A presumption of innocence is a presumption in law to the effect that accused persons should be assumed to be innocent of the charges they are facing from the time of charge until such a time that a court of law returns a guilty verdict. The presumption results in acquittal where the prosecutor, who bears the burden of proof, does not prove guilt to the standard required by law. Accused persons should also be treated in a manner consistent with the presumption of innocence. The presumption of innocence is violated where a court pronounces itself on the guilt of a person before such guilt has been proved, or when state authorities show pre-judgment by treating accused persons as if they have already been convicted, for instance, through media publicity portraying the accused as guilty, or by duping the accused to incriminate themselves, or by shackling or keeping accused persons in cages during trials or otherwise presenting them to the court in a manner indicating that they may be dangerous criminals.
Comprehensive:
Article 14(2) of the ICCPR provides: ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’[1] The presumption of innocence prevails from the moment a criminal charge is made against a person and endures throughout pre-trial stages such as interrogations during investigation. It remains in force during trial when the charge is being proven and defence conducted. It persists in the post-trial era only when the court returns a ‘not guilty’ verdict. Throughout this period, public authorities must treat the accused as a mere suspect without any criminal liability. Accordingly, the right not to incriminate oneself and the right to liberty directly bears on presumption of innocence. (Cf *Self-incrimination*).
The elements of the presumption of innocence embodied in article 14(2) have been articulated by the HRC:[2] The presumption of innocence … imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle.
Although the burden to prove the charge normally lies with the prosecution, an accused person may have the burden of proof with regard to specific defences such as self-defence or insanity. Also, legislation may provide for statutory presumptions that reverse the burden of proof with regard to certain elements of an offence.[3] The HRC has for instance held that the reversal of the burden of proof in the Australian Anti-Terrorism Act violated the presumption of innocence.[4]
Public authorities and judges alike may only make statements implyingthat the accused is guilty when this has been proven according to law and theaccused having had a chance to present a defence. The ECtHR has held:[5] [T]he presumption of innocence will be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.
Any conduct, especially by public authorities, thatimplies prejudice, condemnation and premature punishment based on mere suspicion, is in violation of the principle of presumption of innocence. Accordingly, the HRC admonished conduct often practised, but inimical to the presumption of innocence when it commented that ’[d]efendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals.’[6]
In Engo v Cameroon, the accused person faced multiple charges for dishonesty in relation to national social security funds he was in charge of. He went through a number of trials during which there was extensive publicity by state media portraying him as guilty. The HRC found that the over-publicity and portrayal of the accused person as guilty in state media amounted to violation of his right to be treated in accordance with the principle of presumption of innocence.[7]
In Sekanina v Austria, the ECtHR found that public statements by state authorities insisting that the person concerned was guilty, even though he had been acquitted by a competent court of law was a violation of presumption of innocence.[8]
In S and Marper v UK, the ECtHR held, when finding that the right to privacy had been violated where the police retained fingerprints and DNA samples after the accused persons had been acquitted, that the right to be ‘presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal.’[9]
Much as it suggests, the denial of bail does not in itself constitute a violation of the presumption of innocence.[10] However, legitimate interest for pre-trial detention must always be weighed against the presumption of innocence.[11]
A finding ofliability by a court in a civil claim based on the same set of facts as a criminal case where a person has been acquitted does not constitute a violation of the presumption of innocence.[12] However, if a court in its judgment in a civil case casts doubt on the correctness of the acquittal in the criminal case, it could impinge upon the presumption of innocence. [1] See also UDHR art 11(1); ACHPR, art 7(1)(b); ECHR art 6(2)), ACHR art 8(2) and CRC art 40(2)(b)(i).
[2] HRC General Comment 32 para 30. See also HRC General Comment 13 para 7.
[3] Pham Hoang v. France application 13191/87 (ECtHR 1992). It was held that French customs law which created rebuttable assumptions was consistent with the presumption of innocence despite reversal of onus.
[4] HRC Concluding Observations: Australia, UN Doc CCPR/C/AUS/CO/5 (2009) para 11.
[5] Minelli v Switzerland application 8660/79 (ECtHR 1983).
[7] Engo v Cameroon communication 1397/2005 (HRC 2009) para 7.6.
[8] Application 13126/87 (ECtHR 1993). See also S and Marper v UK applications 30562/04 and 30566/04 (ECtHR 2008), where retention of finger prints and DNA samples of unconvicted suspects were seen as a violation of the right to privacy
[9] S and Marper v UK30562/04 and 30566/04 (ECtHR 2008) para 122.
[10] Cagas and Others v The Philippines communication 788/1997 (HRC 1996) para 7.3.
[11] Bykov v Russiaapplication 4378/02 (ECtHR 2009) para 62.
[12] Y v Norwayapplication 56568/00 (ECtHR 2003) para 41.
