The Presumption of Innocence in International Human Rights and Criminal Law

Michelle Coleman

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000352337
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides a comprehensive analysis of the presumption of innocence from both a practical and theoretical point of view. Throughout the book a framework for the presumption of innocence is developed.

The book approaches the right to presumption of innocence from an international human rights perspective using specific examples drawn from international criminal law. The result is a framework for understanding the right that is grounded in human rights law. This framework can then be applied across different national and international systems. When applied, it can help determine when the presumption of innocence is being infringed upon, eroded, violated, and ensure that the presumption of innocence is protected.

The book is an essential resource for students, academics and practitioners working in the areas of human rights, criminal law, international criminal law, and evidence. The themes also have a more general application to national jurisdictions and legal theory.

1 Introduction

The presumption of innocence presents a paradox. It is an ancient criminal law concept that is deemed important enough to include in modern human rights conventions and international criminal law statutes. An overwhelming number of national, regional, and international jurisdictions recognise the presumption of innocence in their criminal codes and statutes. However, while the presumption of innocence is essential to criminal justice, its purpose, scope, and the practicalities of how it achieves its purpose are largely undefined.

This situation leaves the presumption of innocence in an interesting space. Most people are familiar with the concept and think they understand what it means, but when it comes to specifically applying the presumption, it is often defined in terms of itself. It is common to hear that ‘the presumption of innocence is when the judge presumes that someone is innocent until they are found guilty.’ Descriptions like this, however, do not encapsulate when the presumption of innocence applies, its scope and how it might be used and protected throughout the criminal justice process. This book develops a comprehensive analysis of the presumption of innocence in an effort to understand its scope and purpose. It aims to answer the question: what is the presumption of innocence? There should be an easy answer. Surely the presumption of innocence is well developed, clear, and useful, particularly when one considers its prominence in a diversity of human rights and criminal law instruments. The presumption of innocence should have developed over time resulting in a test or set of principles that can help guide anyone interested in determining what the presumption of innocence is, when it applies, and how it works. Unfortunately, it is not this straightforward.

Digging below the surface starts to tease out the many issues surrounding the presumption of innocence. One quickly becomes concerned with not only what ‘presumption of innocence’ means but also how the words ‘innocence’ and ‘presumption’ should be understood. This raises a number of other questions including: is the presumption of innocence a human right or is it something else? Is it merely a presumption? What is the purpose of the presumption of innocence? Is it limited to a particular area of the law? Who must apply the presumption of innocence and to whom must it apply? Under what circumstances is it applicable? How does the presumption relate to other rights? How can the presumption of innocence and pre-determination detention coexist within the same legal system?

This book uses a human rights and international criminal law perspective to answer these questions and to determine what is meant by ‘presumption of innocence.’ Analysing the presumption of innocence is important because it is only through understanding the scope, definition, and use of the presumption that a determination can be reached as to whether it is being properly used by judges, defendants, prosecutors, and academics. Further, and perhaps more importantly, clarifying the presumption’s scope and application can help determine when the presumption of innocence is being infringed upon, eroded, or violated, and ensure that the presumption of innocence can be protected. This book starts from the premise that the presumption of innocence needs to be analysed on its own; only then can the validity of the potential limitations and encroachments be properly scrutinised with regard to the presumption. This will develop a new, comprehensive working analysis or framework of the presumption of innocence based on both theory and practice that will be of use to both academics and practitioners. Without knowing the boundaries of the presumption of innocence, it is impossible to know whether the presumption of innocence is being protected, in what circumstances it is being deviated from, and how the presumption works with the other fair trial rights. As a result, this lack of definition may allow the presumption of innocence to be applied or ignored in an almost arbitrary manner. This research aims to correct this and develop a working analysis of the presumption so that it can be correctly applied and protected.

