Presumption Of Innocence Research Articles

Repeated proceedings against suspected illicit wealth – justifiable protection of public interest or violation of human rights?

The internationally acknowledged need for effective legal measures against illicit enrichment that is perceived as the key policy tool against organised crime and corruption triggered rapid developments in the variety of those legal measures. Lithuania may serve as a sole-standing example of a jurisdiction that enacted a great variety of legal strategies against illicit enrichment – criminal liability both for money laundering and illicit enrichment and also extended powers of confiscation, civil confiscation and tax fines for unexplained income. This diversity of measures leads to the issue of competition arising between them and also carries the risk that measures may be used repeatedly and arbitrarily against persons and their property.The paper focuses on the issue of the legitimacy of repeated investigation and assessment of suspicious assets in civil confiscation proceedings and extended powers of confiscation.The analysis is divided into two parts where fundamentally different legal situations are discussed. In the first situation, repeated assessment of the origin of the assets takes place in proceedings of similar legal nature (proceedings aiming to restore legal order). The second situation appears where reassessment takes place in proceedings of a different nature – in the restorative proceedings after failure to prove the illicit origin of the assets in the punitive proceedings.While the first situation rather clearly falls within the scope of the principle of legal certainty and the rule res judicata that prohibit repeated proceedings for the same issue in the same circumstances against the same person, the second situation is more open to debate. Punitive proceedings use the standard of proof beyond reasonable doubt and the presumption of innocence is in play. These safeguards are designed to protect defendants from unfounded conviction, but they may be considered excessive for other legal issues such as the recovery of damages or the proceeds of illicit activities. In addition, in the context of civil confiscation, public interest in effective protection from organised crime and corruption comes into play. Therefore, there are strong arguments for giving priority to public safety over the principle of legal certainty that would protect defendants from repeated assessment of their assets in other proceedings with a lower standard of proof or even the reversed presumption of the illegality of unexplained wealth.Finally, the paper addresses the question of whether extended powers of confiscation qualify for restorative or punitive proceedings. The answer to this question is the key argument of whether civil confiscation proceedings can legitimately follow criminal proceedings where the court failed to confiscate the assets on the grounds of extended powers of confiscation. The paper argues that extended powers of confiscation are of a restorative nature. Therefore, when assets have already been investigated in proceedings of civil confiscation and their origin has been assessed as lawful in the light of extended powers of confiscation, re-consideration of their origin should be deemed as infringing the principle of legal certainty, unless the decision in the criminal proceedings was barred by lack of formal grounds.

OK Google: is (s)he guilty?

ABSTRACT Big data – a term at the centre of the discourse on law and new technologies – appears to entail mechanisms that can impact on crime control and investigation as well as on the operation of criminal justice. Big data promises rationalisation and operational efficiency of law enforcement agencies, on the one hand, speed, accuracy, predictability and even increased fairness before criminal courts, on the other hand. At the same time, it triggers, however, concerns that the use of big-data-driven tools and technologies could undermine the fundamental rights of (pre-)suspects and defendants and their criminal procedural rights in particular, such as the right to be presumed innocent – by establishing ‘insurmountable’ standards of proof or even paving the way for coercive measures – not necessarily linked to specific criminal proceedings – on the basis of likelihoods. This article examines how big data, policing and criminal justice intersect and the impact of the outcome of this combination on criminal procedural rights. In doing so, it progressively turns the spotlight on the presumption of innocence and argues that a broader framing of fundamental rights is required in order to address the challenges arising out of big-data-driven law enforcement and criminal justice.

Crucial Issues with Legal Protection of Consumers Human Rights when Banks unilaterally Close Accounts

