Summary

Chapter I contains the introduction to this book. The presumption of innocence has been laid down in almost all human rights treaties, covers all stages of criminal justice and is at the heart of the criminal process. It is therefore not surprising that in legal and social debate on criminal law the presumption of innocence frequently plays an important part. These discussions, however, also illustrate that many ambiguities and misunderstandings surround the presumption and that at least six broad and general questions still have no clear answer. These questions concern the nature of the principle at its most abstract level; the internal coherence of the principle; its legal-practical effect on actual matters of criminal procedure; the relationship with other rights and principles; its scope of application; and the meaning and effect in Dutch criminal justice. This book aims, among other things, to clarify these issues. Hence, the main question of this book is:

What does the presumption of innocence actually encompass, what is its rationale and what are its legal consequences for Dutch criminal justice?

This research question lends itself to a rather classical legal-dogmatic research approach, in which the legal-historical backgrounds, theoretical foundations and positive interpretation of the principle are studied.

Chapter II deals with the most important milestones in the historical development of the presumption of innocence. The origin of the maxim and how its meaning and impact have developed over time are investigated.

Variations of the rule that letting a guilty person go unpunished is better than convicting an innocent person, and of the idea that only a convict and not a defendant can be seen as a criminal, were already part of the sense of justice in Roman and Germanic law. However, a presumption of innocence derived therefrom probably did not yet exist. A first form of a presumption of innocence, a presumption of goodness that also applied to criminal law, originated in the late Middle Ages. It concerned an (imperfect) means of evidence with an empirical basis in the status and life of the suspect. This meaning was still far removed from the current state of the presumption of innocence as a universal human right.

Parallel to this presumption of goodness, another presumption of goodness which every person enjoys, developed in canonical law, humanism and modern natural law. Initially, it was mainly based on the Christian tradition; later on, secular justifications for its existence were also put forward. This presumption of goodness or innocence was used to divide the burden of proof in criminal matters. Because every person is naturally an innocent person, proof must be provided for an assertion to the contrary. Understood in this sense, the presumption of innocence became prominent in particular in the more adversarial Anglo-Saxon criminal process that came about in the nineteenth century.

During the Enlightenment, the presumption of innocence on the European continent became broader in meaning. A new paradigm in the way of thinking about public law in general and about criminal law as a means of limiting state power in particular, had far-reaching consequences for the perceptions of prevailing criminal law. Beccaria, and after him various other reformers connected the presumption of innocence with the idea that punishment without prior determination of guilt is contrary to the rights of the individual. In this sense, the presumption of innocence prescribes how the suspect should be treated until he is convicted.

A clear relationship between these two ways (as a principle of evidence and as an instruction on how to treat suspects) in which the presumption of innocence operated, has not been found. The documents concerning the creation of the UDHR, the ICCPR and the ECHR show that the principle had multiple interpretations, but that the issue was not explicitly addressed at that time. As a result, the post-war doctrine and the institutions charged with interpretation of international treaties have been confronted with many uncertainties about the scope and content of the principle.

Chapter III commences with the observation that the historically rooted dichotomy also manifests itself in the contemporary meaning and functioning of the presumption of innocence and can be recognized throughout the (inter)national literature and jurisprudence on the principle. Hence, a distinction between what I call the bewijsdimensie (‘evidence dimension’) and the behandelingsdimensie (‘treatment dimension’) is maintained throughout this book. The third chapter deals with the theoretical backgrounds of the evidence dimension.

It is first determined that this dimension consists of multiple norms. The core of it is formed by the burden of persuasion and accompanying standard of proof. In case of reasonable doubt of a suspect’s guilt, he should be acquitted. Or, in other words, the government has to establish guilt with a very high degree of probability. In order to prevent this core becoming meaning-less, it is also important that the judge deciding the case does not prejudge the suspect’s guilt but is only persuaded by the evidence presented and keeps an open mind throughout the proceedings. That is a third norm derived from the dimension. Fourth, not only is the burden of persuasion on the government, but also, in principle, the evidential burden.

