1
Interpretation of the Presumption of Innocence by the ECt.HR
By Gergana Rabatileva
Introduction
The presumption of innocence is recognized as a fundamental principle in Article 11 of the
Universal Declaration of Human Rights (hereinafter, UDHR) which states that: “everyone
charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial.” Similarly, Article 14(2) of the International Convention on
Civil and Political Rights (hereinafter, ICCPR) provides that: “everyone charged with a
criminal offence shall have the right to be presumed innocent until proved guilty according to
law.” A similar provision is established in Article 6(2) of the European Convention on Human
Rights (hereinafter, ECHR) which reads as follows: “Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law.” Identical are the
provisions on the presumption of innocence enshrined in the Inter-American Convention on
Human Rights, the African Charter on Human and People’s Rights, the Arab Charter on
Human Rights and other human rights conventions.1 In addition to these, the Statutes of the
UN ad hoc Tribunals provide provisions with regard to the presumption of innocence.
Consequently, Article 66(1) of the Rome Statute of the International Criminal Court
(hereinafter ICC) states that: ” Everyone shall be presumed innocent until proved guilty
before the Court in accordance with the applicable law.”
I.
Interpretation of the Presumption of Innocence by the ECt.HR
1. Definition
Article 6(2) of the ECHR provides for the presumption of innocence:
“Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.”
The European Court holds the position that: “the Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical and effective” 2 which
basically applies to all the provisions in the Convention. The presumption of innocence
1
2
For example The Convention of the Rights of the Child.
Artico v. Italy, Application no. 6694/74, Judgment of 13 May 1980
2
enshrined in Article 6(2) of the ECHR is one of them. It is one of the elements of a fair
criminal trial required by Article 6(1) of the ECHR.3
In Barberà v. Spain, the Court defined the presumption of innocence as follows: “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 charged; the burden of proof is
on the prosecution, and any doubt should benefit the accused. It also follows 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 defense accordingly, and to adduce evidence sufficient to convict
him.”4
2. To whom the presumption of innocence may apply
The defendant has the right to a fair trial from the determination of the ‘criminal charge’ and
enjoyment of the right continues until the charge is “determined” with a sentence in force or if
an appeal is decided, or a dismissal is granted. The term, ‘criminal charge’ has an autonomous
meaning.5 Thus, it is not restricted by its definition under the national law6 but rather how the
term is interpreted under the Convention. In Corigliano v. Italy, the Court stated that a
‘charge’: “may in general be defined as ‘the official notification given to an individual by the
competent authority of an allegation that he has committed a criminal offence’, it may in
some instances take the form of other measures which carry the implication of such an
allegation and which likewise substantially affect the situation of the suspect.” 7 In Imbrioscia
v. Switzerland8, the Court repeated this notion and referred to it in Tejedor Garcia v. Spain.9
The words "determination of (any) criminal charge" in Article 6 (1) do not imply that the
Article has no application to pre-trial proceedings. Therefore, it follows that Article 6 applies
also to the pre-trial stage from the defined moment when a criminal charge is brought upon
the defendant.
As a part of the notion of ‘criminal charge’, the definition of ‘criminal’ is given in Engel and
others v. Netherlands10 and repeated in many other cases.11 In order to determine if a ‘charge’
3
Allenet de Ribemont v. France, Judgment of 7 August 1996;
Deweer v. Belgium, Judgment of 27 February 1980
4
See Barberà v. Spain, Judgment of 6 December 1988, Para. 77
5
Deweer v. Belgium, Judgment of 5 February 1980: “The prominent place held in a democratic society by the
right to a fair trial(…)prompts the Court to prefer a ‘substantive’, rather than a ‘formal’ conception of the
‘charge’ contemplated in Article 6(1)”
6
Tejedor Garcia v. Spain, Judgment of 16 December 1997
7
Corigliano v. Italy, Judgement of 10 December 1982
8
Imbrioscia v. Switzerland, Judgment of 24 November 1993
9
Tejedor Garcia v. Spain1998 26 EHRR 440, Judgment of 1997. See Corigliano v. Italy,
Judgement of 10 December 1982
10
11
Engel and others v. Netherlands, Judgment of 8 June 1976
Campbell and Fell v. UK, Judgment of 3 May 1984, Ozturk v. Germany, Ezeh and Connors v. UK
3
is ‘criminal’ the Court established three criteria which should be examined alternatively: (i)
classification of the offence under national law, (ii) the scope and the purpose of the penalty
and (iii) the nature and severity of the penalty. An exception is found in the Bendenoun case
where the Court considered the criteria “together and cumulatively”. 12 Despite the approach
taken in this case, in its later decisions, the Court did not refer to it and continued to consider
the criteria alternatively.13
As to the first criterion the Court held that it: “however provides no more than a starting
point”14 and a problem may arise in cases when such offence is a subject of
decriminalization.15
The second criterion concerns the scope of the norm and purpose of the penalty in order to
distinguish between administrative, disciplinary or criminal acts. In Weber v. Switzerland, the
Court stated that: “Disciplinary sanctions are generally designed to ensure that the members
of particular groups comply with the specific rules governing their conduct.”16 However, in
the case of Campbell and Fell v. UK17 where breach of the disciplinary law of the special
prison disciplinary regime occurred, it was decided that the scope of the norm concerns the
quality of members of a certain group and the interests which are protected by the law.18 To
determine the ‘charge’ as ‘criminal’ the Court takes into account the purpose of the penalty.