This book looks at the presumption of innocence from both a practical and theoretical point of view in an effort to determine what the presumption of innocence is and how it operates within the law. By taking into account more jurisdictions than previous works and combining theory with practice, the analysis developed within this book is more comprehensive than previous works. Within academic literature, the presumption of innocence is usually discussed in one of two ways; either narrowly with an emphasis on one or two jurisdictions or cases, or in a sweeping way that focuses on what the presumption should be but not how it is used in practice.¹ This book will bridge this gap and develop a working analysis of the presumption of innocence by examining a wide range of international and regional jurisdictions and testing their practical applications of the presumption against the normative theories. By examining the presumption of innocence in practice at the international and internationalised criminal courts and tribunals and the regional human rights courts, this analysis will be able to see common themes across jurisdictions, which should result in a definition of wider application.

1 For examples of sources limited to specific jurisdictions see: Andrew Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (Hart 2010) (mainly limited to the United Kingdom with some discussion of the United States, South Africa, and Canada); PJ Schwikkard, Presumption of Innocence (Juta & Co 1999) (Mostly limited to South Africa and Canada); Richard L Lippke, Taming the Presumption of Innocence (OUP 2016) (limited to the United States); Anthony Gray, Presumption of Innocence in Peril (Lexington 2017) (limited to the United States, United Kingdom, and Australia). For examples of general normative arguments see, for example, Antony Duff, ‘Presumptions broad and narrow’ (2013) 42(3) NJLP 268, 268–269. But see Thomas Weigend, ‘There is only one presumption of innocence’ (2013) 42(3) NJLP 193.

The presumption of innocence in practice

The presumption of innocence has its roots in history but is even more relevant today. The first recorded use of a law similar to the modern presumption of innocence is found in Hammurabi’s Code, which is believed to have been enacted circa 1750 BCE.² Since that time, the presumption of innocence has developed through the statutes and case laws of domestic jurisdictions. Now the presumption of innocence is present in most, if not all, national criminal codes and statutes, many international human rights treaties, the statutes of the regional human rights courts, and the international and internationalised criminal courts.³ Despite its inclusion in so many jurisdictions, there is no general consensus as to what the presumption of innocence means or how it is to be applied. Recently this lack of consensus was exemplified at the regional level by the European Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present in criminal proceedings, which is part of the Stockholm Programme.⁴ This directive stresses ‘strengthening of the rights of individuals in criminal proceedings.’⁵ The Directive itself is meant to ‘enhance the right to a fair trial in criminal proceedings by laying down minimum rules concerning certain aspects of the presumption of innocence’⁶ and increase ‘mutual trust and confidence between the different judicial systems and the perception that the rights of suspects or accused persons are not respected in every instance.’⁷ While this signals a general recognition of the right to the presumption of innocence amongst citizens of European Union member states, the need to set out minimum standards and require all member states to come into compliance with these standards implies some lack of consensus as to how the presumption of innocence is to be implemented.

2 Code of Hammurabi, as translated at The Avalon Project, Yale Law School, see Code of Laws 1–3 for examples of crimes, required proofs, and of consequences for the accuser if their accusations are not proved.

3 UN General Assembly, Universal Declaration of Human Rights, 10 Dec 1948, 217 A (III) art 11(1); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 14(2); European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (ECHR), art 6(2); Rome Statute of the International Criminal Court (17 July 1998) art 66; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 8(2) Law On The Establishment Of Extraordinary Chambers In The Courts Of Cambodia For The Prosecution Of Crimes Committed During The Period Of Democratic Kampuchea (27 October 2004) art 35 new; UN Security Council, Statute of the Special Court for Sierra Leone (16 January 2002) art 17(3); UN Security Council, Statute of the International Criminal Tribunal for the former Yugoslavia (25 May 1993) art 21(3); UN Security Council, Statute of the International Criminal Tribunal for Rwanda (8 November 1994) art 20(3); UN Security Council, Statute of the Special Tribunal for Lebanon (30 May 2007) art 16(3)(a); African Charter on Human and People’s Rights (published on 27 June 1981, entry into force 21 August 1986) 1520 UNTS 217 (African Charter) art 7(1)(b).

4 European Council, Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens OJ, 2010, C, 115/1; European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings,’ COM (2014) 397 final (EU Road Map); European Commission, ‘Green paper, the presumption of innocence,’ COM(2006) 174 final.

