DEFEKTI PRETPOSTAVKE NEVINOSTI

Abstract

The article starts with a terminological construction error. The Creator of the presumption of innocence came to the definition of this institute by replacing the word good with the word innocent in the papal expression that „at first glance, everyone is presumed good, until proven to the contrary“. The construction error is made from the standpoint of anthropological optimism, which is itself a one-sided philosophical approach. The article analyzes the institutes that are considered as elements of the presumption of innocence: the burden of proof, the „ten-to-one rule“ („the numerical expression of the presumption of innocence“), the right of the accused to remain silent. In the article is also analyzed coercive measures that ribut the presumption of innocence, including detention and the ban on practicing a profession from Art. 132a of the German CPC. The author concludes that the presumption of innocence is an institute without its procedural content, that it has absorbed institutes that existed before it with a kind of imperialism, that it may be harmful to judicial justice, and that therefore the institute of the presumption of innocence should be abandoned. The institutions „actori in cumbit probatio“, „in dubio pro reo“ and „proved beyond reasonable doubt“, as well as the already existing responsibility of officials, victims and the public for illegal actions, are sufficient guarantees for a fair trial.