the case against the applicant rendered the drawing of inferences unfair. The admission of evidence of Mrs F.'s written statement was carefully reviewed by the Court of Appeal and the finding of a prima facie case by the judge was neither arbitrary nor unreasonable. ii. Applicable principles 42. The Court in the John Murray case (Eur. Court. HR judgment of 8 February 1996 Reports 1996-I no. 1 p. 30 at paras. 45-47) iterated the following principles:
a. the right to remain silent under police questioning and the privilege against selfincrimination are generally recognised standards lying at the heart of a fair procedure under Article 6 (Art. 6), providing protection against improper compulsion; b. it is incompatible with these immunities to base a conviction solely or mainly on an accused's silence or his failure to answer questions or give evidence; c. these immunities do not however prevent that an accused's silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the prosecution case against him; d. whether the drawing of adverse inferences from an accused's silence infringes Article 6 (Art. 6) is to be determined in light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in the assessment of the evidence and the degree of compulsion. 43. In the Saunders case (Eur. Court HR Reports 1996, Comm. Report para. 72), the Commission noted that the privilege against self-incrimination was closely allied to the principle of the presumption of innocence in that it reflects that the State bear the general burden of establishing the guilt of an accused, in which process the accused is entitled not to be required to furnish any involuntary assistance by way of confession. iii. Application to the facts of this case 44. The Commission observes that in this case the applicant did not in fact give evidence at his trial when called upon to do so by the judge pursuant to Article 4 of the 1988 Criminal Evidence Order, which refusal was not subject to sanction as an offence or contempt of court (see eg. Eur. Court HR Funke v. France judgment of 25 February 1993 Series A no. 256-A and Saunders v. UK judgment of 17 December 1996 Reports 1996-VI No. 24 p. 2044). As in the John Murray case, the fact that such silence may be subject to adverse inferences discloses a level of indirect compulsion, which is not of itself decisive. More important is the role played by those inferences in the proceedings and, especially, the applicant's conviction. 45. The Commission notes that the trial judge drew inferences from the applicant's failure to give evidence to discredit the account given by him to the police when questioned before and after his arrest and to support the prosecution case that he had had the shotgun with him in the car and had thrown it into Mrs F.'s garden to avoid its detection by the police. It was not however the only evidence against him, but one of a number of factors taken into account by the judge in reaching a finding of guilt. 46. The Commission recalls that the other factors relied on by the judge included his assessment of the police evidence as to the manner in which the applicant drove his car, screeching and turning into a side road as if to avoid the roadblock, the way in which he left his car with the engine running and the door open and the written statement of Mrs F., who had found the gun in her backyard, concerning a noise at the back of the house as if something had dropped there, shortly before the applicant rang her front door bell. The Commission considers that, against this evidence, the situation could be said, on a
common sense basis, clearly to call for an explanation by the applicant. This case differs however from the John Murray case, where no violation was found in respect of inferences drawn from failure to give such explanation to the court, since the applicant in the present case did provide an explanation to the police. It was argued unsuccessfully at his trial, and on appeal, that in these circumstances no inference should have been drawn from his failure to give evidence at his trial. Both the trial judge and the appeal court rejected the argument on the basis that there was a difference between the giving of explanations to the police and the giving of sworn evidence and being subjected to crossexamination in court. 47. The Commission considers that whether or not an explanation is given to the police or tested orally in court may be relevant to the weight to be attributed to the statements made. Having regard to the judgments of both the trial judge and appeal court, it finds that the applicant's failure to give evidence was used not to establish guilt per se but was an additional element supporting their conclusions that the explanations to the police were, in the words of Higgins J. "self-serving, unconvincing and unsatisfactory" and that the oral evidence of the police officers was on particular points to be preferred. In this assessment, the courts did not go beyond their role in the appreciation of evidence, which is primarily within their competence (eg. Eur. Court HR Edwards v. UK judgment of 16 December 1992, Series A no. 247-B). While the evidence against the applicant may not have been as "formidable" as in the John Murray case, where the presence of the applicant at the scene of an IRA kidnapping called for explanation, the Commission considers that the conduct of the applicant, in particular the way he drove and left his car with engine running and door open, could be regarded, on a common sense basis, as a situation attracting considerable suspicion and reasonably allowing inferences to be drawn in light of the nature and extent of any explanations provided by the applicant. 48. While the applicant has criticised the role played by the inferences having regard to the quality of the other evidence, in particular, the written statement of Mrs F., the Commission recalls that the judge and appeal court examined the allegations raised by the applicant, inter alia, as to this statement's inconsistency with the evidence of one of the police officers but found that it was not substantiated that this rendered the statement untruthful or unreliable. The fact that the domestic courts assessed the statement of one witness as more credible and reliable than that of the accused applicant does not on the facts of this case disclose any unfairness or inequality in the way in which evidence was taken. Nor was the treatment by the courts of the defence arguments or the finding of guilt in the absence of forensic evidence such as to disclose any arbitrariness. The Commission further recalls that in its decision on admissibility the applicant's complaint that Mrs F. had given evidence by way of a written statement and that it had not been possible to cross-examine her in court was rejected on the ground that this complaint had been made too late. Consequently, this matter is not under consideration at the present stage of the proceedings. 49. Taking into account therefore the nature of the role played by the inferences in the circumstances of this case and the fact that it was not decisive to the finding of guilt, the
Commission concludes that the proceedings did not fail to comply with the requirements of Article 6 para. 1 (Art. 6-1) as regards their fairness. CONCLUSION 50. The Commission concludes, by 31 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention. D. As regards Article 6 para. 2 (Art. 6-2) of the Convention 51. Article 6 para. 2 (Art. 6-2) of the Convention provides: "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty by law." 52. The Commission considers that the issue under Article 6 para. 2 (Art. 6-2) is in this case closely linked to the issue under Article 6 para. 1 (Art. 6-1) and, having found that the latter Article has not been violated, it finds that for the same reasons there has been no violation of Article 6 para. 2 (Art. 6-2). CONCLUSION 53. The Commission concludes, by 31 votes to 1, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention. E. Recapitulation 54. The Commission concludes, by 31 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 50). 55. The Commission concludes, by 31 votes to 1, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention (para. 53). M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission (Or. English) DISSENTING OPINION OF MR E. BUSUTTIL I remain of the view, for the reasons spelled out in the dissenting part of my opinion in the John Murray case (Application No. 18731/91) decided by the Commission on 27 June 1994, that the drawing of adverse inferences from the applicant's silence deprived him of a fair trial and infringed the principle of the presumption of innocence.
Accordingly, I consider that there has been a violation of both paras. 1 and 2 of Article 6 of the Convention.