Presumption of innocence – in dubio pro reo (Article 6, paragraph 2 of the ECHR)

Pursuant to Article 6, paragraph 2 of the ECHR, a person charged with a criminal offence shall be presumed innocent until proven otherwise. The presumption of innocence is a special reflection of the principle of a fair trial. It aims at protecting a suspect from differing assessments by judicial authorities or statements by officials, which all come down to the assessment of innocence of a suspect, without his/her guilt being lawfully established. The court must not commence a proceeding with a prejudice as to the guilt of a person concerned, i.e., with a position taken beforehand as to the guilt of a person.¹³⁶⁵ Therefore, there is a violation of the right to a presumption of innocence if the court has pronounced the accused guilty, although the accused was unable to defend himself/herself, and the prosecution has apparently failed to submit evidence as to his/her guilt.¹³⁶⁶

The presumption of innocence and the principle of a fair trial also guarantee the right to – and provide protection for everyone from – self-incrimination/ self-accusation (putting the blame on oneself, i.e., admitting one’s own guilt). A criminal court using evidence obtained by way of coercion violates Article 6, paragraph 1 of the ECHR.¹³⁶⁷ The suspect, i.e., the accused, has the right, though not the obligation, to defend himself/herself in the proceedings. If the accused does not present his/her defence, the court must not come to the conclusion that the respective person is guilty for the act he/she has been charged with. The burden of proof always lies on the institutions responsible for the prosecution. If the court is not convinced of the guilt of the accused, or has doubts about his/her guilt, the accused must be cleared of charges.¹³⁶⁸ Moreover, the presumption of innocence conditions the criminal court, if believing that the accused is guilty, to establish with certainty the facts incriminating the accused. On the other hand, the facts in favour of the accused must be considered as established even when they are only probable, i.e., when there is doubt that they exist.¹³⁶⁹ The very fact that the accused, i.e., the defence, has challenged evidence of the prosecution does not prevent the court from assessing the respective evidence as credible and establishing the facts on the basis thereof.¹³⁷⁰ Taking into account previous convictions, in the manner stipulated by law, does not in itself constitute a violation of the right to a fair trial and a violation of the presumption of innocence.¹³⁷¹

Statements by the competent authorities in the previous proceedings or as part of “out-of-court” activities, indicating that there is a suspicion that a certain person had committed a criminal act, that the person was arrested, that the person admitted to the commission of a criminal or similar act, do not violate the principle of presumption of innocence until such time as the competent authority has submitted a formal statement reading that the respective person is guilty of committing a criminal act.¹³⁷² Contrary to this, Article 6, paragraph 2 of the ECHR shall be violated if the court has already, in its arrest warrant, considered that the suspect is guilty of committing a criminal act.¹³⁷³ Besides, a violation of the presumption of innocence shall also be found in cases where the competent authorities have brought about the negative consequences (for instance, by adopting an administrative act) for a certain person beyond the very criminal proceedings, which are based solely upon the presumption that the mentioned person will be pronounced guilty of having committed a criminal act.¹³⁷⁴ However, the principle of presumption of innocence may neither be applied in the case that a decision on revoking a citizenship is made,¹³⁷⁵ nor in the case that a decision is made on depriving one from the right to enter a country, and the right to stay in a country, or that a decision is made on deportation of a person,¹³⁷⁶ as such a decision does not imply deliberation on either a “civil right or obligation”, or “on the well-foundedness of any criminal charges” against the respective person. Therefore, negative consequences must relate to a specific “civil right or obligation”, namely to a criminal charge within the meaning of Article 6, paragraph 1 of the ECHR. Moreover, the principle of presuming innocence may be applied on a case-by-case basis and beyond a criminal proceeding, if there is a sufficiently firm link with the criminal proceeding.¹³⁷⁷ For, under certain circumstances, not only a judge and a court, but also other State institutions, may be held to act contrary to the principle of presuming innocence.¹³⁷⁸ In this manner, Article 6, paragraph 2 of the ECHR may be applied even after the completion of criminal proceedings, for instance, in a procedure concerning the costs of the proceedings or in a procedure concerning compensation for damage for unlawful pre-trial detention.¹³⁷⁹ In the procedure of revocation of one’s citizenship, according to the Human Rights Chamber for BiH, the presumption of innocence may be applied if during the criminal pre-trial investigation one’s citizenship is revoked on the basis of a suspicion about a committed criminal act, whereby the competent institution itself has not assessed the evidentiary material, and consequently by applying fundamental principles of the evidentiary proceedings, reached conclusions relating to crucial facts. Namely, by proceeding in this manner, the competent administrative authority, with the aim to revoke citizenships, has abused the status of the suspects, while at the same time violating the principle of presumption of innocence.¹³⁸⁰ the applicants (which, actually, have not been proven at all), that the applicants obtained their respective citizenships by fraud or in other ways stated in the relevant provisions, as the applicants did not reveal to the court their intention of getting involved in such terrorist activities at the time when their applications for citizenship were approved, and that, by doing so, they offended the Constitution and laws of Bosnia and Herzegovina.¹³⁸¹

Otherwise, the principle of presuming innocence does not prevent one from establishing in the civil procedure the responsibility of the accused for actions that may constitute a criminal act even when he/she has not been convicted in a criminal procedure¹³⁸² Also, a decision on the discontinuation of criminal proceedings because of the application of the Law on Amnesty and, to this end, the procedure on the costs of the proceedings, do not speak of the guilt or innocence of the accused within the meaning of Article 6, paragraph 2 of the ECHR, so that the principle of presuming innocence may not be applied.¹³⁸³

Reports by the press on criminal proceedings in certain cases may have detrimental effects on the fairness of a proceeding, particularly in connection with the principle of the presumption of innocence. Such reports cannot be avoided to a certain extent; however, a judge is expected to distance himself from such reports, and to make a judgment in the respective case based exclusively on the evidence presented in the proceeding and on the established facts. In addition, regarding this problem, the freedom of media and the freedom of expression, as well as the right of the State institutions to inform the public about the criminal proceedings, play a certain role. The courts cannot operate in a vacuum. Submitting reports and comments on the proceedings contribute in their way to the publicity of the work, which is in full compliance with the principle of public proceedings referred to in Article 6, paragraph 1 of the ECHR.¹³⁸⁴ It is apparent that any possibility of a violation of the principle of presumption of innocence shall be ruled out if the media report on a legally valid adjudication of the accused (that is of the convicted person at present), as the presumption of innocence applies only up until the moment a sentence has been pronounced.¹³⁸⁵