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Human Rights in Criminal Proceedings by Trechsel, Stefan

Part Three The Specific Rights of the Defence, Ch.7 The Right to be Presumed Innocent

From: Human Rights in Criminal Proceedings

Stefan Trechsel

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Presumption of innocence — Right to fair trial — Judicial independence/impartiality — Right to silence — Witnesses — Burden of proof (and jurisdiction) — Burden of proof — Drug trafficking — Rape and sexual violence — Equality of arms — Fact-finding and inquiry

(p. 153) Chapter 7  The Right to be Presumed Innocent

I.  Introduction

A.  The Texts

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

ICCPR, Art. 14 § 2

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

ECHR, Art. 6 § 2

Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.

ACHR, Art. 8 § 2

The three texts vary in two principal respects, neither of which is of particular relevance.

The first distinction is literary in that there are slight differences in the wording. The European Convention, which is the oldest text, is the most succinct. The Covenant states additionally that a ‘right’ is guaranteed, although this seems somewhat superfluous.1 The American version uses almost the same text as the Covenant but replaces ‘until’ with ‘so long as …not’.

The second difference is structural. The ACHR places the presumption of innocence together with the specific rights of the accused rather than setting it out as a guarantee in its own right.

B.  The Origins of the Guarantee

The presumption of innocence has a considerable history and forms part of the famous Déclaration des droits de l’homme et du citoyen of 28 August 1789.2 It was (p. 154) also included in Article 11 § 1 of the first draft of the UDHR: ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence’. Here, the presumption is closely linked to the guarantee of a fair trial. The text of the ACHR comes closest to this elucidation of the right, although it goes into considerable detail as to the ‘guarantees necessary for [the] defence’.

There were hardly any discussions during the drafting of the Covenant about the text. Two items are, however, worth mentioning.

First, in an earlier draft the guarantee was set out in a more general form. Rather than stating that the guarantee applied to ‘Everyone charged with a criminal offence’, it referred to ‘any person’3 or ‘everyone’4 or, as Mr Cassin put it, ‘No one shall be held guilty …’.5 The text was later changed as it was noted that the French text contained the word ‘accusé’. The English text was then simply adapted to mirror the French version.6 No reason is given and it can be assumed that the drafters did not see any difference between the two versions. I regard this episode as being of interest and shall return to it shortly.

The second point concerns preparatory work for the Covenant. It had been proposed to introduce the words ‘beyond reasonable doubt’ to qualify the standard of proof required. However, the proposal was (rightly) rejected because it was felt that this was already implied by the words ‘presumed innocent until proved guilty’.7

C.  General Characteristics of the Guarantee and some Basic Definitions

While the right to be presumed innocent is a familiar term forming part of the layman’s knowledge of the law, its wording causes some perplexity. The presumption applies, according to the text, to persons charged with, or accused of, a criminal offence. This seems to suggest that the person is presumed to have committed an offence. He or she is thus presumed to be guilty but at the same time has the right to be presumed innocent. We are faced with a contradictio in adjecto, a contradiction in terms. This calls for some explanation—the literal meaning cannot be the true sense of the guarantee. Actually, Article 5 § 1(c) indicates very clearly that it is not contrary to the Convention to suspect someone of having committed an offence. Such suspicion is also at the basis of extradition proceedings.8

There is, of course, no contradiction. ‘Suspicion’ simply means that someone might perhaps be guilty, not that he or she definitely is guilty. Yet, I find it useful to start this chapter with a discussion of some of the basic textual elements of the guarantee.

(p. 155) 1.  ‘Charged with a Criminal Offence’

The expression ‘charged with a criminal offence’ is, as it were, the entrance to the rights of the defence. It is used in the general provision of paragraph 1 and in the introduction to paragraph 3 of the Covenant and the Convention—the rights contained in paragraphs 2 and 3 of Article 6 of the ECHR are combined in one paragraph in the ACHR.

The question arises whether it is justified to restrict the presumption to persons charged with a criminal offence. As we have just seen, the drafting history is rather tortuous in this respect. A number of drafts did not refer to the requirement that the provision apply in the context of a ‘criminal charge’. It is of course clear that the presumption must relate to ‘criminal’ conduct. It cannot, for instance, be invoked in deportation proceedings.9

With regard to the ‘charged’ part of the term, the answer is, in my view, somewhat different; here the restriction is not justified. In fact, the presumption of innocence differs in character from the other procedural guarantees set out in international human-rights instruments.

The restriction of the application of the specific fair-trial rights to criminal proceedings, as opposed to civil, administrative, disciplinary, or other proceedings, is legitimate. These rights are intrinsically tied to the criminal context. The presumption of innocence is different. Why should a person who has been charged with an offence be presumed innocent, while another, who is not subject to a charge, be presumed guilty? This would be an absurd proposition.

One could be tempted to turn the argument around and ask if it is not the case that a person presumed guilty is automatically charged with a criminal offence. The first answer that comes to mind is that ‘charged’ is a technical term which presupposes some formal action by the competent authorities, be it the police, the public prosecutor’s office, an investigating judge, or whoever else is endowed with the competence to ‘charge’ under domestic law. Yet, it has been shown that the term ‘charged’ is (and must be) interpreted as an autonomous notion by bodies charged with implementing international human-rights instruments.10 So one could indeed argue that any expression by a public authority that a person is guilty of an offence, which he or she has not yet been convicted of, constitutes in reality a type of ‘charge’. Yet, this is not the approach which has been taken by the Court.

Despite this, I believe that the restriction is redundant. Mrs Roosevelt and Mr Cassin were right; the guarantee should benefit ‘everyone’, irrespective of his or her involvement in criminal proceedings. The reference to the ‘charge’ can be explained by pointing out that persons against whom criminal proceedings are brought are particularly vulnerable as far as this presumption goes; they need protection against the eagerness of prosecutors who will tend to anticipate their own success and treat or present the suspect as guilty. A fortiori, however, the (p. 156) presumption of innocence must benefit persons who are not (yet, or not any more) so charged. This problem will be discussed more thoroughly later on.

2.  ‘Presumed’

Article 6 § 2 refers to a ‘presumption’. A presumption can imply several things. As a psychological term it refers to a state of mind. To prescribe a presumption means to order persons to think and to feel in a specific way. This, obviously, is not the appropriate definition of the term in the present context—thoughts and feelings cannot be regulated.

On a logical level it represents a hypothesis, a fictional position which represents the starting point for an experiment or other methodical examination, which will lead to its verification or falsification. This is not a convincing interpretation either. Criminal proceedings are governed and pursued not on the hypothesis that the defendant is innocent but rather, on the contrary, that he or she is, or rather may well be, guilty. This is precisely the meaning of the term ‘suspicion’, which forms the foundation of the criminal prosecution.

The presumption referred to in the legal instruments must be regarded as a guiding principle which exists in order to regulate the treatment of persons who have not yet been convicted. Such people must be dealt with in a way that is compatible with the possibility that they are innocent. Two types of behaviour vis-à-vis a suspect can be distinguished: factual and verbal. No measure may be taken, no restriction imposed which implies the guilt of the suspect. Further, declarations that a suspect is guilty of an offence are forbidden. Under certain circumstances, such as following an acquittal, not even a suspicion of guilt may be uttered.11

3.  ‘Innocent’

The term ‘innocent’ is not unequivocal either. Primarily it is a negative term and means ‘free from guilt’.

As a matter of course the law cannot be concerned with biblical notions such as freedom from original sin. ‘Innocent’ within the meaning of the guarantee does not mean ‘innocent’ in the normal sense of the word. It means ‘not guilty of the offence which the person is accused of (or charged with)’ (or—after acquittal—was suspected).12 Even this formula remains open to interpretation, particularly with regard to two important questions: Does the presumption refer to guilt in the technical sense given to the term in criminal law, i.e. mens rea, or does it only refer to the objective conduct? And, is the presumption limited to (p. 157) behaviour that, in the circumstances of a specific case, is liable to be sanctioned by criminal punishment?

(a)  Nullum Crimen Sine Culpa‎? The Issue of Mens Rea

The first point leads to a fundamental question: Does the state have the right to punish certain conduct without first determining the mens rea of the perpetrator? Is the entitlement not to be sanctioned for behaviour for which one cannot be held responsible a human right? The Court has not yet had to consider this issue, but the case-law suggests that the guarantee would not extend that far.

The first case to mention here should be regarded as something of an exception rather than a foundation stone in the jurisprudence. In Silva Rocha the applicant had been charged with a dangerous crime, but was acquitted for lack of criminal responsibility and was committed to a mental institution. The Court found that the committal order could be regarded as a ‘conviction’ and thus justified his detention for at least three years, irrespective of whether his mental state justified further confinement.13 In my view, it would not be fair to interpret this judgment as taking a stand on whether the Convention protects the principle of nulla poena sine culpa, with which it would clearly not be compatible. In fact, the Court here allows retributive considerations to determine the minimum term of confinement of a person who is mentally ill—something which would be unacceptable from the perspective of an enlightened approach to criminal law.

The issue was addressed more directly in Salabiaku and the approach later confirmed in Vastberga: ‘Contracting States may, in principle and under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence’.14 Although the notion of guilt/ personal responsibility/mens rea is by no means identical to that of ‘intent or negligence’, it is fair to assume that the Court was referring to what is often referred to as ‘strict liability’.15

Although it is certainly a fundamental principle of the criminal law that no one be punished for an offence if he or she could not have acted otherwise,16 there are certain areas where exceptions seem to be widespread. The Court, at (p. 158) any rate, has stressed that ‘[s]uch offences may be found in the laws of the Contracting States’.17 Regrettably, it does not give a single example. Such legislation exists in relation to the criminal liability of legal persons, particularly in the context of corporate crime where ‘mens rea’ cannot be determined in the same way as it is used in relation to natural persons. Furthermore, although the nullum crimen sine culpa principle is generally accepted as a fundamental principle of the criminal law, there are instances where it is not fully satisfied. Indeed, one of the most significant goals of academics in the field of the criminal law is to reduce the gap between the ideal and the reality in this respect.

Although an idealistic approach to human rights might lead to criticism of the Court’s approach, this is nevertheless a difficult issue. On the one hand, the punishment of persons who cannot be blamed for their acts or omissions must generally be regarded as entirely arbitrary and unacceptable. In very serious cases it might even amount to degrading or inhuman punishment. As a basic principle, the nullum crimen sine culpa rule ought to be regarded as embodying a fundamental human right; its violations should be regarded as contrary to the presumption of innocence.

However, at the same time this area requires considerable judicial self-restraint on the part of international bodies set up to implement the human-rights treaties. Borderline cases are usually the subject of lively dispute among academics. Dubious legislation may be the fruit of difficult political balancing, as is the case, for example, with regard to persons who have committed a crime after having become voluntarily intoxicated.18 Another example is the notoriously contested issue as to whether and to what extent error as to the law ought to be relevant to criminal law.19 Moreover, the issue of the punishment of legal persons must also be considered. An international body lacks both the experience and the legitimacy to tackle such delicate issues.

Finally, it must be recalled that the principle nullum crimen sine culpa is not universally accepted. While it is deeply rooted in German, Swiss, and Austrian law, it has less authority in, for example, France, Belgium, and Canada.20 One important exception must however be mentioned, a situation where the rule nulla poena sine culpa must be respected: the case of vicarious liability, i.e. the situations where one person is made to suffer a penalty for an offence which was committed by another person—it will be dealt with shortly.21

(p. 159) (b)  ‘Innocent’ or ‘Not Liable to be Punished’?

We have already seen that ‘innocence’ cannot be understood as meaning a general absence of mens rea, but must instead be understood in the sense of the ‘absence of responsibility for a specific offence’. While there are of course exceptions, as a basic rule it includes the notion of guilt. A declaration that someone has caused the death of another person but cannot be held responsible for their acts or omissions would not, in my view, violate the presumption of innocence.22 This does not mean that it would be absolutely irrelevant in the context of human-rights law. If such a comment were to be uttered by the judge in civil proceedings, it may well be an indication of bias.

