Presumption of Innocence - Revision history

IBJadmin at 15:08, 7 November 2016

2016-11-07T15:08:58Z

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	According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”<ref> Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, available at		According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”<ref> Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, available at
	http://~~cmiskp~~.~~echr~~.~~coe~~.~~int~~/~~tkp197~~/~~view~~.~~asp?item=~~1~~&portal=hbkm&action=html&highlight=ALLENET&sessionid=61582125&skin=hudoc-en~~</ref>		http://oxfordindex.oup.com/view/10.1093/law:ihrl/3097echr95.case.1</ref>

	==Examples of National Instruments==		==Examples of National Instruments==

Jbraun: /* Kenya */

2010-11-17T13:23:20Z

Kenya

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	====Kenya====		====Kenya====

			An accused person enjoys the right to be presumed innocent until the contrary is proved, see, Article 50 (2)(a) of the Constitution. The presumption places upon the government the burden of proving each element of the offense beyond a reasonable doubt. Thus evidence tending to prove some elements of an offence will not be a basis for a finding of guilt. At the time when the prosecution closes its case, if it becomes clear that the evidence presented does not show that the accused proved an offence, counsel for the accused may make a motion requesting for a dismissal, see, Section 306 (1) of the CPC.

	Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty(art. 77(2)(a) Constitution)		Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty(art. 77(2)(a) Constitution)

Spalomba: /* Examples of National Instruments */

2010-11-10T13:45:36Z

Examples of National Instruments

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	====Zimbabwe====		====Zimbabwe====
	Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty; (art. (18)(3)(a) Constitution)		Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty; (art. (18)(3)(a) Constitution)


	==Notes==		==Notes==

Spalomba: /* International Legal Framework */

2010-11-10T13:40:44Z

International Legal Framework

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	The ICCPR is the international legal instrument which further elaborated the UDHR provision. Article 14 states that “Everyone charged with a criminal offence shall have the right: (2) to be presumed innocent until proved guilty according to law. (3)(g) Not to be compelled to testify against himself or to confess guilt”.		The ICCPR is the international legal instrument which further elaborated the UDHR provision. Article 14 states that “Everyone charged with a criminal offence shall have the right: (2) to be presumed innocent until proved guilty according to law. (3)(g) Not to be compelled to testify against himself or to confess guilt”.
	In General Comment n. 13,<ref> Human Rights Committee, General Comment N. 13, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument<ref/> the Human Rights Committee (HRC) clarified that Article 14 aims, in all its aspects, “''at ensuring the proper administration of justice''” and it applies before all Courts and Tribunals. The HRC clearly stated that the presumption of innocence is fundamental to the protection of human rights, but in some countries it is expressed “''in very ambiguous terms or entails conditions which render it ineffective''”. The Comment clarifies that the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt, and therefore all public authorities have to refrain from anticipating the outcome of trial. Further, the presumption of innocence implies a right to be treated in accordance with this principle.		In General Comment n. 13,<ref> Human Rights Committee, General Comment N. 13, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument</ref> the Human Rights Committee (HRC) clarified that Article 14 aims, in all its aspects, “''at ensuring the proper administration of justice''” and it applies before all Courts and Tribunals. The HRC clearly stated that the presumption of innocence is fundamental to the protection of human rights, but in some countries it is expressed “''in very ambiguous terms or entails conditions which render it ineffective''”. The Comment clarifies that the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt, and therefore all public authorities have to refrain from anticipating the outcome of trial. Further, the presumption of innocence implies a right to be treated in accordance with this principle.

	A corollary of the presumption of innocence is that the accused cannot be compelled to testify against himself or to confess guilt. “''In considering this safeguard the provisions of article 7 and article 10(1), should be borne in mind''”, the HRC said in General Comment n. 13.		A corollary of the presumption of innocence is that the accused cannot be compelled to testify against himself or to confess guilt. “''In considering this safeguard the provisions of article 7 and article 10(1), should be borne in mind''”, the HRC said in General Comment n. 13.
	Furthermore, Article 10(2)(a) ICCPR states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”		Furthermore, Article 10(2)(a) ICCPR states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”
	It is again the Human Rights Committee which, in General Comment 21,<ref> Human Rights Committee, General Comment N. 21, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument <ref/> affirmed that article 10 ICCPR emphasizes the right to be presumed innocent as stated in article 14 when it provides for a different treatment for unconvicted persons, except for extraordinary circumstances.		It is again the Human Rights Committee which, in General Comment 21,<ref> Human Rights Committee, General Comment N. 21, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument </ref> affirmed that article 10 ICCPR emphasizes the right to be presumed innocent as stated in article 14 when it provides for a different treatment for unconvicted persons, except for extraordinary circumstances.

	===='''Non Derogability'''====		===='''Non Derogability'''====

	In General Comment n. 29,<ref> Human Rights Committee, General Comment N. 29, available at http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.pdf<ref/> while interpreting article 4 ICCPR, the HRC has clarified that article 4 “''is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law''” and how it is clear “''that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency''.” According to the HRC, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, and includes fundamental principles of fair trial, such as the presumption of innocence.		In General Comment n. 29,<ref> Human Rights Committee, General Comment N. 29, available at http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.pdf</ref> while interpreting article 4 ICCPR, the HRC has clarified that article 4 “''is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law''” and how it is clear “''that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency''.” According to the HRC, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, and includes fundamental principles of fair trial, such as the presumption of innocence.