Moreover, several theoretical foundations of and justifications for the evidence dimension can be recognized. The primary basis is the prevention of convicting the innocent, even at the expense of acquitting guilty people. A second foundation is based on the rule of law, which requires that punitive action from the government requires a legal basis and a special legitimacy. This legitimacy is only present if the existence of the commission of a criminal offence has been demonstrated. Thirdly, the presumption is linked to the freedom of an individual to determine his procedural position independently and to choose a passive and defensive tactic. In that regard, the presumption of innocence is related to the principle of autonomy and facilitates the right to silence and the privilege against self-incrimination. Those rights are more directly affected.

The fact that the government has to prove that the defendant has met the conditions for punishment does not yet determine whether the presumption of innocence also restrains the conditions for punishment itself, i.e. substantive criminal law. Both a substantive and a procedural point of view have been defended in the literature. However, in my view, a procedural approach should be favoured. In principle it is for the national legislature and judge to define the limits of criminal liability. The evidence dimension is thus limited to the fact-finding process with regard to pre-determined conditions for liability.

Furthermore, another question up for discussion is which of the legal conditions for punishment should be proved in accordance with the presumption of innocence. I argue that in any case the facts which decide innocence or guilt, whether they are elements or defences, should be governed by the presumption. With regard to facts that affect the desirability of prosecuting someone, there is more room for hesitation, while there seems no reason to argue that purely procedural facts should also fall within its scope.

Finally, in Chapter III, the balance between effective crime control and the evidence dimension of the presumption of innocence is discussed in detail. The evidence dimension should not be seen as an instruction to consider these different, often conflicting interests and balance them in an ad hoc sort of way, but is the result of such consideration in abstracto. Consequently, it should not be assumed too quickly that this balance has changed to such an extent that the evidence dimension needs adjustment. Various arguments for playing down the presumption have been discussed, namely the severity of the offence in question, its provability, the fact that the suspect might easily be able to prove a fact, the existence of a rational connection between a non-proven fact and the facts already proven and the minor consequences of unjust condemnation in trivial cases.

Chapter IV discusses the treatment dimension of the presumption of innocence on a theoretical level. This treatment dimension gives rise to fundamental confusion and conceptual misunderstandings. As a result, its appreciation varies greatly and it is brought to the fore in many different ways in jurisprudence as well as literature. These different interpretations are identified and investigated in this chapter. As a result, a number of approaches to the dimension have been rejected. It has been found that the treatment dimension cannot mean anything but prohibiting the treatment of a non-convicted person as guilty of a criminal offence. Various grounds for the existence of this prohibition are acknowledged. A distinction is made between grounds that ensure the exclusivity of the criminal process as the forum for establishing guilt and grounds that protect the openness of the outcome of the criminal process.

Extensive attention is then given to the precise scope and content of the prohibition against treating someone as guilty. This concerns, first of all, the question of when someone is treated as guilty. Among other things, it becomes clear that this is much easier to decide for verbal treatment than for non-verbal ways of treating someone. For non-verbal treatment, the way the person is affected by it, the consequences for the person (e.g. the infringement on his physical integrity, freedom or privacy) will not normally be decisive. It is rather the underlying purpose of and reasoning behind a way of treatment that determines whether it is in contradiction with the presumption of innocence. This understanding of the treatment dimension makes it of particular interest to the grounds on which the rights of the suspect may be restricted and the manner in which the proportionality and subsidiarity of those restrictions must be assessed.

Aside from this question of whether some sort of treatment can be considered treating someone as guilty, other questions are raised. In particular the chapter focuses on the questions of what someone cannot be treated as guilty of, when someone cannot be treated as guilty, and who cannot treat someone as guilty. Finally, as in chapter III, interests that conflict with the principle are acknowledged and discussed.

In Chapter V, the scope of application and content of the evidence dimension of the presumption of innocence are viewed from the perspective of international law. In particular, the ECHR, the ICCPR and the more recently published EU Directive are studied, as well as the case law of the ECtHR, the UN Human Rights Committee and the ECJ.

It was found that on a general, abstract level, the range of application, scope and meaning given to the evidence dimension by the various international sources is rather similar. For example, the consensus is that the norms stipulated by the evidence dimension do not apply to procedural facts, such as the validity of the summons, but only to the facts relating to the suspect's guilt. The national law distinction between elements and defences is not decisive. There is also general agreement on the actual content of the evidence dimension. The norms derived from the principle by different international bodies are largely the same.