A presumption of innocence is a presumption in law to the effect that accused persons should be assumed to be innocent of the charges they are facing from the time of charge until such a time that a court of law returns a guilty verdict. The presumption results in acquittal where the prosecutor, who bears the burden of proof, does not prove guilt to the standard required by law. Accused persons should also be treated in a manner consistent with the presumption of innocence. The presumption of innocence is violated where a court pronounces itself on the guilt of a person before such guilt has been proved, or when state authorities show pre-judgment by treating accused persons as if they have already been convicted, for instance, through media publicity portraying the accused as guilty, or by duping the accused to incriminate themselves, or by shackling or keeping accused persons in cages during trials or otherwise presenting them to the court in a manner indicating that they may be dangerous criminals.
Comprehensive:
Article 14(2) of the ICCPR provides: ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’ [1] The presumption of innocence prevails from the moment a criminal charge is made against a person and endures throughout pre-trial stages such as interrogations during investigation. It remains in force during trial when the charge is being proven and defence conducted. It persists in the post-trial era only when the court returns a ‘not guilty’ verdict. Throughout this period, public authorities must treat the accused as a mere suspect without any criminal liability. Accordingly, the right not to incriminate oneself and the right to liberty directly bears on presumption of innocence. (Cf *Self-incrimination*).
The elements of the presumption of innocence embodied in article 14(2) have been articulated by the HRC: [2]
The presumption of innocence … imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle.
Although the burden to prove the charge normally lies with the prosecution, an accused person may have the burden of proof with regard to specific defences such as self-defence or insanity. Also, legislation may provide for statutory presumptions that reverse the burden of proof with regard to certain elements of an offence.[3] The HRC has for instance held that the reversal of the burden of proof in the Australian Anti-Terrorism Act violated the presumption of innocence.[4]
Public authorities and judges alike may only make statements implying that the accused is guilty when this has been proven according to law and theaccused having had a chance to present a defence. The ECtHR has held:[5]
[T]he presumption of innocence will be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.
Any conduct, especially by public authorities, that implies prejudice, condemnation and premature punishment based on mere suspicion, is in violation of the principle of presumption of innocence. Accordingly, the HRC admonished conduct often practised, but inimical to the presumption of innocence when it commented that ’[d]efendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals.’ [6]
In Engo v Cameroon, the accused person faced multiple charges for dishonesty in relation to national social security funds he was in charge of. He went through a number of trials during which there was extensive publicity by state media portraying him as guilty. The HRC found that the over-publicity and portrayal of the accused person as guilty in state media amounted to violation of his right to be treated in accordance with the principle of presumption of innocence.[7]
In Sekanina v Austria, the ECtHR found that public statements by state authorities insisting that the person concerned was guilty, even though he had been acquitted by a competent court of law was a violation of presumption of innocence.[8]
In S and Marper v UK, the ECtHR held, when finding that the right to privacy had been violated where the police retained fingerprints and DNA samples after the accused persons had been acquitted, that the right to be ‘presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal.’[9]
Much as it suggests, the denial of bail does not in itself constitute a violation of the presumption of innocence.[10] However, legitimate interest for pre-trial detention must always be weighed against the presumption of innocence.[11]
A finding of liability by a court in a civil claim based on the same set of facts as a criminal case where a person has been acquitted does not constitute a violation of the presumption of innocence.[12] However, if a court in its judgment in a civil case casts doubt on the correctness of the acquittal in the criminal case, it could impinge upon the presumption of innocence.
[1] See also UDHR art 11(1); ACHPR, art 7(1)(b); ECHR art 6(2)), ACHR art 8(2) and CRC art 40(2)(b)(i).
[2] HRC General Comment 32 para 30. See also HRC General Comment 13 para 7.
[3] Pham Hoang v. France application 13191/87 (ECtHR 1992). It was held that French customs law which created rebuttable assumptions was consistent with the presumption of innocence despite reversal of onus.
[4] HRC Concluding Observations: Australia, UN Doc CCPR/C/AUS/CO/5 (2009) para 11.
[5] Minelli v Switzerland application 8660/79 (ECtHR 1983).
[6] HRC General Comment 32 para 30.
[7] Engo v Cameroon communication 1397/2005 (HRC 2009) para 7.6.
[8] Application 13126/87 (ECtHR 1993). See also S and Marper v UK applications 30562/04 and 30566/04 (ECtHR 2008), where retention of finger prints and DNA samples of unconvicted suspects were seen as a violation of the right to privacy
[9] S and Marper v UK 30562/04 and 30566/04 (ECtHR 2008) para 122.
[10] Cagas and Others v The Philippines communication 788/1997 (HRC 1996) para 7.3.
[11] Bykov v Russia application 4378/02 (ECtHR 2009) para 62.
[12] Y v Norway application 56568/00 (ECtHR 2003) para 41.