Presumption of innocence in Romanian Law and European Court of Human Rights cases

Introduction

• For any country, for any society to exist, there is a need for a series of rules, a series of fundamental ideas to conduct the system, to organize the entire criminal procedure.

• As the society is in a continuous evolution marked by discoveries in all fields, neither presumption of innocence is a static presence.

Chapter I - Notion

• Presumption of innocence is a constitutional principle according to which a person is considered not guilty as long as there is no final sentencing, alongside being one of the most powerful safeguards of human liberty and dignity.

• The presumption is perceived as a benefit, a legal protection that accompanies the defendant, with the purpose of balancing the forces in a criminal trial.

Historical Aspects

• Historically, although there was an unsuccessfully attempt to identify the presumption of innoncence in the ancient Roman Law or in medieval era, first modern legal consecration of the principle can be indentified in the Declaration of the Rights of Man and of the Citizen in 1789, as a reaction against the excessive use and abuse of remand which facilitated torture.

• A legal instrument created by the French cardinal and jurist Jean Lemoine to favor the accused based on the legal inference that most people are not criminals.

• Universal Declaration of Human Rights• European Convention of Human Rights• The new Penal Code – it is regulated at

art. 3, Title I, General Part

Chapter II – Presumption of innocence in the context of general principles of law

• The basic principles of criminal proceedings are general rules under which it is regulated the entire criminal trial.

• Of course, we can not be in front of a simple presumption, the presumption of innocence can only be considered a legal presumption.

• The presumption of innocence is mentioned in article 23, paragraph 11 of the Romanian Constitution, revised and republished.

• It is also regulated in the Romanian Criminal Procedure Code, Title I, Chapter I on trial basic rules in art. 5² introduced by Law 281/2003:

• „every person is presumed innocent until proven guilty by a final criminal judgement.”

• In a similar content, paragraph 2 of the European Convention of Human Rights provides that „everyone charged with a crime is presumed innocent until proven guilty according to law.”

Chapter III – The scope of judicial bodies and the person accused

• Judicial organs of criminal investigation• Prosecutor• Judge• Witness• Expert• Accused person

Chapter IV – The right to silence and the right to not accuse

yourself

• The true meaning of these rights is to give the person a genuine choice between cooperating or not with the state authorities in cases which concern him/her directly, definetly or possibly only.

Chapter V - European Court of Human Rights cases

• Analyzing ECHR cases we can find a number of situations where the presumption of innocence was aroused

• Bernard vs. France• Minelli vs. Switzerland• Telfner vs. Austria• Deweer vs. Belgium• Engel and others vs. Netherlands• Ribermond vs. France

Conclusion

• Presumption of innocence is one of the most powerful safeguards of human dignity and freedom.

• From ECHR precedent and doctrine we can acknowledge the fact that the presumption has sufficient safeguards in place to ensure the procedural mechanism necessary in a criminal trial.

• At the end of the day, what matters is not the label of system as criminal nor the invocation of the presumption of innocence. Rather, what matters is that the state accord its citizens with the proper respect. It must protect them from outside threats but it must guard against the possibility that the state itself will infringe citizens’ liberty out of fear.