When unilaterally closing a customer’s account due to so-called de-risking, the customer’s interests are not only ignored by the bank but their human rights, including respect for his private life and presumption of innocence, are also severely violated De facto, de-risking stigmatizes discarded consumers as being involved in criminal activity without a court conviction. As a result of the unfair account closure, both the consumer's social and psychological integrity can suffer. Their rights to establish and develop relationships with other human beings and the outside world and respect for reputation are put in jeopardy. In order to overcome the above collision of interests, this study proposes a doctrinal assessment of consumer's interests that should limit the bank's right to unilaterally terminate the contract by the systemic and teleological interpretation of regulating rules in combination with the general civil principle of good faith. By analogy with the original source of the problem, this tool has been called the “Good Faith-Based Approach". Therefore, in view of states' affirmative obligations under the European Convention on Human Rights, this research shows that the consumers' conflicting interests should take priority in legal protection until the consumer's involvement in money laundering and terrorist financing is established and proven. A certain level of restrictions imposed on the consumers' fundamental rights could be considered justifiable to prevent money laundering as long as the business relationship with the bank continues. However, when rupturing contractual relations within the de-risking paradigm, only close adherence to the good faith principles can guarantee that the bank's rights are not applied by the bank formally and unreasonably, that is, against the sense, meaning, and goals established by the regulating authorities or contrary to the general idea of law. Keywords: Good faith, De-risking, Bank account closure, Unilateral termination of contract, Human rights

Police Officers’ Presumption of Innocence: History, Contemporaneousness and Possibility to Implement into Ukrainian Legislation


 The article is focused on the analysis of the legal category of police officers’ presumption of innocence. Accordingly, the purpose of the research is to provide comprehensive characteristics of police officers’ presumption of innocence, taking into account international practice of its formation and development. To achieve this purpose, the author has formulated the following tasks: 1) study of the historical aspect of the origin and formation of police officers’ presumption of innocence, including within the qualification immunity of police officers; 2) analysis of the practice of applying qualification immunity in the United States of America; 3) objective reveal of the content and essence of police officers’ presumption of innocence; 4) outlining the possibilities of introducing the police officers’ presumption of innocence into the legislation of Ukraine.
 The expediency of introducing police officers’ qualification immunity (police officers’ presumption of innocence) is based on a number of arguments, in particular: police officers need qualification immunity to perform their professional duties: they perform important tasks that may require immediate decisions in stressful situations, but lack of qualification immunity may lead that police officers do not dare to act when it is most needed; lack of qualification immunity can lead to unjustified police trials, when judges and jurors can review decisions, may lead to significant budget expenditures; police officers do not have absolute immunity and can be prosecuted for violating clearly established constitutional rights, despite the perspective of the availability of qualification immunity; police officers should not be forced to apply “abstract law”, i.e. those provisions that are not explicitly provided in the current legislation, but follow from its provisions, to specific circumstances, we cannot expect from police officers to be scholars in law sphere and use legal arguments during the arrest; police officers should be able to act professionally without worrying about prosecution.

Presumption of Consent or a Lack Thereof of the Victim and the Presumption of Guilt (Innocence) of the Accused in Cases of Sexual Offences: Emphasise What Is Necessary, Cross Out Everything Unnecessary

The article focuses on the significance and relevance of victims consent in sexual offenses cases. The case-law of national legal systems as well as of international judicial bodies demonstrates that consent is a conditio sine qua non for qualifying an act as a sexual offense. However, the recent examples of criminal cases raised from national and international jurisprudence allow authors to conclude that the non-consensual character of sexual acts is frequently complicated to prove in due to some peculiarities of the sexual offenses per se. This paper analyses the modern technique of sexual offenses criminalization which can be characterized by one of two possible approaches: first, the presumption of the alleged victim’s consent to sexual intercourse or, on the contrary, second, the presumption of the lack of thereof. Despite the fact that the second approach seems to be more favorable for alleged survivors, the implementation of this approach entails a number of difficulties. The main one is the hypothetical conflict with the metapresumption of criminal procedure (i.e. the presumption of innocence). In the paper this contradiction is analyzed from the perspective of the legislation and jurisprudence of different jurisdictions, as well as the practice of international judicial bodies (European Court of Human Rights, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda).

OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented.
 But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.

Digital evidence: Unaddressed threats to fairness and the presumption of innocence

Contemporary criminal investigation assisted by computing technology imposes challenges to the right to a fair trial and the scientific validity of digital evidence. This paper identifies three categories of unaddressed threats to fairness and the presumption of innocence during investigations – (i) the inappropriate and inconsistent use of technology; (ii) old procedural guarantees, which are not adapted to contemporary digital evidence processes and services; (iii) and the lack of reliability testing in digital forensics practice. Further, the solutions that have been suggested to overcome these issues are critically reviewed to identify their shortcomings. Ultimately, the paper argues for the need of legislative intervention and enforcement of standards and validation procedures for digital evidence in order to protect innocent suspects and all parties in the criminal proceedings from the negative consequences of technology-assisted investigations.