What if a court declares that someone has acted in a way which could constitute an offence, but rules that the episode was too insignificant to be sanctioned by the criminal law? This was the case in Adolf v. Austria. The applicant had been involved in a dispute that culminated in an envelope containing a key being thrown across the room. It hit a woman causing a superficial abrasion to her hand. The applicant, who was later charged with causing actual bodily harm, denied having thrown the object. The proceedings were discontinued in accordance with APC, § 42 because of the minor character of the incident. In its reasoning the district court said: ‘The investigation …[has] …shown that in the course of a quarrel the accused flew into a rage and threw an envelope containing a key in the direction of [the complainant] …’. The applicant appealed to the Supreme Court which stated that despite its wording the district court had only expressed a suspicion and not proclaimed the applicant guilty.

In Strasbourg the applicant claimed not only that his right to be presumed innocent had been violated by the declaration of the district court, but also alleged that the law itself was contrary to the Convention. In line with its consistent case-law, whereby the Court refuses to examine the laws of the Member States in abstracto, the Court refused this second argument. It did agree, however, with the Commission that the statement in question was incompatible with the presumption of innocence.23 It rejected the Government’s argument that the impugned wording did not figure in the operative part of the judgment but only in the reasoning. Instead it accepted the argument of the Commission’s delegate, Mr Melchior, that ‘the decision’s reasoning forms a whole with and cannot be dissociated from the operative provisions’.24 In the end it held that (p. 160) there was no violation, accepting the Government’s argument that any shortcomings in the decision of the district court, were healed on appeal by the judgment of the Supreme Court. The latter had declared ‘that a decision taken in pursuance of section 42 of the Penal Code does not, because of its very character and whatever may be its wording, involve anything in the nature of a verdict of guilt’.25

I agree with the finding that there was no breach of Article 6 § 2, but do so on the basis of different reasoning. The role of the presumption of innocence as a fundamental right must remain attached, albeit perhaps tenuously, to the criminal law. It should not be regarded as a general protection against defamation. If a decision to terminate proceedings contains any reference to the fact that the accused has ‘committed’ adultery, which is no longer an offence in the respective legal order, that cannot be regarded as violating the presumption of innocence even though it may well constitute a negative value judgment. I find it decisive in Adolf that the applicant was only ‘accused’ of having thrown an envelope and causing a light abrasion, while, at the same time, the same court also found that the event was so minor as not even to warrant the consideration of the criminal-justice system. In my view it is not justified to regard such a situation as an interference with the right to be presumed innocent.26

The Court’s answer is somewhat circular, something of a petitio principii: ‘[a]s regards the concept of a non-punishable act, it is clearly in line with the title and text of section 42 (mangelnde Strafwürdigkeit, nicht strafbar). Nevertheless, non-punishable or unpunished criminal offences do exist and Article 6 of the Convention does not distinguish between them and other criminal offences: it applies whenever a person is “charged” with a criminal offence’.27 I would respectfully submit, however, that non-punishable offences and unpunished offences are two entirely different phenomena. Unpunished offences certainly remain offences, but ‘non-punishable offences’? Is an offence not characterized by the very fact that it is a behaviour which is liable to be punished? The Court’s affirmation is not supported by any reference or further argument. It is not convincing.

While the issue might appear insignificant, it is, in fact, of considerable importance. Criminal policy has been dominated since the 1960s by efforts devoted to ‘decriminalization’. Increasing awareness of the undesirable side-effects of punishment, particularly in respect of prison sentences, has led, in some legal systems, to the removal of cases of minor importance from the criminal code and to their reclassification as petty offences.28 Some legal systems have introduced legislation which allows proceedings to be terminated where the (p. 161) conduct at issue and its consequences are not serious enough to warrant sanctioning by the state. In other jurisdictions the decision to prosecute lies within the discretion of the prosecutor. It should be clear that such decisions do not infringe the right to be presumed innocent.

4.  ‘Proved’ Guilty

According to the texts the presumption of innocence is only rebutted after the suspect has been ‘proved’ guilty according to law. This requires some clarification. The text essentially refers to the classical proceedings in which the evidence is presented at trial and evaluated by the judge and/or the jury. Yet, nowadays the vast majority of proceedings do not culminate in such a hearing, which is seen to be a complicated, risky, and expensive process. Indeed, frequently proceedings end following a plea of guilty.

This is particularly so in the United States where plea-bargaining has replaced the jury trial in the vast majority of cases. The ACHR expressly regulates this procedure stating that ‘[a] confession of guilt by the accused shall be valid only if it is made without coercion of any kind’.29 While there is no similar provision in either the ICCPR or the ECHR, both instruments undoubtedly implicitly contain and guarantee this principle. Guilty pleas are often entered because the accused fears conviction and extremely harsh punishment, or even possibly the death penalty. Certainly the degree of coercion varies across jurisdictions. To some extent the same phenomenon is also developing in other legal systems.30 I shall not pursue this argument, because it needs deeper analysis than can be given in the context of this book.

It is difficult, however, to justify the protection of the presumption of innocence in the face of a confession. A plea of guilty will, under the common law, usually be accepted and have the same effect as a conviction. The same cannot be said for continental procedure. The confession is one piece of evidence amongst others and the court will carefully examine whether it is true, and whether it is corroborated by other proofs. This does not mean though that it is irrelevant in the context of the presumption of innocence.31

In Lutz the Court referred in passing to ‘the applicant’s statements’ without recognizing that they cannot be interpreted as anything other than a confession.32 In my opinion those statements serve to rebut the presumption of innocence.33 To make a confession and then claim to have the right to be presumed innocent constitutes venire contra factum (recte: dictum) proprium. The Commission has followed this approach in a number of cases. In one of them, it declared the application inadmissible, even though the applicant had had his (p. 162) suspended sentence revoked on the bases of newly committed crimes for which he had not yet been convicted but which he had admitted.34

5.  Proved Guilty ‘According to Law’

Only the establishment of the accused’s guilt ‘according to law’ can rebut the presumption of innocence. This formula has led some authors to suggest that any unlawfulness in the proceedings regarding the presentation of evidence must automatically lead to a violation of the right to be presumed innocent.35 The Commission refrained from following this approach in Scheichelbauer.36 The Court subsequently gave a clear answer in Schenk, which concerned the use of unlawfully obtained evidence. The Court’s response was somewhat laconic: ‘In the Court’s opinion, the record of the hearings of 9–13 August and the judgment of 13 August 1982 contain nothing to suggest that the Rolle Criminal Court treated Mr. Schenk as if he were guilty before it convicted him. The mere inclusion of the cassette in the evidence cannot suffice to support the applicant’s allegation, with the result that there was no breach of the Convention here either’.37

While this reasoning certainly leaves a lot to be desired, the doctrine behind it is unavoidable. International bodies called upon to implement treaties for the protection of human rights may not adopt the position of a court of cassation, competent generally to control the lawfulness of domestic proceedings. They must limit themselves to assessing whether the internationally guaranteed fundamental rights have been respected. This gives rise to a certain dilemma when reference is made to the domestic legal order through such words as ‘lawful’ or ‘according to law’. Here, the principle of subsidiarity calls for judicial self-restraint—the responsibility for determining whether domestic law has been correctly applied lies in the first instance with the national authorities. The international institutions limit their role to that of a safety net. Intervention is only permissible in cases where there has been a flagrant violation or entirely arbitrary interpretation of the law.

The requirement of proof according to law refers to the conclusion, to the operative part of the judgment, and not to every element taken into account by the court. In Kremzow the applicant alleged that in discussing his motives for the murder of a colleague the court had spoken of ‘financial misdeeds’ and thereby had found him guilty of fraud. The Court rejected this claim because the remark related only to the applicant’s motive.38

(p. 163) The presumption of innocence ends when a person has been finally convicted. It can be set aside by a decision allowing the reopening of the proceedings. In reopening proceedings, however, Article 6 does not apply at all.39

D.  The Two Distinct Aspects of the Presumption of Innocence

The complex character of the presumption of innocence means that there can be no simple and single answer as to the purpose or purposes that it serves. Two fundamentally different aspects must be distinguished. The task is not facilitated by the fact that, so far, the Court has refused to acknowledge this duality of purposes.

The first approach was taken, for example, in Deweer where the applicant was put under considerable economic pressure to accept a ‘friendly’ settlement by agreeing to pay a fine. He had invoked, inter alia, paragraphs 2 and 3 of Article 6. In reaching its decision the Court noted that ‘these two paragraphs represent specific applications of the general principle stated in paragraph 1 of the Article. The presumption of innocence embodied in paragraph 2 and the various rights …in paragraph 3 …are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings’.40 An even wider and somewhat weightier aim is promoted in Salabiaku where the Court stated that the presumption of innocence, as an element of fair trial, ‘is intended to enshrine the fundamental principle of the rule of law’.41

This statement refers to what I call the ‘outcome-related aspect’ of the guarantee, which is closely linked to the outcome of the proceedings. The passages just quoted from the Court’s case-law refer to this aspect of the presumption. The right to be presumed innocent can be regarded as being connected to the psychological climate in which proceedings ought to unfold and it requires that the prosecutor and the judge adopt a particular attitude. Even though, deep down in their hearts, they may be convinced of the accused’s guilt, they must remain open to a change of opinion in view of the result of the evidence. They are prohibited from doing or saying anything, before the judgment has been delivered, which implies that the defendant has already been convicted.42 The question as to the guilt or innocence of the accused, which is, after all, the essence of the proceedings, must remain open, even if the evidence against the accused appears to be overwhelming.43 Finally, the accusation must (p. 164) be proved beyond reasonable doubt. The purpose of the guarantee is essentially to avoid unjustified convictions and to uphold the fairness of the trial.

This aspect of the guarantee is addressed primarily to the decision-maker responsible for deciding whether the accused is guilty or not. If the court finds in favour of the accused, there can be no violation of this aspect of the presumption of innocence.

The second aspect, which the guarantee attempts to protect, is closer to Article 8 than to Article 6 and can be referred to as the ‘reputation-related’ aspect. It is quite far removed from the issue of conviction/acquittal, but aims to protect the image of the person concerned as ‘innocent’, i.e. not guilty of a specific offence. In other words, it protects the good reputation of the suspect. This means, for example, that a person who has not been convicted in criminal proceedings must not be treated or referred to by persons acting for the state as guilty of an offence. In many judgments the introductory formula just cited is followed by the sentence: ‘It [scil. the right to be presumed innocent] will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law’.44 In earlier judgments, the words ‘judicial decision’ were used in place of ‘public official’.45 The case of Allenet de Ribemont led to a widening of the definition when such a statement was made on television by a high-ranking police officer. Here, the Court also added that ‘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’.46

It is clear that such cases are less concerned with the attitude of the judge than with the opinion of the general public; after a public statement has been made, as was the case in Allenet de Ribemont, nobody will believe any more that the person is innocent. The connection with judicial proceedings is thus somewhat loose—even if there is no subsequent trial, as was the case in Allenet de Ribemont, there can nevertheless be a violation.

E.  The Relationship Between the Presumption of Innocence and Other Aspects of the Right to a Fair Trial

1.  The Presumption of Innocence and the Impartiality of the Judge

The presumption of innocence is, insofar as it requires that the judge maintain an open mind, closely linked to the right to an impartial tribunal. It ‘requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence (p. 165) charged.’47 It is, however, broader in that it also binds other authorities involved in the proceedings.48

It does not mean that the public prosecutor must be impartial, but it does require that he or she act in a way that does not betray his or her belief in the guilt of the suspect. The difference is perhaps somewhat sophisticated, if not downright artificial. The judge ought not even think that the applicant is guilty, at least he or she must not express such thoughts. Keeping in mind that an essential part of the job of the prosecutor is to plead in favour of conviction, the presumption must be more restrictively applied. The prosecuting authority may express the opinion that it considers the accused to be guilty. This, after all, is the hypothesis justifying the indictment. It must, however, keep in mind that, notwithstanding its opinion, the defendant may still be acquitted, and therefore should not be objectively regarded or treated as guilty.