In Bendenoun v. France, the Court found that the punishment envisaged for not paying taxes
in the General Tax Code of France is of both deterrent and punitive character, and therefore
article 6(1) was applicable.19
The third criterion seems of great importance as a decisive factor. In Engel and others v.
Netherlands, the Court found that offences against military discipline fall within Article 6(1).
They noted: “When a serviceman finds himself accused of an act or omission allegedly
contravening a legal rule governing the operation of the armed forces, the State may in
principle employ against him disciplinary law rather than criminal law.” However, the Court
considered “the degree of severity of the penalty that the person concerned risks incurring”
and concluded that “deprivations of liberty liable to be imposed as a punishment, except those
which by their nature, duration or manner of execution cannot be appreciably detrimental”,
although two days of strict arrest was found, it could not be considered to be within the sphere
of criminal law.20
12
Bendenoun v. France, Judgment of 24 February 1994
Putz v. Austria, Judgment of 22 February 1996
14
Engel and others v. Netherlands, paragraph 82
15
Ozturk v. Germany, Judgment of 23 October 1984
16
Weber v. Switzerland, Judgment of 25 April 1990, paragraph 33
17
Campbell and Fell v. UK, Judgment of 3 May 1984
18
Theory and Practice of the ECHR, fourth edition, 2006 Intersentia, Antwerpen, Oxford
19
Bendenoun v. France, Judgment of 24 February 1994
20
Engel and others v. Netherlands, Judgment of 8 June 1976, paragraph 82 and 85.
13
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The determination of what constitutes a criminal charge is important for a number of reasons.
First, it helps with the determination of what constitutes “reasonable time” in terms of the
duration of criminal trials. For example, in the Corigliano case the Court had to determine the
requirements of “reasonable time” as provided in Article 6 (1). The Court made that
assessment from the moment somebody was ‘charged.’ They stated: “Whilst ‘charge’ for the
purpose of Article 6(1), may in general be defined as “The official notification given to an
individual by the competent authority of an allegation that he has committed a criminal
offence, it may, in some instances take the form of other measures which carry the
implication of such an allegation and which likewise substantially affect the situation of the
suspect.”21
Therefore, it can be considered that the provision of Article 6(2) of the ECHR would apply
only when the individual is charged with a criminal offence or the situation of the suspect is
substantially affected by an arrest which is a criminal charge under the provision of Article 6
of the ECHR.
3. Application of the presumption during the stages of the criminal
process
Article 6 of the ECHR is a procedural guarantee for the fairness of the trial, therefore all the
rights envisaged there apply from the moment when the accused is charged with a criminal
offence. In Corigliano v. Italy, the Court stated that a ‘charge’: “may in general be defined as
‘the official notification given to an individual by the competent authority of an allegation that
he has committed a criminal offence’, it may in some instances take the form of other
measures which carry the implication of such an allegation and which likewise substantially
affect the situation of the suspect.”22
The words "determination of (any) criminal charge" in Article 6 (1) do not imply that the
Article has no application to pre-trial proceedings. Therefore, it follows that Article 6 of the
ECHR applies also to the pre-trial stage from the defined moment when a criminal charge is
brought upon the defendant. The provision of Article 6(1) applies to all procedures of
criminal process to the moment when the accused is determined guilty or innocent or the case
is dismissed. Logically follows that when a sentence of a court determines guilt or innocence
the presumption of innocence is no longer applicable. However, the ECt.HR adopted the view
that the presumption of innocence should apply during appeal proceedings.23 Some authors
argue that Article 6(2) may be applicable during the post-trial decisions with regard to the
costs of the suit or when deciding on claims of a former suspect for compensations for pretrial detention.24
21
Corigliano v. Italy, Judgement of 10 December 1982
Corigliano v. Italy, Judgement of 10 December 1982
23
Nslkenbockhoff v. Germany, Judgment of 25 August 1987, Series A, No. 123
24
Pieter Van Dijk et al, Theory and Practice of the European Convention on Human Rights, (2006), Intersentia,
Antwerpen – Oxford
22
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4. General principles
a. The burden of proof is on the prosecution
One of the main principle which the presumption endorses is that the burden of proof is on the
prosecution and any doubt should benefit the accused. Thus, the presumption of innocence
will be infringed where the burden of proof is shifted from the prosecution to the defense. 25
However, there are exceptions of the rule and as an example serves the case of Salabiaku v.
