The presumption of innocence is one of the fundamental principles of criminal justice, while the standard of reasonable doubt defines the point at which assumptions can no longer replace proof
The content of Article 17 of the Criminal Procedure Code of Ukraine allows us to identify the following criteria, or features, of the presumption of innocence:
compliance with the procedural order of criminal proceedings and procedural decision-making; onus probandi, meaning the burden of proof, which rests with the prosecution; proof of guilt beyond reasonable doubt; establishment of guilt by a conviction that has entered into legal force; admissibility of evidence.
The presumption of innocence is a measure of lawful and objective criminal justice and, at the same time, one of the foundations of legal relations in society as a whole.
Current issues concerning the application and legal nature of the presumption of innocence have not escaped the attention of leading Ukrainian scholars, including V. H. Honcharenko, L. M. Loboiko, V. T. Maliarenko, V. T.
Nor, V. O. Popeliushko, V. M. Tertyshnyk, M. Ye. Shumylo, H. Yu. Yudkivska and others.
Despite the substantial academic development of this topic and its proper legislative recognition, the relevance of the presumption of innocence has not diminished. The range of unresolved academic and practical issues remains extensive.
This article focuses on one of the key aspects of the presumption of innocence: the possibility of establishing a person’s guilt exclusively beyond reasonable doubt, as well as the limits of the operation of the presumption of innocence after guilt has been proven beyond reasonable doubt.
The Concept of Reasonable Doubt
Reasonable doubt may be defined as a doubt regarding the proof of a person’s guilt which, objectively, on the basis of the totality of relevant, reliable and admissible factual data, does not allow an unconditional conclusion that the person’s actions contain the elements of a criminal offence.
The application of this aspect of the presumption of innocence is impossible without emphasizing the need for an independent assessment of the factual data in criminal proceedings.
V. T. Nor, commenting on Article 17 of the Criminal Procedure Code of Ukraine, noted, among other things, that the existence of reasonable doubt as to the validity of the accusation does not allow any impartial person, reasoning with proper sense and conscience, to find the accused guilty.
It is impartiality — understood as the absence of a pre-formed opinion by the person assessing evidence when making procedural decisions and taking procedural actions — that must serve as the foundation for the application of the presumption of innocence.
Presumption of Innocence
admissibility of evidence.
extensive.
Reasonable Doubt and Reasonable Suspicion
When considering the reasonableness of doubt as to a person’s guilt, it is important to refer to the fundamental definition of reasonable suspicion developed by the European Court of Human Rights in its case-law.
The existence of reasonable suspicion means that there are facts or information capable of satisfying an objective observer that the person concerned may have committed an offence.
It is from the moment a person is notified of suspicion, or from the moment of arrest, that circumstances may arise which later form reasonable doubt in the mind of the court.
The Criminal Procedure Code of Ukraine provides that a conviction cannot be based on assumptions and may be delivered only if the person’s guilt is proven during the trial. As is well known, proving the accusation before the court is the procedural function of the prosecutor.
At the same time, it is important to address a fundamental question: does the presumption of innocence have retroactive effect, and can it be considered rebutted once a person’s guilt has been proven beyond reasonable doubt?
Is the Presumption of Innocence Rebuttable?
According to Yu. V. Tsyhaniuk, who examined the connection between the principle of the presumption of innocence and the requirement to prove guilt, it is possible to rebut the presumption of innocence.
L. M. Loboiko also considers the presumption of innocence to belong to the category of rebuttable legal presumptions, the operation of which ceases after a conviction is delivered by the court, but may be restored at the stages of appeal, cassation and review of judgments on newly discovered circumstances.
N. P. Syza shares this view, with a clarification as to the moment when the operation of the presumption of innocence ends: namely, when the judgment enters into legal force.
In our view, this approach to resolving such a fundamental issue is erroneous.
Semantically, rebuttal means proof of the falsity of a statement, judgment or reasoning. Criminal procedure is structured in such a way that a person is considered guilty of committing a criminal offence exclusively from the moment a conviction enters into legal force, and not from the moment the criminal offence was committed.
Under Article 17 of the Criminal Procedure Code of Ukraine, the consequence of a conviction is the possibility of subjecting a person to criminal punishment and treating that person as guilty — within the limits established by law.
The Limits of Reasonable Doubt
Reasonable doubt as to a person’s guilt, as an element of the standard of proof, is formed during the assessment of evidence by an investigator, prosecutor, investigating judge and court. It may serve as a prerequisite for various procedural decisions: a decision to close criminal proceedings, a decision following an appeal against a notice of suspicion, a decision to cancel an indictment, an acquittal and other procedural decisions.
However, even where the prosecution proves a person’s guilt beyond reasonable doubt and, as a result, a conviction is delivered and enters into legal force, the presumption of innocence does not have retroactive effect.
This principle is not, and cannot be, rebuttable by its nature.
Therefore, any assertion that the presumption of innocence is false, rebutted or retroactively displaced after a conviction has entered into legal force is inadmissible.
Presumption of Innocence
admissibility of evidence.
extensive.
doubt?
by law.
In his article “The Presumption of Innocence under the Law, on the Verge of the Law and Beyond Its Limits”, V.
O. Popeliushko convincingly classifies the idea of the rebuttability of the presumption of innocence as one of the forms of mockery of it. He notes that during the investigation and trial, the investigator and the court do not confirm or rebut the presumption of innocence, just as they do not confirm or rebut any other principle. They are guided by it and comply with it; that is, they observe the corresponding legal status of the person.
An Example of the Inadmissibility of Retroactive Rebuttal
As an example of the inadmissibility of rebutting the presumption of innocence, one may consider a situation in which a person who has already been convicted of a criminal offence retains the right to apply to the European Court of Human Rights, challenging the absence of reasonable suspicion at the time when the issue of a preventive measure was being decided and when that person had the status of a suspect.
The person is not deprived of the right to lodge such an application even if he or she is later found guilty.
In conclusion, it must be emphasized that the subsequent proof of guilt beyond reasonable doubt can under no circumstances serve as a basis for justifying the treatment of, or conduct toward, a person in the past.
The presumption of innocence is not an assumption that is later “rebutted” by a conviction. It is a legal status of the person which the State is obliged to respect at every stage of criminal proceedings.
Presumption of Innocence
admissibility of evidence.
extensive.
doubt?
by law.
Presumption of Innocence
admissibility of evidence.
extensive.
doubt?
by law.
Presumption of Innocence
admissibility of evidence.
extensive.
doubt?
by law.
Presumption of Innocence
admissibility of evidence.
extensive.
doubt?
by law.
Presumption of Innocence
admissibility of evidence.
extensive.
doubt?
by law.