2.  The Presumption of Innocence and the Right to a Fair Trial

In a number of cases applicants have claimed a violation both of their right to a fair trial and of their right to be presumed innocent. In such cases, the Court will often begin by determining whether there has been a violation of Article 6 § 1. If Article 6 § 1 has been held to have been violated, the Court will generally not consider the Article 6 § 2 issue, holding instead that it is ‘absorbed’ by the earlier finding and that no further examination is necessary.49 Exceptionally, it has also held—without further reasoning—that Article 6 § 2 had not been violated.50

3.  The Presumption of Innocence and the Right to be Informed of the Charge

In a relatively early judgment the Court said that a natural consequence of the presumption of innocence was ‘that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly’.51 I find this rather far-fetched, although it is not unusual to find the principle used as a panacea for a whole number of other guarantees and some academic commentators even seem to regard it as the cornerstone of the right to a fair trial.52

I do not agree with this view. The principle is certainly very important and it is of great significance to the fairness of criminal proceedings that it is respected. (p. 166) Still, the specific guarantees of the defence as set out in Article 14 § 3 of the ICCPR and Article 6 § 3 of the ECHR, and the equality of arms and the principle of adversarial proceedings must be regarded as elements which remain independently indispensable. One could perhaps see the presumption of innocence as regulating the atmosphere of the proceedings, whereas it is the specific rights which actually rule it.

4.  The Presumption of Innocence and the Privilege against Self-incrimination

Even though the Convention does not contain a paragraph which directly corresponds to Article 14 § 3(g) of the ICCPR or Article 8 §§ 2(g) and 3 of the ACHR, it also protects the accused’s right to remain silent and not to be improperly compelled to give evidence which would incriminate him-or herself. This guarantee is closely linked to the presumption of innocence and the Court has expressly confirmed this in a number of cases.53 The right to silence will, however, be dealt with in Chapter 13 below.

5.  The Presumption of Innocence in Civil Proceedings

Technically, the presumption of innocence applies only to a defendant in criminal proceedings. The concept is however not entirely foreign to civil proceedings, although there may be differences in its application. In civil proceedings it is generally the plaintiff who must prove that his claim exists. On the other hand, however, the rules of evidence may be different from those in criminal proceedings.54

F.  The Specific Problems Arising with the Guarantee

The discussion focusing on the specific aspects of the presumption of innocence will be divided into two parts. First, I shall deal with the ‘relative’, ‘outcome-related’ aspect of the guarantee. This will include issues involving the burden of proof, which may arise either during criminal proceedings or in respect of legislation. Questions pertinent to the evaluation of evidence will also be examined.

The problems surrounding the application of the ‘reputation-related’ aspect of the guarantee are more complex. The Court uses various criteria in order to decide whether declarations, statements, or decisions which insinuate that a person is guilty or is still under suspicion, are compatible with the presumption of innocence. Such issues may arise in relation to statements made at an early stage in the proceedings, or, more commonly, statements made following the termination of proceedings or which have no particular relevance to any criminal proceedings at all.

(p. 167) II.  The ‘Outcome-Related’ Aspectsof the Guarantee

A.  The Burden of Proof

Usually the issue of the presumption of innocence arises in cases where the facts are contested. However, this is not necessarily so, as the case of Kyprianou shows. The applicant, a lawyer, had been charged with contempt of court while representing a client in a murder case. The national court considered that: ‘What has just been said by Mr Kyprianou and in particular the manner with which he speaks to the Court is considered by us as a contempt of court and Mr Kyprianou has two choices: either to insist on what he said and to give reasons why no sentence should be imposed on him or it is a matter for him to decide whether he should not insist. We give him this opportunity exceptionally. Article 44.1 (a) of the Courts of Justice Law applies fully’.55 The applicant chose the first option and was sentenced to a term of imprisonment. In spite of the fact that the Court had already found that the tribunal had not been impartial it addressed the issue and found there also to have been a violation of the presumption of innocence.56

1.  The Burden of Proof in the Proceedings

In criminal proceedings, the presumption of innocence means that the burden of proof lies on the prosecution. The prosecution must convince the court of the guilt of the accused; it is not for the latter to prove his or her innocence.57 In other words, in the event that there is insufficient evidence, the accused must be acquitted.

This is not uncontested. Figueiredo Dias, for example, states that continental criminal-procedure law does not know the problem of onus probationis, because it is for the judge to establish the facts.58 No such reservation is made by Pradel.59 In my view, the distinction made by the Portuguese scholar is too theoretical.

This aspect is, however, of negligible importance in practice. It is highly unlikely that a court would state that the accused’s conviction is based on the fact that he or she failed to prove his or her innocence.

A more detailed look at this issue highlights a number of problems, particularly in the area of justification and exculpation. Is it legitimate to require that a defendant prove a defence in order to be acquitted if the prosecution cannot prove the contrary beyond reasonable doubt? Is it compatible with the presumption of innocence that the accused be compelled to present the evidence as to his alleged insanity at the time of the offence? These are important and (p. 168) difficult issues; yet, until now there is little trace of them in the case-law of the international bodies charged with protecting the presumption of innocence. This is not particularly surprising. Indeed, considerable differences exist in the treatment of these issues in different jurisdictions. Regard must be had to the difficulty in proving the non-existence of a fact. It is quite acceptable that the law requires at least a prima facie case for the facts invoked to justify or excuse an otherwise criminal behaviour.60 Further, it is not for an international body set up to implement conventions on fundamental rights to impose specific standards in such a delicate area.

Still, the Commission has held that the obligation on the defence to bring evidence as to mental illness was not contrary to Article 6 § 2.61

2.  Reversal of the Burden of Proof by Legislation

(a)  Legal Presumptions to the Detriment of the Accused

(i)  Salabiaku and Similar Judgments

Presumptions are prevalent in the legislation of most legal systems.62 A distinction must be made between praesumptiones legis on the one hand, and praesumptiones legis et de lege on the other. While the former can always be disproved, the latter are irrebuttable. It is remarkable to note that even the legislator can violate the presumption of innocence.63 Praesumptiones legis et de lege which detrimentally affect the accused are incompatible with the presumption of innocence.64 There are no examples in the case-law of such presumptions. There have, however, been cases that have concerned legislation, which enabled the drawing of conclusions from certain facts in the form of presumptions.

The leading cases dealt with by the Court in Strasbourg are Salabiaku and Pham Hoang. In Salabiaku the applicant, a national of Zaire, went to the airport to pick up a parcel. He claimed that he had expected the parcel to contain samples of African food. Despite having been warned by an Air Zaire employee, he picked up a padlocked trunk which had no name or address on it, and carried it away using the ‘nothing to declare’ exit. When customs officials stopped him and forced the lock of the trunk they found, underneath some foodstuffs, ten kilos of herbal and seed cannabis. Two days later a parcel addressed to Mr Salabiaku arrived in Brussels. It had been erroneously sent there instead of to Paris, which had been the intended destination.

(p. 169) The applicant was eventually given the benefit of doubt and acquitted of the charge of importing drugs; however, he was found guilty and fined for smuggling, a customs offence. The relevant law established a presumption according to which a person found in possession of undeclared goods is presumed guilty of smuggling. The only available defence was one of ‘force majeure’, such as ‘the absolute impossibility of knowing the contents of a package’.65

The Court began its judgment by setting out the general principle: ‘Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law’.66 The Court then criticized the Commission for having suggested that the presumption was actually an element of the offence itself, which the domestic courts had correctly applied.67 It pointed out that the fundamental guarantees of Article 6 could be undermined if the legislator were to be given carte blanche. ‘Article 6 § 2 does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence’.68

This is rather imprecise. In particular, it would be interesting to know what the Court meant by the term ‘the importance of what is at stake’. Should presumptions be more easily admitted in cases of very serious crimes or, to the contrary, in cases of minor importance? Presumably they would be more acceptable in cases falling into the latter category. Some support for this interpretation can be derived from the fact that the offence, which Mr Salabiaku was convicted of, carried only a fine, even though the amount was quite substantial.69

The Court also seemed to attach considerable weight to the fact that the presumption was not entirely irrebuttable. Thus, the accused was not ‘left entirely without a means of defence’.70 This also meant that the courts had ‘a genuine freedom of assessment in this area’. Moreover there were also some indications that Mr Salabiaku was not entirely innocent of the offence, particularly as he had shown no surprise when the drugs were unpacked. The Court also addressed the question as to whether there was an inherent contradiction between the acquittal for the drugs offence and the conviction for the customs offence. It decided that there was no incongruity, but I do not find the arguments very convincing. The Court repeated that the error of the applicant was not unavoidable. He failed personally to verify the contents of the trunk.71

(p. 170) The case of Pham Hoang was very similar. The applicant was arrested in his car, as two other persons carrying heroin, were about to climb in. The prosecution invoked Article 373 of the French customs code, which states: ‘In any proceedings concerning a seizure of goods, the burden of proving that no offence has been committed shall be on the person whose goods have been seized’.72 The applicant was convicted, but this provision was not cited. The Court found no violation of Article 6 § 2 because the evidence had been carefully assessed and there had been no automatic reliance on any presumption.73

More recently, the Court had to consider Swedish tax legislation. It confirmed the approach taken in Salabiaku and held that the sanction was not automatically applicable—exceptional circumstances could have allowed the court to apply grounds for remission even on an ex officio basis.74 Here, the Court went further in explaining the justification of the presumption. It referred to the financial interests of the state and the need to rely on standardized rules for the imposition of sanctions. The regulation at issue and its application to the case were deemed to be confined within reasonable limits.75

The Commission has also had to deal with presumptions in connection with road-traffic offences. It has held that the imposition of criminal liability on a car owner whose car was found wrongly parked without his being able or willing to name the driver or to establish that the car had been used against his will did not violate Article 6.76

(ii)  Assessment

While the result of the judgment in Salabiaku is satisfactory, the reasoning used to reach the conclusion is rather less so. In essence, the Court seemed to be saying that although the custom-offences legislation contained a presumption of guilt the existence of the principle of force majeure meant that the defence still had the chance to prove its innocence. This is tantamount to admitting that there is a presumption of guilt, but holding that as it is rebuttable there is no violation of the right to be presumed innocent.

The Court’s reasoning lacks an explanation for the justification of the presumption in the first place. The reason for this can be found in the circumstances of the specific case. Customs legislation requires persons who take possession of imported goods to make sure that the customs formalities have been complied with. In other words, they are under a specific obligation of carefulness. It is not reasonable to expect the customs’ authorities to prove the ‘negative fact’ that the (p. 171) necessary care was not applied. On the other hand, going through the required formalities leaves traces which it is easy to produce in evidence. To take possession of imported goods without such proof is connected with a risk. Creating this risk is the offence—it is usually proved without difficulty. It is not unfair, then, to require the person concerned to show that in this specific case the formalities were complied with.

This is an approach which explains in a more substantial way the difference between smuggling and dealing with intoxicating drugs. Here we have no risky behaviour, no violation of a duty to carefulness. Therefore, it must be established ab ovo, as it were, that the accused knew he was carrying forbidden drugs, whereas, with the customs offence, it was of no importance whether the goods were objectionable or not, as long as a tribute was due. A somewhat similar situation may arise in the context of defamation. In order to ensure compatibility with freedom of expression, criminal law usually gives a person who has defamed someone by casting blame on his honour the opportunity to prove the truth of such allegations. Schubarth has raised the question whether this is compatible with the presumption of innocence.77 The Commission gave an affirmative answer.78 Indeed, it can hardly be doubted that to affirm facts casting a negative light on the honour of a person is a risky conduct. Again, it seems fair that a person engaging in such conduct be expected to prove the veracity of his or her assertion.79

(b)  Criminal Liability for the Conduct of Others (Vicarious Liability)

‘It is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act’.80 This sentence forms part of the judgment in a case brought against Switzerland. In this case a fine for tax evasion was imposed on the heirs of someone who had failed to declare part of his income. While a majority of the Commission concluded that the fine formed part of the inheritance and the obligation on the heirs to pay it did not violate the presumption of innocence,81 the Court rightly came to the opposite conclusion. Referring to the presumption of innocence it found that ‘[i]nheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law’.82

(c)  Prosecution of Legal Persons

In recent years, the old adage ‘societas delinquere non potest’ has lost much of its relevance. Increasingly corporations are being held criminally responsible in (p. 172) areas such as environmental protection, tax offences, money laundering, unfair competition, and consumer protection.83 The actions of a legal person depend, of course, on natural persons, thus this issue has a certain similarity to vicarious liability.

