CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE PRINCIPLE OF THE PRESUMPTION OF INNOCENCE IN THE EUROPEAN… Constitutional Court, that “if it is possible to arrive, in the criminal proceedings, on the basis of the evidence taken, at several versions of the facts with approximately the same probability, and if the court supports the version which is unfavourable for the pro person charged, it breaches the principle of in dubio pro reo decision making, and therefore also the presumption of innocence principle according to Art. 40(2) of the Charter. Nor does any lower type seriousness of the crime authorise the penal court to resign from completeness of the taking of evidence.” 53 Another rule that the guilt not evidenced has the same meaning as the innocence evidenced is based on the idea that it is not possible to make a difference between a provably innocent person and a person to whom the guilt was not proven without reasoned doubts, i.e. for whom it is only probable that he could be the offender. Principle nemo tenetur From the presumption of innocence principle it further implies that the person charged does not bear the burden of proof and is not obliged to prove his innocence. The guilt must be proven to the person charged by the law enforcement authorities and at the same he is not obliged to prove any facts which would testify to his favour and would be important for the decision. To prove one’s innocence is then a right of the person charged. From the actual fact that the person charged does not cooperate with the law enforcement authorities or that he does not support his statements with evidence it is not possible to derive any conclusion. Nor does the fact that the person charged used his right of silence make it possible to derive any conclusion about his guilt. The nemo tenetur se ipsum accusare (“privilege against self- incrimination” 54 ) principle, i.e. that nobody is obliged to accuse oneself , expresses one of the basic rights of the person against whom the criminal proceedings are conducted. According to this principle, nobody is obliged to help the prosecutor against oneself ( armare adversarium contra se ), to issue evidence against oneself ( edere instrumenta contra se ) or provide statements against oneself ( prodere se ipsum ). This principle is based on the presumption of innocence principle and follows up to the principle that the burden of proof is borne by the prosecution. 55 A connection is therefore seen also with the accusation principle (cf. Section 2(8) of the Rules of Criminal Procedure), 56 whose ground is distribution of procedural functions. It is also an important principle from the viewpoint of assurance of the rights to defence (Section 2(13) of the Rules of Criminal Procedure). Since also legal entities are subject to the right to a fair trial, 57 this principle applies, in a modified form, to them as well. The right not to be compelled to 53 Finding of the Constitutional Court, file ref. no. II. ÚS 658/14. 54 This principle has its origin in the Fifth Amendment of the United States Constitution of 1791 and is considered as one of the so-called Bill of Rights. The original version states that “ no person shall be compelled in any criminal case to be a witness against himself ”. Nevertheless, it is appropriate to explain that this right is intrinsically associated, in the United States, only with natural persons and that legal entities cannot refer to its content. Unlike this, the courts in the United Kingdom support the application of this privilege also in the case of legal entities. 55 Cf. Article 3 and Article 6 of Directive of the European Parliament and of the Council (EU) 2016/343 of 9 March 2016, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. 56 AMBOS, Kai. Zum heitigen Verständis von Akkusationsprinzip und verfaren aus historischer Sicht. JURA , 2008, no. 8, p. 586-594. 57 Decision of the European Court of Human Rights in the case Fortum Corporation v. Finland , application no. 32559/96, of 15 July 2003. 5.

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