5 Ibid.

6 European Commission, ‘Green paper, the presumption of innocence,’ COM (2006) 174 final, 11.

7 Ibid. 1; European Commission, ‘Commission Staff Working Document Executive Summary of the Impact Assessment,’ SWD (2013) 479 final, 19; María Luisa Villamarín López, ‘The presumption of innocence in Directive 2016/343/EU of 9 March 2016’ (2017) 18(3) ERA Forum 335.

Examining the practice of the international and internationalised courts and tribunals and the regional human rights courts provides a good overview of what the presumption of innocence is and where it diverges and converges between jurisdictions. Particular focus will be given to the conventions, rules, and case law of the International Criminal Court; the International Criminal Tribunals for the former Yugoslavia and Rwanda; the European Court of Human Rights; the Inter-American Court of Human Rights; the African Court on Human and Peoples’ Rights; and the United Nations Human Rights Committee. These jurisdictions were chosen because of their international or regional reach and the amount of relevant case law that exists on the subject. The criminal tribunals and courts were selected specifically because they encompass cases from a variety of regions and thus give an understanding of how the presumption of innocence is used within those regions and internationally. The human rights courts were studied because they specifically include the presumption of innocence within their conventions and have provided some interpretation of this concept within their regions. As a result, the human rights courts can provide insight as to how the presumption of innocence is understood both regionally and on a national level within the participating states. Further, the international criminal courts and tribunals, and particularly the International Criminal Court, rely on the jurisprudence of the regional human rights courts when analysing the presumption of innocence.⁸ A very wide, international and cross-jurisdictional understanding of the presumption of innocence can be developed by focusing on these courts and tribunals.

8 See e.g., Prosecutor v Mbarushimana (Decisions on Defence Request for an Order to Preserve the Impartiality of the Proceedings) ICC-01/04-01/10-51, PT Ch I (31 January 2011) para 9.

In an effort to be as comprehensive as possible, several other jurisdictions were examined but were found to lack sufficient case law or analysis about the presumption of innocence to materially add to this book. Examples include the International Military Tribunal; the International Military Tribunal for the Far East; the Extraordinary Chambers in the Courts of Cambodia; the Special Tribunal for Lebanon; the Special Court for Sierra Leone; and several national jurisdictions. While not as fully discussed as the other courts, these jurisdictions are used as examples when there is something specifically interesting about them with regard to the presumption of innocence.

Looking at case law to gain a sense of how the presumption of innocence is understood in practice is challenging. Often the relevant case law may not be the best examples of how the presumption of innocence is being used. It is conceivable that the cases that uphold the presumption of innocence best do not get to trial because of issues identified by investigators or the prosecutor, which make trial not realistic, practicable, or fair. Further, in national jurisdictions, there are frequently no, or limited, written reasoned decisions in criminal cases at the trial court level. Thus, there is potentially a wide range of cases that cannot be examined because there are no records of how the presumption of innocence was used, or not used. That being said, there is a strong argument that those cases are upholding the presumption of innocence and could be examined to see whether the presumption of innocence means the same thing in those cases as in cases that are appealed.

There is also a limitation with regard to the regional human rights court decisions because regional human rights courts have limited jurisdiction and frequently can only be used after the appeals process within the national jurisdiction has been exhausted.⁹ This limits the cases that the regional courts hear either because cases end somewhere in the appeals process or the potential applicant does not have the desire or resources to raise the issue at the regional court. Thus, regional human rights courts are only able to provide a small sample of the potential decisions that could develop regarding the right to the presumption of innocence within their jurisdiction.

9 ECHR art 35; ACHR art 46; African Charter art 56.

The presumption of innocence in theory

The theoretical studies of the presumption of innocence tend to be normative in nature; that is, they define what the presumption of innocence should be rather than what it is in practice. These sources rarely cite case law or how the presumption is actually used. Instead, they focus on how the presumption should work and its theoretical scope. Theorists tend to understand the presumption of innocence as being either narrow or broad, ...