Until now, international bodies called upon to implement human-rights law have not had to deal with the question. It is clearly established that legal persons are entitled to bring applications.84 It is to be expected that the Strasbourg Court would also apply the presumption of innocence (as well as other elements of the right to a fair trial) mutatis mutandis to entities such as corporations. It is not possible to address such problems in the present context.

3.  Problems Related to Sentencing

In a very early judgment, Engel and others, the Court had to consider an allegation that Article 6 § 2 had been violated by a reference made during sentencing to the applicants’ previous conduct even though it had not given rise to a criminal prosecution, let alone a conviction. The Court’s response was somewhat draconian: ‘As its [Art. 6 § 2] wording shows, it deals only with the proof of guilt and not with the kind or level of punishment. It thus does not prevent the national judge, when deciding upon the penalty to impose on an accused …from having regard to factors relating to the individual’s personality’.85 The issue arose again in a different form in the case of Albert and Le Compte. Dr Albert had complained that his criminal record had been taken into account in determining his sentence. The Court rejected this claim.86 The case-law goes back to an early decision of the Commission.87 It is not satisfactory. This is especially problematic when a jury and other lay judges are involved who may become biased if told that the accused has committed an offence or several offences for which he was not convicted before, particularly if they are of the same kind as the offence at issue.

The reasoning in the Engel case, however, requires further comment. The development of the case-law shows quite clearly that the presumption of innocence continues to have effect after an acquittal or conviction. If, for example, previous criminal activities were held to constitute an aggravating circumstance, whether formally in the sense of recidivism or in some other way, the presumption of innocence would be violated if a court were to apply such a rule in the absence of prior convictions. Later on in the judgment the Court also restricted the scope of this rule stating that there is no problem ‘unless they [scil. ‘allegations made about an accused’s personality as part of the sentencing (p. 173) process’] are of such a nature and degree as to amount to the bringing of a new charge within the autonomous meaning of the Convention’.88

4.  The Revocation of a Suspended Sentence

The introduction of suspended sentences constitutes one of the most important developments in twentieth-century sentencing law. The sentence (which is often custodial) is imposed following conviction, but is then deferred. A period of probation is fixed. If, during this period, the offender does not commit a new offence and fulfils any other conditions set out in the judgment, he or she will be free from further sanction. If, on the other hand, the offender commits a new offence or acts in a way which is contrary to the conditions, the suspension is revoked.

In Germany the revocation of the sentence is determined by the judge who passed the original sentence. There is no requirement in domestic law that any offence committed during the critical period be ‘proven according to law’ in order for the revocation to be justified. The Commission, faced with an application alleging that this practice was contrary to Article 6 § 2, declared it admissible—the case ended with a friendly settlement.89 The Government had declared that it would draw the attention of the judicial authorities of the Länder to the need to respect the presumption of innocence in this respect. Although this seemed to indicate that it agreed with the provisional opinion of the Commission that the right had not been respected, the law, GPC, § 56f (1)(1), was not subsequently amended.

The issue arose again, this time before the Court, in Böhmer. In this case the Hamburg district court had even taken evidence to ascertain whether the applicant had committed an offence, not with a view to his conviction, but only to establish whether the suspended sentence should be revoked. The Court held this to constitute a violation of the presumption of innocence. It held that the case differed significantly from previous cases concerning the revocation of a suspended sentence which the Commission had declared inadmissible. These cases had involved issues such as whether there could be a violation despite the fact that the applicant had already confessed.90

It must be admitted that this case does not really belong to the ‘outcome-related’ aspect of the presumption of innocence as the aim of the proceedings was not to convict or acquit the defendant. Further, the judge responsible for determining the revocation will not necessarily be the same judge who was called upon (p. 174) to determine the original charge, and his or her task will be to decide on a related issue in proceedings to which Article 6 as such consequently does not apply.

B.  The Evaluation of the Evidence

1.  General Observations: The ‘Fourth-instance’ Issue

The requirement that where doubt remains as to an accused’s guilt the accused must be acquitted, lies at the centre of the principle in dubio pro reo. It is particularly important at trial and on appeal, and becomes much less so in proceedings which concentrate on a plea of nullity. The decision as to whether an applicant is guilty or not is the decision which must be taken at the domestic level. If an international body were to intervene it would inevitably act as a ‘fourth instance’ and thus comment directly on the merits. It is generally accepted that this cannot be the scope of proceedings under the international covenants and conventions created to protect fundamental rights.91

A violation will only occur if it can be established from the judgment that the court convicted the accused despite lingering doubts as to his or her guilt. In one case the Reykjavik district court convicted a defendant on the basis that ‘it cannot be seen from the facts of the case and the statements described in the …judgment …that she is more likely to be innocent than guilty’. This can hardly be reconciled with the obligation to give an accused the benefit of doubt. The case was settled, the Government paid some compensation.92

2.  The Issue of Bias

(a)  Judicial Bias

As I have already indicated above, a central element in the protection of the presumption of innocence lies in ensuring the impartiality of the judge. He or she ‘should not start with the conviction or the assumption that the accused committed the act with which he is charged’.93 I see no justification for making a difference in this respect between the protection of Article 6 § 1 and § 2. The link between the two guarantees was first made in Austria v. Italy where the Commission said that conviction was only possible ‘on the basis of direct or indirect evidence sufficiently strong in the eyes of the law to establish guilt’.94

There have, however, been cases which were dealt with entirely in the light of Article 6 § 2. In Lavents the judge called upon to determine the charge, had declared to the press that she did not believe that the accused was innocent, (p. 175) stating that the most he could hope for would be a partial acquittal. In another interview she suggested that he should prove his innocence.95

The Court was unmoved by the fact that she had made the statements in an interrogative form, because the right to be presumed innocent had to be interpreted in such a way as to ensure that it be a practical and effective guarantee.96 There had thus been a clear violation.97

A difficult issue involving the use of previous convictions was decided by the Commission somewhat unconvincingly. The applicant complained that in proceedings concerning rape the jury had been informed of his previous convictions. The arguments used by the Commission to reject this application were purely pragmatic. It held that the practice existed in several countries.98 Yet, the dangers of such information are well known and modern justice systems separate the sentencing hearing, where it is legitimate to take the record into account, from the proceedings on the determination of the charge.99 In another case the fact that the accused was handcuffed during a hearing which was held outside the courthouse did not violate the presumption.100 In a way, this creates the impression that the accused is dangerous and may lead to the (premature) conclusion, in the eyes of lay participants, that he or she must be guilty. However, if the authorities consider such security methods to be necessary, they will have to act in the least conspicuous way possible when bringing the accused into the courtroom and then take the handcuffs off.

(b)  Bias of Other Participants in the Proceedings

(i)  The Prosecuting Authority

I have already indicated that the prosecution authority is bound to respect the presumption of innocence but need not be fully impartial. A violation of the presumption of innocence in its outcome-related aspect is therefore not to be expected. The requirement of fairness is not as such endangered by a partial prosecutor. One might be tempted to argue to the contrary. Adversarial proceedings however presuppose opponents, on one side the public prosecutor whose activity is based on a de facto presumption of guilt, and on the other, the defence.

(ii)  The Expert

Experts, on the other hand, have a special type of responsibility. Their role will necessarily depend to a certain extent on the procedural system within which they operate.101 In Scotland and in England and Wales, experts are (p. 176) normally appointed by the parties and cannot strictly speaking be expected to be impartial.

In other procedural systems, however, they are appointed by the court, and should therefore be regarded as its assistants. Their impartiality is of great importance. In Bönisch, the Court did not really contradict the Austrian Government’s assertion ‘that under Austrian law an “expert” was a neutral and impartial auxiliary of the Court’.102 It doubted the impartiality of the expert, who, due to his prior functions, seemed to be ‘more like a witness against the accused’.103 This seems to imply that experts are also bound by the presumption of innocence.

The question arose again in Bernard v. France where the applicant had pleaded not guilty. One of the psychiatric reports concerning the applicant was riddled with language which portrayed him as a hardened criminal: ‘Mr. Bernard is a gangster …The conduct of the operation shows …that it was very well planned [details given] and the work of an expert team [specifications given]. All Mr. Bernard’s major offences (both past and present) fall into the category of organised crime …Mr. Bernard is not a casual offender, but a real professional’, and so on.104 The appeal court did not find a violation, because in presenting his evidence the expert had repeatedly mentioned that Mr Bernard had denied having committed the offences.105 The court of cassation, in the somewhat laconic style for which it is well known, rejected the appeal ‘holding that the comments referred to in that ground of appeal did not constitute a breach of the oath sworn by the experts to assist the court on their honour and according to their conscience’.106 The Commission was split on the question of violation of Article 6 § 1—with the casting vote of the President it decided that there had been a violation and ruled that it was unnecessary to examine the complaint from the standpoint of Article 6 § 2.

The Court, however, went with the minority and concluded that there had been no violation of Article 6 §§ 1 or 2. It recalled that the expert ‘logically had to start from the working hypothesis that the applicant had committed the crimes which had given rise to the prosecution’.107 The conclusion is drafted in very sweeping terms: ‘The file shows that the applicant’s conviction was based on …evidence obtained during the investigation and discussed at the hearings …That being so, the Court cannot regard the statements in issue, which formed only one part of the evidence submitted to the jury, as contrary to the requirement of a fair trial and the presumption of innocence’.108

This case illustrates very clearly the difference between the outcome-related and the reputation-related aspects of the guarantee. The Court concentrated here on the former aspect. Without saying so very clearly, it examined whether the expert’s opinion could have led to an unsafe conviction, and decided to the (p. 177) contrary. If it had taken the other approach, however, it would have asked whether the statement of the expert ‘reflected an opinion that [the applicant was] guilty before he ha[d] been proved guilty according to law’. It is worth noting that in setting out the general principles the Court omitted this sentence! The judgment is even more surprising if one keeps in mind that the Court considered the choice of words to be particularly important.109

It must be recalled in this context that experts are not public officials, so their statements cannot violate the Convention, as such. However, the Contracting States are, by virtue of Article 1, under an obligation to ‘secure’ the fundamental rights set out therein to every person under their jurisdiction. In this case the court ought to have reacted to the verbal excesses of the expert as the technical majority of the Commission suggested, by way of a jury direction.

(iii)  Others

What has been said with regard to experts must also apply to other persons participating in the proceedings, for example, witnesses and private plaintiffs. The state is not directly responsible for their conduct but the authorities must intervene whenever a person participating in the proceedings makes statements which are not compatible with the presumption of innocence. Some personal bias, however, does not yet fall under this category.

(c)  The Media

Media publicity can have particularly dangerous consequences for the presumption of innocence. While it is certainly legitimate to inform the public about criminal proceedings, even sometimes during the preparatory stages, it is nevertheless essential that statements presenting the accused as guilty are avoided. It is essential that the judge makes it clear that he or she will not be influenced by a press campaign and gives a clear warning to jurors and other lay participants to that effect.110 As the Convention only binds Member States, private media and those acting for them cannot immediately violate the presumption of innocence as set out in Article 6 § 2. However, the state, under Article 1 of the ECHR, has a duty to ‘secure’ individual rights and to intervene if they are threatened or violated by whomsoever.111

A case of this kind was dealt with by the HRC. There had been considerable pre-trial publicity which had presented the accused as a notorious drug baron. As the authorities had taken measures to counteract that publicity, it was decided that there had been no violation.112

(p. 178) Authorities may inform the public in the course of proceedings but must make it clear that the suspect is not considered guilty.113

3.  No Right of Access to Court in Order to Establish One’s Innocence

The right to be presumed innocent does not include the right to establish one’s innocence in a court. In other words, there is no right to oppose a decision to terminate the proceedings before any hearing on the merits.114 This is quite logical—as everybody is presumed to be innocent there is no justification for access to court only to prove this fact.