	===Regional Instruments===		===Regional Instruments===
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	According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”<ref> Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, available at		According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”<ref> Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, available at
	http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=ALLENET&sessionid=61582125&skin=hudoc-en<ref/>		http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=ALLENET&sessionid=61582125&skin=hudoc-en</ref>

	==Examples of National Instruments==		==Examples of National Instruments==

Spalomba: /* International Legal Framework */

2010-11-10T13:38:27Z

International Legal Framework

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	===='''Non Derogability'''====		===='''Non Derogability'''====

	In General Comment n. 29, while interpreting article 4 ICCPR, the HRC has clarified that article 4 “''is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law''” and how it is clear “''that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency''.” According to the HRC, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, and includes fundamental principles of fair trial, such as the presumption of innocence.		In General Comment n. 29,<ref> Human Rights Committee, General Comment N. 29, available at http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.pdf<ref/> while interpreting article 4 ICCPR, the HRC has clarified that article 4 “''is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law''” and how it is clear “''that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency''.” According to the HRC, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, and includes fundamental principles of fair trial, such as the presumption of innocence.

	===Regional Instruments===		===Regional Instruments===
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	Article 6(2) says that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”		Article 6(2) says that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

	According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”		According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”<ref> Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, available at
			http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=ALLENET&sessionid=61582125&skin=hudoc-en<ref/>

	==Examples of National Instruments==		==Examples of National Instruments==

Spalomba: /* 2. International Covenant on Civil and Political Rights (ICCPR) */

2010-11-10T13:35:55Z

2. International Covenant on Civil and Political Rights (ICCPR)

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	The ICCPR is the international legal instrument which further elaborated the UDHR provision. Article 14 states that “Everyone charged with a criminal offence shall have the right: (2) to be presumed innocent until proved guilty according to law. (3)(g) Not to be compelled to testify against himself or to confess guilt”.		The ICCPR is the international legal instrument which further elaborated the UDHR provision. Article 14 states that “Everyone charged with a criminal offence shall have the right: (2) to be presumed innocent until proved guilty according to law. (3)(g) Not to be compelled to testify against himself or to confess guilt”.
	In General Comment n. 13, the Human Rights Committee (HRC) clarified that Article 14 aims, in all its aspects, “''at ensuring the proper administration of justice''” and it applies before all Courts and Tribunals. The HRC clearly stated that the presumption of innocence is fundamental to the protection of human rights, but in some countries it is expressed “''in very ambiguous terms or entails conditions which render it ineffective''”. The Comment clarifies that the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt, and therefore all public authorities have to refrain from anticipating the outcome of trial. Further, the presumption of innocence implies a right to be treated in accordance with this principle.		In General Comment n. 13,<ref> Human Rights Committee, General Comment N. 13, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument<ref/> the Human Rights Committee (HRC) clarified that Article 14 aims, in all its aspects, “''at ensuring the proper administration of justice''” and it applies before all Courts and Tribunals. The HRC clearly stated that the presumption of innocence is fundamental to the protection of human rights, but in some countries it is expressed “''in very ambiguous terms or entails conditions which render it ineffective''”. The Comment clarifies that the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt, and therefore all public authorities have to refrain from anticipating the outcome of trial. Further, the presumption of innocence implies a right to be treated in accordance with this principle.

	A corollary of the presumption of innocence is that the accused cannot be compelled to testify against himself or to confess guilt. “''In considering this safeguard the provisions of article 7 and article 10(1), should be borne in mind''”, the HRC said in General Comment n. 13.		A corollary of the presumption of innocence is that the accused cannot be compelled to testify against himself or to confess guilt. “''In considering this safeguard the provisions of article 7 and article 10(1), should be borne in mind''”, the HRC said in General Comment n. 13.
	Furthermore, Article 10(2)(a) ICCPR states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”		Furthermore, Article 10(2)(a) ICCPR states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”
	It is again the Human Rights Committee which, in General Comment 21, affirmed that article 10 ICCPR emphasizes the right to be presumed innocent as stated in article 14 when it provides for a different treatment for unconvicted persons, except for extraordinary circumstances.		It is again the Human Rights Committee which, in General Comment 21,<ref> Human Rights Committee, General Comment N. 21, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument <ref/> affirmed that article 10 ICCPR emphasizes the right to be presumed innocent as stated in article 14 when it provides for a different treatment for unconvicted persons, except for extraordinary circumstances.

	===='''Non Derogability'''====		===='''Non Derogability'''====

Spalomba: /* 4. European Convention on Human Rights (ECHR) */

2010-11-10T13:33:23Z

4. European Convention on Human Rights (ECHR)

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	According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”		According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “''must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory''”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “''if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law''”, and it is sufficient, “''even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty''.”

	~~----~~

	==Examples of National Instruments==		==Examples of National Instruments==

Spalomba: /* Examples of National Instruments */

2010-11-10T13:32:52Z

Examples of National Instruments

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	Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty; (art. (18)(3)(a) Constitution)		Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty; (art. (18)(3)(a) Constitution)


			==Notes==

			<references/>


	----		----
	See [[Rights of the Accused]]		See [[Rights of the Accused]]

Spalomba at 13:31, 10 November 2010

2010-11-10T13:31:42Z

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	The lawyer should enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.		The lawyer should enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.

	~~==Notes==~~

	~~<references/>~~

	== When is the Presumption of Innocence Triggered? ==		== When is the Presumption of Innocence Triggered? ==

Spalomba: /* Definition */

2010-11-10T13:31:22Z

Definition

← Older revision		Revision as of 15:31, 10 November 2010
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	The lawyer should enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.		The lawyer should enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.

	~~---~~

	==Notes==		==Notes==