Presumption of Innocence: Essence, History and Features in Different Countries

The presumption of innocence (Latin: praesumptio innocentiae) (the principle of innocence) is one of the fundamental principles of legal proceedings, under which a person is considered innocent until their guilt in the commission of a crime has been proven in the manner prescribed by law and established by a court verdict that has entered into legal force . The basic principle of the presumption of innocence states: "The burden of proving criminal guilt lies on the accuser."

Provisions of the presumption

In most countries, the "presumption of innocence" includes approximately the following provisions:

• Any person (even one openly and officially accused of a crime by investigative or other state bodies, or even arrested in connection with these accusations) is considered absolutely innocent until their guilt in committing the crime has been proven in accordance with the law (under the laws of that country) and until this finding has been confirmed (established) by a corresponding court decision (verdict) that has entered into legal force (under the laws of that country).
• Any person (a suspect, an accused) has the right (which they may use or not at their own discretion) to give testimony; but they are not obliged to prove their innocence. The accused is entitled to give any testimony. The accused is entitled to refuse entirely to testify (to give explanations), and may even refuse to answer individual questions. The fact that the accused has no evidence of innocence at all (or even demonstratively refuses to present such evidence) is not in itself considered proof of guilt. The accused's refusal to testify and/or to give individual explanations, or the giving of contradictory, false, or even knowingly false testimony, is not grounds for a guilty verdict.
• If accusations of committing a criminally punishable act have been brought (that is, the person has been given the status of an accused), then the burden of proving these accusations, that is, the duty to search for, collect and present to the court the evidence of the accused's guilt, lies with the prosecution.
• If the only evidence of a person's guilt held by the bodies that carried out the preliminary investigation is their own confession, which they later retracted in the course of the trial, then this testimony cannot be taken into account by the court as evidence of their guilt. In this case the accused who has retracted their earlier testimony is relieved of the obligation to prove that they gave this testimony under someone's unlawful (physical or psychological) pressure, coercion, beating, etc.
• If the defense (or the accused personally) during the preliminary investigation or the judicial examination puts forward "defense arguments", that is, points to the existence of objective circumstances indicating the innocence of the accused, then the burden of refuting these arguments also lies with the prosecution, and the prosecution cannot be relieved of this burden (obligation) by the court or by any other state body.
  • example 1: if a "defense argument" is put forward that the accused has an "alibi", then neither the court nor the prosecution may proceed from the assumption that the "alibi" is invalid until the prosecution presents proper evidence refuting that "alibi".
  • example 2: if a person accused of an economic crime puts forward a "defense argument" in the form of a motion for some forensic accounting (economic) expert examination, the results of which, in their opinion, will confirm their innocence, then neither the court nor the prosecution may proceed from the assumption of their guilt until such an examination has been carried out.
• All irremovable doubts about the guilt of the accused (arising from insufficient evidence, contradictory evidence, the methods by which evidence was gathered, and so on) that were not resolved in the lawful manner before the end of the judicial examination must be interpreted by the court in favor of the accused (that is, in favor of finding them innocent). The court's recognition of doubts as irremovable means that the court has taken all possible permissible measures to resolve the doubts one way or the other. It should be borne in mind that the criminal procedure legislation of different countries attaches somewhat different meanings to the concept of irremovable doubts, and ignorance of these differences may lead an accused person in a foreign country to serious mistakes in their defense.
• A guilty verdict cannot be based on assumptions (even those of very authoritative persons or bodies), cannot be based on guesses (suppositions) of the investigation and the court that lack proper evidence, cannot be based on the testimony of witnesses from anonymous sources (whose identifying details are unknown to the court), cannot be based on unsubstantiated assertions (even in writing) of the "alleged" existence of many secret pieces of evidence to which the court has no security clearance, and cannot be based on other inadmissible evidence. At the same time, a situation is possible in which inadmissible evidence, although excluded from consideration by the court, has not in substance been refuted, which may give rise to irremovable doubts about guilt and result in an acquittal (such an incident may be considered a special case of the so-called asymmetry of evidence). It should be borne in mind that the criminal procedure legislation of different countries attaches somewhat different meanings to the concept of inadmissible evidence, and ignorance of these differences may lead an accused person in a foreign country to serious mistakes in their defense).
• The state's duty to ensure the independence of the judiciary. A court considering accusations against a person must not be a body of criminal prosecution, must not act on the side of either the prosecution or the defense, and must not perform their functions (either fully or partially), but must be a body of independent, impartial, objective, comprehensive and lawful examination of the question of whether the accusations brought against the accused are well-founded or unfounded (proven or unproven); moreover, in rendering its decision the court has no right to go beyond the accusations that have been brought and are known to the accused. It should be borne in mind that in those countries where the courts are in fact given the functions of the prosecution (that is, where the court is a body of criminal prosecution), there can be no talk of observing the presumption of innocence, regardless of the content of various declarations).