On a more concrete level, the approaches taken vary more widely. The UN Human Rights Committee demands a great deal from States parties. The Committee explicitly prescribes the standard of proof beyond reasonable doubt, seems to reject any adverse inferences from a suspect’s silence, and has considered shifts of the burden of persuasion in violation of the presumption of innocence. The approach of the ECtHR, on the other hand, is characterized by judicial restraint on the part of the Strasbourg Court. The fourth instance doctrine prevents the ECtHR from scrutinizing national findings of guilt. Although the presumption of innocence requires that there is no reasonable doubt, and this is in itself a matter of law and not a matter of fact, it is understandable in the light of this doctrine that the Court examines compliance with this norm to a very limited extent, if at all. However, the fact that the Court restrains itself with regard to the factual question of whether a criminal offence can be proven cannot explain why it allows reversals of the burden of proof with such generosity. Especially when it comes to shifts and reversals of the burden of persuasion, the Court’s approach is heavily criticized, and for good reason mostly. The EU Directive holds the middle position between the approaches taken by the ECtHR and the UN Committee. In line with the approach of the UN Committee, the text of the Directive seems to accept hardly any shifts in the burden of proof or adverse conclusions from a suspect’s silence. However, the considerations that precede the Directive paint a different picture. If the preamble is given much weight in the interpretation of the Directive, then it will barely add anything new to the Strasbourg jurisprudence.

Chapter VI concerns the scope of application and the substantive functioning of the treatment dimension in international law. Although the existence of that dimension has sometimes been denied or trivialized in international literature, its presence in positive law cannot be neglected. At the most general level, its meaning under the ECHR, the ICCPR and the Directive is also the same, namely a prohibition against treating a non-convicted person as guilty.

Unanimously, the ECHR, the ICCPR and the Directive prohibit any government official from making statements about a suspect reflecting the opinion that he is guilty. In addition, the treatment dimension under the different legal sources always limits the non-verbal action of the government, although there are substantial differences between the sources in the ways in which these restrictions are shaped.

This chapter also shows that the treatment dimension is generally not understood in the way that the provisions of Articles 8 through 10 of the ECHR are structured. Infringements on the prohibition against treating someone as guilty are unacceptable, regardless of other conflicting public interests. However, this does not mean that those other interests are of no importance. Whether or not the international bodies are willing to interpret a certain treatment as treating someone as guilty, will to a certain extent depend on the underlying reasons behind the treatment. For instance, in the context of unfortunate public statements about a suspect, the ECtHR attached great value to the context in which the statements were made and what the public authority tried to express.

The most important conceptual difference between the ways in which the treatment dimension operates under the various international legal sources lies in the application of the requirement that someone is ‘charged with a criminal offence’. The former ECieHR, the ECtHR, the HRC and the Directive apply this condition for the enjoyment of the presumption of innocence in widely differing ways. If the treatment dimension is based primarily on the openness of the outcome of a criminal procedure, the principle only has any meaning before and during a criminal process. This seems to be the approach of the HRC. However, if one also attaches value to the treatment dimension as a protection of the exclusivity of the fair criminal trial, as the Strasbourg Commission and Court do, then even if there has never been a criminal charge or after a criminal charge has ended, the presumption of innocence can still be violated. A different, but also important difference between the various international bodies is that the ECtHR offers additional substantial protection to the acquitted individual. These discrepancies have great consequences both for the abstract meaning of the principle and for its impact on the concrete level of individual legal protection.

Furthermore, it is noted that the case law of the UN Human Rights Committee and the Directive do not add much to the case law of Strasbourg. The Directive, which is aimed at further harmonization of the criminal law of EU Member States, has little additional value in this respect. The Committee generally limits itself to matters concerning public statements about a suspect and the presentation of the suspect at the hearing. On the other hand, ECtHR case law is comprehensive, has a wider scope of application and clarifies the operation of the treatment dimension in many different situations. However, this case law also raises many abstract and concrete questions, and its out-comes are often difficult to predict.

