The Presumption of Innocence in Europe: Developments in Substantive Criminal Law

Mario Caterini

doi:10.4236/blr.2017.81007

Abstract

The essay is focused on the idea that the content considered to be intrinsic to the principle of presumption of guilt is the product of specific ideological choices, ranging between a higher sensitivity to social defence and individual guarantees. This is confirmed by the historical social debate in Italy, by the classical school up to the Republican Constitution, by the ideas of the positivist school and those of the technical-juridical school. Then the work opens to a comparative perspective, by analyzing certain aspects of the presumption of guilt in some European state systems, both from a constitutional point of view and from the point of view of the disciplines specifically pertaining to the different juridical cultures; they leave us doubts about the legitimacy of normative and interpretation models, which seem to consider some elements of the cases in point as being implicit in the tangible fact or to be assessed by presumptions, with a possible inversion of the burden of proof. After an excursus about the homogeneizing role of the presumption of guilt within a supranational perspective, the research focuses on the case law of the European Court of Human Rights and of the European Court of Justice, highlighting some of its ambiguities and contradictions as regards the admission of “reasonable” waivers of the presumption of guilt as rule of evidence. The same critical observations are made as regards the proposal of EU directive about the consolidation of the idea of the presumption of guilt, which, instead, paradoxically seems to weaken its content of defence of civil rights. The research deals with some hypotheses undermining the principle by the help of the substantive penal law, such as the ideas of presumed danger or intention and guilt, underlining, on the contrary, the necessity of an integrated vision of the penal system, imposing a model of trial being consistent with that of the substantive law defending civil rights. Conclusions are devoted to the risk, due to misunderstood punishment efficiency, of a substantially new interpretation, from a probative point of view, of substantive penal guarantees showing how the case law and European norms in course of development can influence this. Finally they also deal with the critical points and ambiguities in the evaluation of the reasonableness of waivers of the principle and in the balance between social defence and individual guarantees made according to equivocal and incontrollable parametres leaving space to illegitimate solutions.

Highlights

The Presumption of Guilt between Individual Guarantees and Social Defence: The Historical Debate in ItalyOver the last years we have more and more been influenced by the idea, emphasized by the emerging legislation and by mass media,1 that the presumption of guilt is increasingly perceived as an anachronistic principle, hindering the pervasive penal protection of some interests considered to be primary.2 The presumption of guilt and the different contents attributed to it, are the consequence of specific ideological choices on which a certain political organization of society is based
The essay is focused on the idea that the content considered to be intrinsic to the principle of presumption of guilt is the product of specific ideological choices, ranging between a higher sensitivity to social defence and individual guarantees
The work opens to a comparative perspective, by analyzing certain aspects of the presumption of guilt in some European state systems, both from a constitutional point of view and from the point of view of the disciplines pertaining to the different juridical cultures; they leave us doubts about the legitimacy of normative and interpretation models, which seem to consider some elements of the cases in point as being implicit in the tangible fact or to be assessed by presumptions, with a possible inversion of the burden of proof

Summary

Introduction

The Presumption of Guilt between Individual Guarantees and Social Defence: The Historical Debate in Italy. The above brief excursus shows that the guarantist value of the principle has a double effect: both as a rule for dealing with the defendant, which excludes or reduces the possibility of his personal freedom; and as judgement rule, which imposes the burden of proof by the prosecution and the acquittal in case of doubt In the latter sense, the presumption of guilt may have important consequences on the substantive penal law, as Carrara had already guessed as regards those incriminating rules built up in order to presume elements of the type of offense for which the defedant is indicted, without any necessity for the prosecution to prove their existence.. The two “cores” of the presumption of innocence seem to have a different historical-cultural origin: as rule for dealing with the defendant, within the legalitarian principle of the continental illuminists; as judgement or evidence rule, within the pragmatism of the Anglo-Saxon judiciary gnoseology. Even if the ranges of action are well distinguished, from a rational point of view the link between the two stages seems quite clear, since that such presumption implies, from one side, that punishment must follow the conviction sentence and, on the other side, that the liability must be proved by prosecution in the ways provided by law.

Great Britain

Germany

Belgium

France

The Presumption of Danger as Model of the Presumption of Guilt?

Conclusions