7.12 Basic Principles of Criminal Justice Systems,
the Presumption of Innocence
7.12.1 Tension Between Security and Liberty
As mentioned, the criminal process revolves around a continuous tension between
security (of the society as a whole) and liberty (of the individuals within society). It
constantly strives to find a balance between these conflicting interests. The more
emphasis is put on crime control (coping with a high crime rate or reducing the
crime rate), the fewer safeguards will be provided to the individuals. If the main
accent is put on the need to ensure a due process that minimally restricts the rights
of people, the repression of crime might become less efficient. To some extent,
rights and safeguards are time consuming: by requiring the state authorities to act
under a higher number of constraints, they slow down the criminal process and
reduce the number of trials and convictions. Moreover, by placing a series of
burdens and hurdles on the actions of the prosecuting authorities, the procedural
safeguards increase the chance that a guilty individual may escape punishment. At
the same time, they reduce the likelihood of an error against the defendant and limit
the impact of the criminal process on the life of possibly innocent individuals.
The ideal solution would be to protect the rights of individuals and the accuracy
of the fact-finding process adequately without sacrificing the efficiency and the
effectiveness of the repression of crimes. In real life, it is however impossible to
have both, hence the traditional dilemma: is it preferable that ten guilty persons
escape or that one innocent suffers? The answer to this question is offered by a
general principle of liberal tradition that is embraced by all international covenants,
explicitly affirmed in Article 6 Section 2 ECHR and largely accepted by all
European systems: the presumption of innocence.
7.12.2 Presumption of Innocence
The presumption of innocence is the cornerstone of the criminal process. An
individual is considered innocent and must be treated as such until a decision of
guilt is passed against him. According to the ECHR, the presumption ceases when a
conviction in first instance is passed against the individual. In several continental
countries, however, the presumption is applicable even during the appellate stages
until the defendant has exhausted all appellate remedies (with the sentence being
suspended during the appeal stage).
Not a Prediction of Outcome Usually, in law, a presumption is “an assumption by
which the finding of a fact gives rise to existence of a presumed fact.” It is usually
based on the observation of what routinely happens in society.
7 Criminal Law 151