III.  The ‘Reputation-Related’ Aspectsof the Guarantee

A.  Introduction

It may be useful to recall that the ‘reputation-related aspect’ of the presumption of innocence refers to situations in which the acts or a statements of a public authority imply that it believes a person to be guilty of an offence before that person has been convicted, even if the act or statement is not instrumental in the determination of the eventual judgment. In this sense the presumption of innocence is not really a procedural guarantee any more.115

I shall begin by presenting the case-law on the subject. It concerns declarations made during the pre-trial phase of the proceedings, the application of measures of coercion, decisions, and reasons given in the context of the termination of criminal proceedings other than by conviction and declarations made by public authorities which are not related directly to criminal proceedings.

Finally, I shall address the theoretical foundations on which this jurisprudence rests.

B.  Statements During the Pre-trial Phase of the Proceedings

Generally, acts and declarations made in the course of criminal proceedings belong to the ‘outcome-related’ aspect of the presumption of innocence as they endanger the impartiality of the court’s decision. However, there are some exceptions.

An example is provided by the case of Daktaras v. Lithuania. In this case the applicant had requested that the prosecutor discontinue the case against him on the basis that there was insufficient evidence to justify the prosecution.

(p. 179) The prosecutor rejected this request stating that it was ‘ill-founded, as it has been established from the evidence collected in the course of the pre-trial investigation that the applicant is guilty of these crimes.’116 He then went on to discuss in more detail the evidence, which ‘proved’ the different accusations.

The Court accepted that the presumption of innocence could be infringed by the prosecution, particularly ‘where a prosecutor …performs a quasi-judicial function when ruling on the applicant’s request to dismiss the charges.’117 ‘Nevertheless’, it continued, ‘whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement is made’.118

In Daktaras the assertion was made ‘internally’, in a procedural decision, not at a press conference. The prosecutor had used the term ‘proved’ to answer the accused’s allegations that the facts were ‘not proved’. The term was certainly ‘unfortunate’, but in the context it was used it did not amount to a violation of Article 6 § 2.119

This finding is convincing. The prosecution is expected to press for a guilty verdict, thus even if it expresses this opinion before the final pleadings, this is unlikely unduly to influence the verdict. On the other hand, this case again illustrates the difference between the two different aspects of the principle. Had the statement been addressed to the public, the result is likely to have been quite different, although not with regard to the proceedings themselves. It would have constituted an unjustified interference with the applicant’s right to the protection of his reputation.120

C.  Measures of Coercion, in Particular Detention on Remand

1.  The Principle

In order to facilitate the gathering of evidence and to prevent the suspect jeopardizing the successful course of the proceedings, a variety of measures of coercion, which necessarily interfere with suspects’ rights, are at the disposal of the investigating authorities. They include, inter alia, wire-tapping, surveillance, whether it be electronic or otherwise, the taking of samples of blood or saliva, search and seizure121 and, most importantly, detention on remand. These measures are definitely compatible with the right to be presumed innocent.122 They are based on the suspicion prescribed in Article 5 § 1(c) of the ECHR.123

(p. 180) 2.  The Limits

(a)  General Aspects

Some of these measures124 may become so intrusive that they must be viewed as anticipating the punishment.125 This could even be the case with seizure, if it lasts for an excessive length of time and if the goods seized consequently lose their value.126 The greatest dangers, however, arise in relation to detention on remand. For this reason such detention is subject to strict limits and must not last beyond a ‘reasonable time’.127 The details of this guarantee are discussed elsewhere.

This issue has also been discussed insofar as it relates to the presumption of innocence. The HRC discussed the matter in its comments on State Reports concerning Italy,128 Ecuador,129 Argentina,130 Romania,131 and Luxembourg.132 The European Commission of Human Rights also had to consider a number of applications alleging violations of both Articles 5 § 3 and 6 § 2 which were based on the length of detention on remand.133 The connection between these two principles is by no means tenuous. Research has shown that courts have a tendency to take the length of detention on remand into account in sentencing and tend to avoid sentences lower than the time already ‘served’ on remand.134

Thus provisional coercive measures may represent a type of repressive sanction, imposed even before the person concerned has been convicted.

When Article 6 § 2 is invoked together with Article 5 § 3, the latter has precedence as the lex specialis; if a violation is found due to excessive length of detention on remand, an examination of whether the presumption of innocence has been violated becomes unnecessary.135

A particularly difficult issue arose in a case against Sweden which concerned tax evasion, as the decision to impose tax surcharges was enforced before the court had even decided that they were in fact due. The Court stated that the Convention does not prohibit anticipatory enforcement measures and added that ‘provisions allowing early enforcement of certain criminal penalties can be found in the laws of other Contracting States’ (unfortunately it again fails to provide any examples).136 Contrary to the supplementary tax itself, the (p. 181) provisional enforcement cannot be justified by referring to fiscal interests. The Court went into considerable detail in describing the possibilities of redress in the event that the final judgment did not impose any supplementary tax, and finally held that the safeguards provided by Swedish law were sufficient.137

The wording of this judgment betrays a number of hesitations. In my view, the seizure of the taxpayer’s assets could be justified in order to secure the payment of the supplementary tax. It is difficult to see, however, why an anticipatory execution of a penal sanction should be necessary and how it can be reconciled with the presumption of innocence.

(b)  The Nature of Detention on Remand

The nature and conditions of the detention on remand must be compatible with the presumption of innocence. Here, the Covenant gives clear directions: ‘Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons’.138 Depriving a person presumed innocent of his or her liberty does not allow for any restriction that goes beyond what is strictly necessary to achieve the aim pursued, which is mainly the prevention of flight, recidivism, and interference with the evidence. This means that detainees cannot be compelled to work, have the right to wear their own clothes, and may order their own food, at least in so far as this is compatible with prison order.

The Court however disregarded this principle in Peers where the applicant complained that although he was detained on remand, he was subject to the same regime as the convicted prisoners. The Court rather brusquely brushed this complaint aside, arguing that ‘the Convention contains no Article providing for separate treatment for convicted and accused’.139 There are two reasons why this reasoning is unsatisfactory.

First, the Court ought to be aware of the provisions of the Covenant. Protocol No. 7 was created to eliminate any differences in the protection offered by the Convention and the Covenant. Certain proposals were removed from the first draft because the right in question was regarded as being implicit in the Convention.140 This creates a presumption that the Convention ought to be interpreted in such a way as to guarantee the same level of protection as is provided by the Covenant.

Second, the Court ought to have operated a more detailed examination of the facts and should not have simply contented itself with such a formalistic argument. The possibility that the normal prison regime contained features that were incompatible with the presumption of innocence cannot be excluded. In the same case, however, the Court found a violation of Article 3 due to the prison conditions; in comparison to other complaints the one concerning Article 6 § 2 may have been regarded as trivial from the outset. Yet, it would then have (p. 182) been preferable if the Court had concluded that no separate issue arose under Article 6 § 2.

D.  Violation of the Presumption of Innocence in Cases where the Proceedings have Ended in Some Way Other than by Conviction and Sentence

There are essentially two different ways of concluding proceedings other than by conviction. The first obviously entails an acquittal. The second category involves a variety of procedural decisions, such as the decision of the public prosecutor or other authority with similar powers, not to prosecute on the basis that the chances of a successful prosecution are too small. Another example would be when an obstacle, such as a statute of limitation or the death of the accused, hinders either the trial or the appeal. Finally, it is also possible that the prosecution close a case because even in the event of a conviction the sentence would be negligible.

It may be thought strange that decisions which, after all, favour the accused in releasing him or her from the attention of the criminal-justice authorities, lead to problems affecting the presumption of innocence. In fact, a variety of issues may arise.

In all of these cases some reasoning will be given by the deciding authority. It is possible that these reasons reflect negatively on the defendant’s innocence;141 the defendant may be refused compensation for detention on remand or the costs of his defence;142 costs of the proceedings may be awarded against the defendant, possibly together with an obligation to pay the costs of the other side;143 finally, there is the possibility that despite the acquittal the defendant will nevertheless be ordered to pay compensation to the victim.144

There is a considerable volume of case-law on these issues. An examination of the jurisprudence need not deal with every category separately, but a distinction must in any event be made between the cases involving an acquittal and the others. In fact, the Court makes a distinction on the basis of whether or not the authority has actually taken a final decision on the merits.

1.  The Effect of an Acquittal on the Presumption of Innocence

Once an acquittal has become final, the person concerned is protected from new proceedings by virtue of Article 14 § 7 of the ICCPR, Article 4 of Protocol No. 7 to the ECHR, or Article 8 § 4 of the ACHR, from any official statement which insinuates that he or she is guilty, and from any such statement which says that he or she is still under suspicion, even if the reasoning of the (p. 183) judgment—whether it be public or secret—reflects doubts as to the accused’s innocence. This principle has been upheld by the Court in a number of cases.145

In one case national law made the clearing of suspicion a prerequisite for the payment of compensation, and placed the onus probandi on the person claiming compensation. The Court pointed out quite correctly that the only exception to this rule arises in cases where the proceedings are to be reopened—after such a decision the person concerned again becomes the subject of a ‘charge’.146

In Y v. Norway the person, who had earlier been acquitted, was ordered to pay compensation to the victim; the decision was taken by the same court the day after the acquittal. The Court concluded that there had been a violation of the right to be presumed innocent, as the domestic court found it ‘clearly probable that [the applicant] had committed the offences’.147 ‘The Court is mindful of the fact that the domestic courts took note that the applicant had been acquitted of the criminal charges. However, in seeking to protect the legitimate interests of the purported victim, the Court considers that the language employed by the High Court, upheld by the Supreme Court, overstepped the bounds of the civil forum, thereby casting doubt on the correctness of that acquittal.’148

It reached a different conclusion in Ringvold, which was decided on the same day as Hammern, and O and Y v. Norway. The starting point was the same: a man had been prosecuted for sexually abusing a minor and was eventually acquitted.

In Ringvold, the alleged victim had brought a claim for compensation for non-pecuniary damages which was rejected by the high court. The victim appealed to the Supreme Court against this decision. Further evidence was taken and the file of the criminal proceedings was joined to the file of these civil proceedings. The Supreme Court finally decided in favour of the victim. In explaining the judgment Mrs Justice Gj⊘lstad recalled that the normal standard of proof in compensation proceedings was the balance of probabilities. In view of the particular impact that the judgment could have on the defendant, it had to be stricter in this case, although not as strict as the standard in criminal proceedings. Although the acquittal had been based on the verdict of a jury, the Supreme Court discussed the views of the high court in relation to some evidence. The high court did not share the same hesitations as the jury about the evidentiary value of a video recording.

The Court distinguished this case from the others and found there to have been no violation. It accepted that the proceedings for compensation did not concern the determination of a criminal charge. Its main concern was that if this were not so,

as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim’s possibilities of claiming compensation (p. 184) under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to court under Article 6 § 1 of the Convention. This again could give an acquitted perpetrator, who would be deemed responsible according to the civil burden of proof, the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude establishing civil liability in relation to the same facts.

