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“ It is equally obvious that the principle of the presumption of innocence should be seen as a checks and balances mechanism designed to limit the powers of public authorities over a citizen exposed to repressive measures. ”

Is it sensible to harmonise standards on the presumption of innocence at the EU level?

August 08 2014

The proposed directive is to establish minimum safeguards for the right of suspects and accused persons to be treated innocent until proven guilty of committing an offence by a final judgment. The draft of the directive lists a number of safeguards, including the right not to incriminate oneself, the right not to cooperate and the right to refuse testimony (“the right to remain silent”). The document also lays down a principle which places the burden of proof on the prosecution and the rule according to which any reasonable doubt should benefit the accused. Moreover, the directive provides that the principle of the presumption of innocence should equally apply to courts and other public authorities. It obliges the State to ensure that public authorities refrain from presenting, in their official statements or decisions, suspects and accused persons in any manner which would suggest they are guilty before a final conviction is passed. The directive also embeds the right to be present at one’s trial in the principle of the presumption of innocence.

Even though the principle of the presumption of innocence is a cornerstone of the contemporary criminal process, an introduction of a relevant EU-wide regulation has been opposed by many. As the opponents point out, the principle has already been expressed in constitutions across Europe and obtained sufficient safeguards in the majority of national legislation frameworks. It has been extensively discussed in the case law of the European Court of Human Rights which has already explained in sufficient detail the extent of the principle’s application and interpretation at the European level. Those opposing the directive say that its introduction would make sense only if the instrument was to establish certain additional rights for persons subject to criminal proceedings, which is not the case. The opponents further argue that the directive will have no real practical impact and remain only a makeshift attempt to deal with the problem on the part of EU institutions.

It is barely possible to overlook or wholly dismiss the arguments presented above. However, we cannot forget that efforts taken at the EU level result from the assumption that mutual recognition of judgments should be the underlying principle of judicial cooperation within the EU. This may only be achieved by creating trust among judicial bodies. Undoubtedly, the introduction of a standardised framework of safeguards for participants in criminal proceedings is a step in the right direction. It is equally obvious that the principle of the presumption of innocence should be seen as a checks and balances mechanism designed to limit the powers of public authorities over a citizen exposed to repressive measures. Consequently, it is difficult to avoid an impression that a pan-European system of fair trial safeguards will not happen unless the authorities of Member States commit to respecting the principle of the presumption of innocence.

It must not be forgotten that although this principle is deeply rooted in the Polish legal system, one can easily quote numerous examples where it has been undermined in domestic judicial practice. Such instances are a good reminder that even well-designed legal norms protecting the principle – and Polish regulations can mostly be assessed as such – give no guarantee that it will be appropriately respected. Indeed, as far as the presumption of innocence is concerned, many problems result from improper practices. We do not even need to refer to the Strasbourg Court cases in which Poland has been found guilty of violating the principle by issuing decisions to extend pre-trial detention based on the pre-assumption that a suspect has committed an act imputed to them; it is enough to recall statements of public officials who declared suspects in criminal proceedings guilty before any official investigation has even been concluded. The discussed legislative proposal may be of particular importance for Poland, especially given the fact that Polish citizens face criminal proceedings in other EU states.

Despite reservations raised by the opponents of the proposed regulation, it is reasonable to hope that the handling of the issue at the EU level will contribute to improving procedural safeguards in the EU member states. Even if the directive is to have only a token impact, it is still worth opting for its adoption, considering the importance it has for the standard of a fair criminal trial.

Author: Katarzyna Wiśniewska is a lawyer at JUSTICIA's Polish Network partner, the Helsinki Foundation for Human Rights.


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