History

Roman law

The sixth-century Digest of Justinian (22.3.2) provides, as a rule of evidence: Ei incumbit probatio qui dicit, non qui negat - "Proof lies on him who asserts, not on him who denies." This is attributed to the jurist Paul of the 2nd and 3rd centuries. It was introduced into Roman criminal law by the emperor Antoninus Pius .

The civil law system is a modern legal system that descends from the ancient Roman legal system (as opposed to the English common law system ). The maxim and its equivalents have been adopted by many countries that use the civil law system, including Brazil , China , France , Italy , the Philippines , Poland , ^{[ 10]} Romania ^[11] and Spain . ^[12]

In the criminal law system of Hungary, "the most general concept is that everyone (a suspect, an accused or not) must be considered innocent until a final verdict finds them guilty . But there is another view - and it usually appears in international declarations - which does not tie the end of the presumption of innocence to a final verdict, but is 'satisfied' with any provision that speaks of guilt which is based on law. There is a significant difference between the two formulations. A final decision usually means the end of the punitive procedure, which may take place many years after the crime was committed. This may happen, for example, in the case of arrest at the scene of the crime, witness testimony, or the offender's confession: the guilty person must be considered innocent for several years before the final verdict is passed, despite the facts listed above". ^{[ 13]}

Talmudic law

According to the Talmud, "every person is innocent until their guilt is proven. Consequently, the application of unusually severe measures to the accused must be postponed until their innocence has been successfully challenged. Thus, in the early stages of the trial, the arguments in their defense are as carefully considered as in the case of any other person undergoing trial. Only after their guilt became evident were the solicitous provisions that had been adopted to protect the accused set aside." ^[14]

Islamic law

Like Roman law, Islamic law also adheres to the principle that the burden of proof lies on the accuser or claimant, on the basis of a hadith recorded by Imam Nawawi. ^[15] "Suspicion" is also strongly condemned, again on the basis of a hadith recorded by Imam Nawawi ^[16], as well as by Imam Bukhari ^[17] and Imam Muslim. ^[18]

After the time of Muhammad, the fourth caliph, Ali ibn Abi Talib, is also quoted as saying: "Avert the prescribed punishment by rejecting doubtful evidence." ^[19]

The Middle Ages in Europe

Western Europe

After the fall of the Western Roman Empire, the West began to practice feudal law, which was a synthesis of aspects of Roman law and certain Germanic customs, under the new elite, and which included presumed guilt. For example, the accused could prove their innocence by having twelve men swear that they could not have done what they were accused of. In practice, this generally favored the nobility over the lower classes, whose witnesses risked being seen as less credible. ^[20] After the rediscovery of Roman law in the 12th century and the development of the jus commune, the canon law of the Catholic Church influenced the common law in the medieval period.^[21] through the preservation of the Roman law doctrine of the presumption of innocence. ^[22]

Eastern Europe Following the aforementioned Roman law of Justinian, who lived at the dawn of the Middle Ages, the Byzantine Empire in general continued to follow his legal code, which includes the presumption of innocence. This also influenced neighboring states within its cultural sphere, such as Orthodox Slavic principalities like Serbia.

The presumption of innocence in United Kingdom law

Article 48 of the Charter of Fundamental Rights of the European Union affirms the right to the presumption of innocence.

