CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE PRINCIPLE OF THE PRESUMPTION OF INNOCENCE IN THE EUROPEAN… of the EU 24 and Art. 11(1) of the Universal Declaration of Human Rights. 25 A formulation of this principle can be found also in other international treaties 26 or statutes of international courts. 27 This means that these expressions leave relatively wide space for a legal formulation of presumption of innocence in individual states. The normative expression of this principle can be found at a national level in Art. 40(2) of the Charter of Fundamental Rights and Freedoms, which states that: “A person against whom a criminal proceeding has been brought shall be considered innocent until his guilt is declared in a court’s final judgment of conviction.” 28 Its constitutional ground is, however (from the historical point of view), a relatively new matter, because the Constitution of the Czechoslovak Socialist Republic from 1960 did not contain this principle in any form, which was a consequence of the understanding of human rights and freedoms at that time. Finally, this principle is expressed (as a ban on presumption of guilt) in Section 2(2) of the Rules of Criminal Procedure stating that: “A person against whom criminal procedure is conducted may not be considered guilty until the final convicting judgment of the court pronounces him guilty” . 29 In the legal formulation given by Section 2(2) of the Rules of Criminal Procedure it is therefore possible to find a refutable legal presumption of innocence of the person, against whom the procedure is conducted, when the final judgement refutes the presumption of innocence, while another meritorious decision confirms the presumption of innocence. In the first case the matter concerns its positive expression (…is considered innocent…), in the second case the matter concerns a negative expression (…may not be considered guilty…) in the form of the ban of presumption of guilt, which e.g. Repík 30 or Kratochvíl 31 considers a weaker guarantee than the presumption of innocence. In my opinion, however, 24 “Everyone charged with a criminal offence shall be considered innocent until proved guilty in a legal way.” In the non- ratified draft Treaty establishing the Constitution for Europe (2003) it is formulated in such a way that “Everyone who has been charged shall be presumed innocent until proved guilty according to law.” 25 “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.” This Declaration, however, does not have the nature of a legally binding international treaty. 26 Cf. e.g. Art. 40(2) of the Convention on the Rights of the Child (Communication of the Federal Ministry of Foreign Affairs no. 104/1991 Coll.) or Art. 75(4) of the Protocol Additional to the Geneva Conventions. (Communication of the Federal Ministry of Foreign Affairs no. 168/1991 Coll.) 27 For example, Art. 66 of the Statute of the International Criminal Court (“ICC”), dealing with presumption of innocence, states that everyone shall be presumed innocent until proved guilty before the ICC in accordance with the applicable law, and that the onus is on the Prosecutor to prove the guilt of the accused person and that in order to convict the accused, the ICC must be convinced of the guilt of the accused person beyond reasonable doubt. Furthermore cf. Art. 21(3) of the Statute of the ICTY and Art. 20(3) of the ICTR, which are a verbatim transcript of Art. 14(2) of the International Covenant on Civil and Political Rights. 28 In a similar way, presumption of innocence is defined also in Art. 50(2) of the Constitution of the Slovak Republic. 29 This provision was obviously inspired by the first factual establishment of this principle at a level of the law in Section 2(6) of the Rules of Criminal Procedure of 1956, where it was stated in a similar way that: “A person against whom criminal procedure is conducted may not be considered guilty until he is pronounced guilty by a final convicting judgment.” 30 REPÍK, Bohumil. Evropská úmluva o lidských právech a trestní právo. (“European Convention on Human Rights and Criminal Law”). Prague: Orac, 2002, p. 175. 31 KRATOCHVÍL, Vladimír. České trestní právo hmotné a procesní v evropském právním prostředí. (“Czech Criminal Law Material and Procedural in the European Legal Environment”). Brno: Masaryk University; Faculty of Law, 2009, p. 116.

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