CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE IMPARTIALITY OF JUDGE AND THE PRINCIPLE OF PRESUMPTION OF INNOCENCE … which they were made. 65 The ECtHR’s decision-making practice also points out that in some proceedings which do not directly address the issue of guilt and punishment (e.g. custody proceedings), formulations are used which suggest that the court’s deliberations on guilt are premature, or suspicions are replaced by a finding that the accused person committed the offence, even before the actual evidence is adduced, which should only be followed by a decision on the merits. 66 2.2 Plea bargain and its relation to the principle of presumption of innocence In its case law, the ECtHR has addressed the question of the admissibility of plea bargains. 67 In particular, its case-law shows that a plea bargain allows the accused to waive their right to a trial, but subject to strict judicial review. 68 The statement of the accused in waiving their right to a fair trial must be free and unequivocal. 69 Before entering a plea of guilty, the accused must be instructed and such instruction and any plea must be duly recorded. 70 The complete absence of coercion on the part of the prosecuting authorities is a necessary condition for a fair trial, even in the case of a guilty plea. There must therefore be no disproportion between what the accused faces if they do not confess and the sanction offered in exchange for a confession. It also means that neither the legal qualification (e.g., the charge of a more serious offence, the so-called qualified offence) nor the type and amount of the penalty must be exaggerated by the prosecutor. 71 Otherwise, it would be a practical violation of the principle known as nemo tenetur se ipsum accusare . 72 However, the warning of the possibility of mitigation of the sentence by the court is not an impermissible coercion and violation of the presumption of innocence. On the contrary, this concept allows the accused to make an informed choice as to whether they wish to enter into a plea agreement and sentence while waiving the criminal process or, on the contrary, to insist on a main trial, including the taking of evidence before the court. 73 The relationship between the plea bargain and the principle of presumption of innocence is, simply put, that the presumption of innocence is a guarantee of individual protection of the accused person in the criminal process. The accused can then dispose of the guarantees arising from the presumption of innocence, i.e., they can waive it if they plead guilty. 74 65 Judgment of the ECtHR in Daktaras v. Lithuania of 10 October 2000, application no. 42095/98. 66 Judgment of the ECtHR in Nestaq v. Slovakia of 27 February 2007, application no. 65559/01. 67 Judgment of the ECtHR in Babar Ahmad and Others v. the United Kingdom of 6 July 2010, application no. 24027/07; Judgment of the ECtHR in Natsvlishvili and Togonidze v. Georgia of 29 April 2014, Section 92, application no. 9043/05; Judgment of the ECtHR in Barberà and Others v. Spain , of 6 December 1988, application no. 10590/83. 68 Judgment of the ECtHR in Deweer v. Belgium of 27 February 1980, application no. 6903/75. 69 Judgment of the ECtHR in Le Compte, Van Leuven and De Meyere v. Belgium of 23 June 1981, applications no. 6878/75 and 7238/75. 70 Judgment of the ECtHR in X. v. the United Kingdom of 23 March 1972, application no. 5076/71. 71 Judgment of the ECtHR in Deweer v. Belgium of 27 February 1980, application no. 6903/75. 72 REPÍK, Bohumil. Evropská úmluva o lidských právech a trestní právo. (European Convention on Human Rights and criminal law). Prague: Orac, 2002, p. 187–192. 73 Judgment of the ECtHR in Philip Hall v. the United Kingdom of 19 February 2002, application no. 65327/01. 74 Judgment of the ECtHR in Lutz v. Germany of 25 August 1987, application no. 9912/82.

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