France where the ECt.HR found that provisions which reverse the burden of proof may be
found in all domestic systems of criminal law. The Court said that: “the national legislature
would be free to strip the trial court of any genuine power of assessment and deprive the
presumption of innocence of its substance, if the words ‘according to law’ were construed
exclusively with reference to domestic law. Such a situation could not be reconciled with the
object and purpose of Article 6, which, by protecting the right to a fair trial and in particular
the right to be presumed innocent, is intended to enshrine the fundamental principle of the
rule of law... Article 6 para. 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 defense.”26
b. Prohibition for making guilty statements by the Court and the
public authorities
In Minelli v. Switzerland the Court stated that the presumption of innocence will be violated if
a judicial decision concerning him reflects an opinion that he is guilty without the accused's
having been previously proved guilty according to the law, and without his having had the
opportunity of exercising his rights of defense.27
25
See Barberà v. Spain, Judgment of 06 December 1988. The Court made similar conclusions in Telfner v.
Austria, Judgement of 20 March 2001
26
Salabiaku v. France, Application No. 10519/83, Judgment of 7 October 1988
27
See Minelli v. Switzerland, Judgment of 25 March 1983, p. 18, para. 22
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In the case of Allenet de Ribemont v. France the Court goes further and considers that the
presumption of innocence may be infringed not only by a court or a judge 28 but also by other
public authorities.29 The Court stated that: “Press campaigns may entail a breach of Art. 6, but
the accused has to show that the media attention affected the impartiality of the court.
Moreover, if a judge makes statements, which reflect an opinion that the accused is guilty,
before he is found guilty, the presumption of innocence will be violated, as well.” An example
of violation of the presumption of innocence by the public authorities is Butkevicius v.
Lithuania where the Chairman of the national Lithuanian Parliament made a declaration of
the applicant’s guilt.30 In Ribemont v. France, Mr. Ribemont’s was referred to by some of the
highest ranking officers in the French police as the instigator of a murder without any
qualification or reservation. In its Judgment the Court considered such a declaration as
declaration of the applicant’s quilt which encouraged the public to believe that he is guilty
and prejudged the assessment of the facts by the competent judicial authority which was
actually a truly violation of Article 6(2) of the ECHR.31
c. Confessions and guilty pleas and the Presumption of Innocence
This guarantee raises issues concerning the status of confessions as a subject of evidence in
the criminal process. 32 The question is to what extent it should be taken into consideration by
the court without compromising the presumption of innocence in favor of the accused? A
confession as a piece of evidence in the criminal proceedings could potentially derogate from
the presumption of innocence. According to some authors, a sentence can be based on a
confession of guilt.33 In my opinion, the probative value of a confession, as an evidence
obtained lawfully should be taken into consideration alongside all the other evidence collected
in the proceedings which is the only way by which its truthfulness can be examined. In other
words, why should a confession be more valued than the other evidence? However, the court
must make sure that a confession is made out of the free will of the accused.34 Moreover, the
28
Allenet de Ribemont v. France, Judgment of 7 August 1996
In Anguelov v. Bulgaria, Judgment of 15 May 2007 the Court stated as follows: “in certain cases, a virulent
press campaign can adversely affect the fairness of the trial and involve the State's responsibility (…). This is so
with regard to the impartiality of the Court under Article 6 § 1 as well as with regard to the presumption of
innocence embodied in Article 6 § 2 (…). However, it does not seem that the newspapers' interest in the
applicant's trial amounted to a virulent press campaign aimed at hampering the fairness of the trial (…). Rather,
the newspapers' interest was sparked by the trial of a public figure. The Court, having examined the case, has not
found any evidence that could lead to the conclusion that the judge examining the case in the Varna District
Court was influenced by this publicity in reaching her judgment, or that the applicant was prejudiced by this
publicity in any other way”.