Ascertaining the Burden of Proof in the Prosecution of Smuggling of Goods in Nigeria from Comparative Perspective

The prosecution of smuggling of goods is bedeviled with procedural difficulties to prove the guilt of the accused beyond reasonable doubt and so, does not follow the usual procedures of criminal justice. This article focuses on determining whether the reversal of the burden of proof, which is common to most customs laws, offends the general notion of presumption of innocence of the accused. The paper adopts a comparative analysis of relevant statutes and case law. It finds that statutes which impose the burden of proof on the accused in certain circumstances are valid but misapplied by the courts in Nigeria. Given the peculiar nature of smuggling, it is not difficult to appreciate the rationale for placing the burden on the accused to prove certain facts especially those within his peculiar knowledge. This will however not justify the misapplication of such provisions that reverse the burden of proof as was the case in Board of Customs and Excise v Ibrahim Barau. The paper recommends a judicial rethink that will ensure the proper application of section 190 of the Nigerian CEMA whenever the opportunity presents itself. Prosecution, Smuggling of Goods, Strict Liability Offences, Mental Fault, Intermediate Offences, Absolute Prohibition, Presumption of Innocence, Reversed Burden of Proof, Customs and Excise Laws, Nigeria

Implementation of the principle of competitiveness of the parties and free- dom in the presentation of their evidence to the court in the criminal process of some countries of the world

One of the tasks of criminal proceedings is to protect the individual, society and the state from criminal offenses, which is achieved through the implementation of other tasks, in particular, by ensuring a rapid, complete and im-partial investigation and trial. In this case, any procedural decisions in criminal proceedings must be based on evi-dence that serves as a kind of link between the event of a criminal offense and the consciousness of the investigator, prosecutor, investigating judge, court. Evidence itself is the main content of criminal procedure in both the pre-trial investigation and in the judicial stages of criminal proceedings in most countries.The authors note that the Constitution of Ukraine as one of the main principles of justice provides for adversarial parties and freedom in providing the court with their evidence and proving their persuasiveness before the court. Factor The Criminal Procedure Code of Ukraine has significantly expanded the scope of this principle of the do-mestic criminal process, including in the field of evidence. Thus, the defense, as well as the prosecution, was given the opportunity to collect evidence during the pre-trial investigation, as a result of which the right of the parties and other participants in criminal proceedings to submit evidence (things and documents) is becoming increasingly important.The article also examines that the principles of criminal procedure in France include: the principle of formality, prosecution, legality, equality, dignity, protection of the victim, urgency of the trial, presumption of innocence, publicity, oral and adversarial proceedings. And the main principles of the criminal process in Germany include: the principle of formality (publicity); the principle of charge; the principle of legality and the principle of compulsory research. A characteristic feature of modern law in the field of criminal procedure in the United States is the consis-tent expansion of the institution of delegated legislation. The US Congress has delegated to the Supreme Court the right to establish rules of criminal procedure that have the force of federal law.

Have you considered the opposite? A debiasing strategy for judgment in criminal investigation

Fundamental challenges in human decision-making pose a serious threat to fair evidence evaluation, verdicts in court proceedings, and the administration of justice. Drawing on cognitive psychology, we examined whether a consider-the-opposite approach can assist police officers with positive guidance on how to implement crucial legal thresholds such as the presumption of innocence. In an experiment with sworn police officers ( N = 100), we compared a consider-the-opposite condition and a control condition (with no further instructions) and measured the formulated alternative hypotheses. The results show a promising debiasing effect of the consider-the-opposite approach which may strengthen fundamental principles of criminal law.

Презумпция невиновности в уголовно-процессуальном праве: сущность и заблуждения

The author points out the need to clarify the key terms of modern Russian jurisprudence. It is proposed to replace the term "criminal process" with the term "criminal-legal process". Attention is drawn to the incorrectness of the terms "criminal code" and "civil Code". The article reveals the essence and legal nature of the presumption of innocence in criminal law proceedings, which consist in the fact that the accused and the defendant do not have such legal obligations before the entry into force of the guilty verdict, as if they were guilty of committing the incriminated act. The author substantiates the fact that only the state can be a violator of this legal presumption.

Material and Procedural Criteria for Inadmissibility of Evidence Obtained as a Result of Provocation: European Court of Human Rights Standards and Russian Jurisprudence

The question of the inadmissibility of evidence obtained as a result of provocation remains debatable in the science of the criminal process and largely uncertain in the practice of the Russian courts. The institution was accepted by the Russian legislator on the basis of the recommendations of the European Court of Human Rights but has not yet received proper legal regulation. As a research task, the authors attempted to assess two criteria used in assessing the quality of operational and investigative activities: material and procedural measures and to propose ways to consolidate the latter in the Criminal Procedure Law. An analytical method of research, generalization, comparison and systematization of scientific data, as well as an empirical method of analyzing decisions of the European Court of Human Rights and Russian jurisprudence, was used to solve this problem. It is proposed to legalize the actual duty of the courts to exclude from the evidence the data obtained as a result of provocation by supplementing the principle of presumption of innocence with the provision of the presence of the prosecution the duty to prove the absence of provocation, as well as to put the relevant basis on the list of inadmissible evidence contained in art. 75 CPC of the Russian Federation.

Presumption of Innocence - A Criminal Procedural Guarantee as A Component of the System

This article discloses the presumption of innocence - a criminal procedural guarantee as a component of the system. The presumption of innocence is one of the basic constitutional principles that guarantee human rights and freedoms, which means that a person is presumed innocent until proven guilty in accordance with the procedure established by law and a court that has the right to initiate a criminal case.

Privacy, reputation and anonymity until charge: ZXC goes to the Supreme Court

ABSTRACT This article seeks to defend the emergent consensus that suspects should be entitled to anonymity until charge and that the tort of misuse of private information (‘MPI') is the appropriate action to protect this right. It systematically addresses Nicole Moreham’s argument, in this journal, that breach of confidence, rather than MPI, should ground such claims, and that the case law to date risks awarding damages for harm to an undeserved reputation. The authors argue that multiple sources of law and theoretical accounts of privacy confirm this information is properly treated as private. In contrast, breach of confidence would provide an inadequate remedy. In response to the concerns on reputational harm, it argues that, in practical terms, the tort of defamation need not be undermined, as claimed. It further contends that the presumption of innocence can act as a guiding light in resolving the problems raised at the level of principle.

Seeking Compatibility in Preventing Crime with Artificial Intelligence and Ensuring a Fair Trial

The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.

Ratio Legis Penerapan Beban Pembuktian Terbalik Di Indonesia

The reverse proof is the burden of proof to the suspect of a crime. In principle, the application of the reversed burden of proof is against the universal law of proof and is not following the presumption of innocence. However, the reverse burden of proof contained in the Law on the Eradication of Criminal Acts of Corruption, and the Law on the Prevention and Eradication of the Crime of Money Laundering, with a Legis Ratio of the two types of crimes classified as white color crimes, and extraordinary crimes, is right. Because it can be ascertained that, when the verification process takes place, law enforcement will have difficulty in proving the guilt of the perpetrators of the crime. In Indonesia, the application of the reverse burden of proof is applied to corruption and money laundering crimes which are limited to the Eradication of Corruption Crimes and Money Laundering Crimes. In Islamic law, the application of the reverse burden of the proof system is included in the ta'zir category which is based on government policy (ulul amri). The inverse burden of proof system is implied in the Qur'an, Surah Yusuf, Verses 26-29. However, in applying the reverse proof system, the jurists use istihsan in making ijtihad on contemporary social problems. Thus, both in the perspective of general law and Islamic law, the reverse proof is something that is specifically allowed, for criminal cases where it is estimated that there will be difficulties in proving it. Keywords: Ratio Legis Reverse Proof System, Indonesia, Comparative Legal Study

Ireland: Curtailment of the right to silence through statutory adverse inferences

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.

Действие юрисдикции, возникшей в результате текстуальных актов, в киберпространстве

In this paper I further develop a philosophy of technology for law and the rule of law, more specifi cally for the role of territorial jurisdiction in the protection against crime and against arbitrary use of the ius puniendi. In the face of the code- and data-driven nature of cyberspace I will discuss modern positive law as based on a text-driven jurisdiction and the main argument of the paper is that we cannot take for granted that the kind of legal protection that is offered by a text-driven criminal jurisdiction will hold in the context of cyberspatial challenges. In the fi rst section, I investigate how modern positive law-as-we-know-it was triggered by the technologies of cartography and the printing press, arguing that both modern democracy and the rule of law are affordances of these technologies, as they enabled the rise of an exclusive, monopolistic territorial jurisdiction. In the second section, I explore the scope of written legal speech acts, integrating speech act theory and philosophy of technology, explaining how the substantive and procedural principles of criminal law legality depend on the performative effect of written legal speech acts, highlighting their connection with the rise of territorial jurisdiction and the creation of an artifi cial, modern demos. In the third section, I discuss the new challenges of competing territorial jurisdictions that claim legal powers outside their territory, coupled by the challenges posed by new types of ‘brute jurisdictions’ that are based on the force of technological infrastructures that may overrule the performative effect of written legal speech acts. In the conclusions I call for keen attention to which affordances of cartography and the printing press we need to preserve in cyberspace to uphold criminal law principles such as the presumption of innocence, the right to a fair trial and the legality principle, taking note that preservation will require reinvention and imagination rather than taking for granted the mode of existence of text-driven jurisdiction.

Arabic Legal Phraseology in Positive Law and Jurisprudence: The Historical Influence of Translation

Abstract The present study examines Arabic legal phraseology formation from the standpoint of positive law and jurisprudence. It claims that phraseological constructions in Arabic legislative and statutory texts are largely influenced by the translation process of Roman law texts. However, scholarly literature still relies to some extent on formulae used in the Islamic jurisprudence. To illustrate this, three examples of legal principles anchored in Islamic jurisprundence, known as legal maxims, are subjected to a comparative analysis and discussed along with their corresponding expressions in positive law in modern-day Arabic. Ultimately, the purpose of this paper is twofold: firstly, to demonstrate that the phraseology present in many Arabic positive laws is fully adapted to corresponding formulations in the Roman law, steming from a historical translation process that accompanied the codification movement in the beginning of the 20th century; secondly, to emphasize the significance of textual genre awareness in legal translation. Concretely, the introductory section provides an overview of recent studies that have addressed legal phraseologisms. It is followed by a section on the historical role of translation in the construction of certain phraseologisms. The general legal principles of (a) burden of proof, (b) presumption of innocence, and (c) the pacta sunt servanda principle are then examined in order to shed light on the influence of both the Civilist tradition and Islamic jurisprudence on the use of legal Arabic today, as well as to demonstrate how the translation of phraseologisms is dependent on the parameters of genre. The analysis leads to the conclusion that proper use of phraseologisms, whether in drafting or translation, is closely linked to knowledge of phraseology formation and the historical influence of translation.

Stolen innocence? Observance of the EU Directive on presumption of innocence by Spanish crime reporting

This paper examines the compliance of Spanish crime reporting with the principles of the 2016 EU Directive on presumption of innocence, which aims at preventing the publication of information that might bias the public and the jurors against the suspect. A content analysis applied to a sample of 200 crime news stories published by eleven of the most popular print and online news platforms in 2018 reveals that the Spanish press coverage of crime is centered around the pre-trial and sentence stages, with little attention to the oral trial. The full name and the face portrait of the suspect appear in roughly one-third of the stories, but this overwhelmingly happens in news stories reporting on the court’s decision, so that the presumption of innocence is generally protected. Interestingly, the legacy media are more likely to report on the victim’s full name and the crime details that online digital media. One-fourth of the stories include accusations of guilt, as prosecutor attorneys and other officials are more frequently cited than defense lawyers. Although the Spanish press is largely compliant with the recommendations of the EU Directive, the lack of attention to the oral phase, where the arguments of both parts are deployed and contrasted, leads to a bias in the coverage against the suspect.