Thus, the Court considers that, while the acquittal from criminal liability ought to be maintained in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof …If the national decision on compensation were to contain a statement imputing the criminal liability of the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention.149

The Court referred to the case-law of the Commission which had already stressed the distinction between criminal and other proceedings, and in particular the lower standard of proof in other proceedings, where the decisions did not ‘determine whether a criminal offence had been committed’.150

The difference between the approach of the Court and that of the Commission lies in the respective reasoning. The Commission limited itself to saying that the dismissal (or establishment of civil liability) did not amount to a statement that the person concerned was guilty of a crime. The Court did not even reach this point. It concluded that Article 6 § 2 did not apply because there was a lack of a sufficient link between the criminal case and the compensation case. ‘The Court reiterates that the outcome of the criminal proceedings was not decisive for the compensation issue’.151 Therefore, the Court concluded that it was barred from examining on the merits the question as to whether there had been a violation of Article 6 § 2.

In a dissenting opinion Judge Costa held that in his opinion ‘the civil wrong still has to be distinct from the criminal wrong and the acts regarded as wrongful and prejudicial in civil law must not be exactly the same as those of which the defendant was accused in the criminal proceedings. Otherwise, both the presumption of innocence and the finding that the person acquitted was not guilty would be deprived of any useful purpose if judgment were given against that person in civil proceedings, as it would be paradoxical to protect a mere presumption for as long as it had not been rebutted by a ruling and yet to disregard the proof which reinforced that presumption’. He rightly pointed out (p. 185) that Mrs ‘Justice Gj⊘lstad found that the evidence satisfied the standard of proof, establishing that sexual abuse had occurred and that, on the balance of probabilities, it was clear that the applicant was the abuser’.

This opinion must be applauded. This is not to say that there cannot be civil proceedings for damages arising out of the same facts as those which led to the acquittal. But it must be possible to distinguish clearly the civil liability from the criminal responsibility for the criminal offence. I shall return to the Court’s methodology shortly.

In addition, a further issue calls for comment. The applicant had complained that the Supreme Court, for the purposes of the civil proceedings, had made available the case file of the criminal case. The Court answered this point in passing. ‘[T]he fact that an act that may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence could not, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being “charged with a criminal offence”. Nor could the fact that evidence from the criminal trial is used to determine the civil law consequences of the act warrant such a characterisation.’152

This statement however hardly addresses the question which the applicant raised. The problem lies in the fact that in criminal proceedings the establishment of the facts benefits from the prosecution apparatus. Measures of coercion are possible which are not available to a party in civil proceedings. The Court did not bother to examine whether the evidence contained in the criminal file would have been available in civil proceedings. Yet, it would be quite unfair if someone who claims to be the victim of an offence could benefit from special privileges in pursuing her claim. The privilege is acceptable in cases where the defendant has actually been convicted, but not when he or she has been acquitted.

2.  The Effect of a Procedural Termination of Criminal Proceedings on the Presumption of Innocence

The Court’s jurisprudence on the presumption of innocence is particularly varied in the area of the closing of criminal proceedings for procedural reasons. Quite a number of distinctions can be made on the basis of different criteria.

A differentiation can be made on the basis of the issue which is alleged to have violated the presumption. Applicants have complained that the authorities expressed doubts as to their innocence,153 that they were denied compensation for their procedural expenses or for detention on remand by reference to continuing suspicion,154 and that they were ordered to pay for some procedural expenses and to compensate the plaintiffs for their procedural costs.155

(p. 186) Other distinctions can be made depending on whether the impugned statement mentioned suspicion or affirmed guilt,156 or whether the decision was detailed or limited to evoking the probability of guilt. One could also distinguish on the basis of the reasons for terminating the proceedings: insufficient evidence to justify the bringing of an indictment,157 a statute of limitation,158 the death of the accused,159 or the fact that any sentence in the eventuality of conviction would be negligible.160 Finally, it is also possible that a differentiation is made on the basis of whether the termination occurred after the defendant had been found guilty at first instance.161

(a)  Order to Pay Costs and Compensation to the Plaintiff

The first case in which the ‘reputation-related’ function of the presumption of innocence was upheld was Minelli v. Switzerland. The applicant, a journalist, had written an article accusing a business of having acted fraudulently, an accusation which resulted in him being charged with defamation. The proceedings were stayed to await parallel proceedings against another journalist in a different canton. By the time that the proceedings were able to be resumed, they had become time-barred. The applicant was nevertheless ordered to pay court costs and compensation to the plaintiff. This order was justified by reference to the fact that Mr Minelli ‘would in all probability have been convicted of defamation if the present proceedings had not been terminated on account of limitation’—a conclusion reached after a discussion of the evidence.162

The Court dealt first with the question of whether Article 6 § 2 applied at all to the case. It then followed the Commission in accepting that the imposition of costs on an accused after a case has been ‘discontinued, discharged or …terminated on account of limitation’163 was not prohibited by the Convention. The principle that ‘neither Article 6 § 2 nor any other provision of the Convention gives a person “charged with a criminal offence” a right to reimbursement of his costs where proceedings taken against him are discontinued’164 is often referred to in subsequent cases.165 The Court found, however, that by (p. 187) stating that Mr Minelli would very probably have been convicted, the chamber had treated the offence as if it had been proved and that it was clear that Mr Minelli was guilty.166 This was held to constitute a violation of Article 6 § 2.

(b)  The Refusal of Compensation

The Court distinguished the situation in Minelli from cases where there had only been a refusal to pay compensation, stressing that the refusal of compensation did not ‘amount to a penalty or a measure that can be equated with a penalty’.167 In Lutz the same formulation is used as in Minelli—‘the defendant would most probably have been convicted’.168 However, the court did not go on to examine the evidence in detail. This led the Court to find that only a suspicion had been uttered, not a statement that the defendant (who had actually admitted the offence) was guilty.

In Englert the court had stated that ‘in the light of the course of the trial so far, the circumstances rebutting the presumption of innocence are …so overwhelming that a conviction is clearly more likely than an acquittal’.169 In Nölkenbockhoff the reasoning was that ‘the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld’.

In all three cases (Lutz, Englert, and Nölkenbockhoff) the Court found no violation.170 The same conclusion was reached in Leutscher, where there had previously been a conviction in absentia, and where the court justified the refusal of compensation on the basis that ‘neither the file of the criminal investigation nor that relating to the present request [gave] any cause to doubt that this conviction [had been] correct’.171

In Baars, the refusal to compensate the applicant was justified by ‘circumstances, from which it follows that the applicant—if the prosecution department had not forfeited the right to prosecute by exceeding a reasonable time and [the prosecution] had not been declared inadmissible by the Regional Court for that reason—would in all likelihood (met grote mate van waarschijnlijkheid) have been convicted’.172 Here, the Court did find a violation of Article 6 § 2 because the evidence had been discussed in some detail.

These decisions seem to follow a clear pattern. There will be a violation where the domestic court not only justifies its refusal of compensation on the basis that it was highly likely that the applicant is guilty but also discusses the evidence, in some detail, before reaching that conclusion. A further difference, which the judgments do not refer to, is the fact that a violation was found where there had (p. 188) not been a conviction at first instance. This could hardly be a valid reason, and therefore it is not mentioned. In fact, theoretically (at least in the legal systems concerned, those of Austria and the Netherlands), the presumption of innocence is set aside as soon as the convicted person files an appeal (‘Berufung’, ‘hooger Beroep’). Yet, in practice, the authorities seem to find it difficult to act as if there had never been a conviction at first instance.

The Court now and then stresses the ‘importance of the choice of words by public officials’.173 It is regrettable that in the cases referred to this rule has not been applied.174 The reasons given for the difference made between those cases where, as in Minelli and Baars, a violation was found, and the other ones, are not particularly convincing. It is certainly acceptable that compensation is denied—even if costs are awarded against a defendant, in cases where proceedings are terminated for procedural or technical reasons after a conviction at first instance. This should however be clearly set out in a rule, for example, ‘if proceedings are terminated after a conviction at first instance and before a decision on appeal has been taken, the costs are to be borne by the accused’. This would avoid statements which are hard to reconcile with the presumption of innocence.

(c)  The Affirmation of Continuing Suspicion

In one case, the applicant, who was accused of having sexually assaulted a child, complained that the proceedings against him were terminated leaving him no opportunity to prove his innocence. The judge responsible for the preliminary investigation (‘giudice per le indagini preliminari’) had used wording which stressed the persistence of strong suspicions against him, which in turn had led to a refusal by his ex-wife to let him see his daughter. The majority held that there had been no violation. Although the Court recalled the importance of the choice of words, it held that notwithstanding the wording of the order (‘malgré les termes employés dans l’ordonnance’) the decision had only expressed a ‘state of suspicion’.175

In a convincing dissenting opinion Judge Rozakis pointed out that the wording clearly betrayed the conviction of the judge that the applicant was guilty. In ordinary words, what the decision expressed was this: ‘I am convinced that the applicant is guilty; however, unfortunately, I doubt whether it will be possible to convince the court at the trial of this guilt due to the weakness of some elements of proof’. I agree with Judge Rozakis that this is not compatible with the presumption of innocence—there is a slightly cynical touch to the alternative view.

3.  Statements Unrelated to Criminal Proceedings

So far there have been two cases where public officials have made statements outside criminal proceedings which have nevertheless been considered to raise (p. 189) problems pertinent to the presumption of innocence. An episode of this kind made the front pages when President Nixon spoke of Manson as a murderer before he was convicted.176

The first case concerned the then Swiss minister of justice who, after the arrest of Ms Petra Krause (later convicted in Switzerland of being a terrorist linked to the Baader-Meinhof gang) referred to her as a criminal but added that she would have to stand trial. As there had been no formal declaration that she was guilty, the Commission declared the application inadmissible.177

Much later, Mr Allenet de Ribemont was arrested in France on suspicion of involvement in the murder of Mr Jean de Broglie. At a press conference, which was also attended by the Minister of the Interior, the Director of the Paris Criminal Investigation Department referred to the applicant as the ‘instigator of the murder’.178

The Court held that the Convention ‘must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory’ and that Article 6 § 2 was applicable because there existed a link with the criminal investigation which had started a few days earlier. It recognized that the presumption of innocence did not prevent the authorities from providing information about ongoing investigations, but held that this must be done in a way which is compatible with the presumption. In this case, a declaration of the applicant’s guilt had quite clearly been made.179

Even a simple police report which states that a suspect is guilty can violate the right to be presumed innocent, even though there is ultimately no conviction and the name of the person concerned is struck off the police register.180

E.  Assessment

The ‘reputation-related’ aspect has not received unanimous approval. Particularly harsh criticism has been voiced by Gollwitzer who has objected to a procedural guarantee being applied to non-procedural facts.181 I do not agree with him and believe that, with some exceptions, the Court is right in maintaining the approach initiated by the Commission.

It would undoubtedly be preferable, however, if the Court could accept that what it is in fact doing is ‘directly’ applying a vision of Article 6 § 2 which is not tied to criminal proceedings in a way concordant with those defined by Article 6 § 1, namely, those concerned with ‘the determination …of any criminal charge’.

(p. 190) In almost all the judgments concerning Article 6 § 2 it goes out of its way to demonstrate that Article 6 applies. In particular, with regard to the term ‘criminal’ it sets out the criteria developed in Engel and others and goes on to examine whether they are applicable in the case at issue. Since the decision in Minelli, however, most of those cases, while somehow linked to criminal proceedings, concern a person who is no longer ‘charged’ with a criminal offence.182

In the Minelli case the Court went so far as to suggest that when the Assize Court decided that the applicant would have to bear two-thirds of the court costs and pay compensation to the private plaintiffs, it ‘still regarded the applicant as being “charged with a criminal offence”, within the meaning of Article 6.’183 This is not at all convincing, especially in view of the fact that a few sentences later the Court admitted ‘that the limitation had extinguished the criminal action instituted against the applicant’. It has to be one or the other—the charge disappears as soon as the criminal proceedings come to an end.

In the case where fines for tax offences imposed on a deceased individual were transferred to his heirs,184 the applicants had definitely never been charged. It is true that, referring to Öztürk v. Germany, the Court discussed the applicability of Article 6.185 However, it was the deceased individual who had been subject to the charge, not the applicants. The fact that they were asked to pay the fine cannot possibly be regarded as a charge—there was never any examination of whether they were guilty of an offence or not.