29
Butkevicius v. Lithuania, Judgment of 26 June 2002
Butkevicius v. Lithuania, Judgment of 26 June 2002
31
Allenet de Ribemont v. France, , Judgment of 7 August 1996
32
See section Privilege against self incrimination and Right to remain silent
33
Theory and Practice of the ECHR, fourth edition, 2006 Intersentia, Antwerpen, Oxford
34
Any physical or psychological pressure for obtaining confession is infringement on the prohibition of torture,
i.e. Article 3 ECHR and CAT, Article 1: “For the purposes of this Convention, torture means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
30
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court must make sure that the accused is mentally fit to make a confession. As a procedural
guarantee for the fairness of the trial, the presumption of innocence should not be derogated
by a confession of guilt given that it is inherently contradictory to the notion of “innocence”.
d. Prohibition for punitive treatment of the accused
Another important issue that may have an impact on the presumption of innocence is the
treatment of the accused during the proceedings. Ramishvili and Kokhreidze v. Georgia
concerned a judicial review regarding pre-trial detention, where the Court concluded that the
hearing lacked the fundamental requisites of a fair hearing according to Art. 5.4. The use of
caged docks and the high number of government agents and Special Forces in the court was
not justified for security reasons. The Court stated that the: “harsh and hostile appearance of
judicial proceedings could lead an average observer to believe that “extremely dangerous
criminals” were on trial”, which is in violation of the presumption of innocence. The judge
was “obviously aiding the prosecutor during the hearing, by either directly responding to the
questions of the defense instead of the latter or rephrasing these questions in a manner more
advantageous to the prosecutor”. The conduct was not compatible with the requirements of
impartiality.35 It might not have punitive character.36
e. Purpose of the presumption of innocence
The purpose of the presumption of innocence may be summarized as a guarantee to avoid
unjustified convictions and to uphold the fairness of the trial, and to protect the reputation of
the accused.37 This comes as a logical conclusion from the general principles entailed by the
presumption of innocence and in particularly the prohibition for shifting the burden of proof
from the prosecution to the accused, the prohibition for making guilty statements by the court
and the public authorities, the prohibition for punitive treatment of the accused.
5. Relation of the presumption of innocence with other procedural rights
a. Privilege against self incrimination and the right to remain
silent
obtaining from him or a third person information or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official capacity. It does not
include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
35
Ramishvili and Kokhreidze v. Georgia, Judgment of 27 January 2009
Theory and Practice of the ECHR, fourth edition, 2006 Intersentia, Antwerpen, Oxford
37
Stefan Trechsel, Human Rights in Criminal Proceedings, Oxford University Press
36
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The privilege against self-incrimination as embodied in Article 6(1) ECHR is not an absolute
right. It implies that anyone who is charged of an offence has the right to remain silent and
any act of coercion or oppression on the will of the defendant for purposes of obtaining
evidence will be a violation of Article 6 of the ECHR. The international standard rationale
lies, inter alia, in the protection of the accused against improper compulsion by the
authorities.38 In principle there cannot be adversarial conclusions made from the silence of the
defendant, i. e. the reasoning of a judgment may not make inferences from the silence of the
accused in his/her prejudice but there are exceptions.39 However, if such are made that will
infringe the principle that the burden of proof is on the prosecution by shifting it to the
accused.
b. The right to a fair and public hearing and impartial tribunal
The public hearing serves the interests of the parties in the criminal process as well as the
interests of the public. Pursuant to Article 6(1) of the ECHR there are reasons that the press
and public “may be excluded from all or part of a trial. The ECHR provides that “the interest
of juveniles” might be a ground for holding court proceedings in camera.
The courts have both the right and the duty to ensure fair trial and issue reasoned decisions.
To be considered impartial, a court should not be influenced by information outside of the
court case. In deciding the guilt or innocence of the accused the Court should be leaded by the
law, the evidences which shall be based on the objective, comprehensive and complete
investigation of all circumstances relevant to the case presented during the trial and should
make its decision out of its inner conviction. There are two tests: subjective test (personal
impartiality of the judge) and objective test (functional impartiality of the judge).
Conclusion
The interpretation of Article 6(2) of the ECHR raises general principles as the obligation of
the prosecution to proof the guilt of the accused and protecting his/her right to remain silent
and not to self-incriminate, therefore, the courts should not make adversarial conclusions of
this silence while deciding the guilt or the innocence. On the other hand, carrying out their
duties the members of a court should protect the good reputation of the accused and the public
authorities should not make publically statements which prejudge the accused guilty.
Moreover, the treatment of the accused may not have punitive character or while collecting
evidences to compel the individual to testify by compulsory methods, or by inhuman, or
degrading treatment, or torture.
38
In Allan v. the United Kingdom, Judgment of 5 February 2003 the Court adopted three criteria when deciding
whether the compulsion was “improper”: 1) the nature and degree of compulsion used to obtain the evidence; 2)
the existence of procedural safeguards; 3) the use of the obtained material/evidence (whether it was decisive)
39
See an exception of the rule in John Murray v. UK, Judgment of 08 February 1996.