Chapter VII shifts the attention from international human rights law to the functioning of the evidence dimension in Dutch criminal procedure. This evidence dimension also formed the historical basis for the Dutch system of evidence law in criminal proceedings.

Generally speaking, the Dutch criminal procedural law in force today still conforms to this principle. For example, the criminal procedure requires the criminal court to evaluate the guilt of the accused without prejudice and solely on the basis of the evidence produced. And although there is a slight difference between the standard of proof that is ‘beyond reasonable doubt’ and the Dutch standard of rechterlijke overtuiging (‘judicial conviction’), the high probability required by the former is also prescribed by the latter. Furthermore, the defence does not have to proof exceptions and the most far-reaching infringements on the division of the burden of proof stipulated by the presumption of innocence are hardly used by the legislator.

Despite this general compliance with the principle, several points on which there is tension between Dutch criminal procedure and the evidence dimension are still recognized. However, the legislator and judiciary do not always seem to acknowledge this tension and the resulting problems. For example, presumptions of law formulated by the legislator are typically barely substantiated. The standard of proof for the acceptance of an exception has also been criticized for not tackling the real questions concerning the burden of proof in this regard. Furthermore, it appears that there is increasingly more scope now to draw adverse inferences from a suspect’s silence, whereas the basis for that scope and/or its limits are not always clear.

Chapter VIII examines the functioning of the treatment dimension in Dutch criminal procedure. To this end, five major themes within the Dutch criminal process that seem problematic are discussed. They are publicity within and about the criminal cases, the use of coercive measures, the imposition of sanctions, the execution of non-irrevocable sanctions, and compensation for the damage suffered because of the criminal proceedings.

It is found that – even in these challenging areas of the law – the Dutch criminal procedure is generally in accordance with the treatment dimension. Fundamental principles closely related to the prohibition against treating someone as guilty are also an important aspect of Dutch criminal procedural law. For instance, in the pre-trial phase, a suspect’s freedom should not be restricted any more than is necessary and his potential guilt cannot justify such restrictions; only after finding someone guilty can sanctions be imposed and generally only for those offences of which he is found guilty; and only when a conviction has become final can sanctions be executed.

The treatment dimension and the interests protected thereby are under some pressure however. This pressure is not new in itself, but seems to have increased substantially in the past few decades. Examples of developments that illustrate this increase are the introduction of the ernstig geschokte rechtsorde (‘serious shock to the legal order’) and the application of snelrecht (an expedited procedure in which the trial takes place within 17 days after arrest) as grounds for pre-trial detention, the ‘weekend away’ (where the public prosecutor uses his custodial measures as a means to punish quickly), the possibility to confiscate an illegally obtained advantage that comes from other offences than the ones the person is convicted for, and the provisional and immediate execution of sanctions. The interests lying behind these developments – the idea that crime should not pay, the speed of the criminal process, and the importance of free speech and newsgathering – have increased in weight. As a result, the presumption of innocence loses out to these interests more often.

To summarize and integrate the findings in the previous chapters, chapter IX returns to the six questions posed in the introduction to this book and tries to answer them. I argue among other things that the presumption of innocence is a legal principle, not to be understood as a sociological or psychological phenomenon. As a legal principle, it cannot be expected to function as a clear-cut rule that prescribes the solution to legal questions in concrete cases in and of itself. I also contend that while the two dimensions have some relationship with one another, they are in fact two separate legal principles. Reducing, or tracing back these two principles to a common core proved too much. Furthermore, the assertion is made that the additional protection offered to the acquitted in the case law of the ECtHR cannot be explained by the presumption of innocence itself and damages its coherent meaning. For the observation that the presumption of innocence is often brought forward in legal debate, but does not always have the impact on positive law one would expect based on its presence in said debate, four explanations were given. The chapter assesses the different types of relationships between the presumption of innocence and different fundamental rights and criminal law principles. And finally, it is noted that both dimensions of the presumption are under pressure and it is argued that the Dutch debate on the presumption of innocence should be conducted from a broader perspective than solely whether or not the Dutch criminal procedure is in conformity with international obligations to respect human rights.