Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial Assessment of costs and the implication of guilt: The European Court has held that article 6(2) “does not confer on a person ‘charged with a criminal offence’ a right to reimbursement of his legal costs where proceedings taken against him are discontinued”, but that a decision to refuse ordering the reimbursement to the former accused of his necessary costs and expenses following the discontinuation of criminal proceedings against him “may raise an issue under article 6 § 2 if supporting reasoning, which cannot be dissociated from the operative provisions, amounts in substance to a determination of the guilt of the former accused without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence”.19 The Court thus found a violation of article 6(2) of the European Convention in the Minelli case, where the Chamber of the Assize Court of the Canton of Zürich, in deciding the costs occasioned by a private prosecution, had concluded that, in the absence of statutory limitation, the applicant would “very probably” have been convicted of defamation on the basis of a published article which contained accusations of fraud against a particular company.20 In the view of the European Court, “the Chamber of the Assize Court showed that it was satisfied of the guilt of” the applicant, who “had not had the benefit of the guarantees contained in” article 6(1) and (3); the Chamber’s appraisals were thus “incompatible with respect for the presumption of innocence”.21 It did not help in this respect that the Federal Court had “added certain nuances” to the aforementioned decision, since it was “confined to clarifying the reasons for that decision, without altering their meaning or scope”. By rejecting the applicant’s appeal, the Federal Court confirmed the decision of the Chamber in law and simultaneously “approved the substance of the decision on the essential points”.22 The outcome was however different in the case of Leutscher, where the applicant had been convicted in absentia of several counts of tax offences but where, on appeal, the prosecution was considered time-barred by the Court. In response to the applicant’s request for reimbursement of various costs and fees, the Court of Appeal noted with regard to the counsel’s fees that there was nothing in the file that gave “any cause to doubt that this conviction was correct”.23 However, the European Court of Human Rights concluded that article 6(2) had not been violated by these facts: the Court of Appeal had a “wide measure of discretion” to decide, on the basis of equity, whether the applicant’s costs should be paid out of public funds, and, in doing so, it was “entitled to take into account the suspicion which still weighed against the applicant as a result of the fact that his conviction had been quashed on appeal only because the prosecution was found to have been time-barred when the case was brought to trial”.24 In the view of the Court, the disputed statement could not be construed as a reassessment of the applicant’s guilt.25 19 Eur. Court HR, Case of Leutscher v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 436, para. 29. 20 Eur. Court HR, Minelli Case v. Switzerland, judgment of 25 March 1983, Series A, No. 62, p. 18, para. 38. 21 Ibid., loc. cit. 22 Ibid., p. 19, para. 40. 23 Ibid., p. 432, para. 14. 24 Ibid., p. 436, para. 31. 25 Ibid., loc. cit. 222 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers