The Presumption of Innocence

It is better to risk saving a culprit, than to indict an innocent. Voltaire

I consider that at present, the presumption of innocence is one of the subjects that raises
several controversies both internally and at the European Court of Human Rights .
The Presumption of innocence is a fundamental principle of the legal proceedings being
established at worldwide level by article 11 of the Universal Declaration of Human Rights
and on the European level by the article 6 paragraph 2 of the European Convention on
Human Rights , and in internal law in the article 23 paragraph 8 of the Constitution, and also
in the article 5 paragraph 2 and article 66 paragraph 1 of the Criminal Code.
Thus, we can ask ourselves: In what measure, this principle is reflected in the realities
of the criminal proceedings? Moreover ,it is noted that this presumption is no more than a
protection of the individual against the public authorities.
The Presumption of innocence is a fundamental right of the citizens and an essential
part of the right to a fair trial, stated in article 6 of the European Convention of Human
Rights. This constitutes a special guarantee in legal matter, acknowledged to the individual
charged of committing a criminal offence/ crime.
The right to a fair trial presumes the right of every individual to be judged fairly by an
independent and impartial court of law, set up by the law, openly and in a reasonable term,
regarding his civil rights and duties or at any charge that he might be legally accused of, in a
legal matter.
At the same time, this infers the right of the defendant to be presumed innocent until
the definitive courts ruling.
The person accused of accomplishing an offence has the right to an advocate chosen
by him or appointed, if he doesnt have the necessary means.
This has to benefit of a right legal basis, to have access to all the guarantees
established in the domestic law, but also in the European law, according to the CEDO
jurisprudence.
This fact is reflected mainly in the way the evidence is submitted during a criminal trial,
for instance: questioning witnesses from the trial, both from the part of the prosecution and
from the part of the defence, under impartial conditions. Also, if the defendant doesnt speak
the language, he has the right to be assisted by an interpreter.
The obligation of abiding the presumption of innocence is opposable erga omnes.
The stipulations of article 6 of the European Convention on Human Rights are most
frequently stated in front of the Convention members , but also in front of the national courts.
This article constitutes one of the key regulations of the Convention, both from the quality
point of view because there is no democratic society without impartial courts of law or just
legal procedures and from the quantity point of view, being the article referred by the
plaintiffs in 73% of the cases judged by the Court in 2006.

According to article 6, paragraph 2 CEDO, everyone charged with a criminal offence

shall be presumed innocent until proved guilty according to law.
The presumption of innocence is a relative right which produces the following consequences:
1 The burden of proof belongs to the prosecution and the doubt to the defendant
In a criminal procedure the state is the one that has to prove the quilt of the person and not
the other way around. The procedure of submitting the evidence is the same for everyone.
All the people can access the same means of evidence: all the parts of a criminal case
have within reach the same means of procedure: to achieve their goals in a trial, even
criminal trial;
have the right to legal assistance, have the right to submit their evidence: witnesses, writs,
expertise, all in the legal limits and requirements.
For instance, in our legal system, in the matter of expertise, the expert is not allowed to
be hired by any part, it is the National Anticorruption Department that has its own experts,
having the obligation to hire specialists from various fields to help the prosecutors
accomplish the expertise of the institution files.
The testimonial evidence: in the case of anonymous testimony certain conditions have to
be achieved so that they should be accepted:
the anonymous testimony should not be the sole proof, or it shouldnt be the firsthand proof of the guilt, but only to certify it
in the case of witnesses, their fear should have a real ground; people known by the
defendant cant be used as witnesses
the use of anonymous testimony should be compensate in a certain from during the
proceedings such its the matter in which the judge has a private talking to the
person;
or to the advocate of the opposite side; and the possibility of hearing by the
defendant using a distorted voice or image; (in Romania- the anonymous witness is at
the seat of Terrorism and Organized Crime Investigation Department, alongside the
prosecutors.
The offence cannot be provoked / stirred by a state agent, the secret agent having
only the possibility to take part at it.
Pursuant the case Jacobus Lorse versus the Netherlands, according the article 6
paragraph 3 letter d ( witnesses under cover) the petitioner Jacobus Lorse complained that
during his trial, in which he was charged of several deeds of drug dealings, there were used
testimonies of under cover police informers, who couldnt be heard by the plaintiff and who
could benefit by guaranteed immunity from the prosecution for some criminal charges. The
Court mentioned that the use of testimonies acquired from the people who benefited by
immunity from the investigators and those acquired from anonymous sources can raise
problems of fair proceedings.
Although the plaintiffs conviction was based on a set of evidence, I consider,
however that the state had rather allowed the two witnesses the hearing in a public sitting, but
considering the fact that there was no violation of article 6, the complaint was dismissed as
being groundless.
Considering the above and the stipulations of article 5 paragraph 2 ,from the Code
of Criminal Procedure, and article 66 from CCP which recognised the presumption of
innocence, any individual is considered innocent until the establishing of his guilt through a

final court order and the accused / incriminated doesnt have to prove his guilt. When the
evidence is not certain, secure and complete but there is a doubt regarding the guilt of the
incriminated, the principle in dubio pro reo is to be applied , according to which any doubt
operates in favour of the culprit.
The rule in dubio pro reo, constitutes a complement of the presumption of innocence, an
institutional principle which reflects the way the principle of finding the truth is found in the
material of judicial probation.
2. The right of the defendant to remain silent
The right of any person to keep silence, not to declare anything in front of the judiciary
and the right that his silence should not be interpreted as an admission of guilt. The Court
stated that the judge has to apply warily the right to conclude an admission of guilt from
silence. According the principle in dubio pro reo, it is necessary to exist evidence that prove a
certain version of the state of fact. Thus, silence cannot play this part. Silence can raise a
doubt upon the innocence of the defendant but it cant probate it.
According to the case Saunders versus Great Britain, Mr. Saunders was found in a
building that was thought to belong to IRA (Irish Republican Army), building full of army
effects. The judge convicted him of terrorist organization membership, interpreting his
silence disfavorably.
According to the Court, if the silence is interpreted as a guilt of the silent person,then
there is a pressure to get statements.
I consider that a conviction should not be exclusively based on the silence of the
defendant, on his refusal to answer the questions, to testify in a court of law.
However, this is a relative right.(It is not applied in any case, there are exceptions,this
kind of situation is encountered when through a legal stipulation it is established ,on purpose,
on the contrary. Thus it is possible to establish a presumption of guilt, the possibility for
those who interpret the law, in particular, the magistrate, to draw a conclusion from the
silence of the person.
In these cases, the exceptions are strictly to enforce and cannot be extended through analogy
to other similar cases): if from the state of fact results the obligation of giving an explanation
from the defendant, then the silence can be interpreted as an admission of guilt.
3. The right of the defendant not to contribute at his self-incrimination
The right of everyone criminally charged not to be compelled to offer evidence of his guilt,
this being a relative right, which can be applied only for those evidence which cant be
otherwise obtained , only from the defendant(for instance, biological evidence).
Until the ruling regarding Frunke versus France, when the Court stated that any
person has the right to silence, as well as the right not to be compelled to contribute at his
own indictment, it wasnt recognised at the European level the privilege against selfincrimination.
Mr. Frunke refused to provide the French customs authorities information regarding
the sums of money which were in several bank accounts of foreign banks. Although no
criminal procedure was started against him, regarding some customs criminal offence, the
plaintiff was convicted to pay a fine of 50 francs per day, until the time he reports the
required information.

The Court noted the violation of the Constitution, underlining that the French customs
induced the plaintiffs conviction, so that to obtain certain information, which existence it
doubted, without being sure. Even if the customs duty presents certain particularities, the
Court considered that those do not justify compelling a person to offer evidence of an
offence, as long as the authorities dont want or cant secure it.
In my opinion, the right not to contribute at self-incrimination is recognized only for the
defendant, not to the witnesses, who have the duty to testify under oath in front of the judge
and to declare the truth, unlike the defendant who cannot be compelled to confess his guilt.
4. The obligation of investigative body not to utter statements of guilt regarding the
person that hasnt been convicted
The presumption of innocence is addressed not only to the judge but also for other organs of
government, especially those that handle a criminal investigation, must have a very cautious
behaviour, regarding the public statements of the cases under inquiry, to protect the persons
involved so that they shouldnt be considered guilty before their trial.
I consider that authorities have the obligation to abstain from informing the public
regarding the investigation under way, being obliged to use terms that dont imply the guilt of
the persons under investigation, using terms such as suspect, there is the suspicion that
and so on.
For instance, the situation when a Swiss minister declares for a TV channel that the
plaintiff is guilty of several offences, but immediately adds without any precaution that
justice must confirm this, constitutes a violation of article 6 paragraph 2.
In the case Allenet de Ribemont versus France, during a press conference, after the
plaintiff was arrested, the Secretary of State for Home Affairs, expressed the idea that the
plaintiff was involved in a murder without self-restraint or caution. This constitutes a
declaration of guilt which on the one hand instigates the public to believe its real and on the
other hand, affects the determination of facts by the qualified judge). Therefore, this
constitutes a violation/ an infringement / a breach of the presumption of innocence, even if,
eventually, the plaintiff was released due to lack of evidence. So, the presumption of
innocence must be respected both before and after the trial.
The presumption of innocence will be respected and applied only of the fair trial,
guarantees regarding the equality of guns, the right of the defendant to be informed , the
principle of contradiction, the right of the defendant to remain silent, the right of the
defendant against his self-incrimination and provision of evidence..
An exhaustive survey of criminal charge actually and in reality has to be based on
evidence legally administered, thorough, convincing, which eliminates any trace of doubt
(according to the principle in dubio pro reo- when in doubt, for the accused).
Convicting a person without any thorough evidence and legally administered evidence
represents a violation of the right of the accused to a fair trial.
The presumption of innocence is one of the basic principles of a democratic state, its
fulfilment ensuring the validity in any case (especially criminal case), defending the rights
and interests of the people (the right of the suspected charged and culprit to defence).
According to article 5 paragraph 2 Code of the Criminal Procedure, any person is
considered innocent until he is found guilty by a definitive courts ruling.

In domestic legislation, the texts that tackle the issue of presumption of innocence are
the Constitution and the regulations of the Code of Criminal Procedure.
According to article 23 paragraph 11 of the Constitution, the person is considered
innocent until a definitive courts ruling to his conviction and according to the Code of
Criminal Procedure and CEDO, the person is considered innocent until the moment when
his guilt is legally proved, that is the moment when the presumption of innocence is reversed,
this could be overturned only through conclusive evidence of guilt, otherwise, any doubt can
be inferred in favour of the culprit.
The same principles specified above, established through the European jurisprudence
are applied also in the Romanian law.
The judge called to pronounce upon the charge, must not set out from the suspicion
that the defendant committed the incriminating act, but must approach the judging of the case
without prejudice.
The judiciary cannot motion the cause to a further stage unless there are incriminating
proof.
According to article 66 of the Code of Criminal Procedure, the culprit does not need to prove
his innocence, because the burden of proof belongs to the authorities, and when in doubt, for
the accused (in dubio reo).
The culprit is on equal position with the prosecution in front of the Court, ensuring
his protection against guilty statements, when his guilt was not legally determined.
In Romania there is no detail legislation that explains the way in which the
presumption of innocence operates, also neither the internal jurisprudence is sufficiently
developed to ensure the effectiveness of this procedural guarantee and to establish sanctions
when it is violated.
In of the European Court of Human Rights of Samoila and Cioaca versus Romania
a breach of article 6 paragraph 2 of the Convention is remarked.
In fact, Samoila and Cioca (policemen) were charged of committing abuse in the line of
duty (corruption) being detained pending trial and imprisoned in the Oradea prison ,under
the pretext that they tried to influence the witnesses and threaten them, the truth to emerge
and presenting a danger for the public order and a police who declared with certainty that
they were guilty of committing serious offence.
I consider that through the attorneys statements , the presumption of innocence was
violated , because no state deputy ha the right to declare a person guilty, before he was
pronounced guilty by a court of law. Moreover, it is my belief that instigation to commit
perjury is one of the delinquencies for what the plaintiffs should be sent to trial.
Also, a chief of the Oradea county police declared the press after the investigation
started and before the case settlement: They are guilty. I have no doubt about it. They are
guilty of serious offence. We have this certainty.
Regarding the chiefs statements, it is my opinion they are an infringement of the
presumption of innocence because the chief did not retract the statements, thus instigating the
public to believe its real.
Article 6 paragraph 2 of the Convention was violated , because the plaintiffs were
dressed in prison uniforms at their trial.

In my opinion, introducing the plaintiffs in clothes for the convicted persons before
their guilt was legally established is contrary to legal stipulations, in conditiile in care that
proved the plaintiffs didnt have proper clothing.
To conclude, I would like to mention that although Romania is a member of the
European Court of Human Rights, and tried to transpose these stipulations in domestic
legislation, nevertheless this couldnt be totally achieved .The proof is in Romanias
numerous convictions at CEDO.
I consider the most serious issue in our legislation that has to be solved is the speed
the courts resolve/ settle the cases. It is not acceptable that , for instance a trial should last 3years and the charged person live in insecurity until the end of the litigations.
lipsa a violarii art 6 alin.2 = lack of violation of article 6 paragraph 2.