The attitude changed in Sekanina. The Court referred to the Commission which had always taken the direct approach by stating ‘that the presumption of innocence was obligatory not only for criminal courts ruling on the merits of a charge, but also for other authorities’.186 However, while the Commission did not try to link the prerequisites for its application and the substance of Article 6 § 2, the Court made such an attempt. It stated that even after an acquittal, Austrian law linked the question of criminal responsibility to that of compensation ‘to such a degree that the decision on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former’; the same court was competent in the matter and the decision not to pay compensation ‘relied heavily on the evidence from the Assize Court’s case file’.187 Article 6 applies to persons ‘charged with a criminal offence’ which is of course the subject of autonomous interpretation.188 However, it appears that in the context of Article 6 § 2 the Court gives it a different meaning than that utilized (p. 191) in the context of Article 6 § 1. This cannot be correct. It is in any case difficult to see how the term ‘charged’ could be interpreted as also meaning ‘not charged any more’.

The extinction of the charge is particularly obvious in cases where the applicant has been acquitted. In the four cases brought against Norway, the Court finally accepted that the applicants could no longer be regarded as ‘charged with a criminal offence’—the denial of a violation of Article 6 § 2 is justified by considerations of mere expediency: it would not be fair if the victim of a crime, due to the acquittal of the suspect, was precluded from a finding in his favour in civil proceedings ‘on the basis of a less strict burden of evidence’.189

In my view, the approach of the Commission is to be preferred. I held that the right to be presumed innocent ‘is not only a procedural guarantee in criminal proceedings, but requires all State organs to refrain from statements on the guilt of the accused before that guilt has been established by the competent Court’.190 It simply reads Article 6 § 2 as if the wording proposed by René Cassin or Eleanor Roosevelt had been adopted.191


1  It is true that in Salabiaku v. France, p. 28, § 5, Mr Tenekides, in a dissenting opinion, criticized the majority for not having recognized the presumption of innocence as a ‘right’. However, this must be the result of a misunderstanding—there can be no doubt that the European institutions have always recognized and treated the presumption of innocence as a right.

3  Proposal of Mrs Roosevelt; see Weissbrodt (2001) 18.

4  Ibid., 20.

5  Ibid., 17.

6  Ibid.

7  Nowak (1993) Art. 14 N 35; Weissbrodt (2001) 56.

8  P, RH, and LL v. Austria Application 15776/32. It is somewhat exaggerated to say that Art. 6 § 2 does not apply at all to extradition proceedings; X v. Austria Application 1918/32.

9  X v. Austria Application 1918/32.

10  See Chapter 2.

11  See e.g. Asan Rushiti v. Austria.

12  See also Trechsel (1981) 318; the Italian Constitution, Art. 27, says ‘L’imputato non è considerato colpevole sino alla condanna definitiva’ (‘The accused is not considered guilty until he has been finally convicted’), a formulation which avoids the term ‘innocence’.

13  Silva Rocha v. Portugal, § 28; see also Chapter 18 below.

14  Salabiaku v. France, § 27; Vastberga Taxi Aktiebolag and Vulic v. Sweden, § 112; see also Janosevic v. Sweden.

15  See also Källender v. Sweden Application 12693/32.

16  I am referring to the persuasive definition of mens rea as adopted by the German Bundesgerichtshof, 2 BGHSt 200 (1952): ‘Strafe setzt Schuld voraus. Schuld ist Vorwerfbarkeit. Mit dem Unwerturteil der Schuld wird dem Täter vorgeworfen, dass er sich nicht rechtmässig verhalten, dass ersich für das Unrecht entschieden hat, obwohl er sich rechtmässig verhalten, sich für das Recht hätte entscheiden können’. (‘Punishment presupposes guilt. Guilt means that somebody can be held responsible. If a person is determined to be guilty, this means that the person has decided to behave contrary to the law, even though he could also have acted in conformity with the law, could have decided to respect the law.’). See also Roxin (1998); Seiler (2003); Stratenwerth (1996) 254 et seq.

17  Salabiaku v. France, § 27; Vastberga Taxi Aktiebolag and Vulic v. Sweden, § 112; Janosevic v. Sweden.

18  See e.g. GPC, § 323a, discussed by Cramer and Steinbert-Lieben in Schönke and Schröder (2001); CHPC, Art. 263, examined by Bommer in BJK StGB-II; W. Brandenberger, Bemerkungen zu der Verűbung einer Tat in selbstverschuldeter Yurechnungsungsunfähigkeit (Bern: Stämpfli & Cie AG, 1970).

19  Cf. Pradel (2002) N 237 with reference, inter alia, to the Bailey case (1800) Russ and Ry 1, 168 ER 651, where a sailor was punished for having violated a rule created while he was out at sea. He would not have been punished under Swiss law; cf. e.g. Trechsel and Noll (2004) § 29 A 2.

20  Pradel (2002) N 305.

21  See p. 171 below.

22  Neither does the statement that someone has acted thoughtlessly (‘à la légère’): M v. Switzerland Application 11263/32.

23  Adolf v. Austria, § 38; see also W v. Austria Application 12990/32, for an analogous case concerning juveniles.

24  Adolf v. Austria, § 39. As a general proposition this statement cannot be left without comment. It is not at all true. On the contrary, there is a fundamental difference between the operative part of a judgment, i.e. the decision taken by a court or tribunal, and the reasons given for that decision. It is often the case that an appeal is only possible against the operative part; cf. Hauser and Schweri (2002) § 94 N 14; Roxin (1998) § 51 B II 1 (c). The fact that the Court accepts the proposition with regard to the presumption of innocence is another indication that we are not within the limits of the issue of ‘fair trial’ any more.

25  Adolf v. Austria, § 40.

26  Similarly, the Commission declared inadmissible an application where the applicant had allegedly been treated as a deserter from the Indian army. The Commission held that as a certificate had been issued which the applicant could have appealed against, the presumption was not irrebuttable; see C v. United Kingdom Application 10427/32.

27  Adolf v. Austria, § 33 in fine.

28  An illustration of this development can be found in the case of Öztürk v. Germany.

29  AHCR, Art. 8 § 3.

30  For a comparative analysis, see e.g. Trüg (2003).

31  Contra Wimmer (1968) 375.

32  Lutz v. Germany, § 62.

33  See also my dissenting opinion, joined by Mr Frowein, which is attached to the Commission’s report, Lutz v. Germany, pp. 38 and 39; Trechsel (1981) 226.

34  Houswitschka v. Germany Application 12380/32; R v. Germany Application 12669/32; and S v. Germany Application 15871/32.

35  Poncet (1977) 84 et seq. I was of the same view; see Trechsel (1981) 24.

36  Scheichlbauer v. Austria Application 2645/32. The evidence included a recording which had been unlawfully obtained.

37  Schenk v. Switzerland, § 51.

38  Kremzow v. Austria, §§ 76–7.

39  X v. Germany Application 2136/32.

40  Deweer v. Belgium, § 56 with reference to the Commission’s report in Nielsen v. Denmark (1961) 5 YB 548–50. The formula, repeated verbatim or with just slight alterations, turns up regularly in later judgments, e.g. Minelli v. Switzerland, § 27; Bernard v. France, § 37; Allenet de Ribemont v. France, § 35; Daktaras v. Lithuania, § 41; Marziano v. Italy, § 28; Böhmer v. Germany, § 53; Gökceli v. Turkey, § 45; Kyprianou v. Cyprus, § 52. See also Nowak (1993) Art. 14 N 33.

41  Salabiaku v. France, § 28.

42  See Austria v. Italy Application 788/32.

43  With an exception, of course, for those cases in which an accused has pleaded guilty.

44  See e.g. Daktaras v. Lithuania, § 41; Böhmer v. Germany, § 54.

45  See e.g. Allenet de Ribemont v. France, § 37; Minelli v. Switzerland, § 37; but also, probably due to an oversight, Marziano v. Italy, § 28.

46  Minelli v. Switzerland, § 37; Allenet de Ribemont v. France, § 35; Daktaras v. Lithuania, § 41; Böhmer v. Germany, § 54; Lavents v. Latvia, § 126.

47  Barberà, Messegué and Jabardo v. Spain, § 77; Lavents v. Latvia, § 125.

48  Lavents v. Latvia, § 125.

49  See e.g. Deweer v. Belgium, § 56; Bönisch v. Austria, § 37; Delta v. France, § 37; Demicoli v. Malta, § 34; Funke v. France, § 45; IJL, GMR, and AKP v. United Kingdom, § 142; Coëme and others v. Belgium, 104; Büyükdag v. Turkey, §§ 78, 79.

50  Hentrich v. France, § 64; more substantial reasoning can be found in the Commission’s report, § 84 et seq. The existence of a tax fraud is no prerequisite for the pre-emption, thus this measure does not amount to a finding of guilt.

51  Barberà, Messegué, and Jabardo v. Spain, § 77.

52  See e.g. Pradel (2002) N 300.

53  Saunders v. United Kingdom, § 68; Heaney and McGuiness v. Ireland, § 40; Quinn v. Ireland, § 40.

54  See e.g. Ringvold v. Norway, a case to be discussed below.

55  Kyprianou v. Cyprus, § 53.

56  Ibid., § 56.

57  HRC, General Comment 13, Article 14 (21st Session, 1974), Compilation of the General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev. 1 at 14 (1994), § 7.

58  De Figueiredo Dias (1974).

59  Pradel (2002) N 298; see also Hauser and Schweri (2002), § 23.

60  Starmer (1999) N 8.43 et seq.

61  H v. United Kingdom Application 15023/32, regarding the so-called McNaghten Rules of 1843, 877 LS Gaz 31; Starmer (1999) 8.46.

62  See e.g. Pradel (2002) N 306.

63  Van Dijk and van Hoof (1998) 459; in the HRC Mr Tomuschat had also pointed to this possibility; he objected to very broadly defined crimes such as ‘subversive association’; see McGoldrick (2001) 404.

64  According to Harris, O’Boyle, and Warbrick (1995) 244 strict liability is compatible with the Convention—I do not agree with this proposition which is exaggerated and disregards the reference of the Court to the possibility to invoke force majeure.

65  Salabiaku v. France, § 19.

66  Ibid., § 28.

67  Commission’s report, Salabiaku v. France, p. 24 §§ 74–5.

68  See also Vastberga Taxi Aktiebolag and Vulic v. Sweden, § 113.

69  100,000 French francs, i.e. roughly in the order of 15,000 euros; in case of non-payment, the fine would be commuted to a term of imprisonment.

70  Salabiaku v. France, § 29; Esser (2002) 743 criticizes the very restricted possibility of rebutting the presumption; Starmer (1999) 8.47 supposes that such strict rules would not apply if the offence concerned the exercise of a Convention right.

71  Salabiaku v. France, § 30.

72  Pham Hoang v. France, § 21.

73  Ibid., § 36, confirmed in three unreported decisions of 16 Jan. 1996 concerning dangerous dogs: Bates, Foster, and Brock (all v. United Kingdom) . For criticism, see Esser (2002) 743.

74  Vastberga Taxi Aktiebolag and Vulic v. Sweden, § 112; see also the similar case of Janosevic v. Sweden.

75  Vastberga Taxi Aktiebolag and Vulic v. Sweden, § 116.

76  JP, KR, and GH v. Austria Applications 15135/89, 15136/89, and 15137/89. Such rules also exist in other jurisdictions, e.g. France; see Charrier (2002) Art. 6 N 69. In Duhs v. Sweden Application 12995/32, the Commission denied a violation of Art. 6 § 2 although there was no possibility of rebuttal—it appears that the petty character of the offence was decisive. Charrier (2002) criticizes the decision as going back to the position in Öztürk v. Germany.