In the United Kingdom, changes affecting this principle have been made. The criminal record of defendants may, in certain circumstances, be disclosed to a jury. Although a suspect is not obliged to answer questions after a formal arrest, a refusal to provide information may now be prejudicial to them in court. There is also a statutory law providing for criminal punishment for failure to decrypt data at the request of the police. If the suspect is unwilling to do so, this is an offense. ^[37]Thus, citizens may be convicted and imprisoned without any evidence that the encrypted material was unlawful. In addition, in cases of sexual offenses such as rape, where sexual intercourse has already been proven beyond all reasonable doubt, there are a limited number of circumstances in which the accused is required to present evidence that the complainant consented to the intercourse or that the defendant reasonably believed that the complainant was consenting. These circumstances include, for example, that the complainant was unconscious, unlawfully detained, or subjected to violence. ^[38]

The presumption of innocence in Canadian law

In Canadian law, the presumption of innocence has in some cases been strengthened. The Criminal Code formerly ^[39] contained numerous provisions under which defenses to certain offenses were subject to a reverse onus: that is, if the accused wished to raise such a defense, they had to prove the facts of the defense on the balance of probabilities, instead of the Crown disproving the defense beyond a reasonable doubt. This meant that in some circumstances the accused could be convicted even if there was reasonable doubt about their guilt. In several cases it was established that various reverse onus provisions violate the presumption of innocence provision of the Charter of Rights and Freedoms. They were replaced with procedures in which the accused simply had to demonstrate an "air of reality" to the proposed defense, after which the burden of disproving the defense shifted to the Crown.

Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, received royal assent in December 2018. Among other things, it removed several reverse onus provisions from the Criminal Code, some of which had previously been found unconstitutional, and others of which were removed proactively to avoid further problems with the Charter. ^[40]

The presumption of innocence in the law of the Russian Federation

• The Constitution of the Russian Federation, in particular Article 49, also contains provisions demonstrating an unambiguous commitment to the presumption of innocence .

• The Criminal Procedure Code contains Article 14, which is mandatory for compliance by all law enforcement, judicial and other state bodies throughout the entire territory of the Russian Federation .

• The Code of Administrative Offenses contains Article 1.5

In the USSR, the concept of the presumption of innocence was absent from the Constitution; however, the courts adopted this principle for application as a legal norm, with Resolution No. 1 of the Plenum of the Supreme Court of the USSR of 1978 formulating its construction. The Constitution of the Russian Federation of 1993 enshrined it in practically the same wording .

Conclusions on the topic

Legal principles, presumptions and axioms.

Lawful conduct is conduct of a subject that complies with the prescriptions of legal norms and does not contradict the basic principles of law. By violating these prescriptions, a person commits an administrative offense.

There are exceptions to all rules, and such exceptions are:

• -The principle of equality
• -The presumption of innocence
• -Double (jeopardy)
• -The retroactive force of law

As stated above, all rules have exceptions. One more final exception, the "super exception", is necessity (extreme necessity).

The essence of the presumption of innocence.
To prove that a person is guilty. The proof is included in a legal procedure. A law enforcement act must be drawn up, which is an authoritative decision on the person's guilt.

Features of the presumption of innocence.
To prove means to provide evidence of guilt. Procedure: the proving must take place according to a legal procedure. Decision: the decision on the person's guilt must be made by a competent body.

Irremovable doubts.
Irremovable doubts about a person's guilt mean their innocence.

The burden of proof.
The burden of proving a person's guilt lies on the one who accuses. Exceptions: recording of an offense by means of a camera.

Legal principles, presumptions and axioms.
you need to continue studying principles, presumptions and axioms in administrative law on your own.

Self-assessment tests

The presumption of innocence means:

• a) a moral task that a person formulates for themselves on the basis of moral requirements addressed to everyone.
• b) an opinion about a person's moral character, formed by those around them, based on their previous behavior.
• c) an expression of a person's responsibility for their behavior before themselves, a form of self-affirmation of the individual.
• d) recognition of the dignity and value of the individual.

The presumption of innocence was first formulated:

• a) in the Declaration of the Rights of Man and of the Citizen, adopted in France in 1789,
• b) in the International Covenant on Civil and Political Rights of 19 December 1966
• c) in the Constitution of the Russian Federation of 1993

What is the name of the principle expressed in Article 49, Part 1 of the Constitution of the Russian Federation:

"Everyone accused of committing a crime is considered innocent until their guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force":

a) the principle of fairness of legal proceedings

b) the principle of guaranteed dignity of the individual

c) the principle of the presumption of innocence

See also

• Adversarial system
• Blackstone's ratio
• Due process
• Habeas corpus
• Null hypothesis
• Presumption of guilt
• Rebuttable presumption
• Right to a fair trial
• Right to silence
• Trial by media
• Presumption of supply in New Zealand