CYIL vol. 9 (2018)

JIŘÍ MULÁK CYIL 9 ȍ2018Ȏ by the law (in the Czech Republic through a final judgement of conviction issued by a court). Through this principle the state expresses its relation to the person charged (person against whom criminal proceedings are conducted). Every society which is based on respect to human rights and freedom thus demonstrates that during the process of revealing and punishing of offenders it protects the rights of the person charged and that it only proceeds with conviction in the case when the person of the actual offender is identified for a certainty. The only entity which is authorised to decide about guilt (or about innocence) of the accused person is court. Of course, this imposes large demands on the quality of judicial decisions because the court can only issue a judgement of conviction if it is convinced about the guilt of the person charged without any reasonable doubts. Notion and history One of the leading personalities who were dealing with the issue of presumption of innocence was Beccaria. This Italian politician and philosopher expressed an idea (in his work “On Crimes and Punishments”) that more than one witness is needed (in criminal proceedings), because, so long as one party affirms and the other denies, nothing is certain and the right which every man has to be believed innocent preponderates. 4 The term “presumption of innocence” is a historically arisen notion which arose as a requirement for an objective attitude to the person charged in response to presumptions of an inquisitional procedure when the persons charged were considered guilty until they proved their innocence – which means that they were bearing the burden of proof, because presumption of guilt was applied. The obligation of proving their innocence meant a large burden imposed on accused persons and a sole non-disproved suspicion was sufficient, under certain conditions, for their conviction. The criminal trial was in the hands of the inquisition (investigating) judge, who represented, through his personality, the function of a judge, as well as prosecutor and defence counsel. Hence, it is clear that the person charged was left, more or less, at the mercy of the judge. The fact that the judge did not manage to prove the guilt did not exclude sanctions yet, because also for exoneration it was necessary to have some evidence. It often happened that the evidence against the person charged did not lead to the full legal evidence which was needed for conviction (a concomitant legal theory was applied), but it was not disproved either, which means that the issue of guilt remained doubtful. The so-called “refraining from a hard punishment for the time being” 5 was applied in such cases, which was a specific form of the decision according to which the accused persons were left in suspicion, were not condemned but they were not acquitted either and could eventually be punished. Criminal jurisdiction of that time, which did not care so much for punishment of the guilty person, but for which the actual act of punishment was important, rather tended to risk conviction of an innocent person than admitting the escape of an offender or absence of punishment. Inquisition trials thus highly depended on the suspected person’s obligation to provide true statements, and the principle applied was that “even though everybody should be considered innocent, the need of finding out the truth may necessarily require the use of instruments of torture. 6 The criminal trial, controlled by the inquisition principle, further consisted in achievement of the charged person’s plea of guilty, which was considered as the only efficient means for revealing 4 BECCARIA, Cesare. On crimes and punishments . 1986, p. 53. 5 In German “Lossprechung von der Instanz” and in Latin “ absolutio ab instantia ”. 6 HERCZEG, Jiří. Média a trestní řízení . (“Media and criminal proceedings”) Prague: Leges, 2013, p. 133. 2.

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