77  Schubarth (1984) Art. 173 N 63–5.

78  Lingens and Leitgeb v. Austria Applications 8803/79 and 1112/81.

79  See also de Figueiredo Dias (1974) 216; Trechsel (1981) 320 et seq. with further examples.

80  AP, MP, and TP v. Switzerland, § 48; EL, RL, and JO-L v. Switzerland, § 53; these two judgments are entirely identical—henceforth only the former will be cited.

81  AP, MP, and TP v. Switzerland, pp. 1495 and 1496, dissenting opinions, pp. 1500, 1501, 1502, and 1504.

82  AP, MP, and TP v. Switzerland, § 48.

84  See e.g. Abraham (2001) 578 at 585; Ovey and White (2002) 405; Grabenwarter (2003) § 13 N 8; Golsong (1970) 15.

85  Engel and others v. Netherlands, § 90; see also E v. Switzerland Application 12117/32.

86  Albert and Le Compte v. Belgium, § 40.

87  X v. Austria Application 2742/32.

88  Böhmer v. Germany, § 55; Phillips v. the United Kingdom, § 35.

89  X v. Germany Application 12748/32. In other cases it considered that there was no violation because the applicant had not yet been finally convicted; Houswitschka v. Germany Application 12380/32; and R v. Germany Application 12669/32. The result is acceptable as the applicants had already confessed. See also Harris, O’Boyle, and Warbrick (1995) 244.

90  Böhmer v. Germany, § 65, referring to decisions Houswitschka v. Germany Application 12380/32; R v. Germany Application 12669/32; and S v. Germany Application 15871/89 of 8 Oct. 1992.

91  For examples of typical ‘fourth-instance’ cases, see D v. Switzerland Application 11497/32; O v. Switzerland Application 11495/32; Hersin v. France Application 12528/32; Beaudet-Barat v. France Application 12418/32; and KB v. Austria Application 11170/32, all with relatively thorough reasoning.

92  Vilborg Yrsa SigurÐardóttir v. Iceland, § 10.

93  X v. Germany Application 4124/32.

94  Austria v. Italy Application 788/32; Merrills and Robertson (2001) 114.

95  Lavents v. Latvia, § 124.

96  Ibid., § 126.

97  Other cases held to be inadmissible which raised the issue of virulent press campaigns in the context of the presumption of innocence include Ensslin, Baader, and Raspe v. Germany Applications 7572/76, 7586/76 and 7587/76; and Ninn-Hansen v. Denmark.

98  X v. Denmark Application 2518/32; X v. Austria Application 2676/32. See also X v. Germany Application 5620/32.

99  e.g. Roxin (1998) § 2 A II, § 42G II; Wolffers (1999); Schmid (2004) N 4.3.1; Hauser and Schweri (2002) N 17.

100  X v. Austria Application 2291/32.

101  For a comparative examination of expert evidence in Europe, see Nijboer and Sprangers (2000).

102  Bönisch v. Austria, § 30.

103  Ibid., § 32.

104  Bernard v. France, § 13.

105  Ibid., § 16.

106  Ibid., § 20.

107  Ibid., § 38.

108  Ibid., § 40.

109  Cf. Daktaras v. Lithuania, § 41; Böhmer v. Germany, § 56.

110  In Kropf v. Germany Application 14733/32, the Commission declared the application inadmissible because the applicant had been acquitted; it is obvious that it did not take into consideration the ‘absolute’ effect. The same can be said with regard to X v. United Kingdom Application 3860/32 where the appeal court had found that the evidence was so overwhelming that no jury could have come to a different verdict.

111  Peters (2003) 133: ‘indirekte Drittwirkung’.

112  Dole Chadee and others v. Trinidad and Tobago.

113  X v. Netherlands Application 8361/32.

114  Soltikov v. Germany Application 2257/32; X v. Netherlands Application 8585/32. This was also at issue in Marziano v. Italy. See further L v. Netherlands Application 12241/32; and Kayhan v. Germany Application 11585/32.

115  Sudre (2003) N 218.

116  Daktaras v. Lithuania, § 13.

117  Ibid., § 42.

118  Ibid., § 43.

119  Ibid., §§ 44–5.

120  Cf. Butkevicius v. Lithuania.

121  Seized property can also serve as a lien in favour of the government in event of an acquittal; X v. Austria Application 4338/32.

122  This includes the obligation on someone suspected of driving under the influence of drink or drugs to submit to a blood test; see X v. Netherlands Application 8239/32.

123  For the compatibility of the expression of suspicion in connection with the seizure of a book, see Gökceli v. Turkey.

124  Definitely not the taking of a blood sample; see X v. Netherlands Application 8239/32.

125  B v. Spain Application 12476/32. See also Ventura v. Italy Application 7438/32.

126  Cf. Raimondo v. Italy.

127  ICCPR, Art. 9 § 3; EHCR, Art. 5 § 3; ACHR, Art. 7 § 5.

128  Concluding Observations of the HRC: Italy, UN Doc. CCPR/C/79/Add.94 (1998).

129  Concluding Observations of the HRC: Ecuador, UN Doc. CCPR/C/79/Add.92 (1998).

130  Concluding Observations of the HRC: Argentina, A/40/50, §§ 144–65 (1965).

131  Concluding Observations of the HRC: Romania, UN Doc. CCPR/C/79/Add.30 (1993).

132  Concluding Observations of the HRC: Luxembourg, UN Doc. CCPR/C/79/Add.11 (1992).

133  See e.g. Bonnechaux v. Switzerland Application 8224/32; and also Hellegouarch v. France Application 11994/32.

134  Robert (1972) 128 et seq.

135  Erdem v. Germany, § 49.

136  Vastberga Taxi Aktiebolag and Vulic v. Sweden, § 118; see also the parallel case of Janosevic v. Sweden.

137  Ibid., §§ 119–21.

138  ICCPR, Art. 10 § 2(a).

139  Peers v. Greece, § 78.

140  Trechsel (1988), 195 et seq. with further references.

141  Marziano v. Italy; Asan Rushiti v. Austria, §§ 15, 32.

142  Lutz v. Germany; Englert v. Germany; Nölkenbockhoff v. Germany; Sekanina v. Austria; Rushiti v. Austria; Lamanna v. Austria; Weixelbraun v. Austria; Vostic v. Austria; Demir v. Austria; Leutscher v. Netherlands; Baars v. Netherlands; Hammern v. Norway; and O v. Norway.

143  Minelli v. Switzerland.

144  Ringvold v. Norway; Y v. Norway.

145  Sekanina v. Austria, § 30; Rushiti v. Austria, § 31. In the same sense, see also the judgments in Lamanna, Weixelbraun, Vostic and Demir (all v. Austria) ; Hammern v. Norway, §§ 47–8; in the same sense, O v. Norway.

146  Weixelbraun v. Austria, § 29.

147  Y v. Norway, § 44.

148  Ibid., § 46.

149  Ringvold v. Norway, § 38.

150  MC v. United Kingdom Application 11882/32: the applicant had been dismissed, inter alia, because of an incident in which he had been acquitted of a charge of theft. In Rebasso v. Austria Application 12007/32, the Commission had confirmed that civil liability could arise from the same facts as criminal conduct. In this case, however, the Court of Appeal’s wording could not be regarded as violating the presumption of innocence. See also X v. Austria Application 9295/32.

151  Ringvold v. Norway, § 41.

152  Ibid., § 38.

153  Marziano v. Italy.

154  Lutz v. Germany; Englert v. Germany; Nölkenbockhoff v. Germany; Leutscher v. Netherlands; Baars v. Netherlands.

155  The applicant in Minelli v. Switzerland was ordered to do both.

156  e.g. Lutz v. Germany and Minelli v. Switzerland.

157  Marziano v. Italy.

158  Minelli v. Switzerland; Lutz v. Germany; Leutscher v. Netherlands; Baars v. Netherlands.

159  Nölkenbockhoff v. Germany.

160  Englert v. Germany.

161  Lutz v. Germany (only a regulatory fine was imposed on the applicant who lodged an objection, §§ 13 et seq.); Englert v. Germany (convicted at first instance; the judgment was quashed on appeal; afterwards the proceedings were terminated because the sentence would have been negligible); Nölkenbockhoff v. Germany (the applicant died during the appeal proceedings); Leutscher v. Netherlands (convicted at first instance, judgment quashed on appeal, time-barred when proceedings resumed).

162  Minelli v. Switzerland.

163  Minelli v. Switzerland, § 34.

164  e.g. Lutz v. Germany, § 59. See also P, RH, and LL v. Austria Application 15776/32. It is obvious that Art. 3 of Protocol No. 7 to the ECHR, ICCPR, Art. 14 § 6, and ACHR, Art. 10 do not cover these cases.

165  e.g. Englert v. Germany, § 36; Nölkenbockhoff v. Germany, § 36; Masson and Van Zon v. Netherlands, § 49; Leutscher v. Netherlands, § 29; Baars v. Netherlands, § 27. The claim that Art. 6 § 2 should grant the right to deduct costs for counsel for tax purposes after proceedings were discontinued is rather far-fetched; see SM v. Austria Application 11919/32.

166  Minelli v. Switzerland, § 38.

167  Lutz v. Germany, § 63; Englert v. Germany, § 39; Nölkenbockhoff v. Germany, § 40; Leutscher v. Netherlands, § 29. The argument is not convincing—imposition of costs is ordered for reasons of equity, not as a penalty.

168  Lutz v. Germany, § 16.

169  Englert v. Germany, § 29.

170  ‘Surprisingly’, according to Merrills and Robertson (2001) 116, and contrary to the Commission; Judge Cremona wrote a forceful dissenting opinion.

171  Leutscher v. Netherlands, § 31.

172  Baars v. Netherlands, § 17.

173  Daktaras v. Lithuania, § 41; Marziano v. Italy, § 28; Böhmer v. Germany, § 56.

174  Merrills and Robertson (2001) 117 also criticize these judgments.

175  Marziano v. Italy, §§ 28, 30.

176  Cf. e.g. Time Magazine, 17 Aug. 1970.

177  Petra Krause v. Switzerland Application 7986/32.

178  Allenet de Ribemont v. France, § 10.

179  Ibid., §§ 35–41. See also W v. Germany Application 11526/32.

180  Babjak and others v. Slovakia, decision of 30 Mar. 2004; the application was declared inadmissible for non-exhaustion of domestic remedies.

181  Gollwitzer (1992) Art. 6 N 121 et seq.

182  An exception can be made for the case of Allenet de Ribemont v. France where the applicant could be said in reality to have been ‘charged’ with instigating the murder of Mr de Broglie. An early decision of the Commission which used a narrower interpretation of the term ‘charged’, X v. Germany Application 4483/32, must be regarded as having been overruled.

183  Minelli v. Switzerland, § 32.

184  AP, MP, and TP v. Switzerland and EL, RL, and JO-L v. Switzerland.

185  AP, MP, and TP v. Switzerland, §§ 39–43; EL, RL, and JO-L v. Switzerland, §§ 44–8.

186  Sekanina v. Austria, § 21, with reference to X v. Austria Application 9295/32.

187  Sekanina v. Austria, § 22.

188  See further Chapter 2.

189  Hammern v. Norway, § 41; O v. Norway, §40; Ringvold v. Norway, § 40; Y v. Norway, § 40.

190  P, RH, and LL v. Austria Application 15776/32; in one case, the Commission hesitated on this issue. In proceedings on a tax deduction of costs for counsel in proceedings which were terminated because of the statute of limitation the administrative court had referred to the continuing suspicion; the Commission said that the person was not, at that moment, ‘charged’ with an offence. However, the case was declared inadmissible because the finding had essentially been that there had been no acquittal, which was quite correct; SM v. Austria Application 11919/32. Occasionally, however, the Commission seemed to argue in a very narrow way, e.g. AA v. Sweden Application 11531/32. This applies also to the Covenant, General Comment No. 13 § 7; Nowak (1993) Art. 14 N 36; McGoldrick (1994) 405.

191  For further discussion on this subject, see Chiavaro (2000) 189 et seq.; Farthouat (1998); Auvret (1994); Lombois (1950).