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Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence in Criminal Proceedings

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Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings

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Abstract

The presumption of innocence is a fundamental right of suspected and accused persons in criminal proceedings in countries where the rule of the law is established. Its formulation varies slightly in the legal instruments that recognize it, yet it can be affirmed that this right establishes that anyone accused of committing an offence is presumed innocent until their guilt has been declared by a final judicial resolution, in accordance with the Law.

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Notes

  1. 1.

    ECtHR ruling of March 20, 2001, case Telfner v. Austria, CE: ECHR: 2001: 0320JUD003350196.

  2. 2.

    ECtHR ruling of September 20, 2016, case Karelin v. Russia, CE: ECHR: 2016: 0920JUD000092608.

  3. 3.

    ECtHR ruling of December 6, 1988, case Barberà, Messegué and Jabardo v. Spain, CE: ECHR: 1988: 1206JUD001059083, § 77.

  4. 4.

    ECtHR ruling of March 20, 2001, Telfner v. Austria, CE: ECHR: 2001: 0320JUD003350196.

  5. 5.

    ECtHR ruling of November 28, 2002, case Lavents v. Latvia, CE: ECHR: 2002: 1128JUD005844200.

  6. 6.

    ECtHR ruling of September 27, 2007, case Vassilios Stravropoulos v. Greece, CE: ECHR: 2007: 0927JUD003552204.

  7. 7.

    ECtHR ruling of July 24, 2008, case Melich and Beck v. Czech Republic, CE: ECHR: 2008: 0724JUD003545004.

  8. 8.

    ECtHR ruling of July 13, 2010, case Tendam v. Spain, CE: ECHR: 2010: 0713JUD002572005.

  9. 9.

    ECtHR ruling of July 31, 2014, case Nemtsov v. Russia, CE: ECHR: 2014: 0731JUD000177411.

  10. 10.

    ECtHR ruling of January 5, 2016, case Frumkin v. Russia, CE: ECHR: 2016: 0105JUD007456812.

  11. 11.

    ECtHR ruling of October 19, 2017, case Tsalkitzis v. Greece (# 2), CE: ECHR: 2017: 1019JUD007262410.

  12. 12.

    ECtHR ruling of February 10, 1995, case Allenet de Ribemont v. France, CE: ECHR: 1995: 0210JUD001517589.

  13. 13.

    ECtHR ruling of February 6, 2007, case Garycki v. Poland, CE: ECHR: 2007: 0206JUD001434802.

  14. 14.

    ECtHR ruling of April 24, 2008, case Ismoilov et al. v. Russia, CE: ECHR: 2008: 0424JUD000294706.

  15. 15.

    ECtHR ruling of January 18, 2011, case Mikolajová v. Slovakia, CE: ECHR: 2011: 0118JUD000447903.

  16. 16.

    ECtHR ruling of March 4, 2008, case Samoila and Cionca v. Romania, CE: ECHR: 2008: 0304JUD003306503.

  17. 17.

    ECtHR ruling of February 8, 1996, case Murray v. UK, CE: ECHR: 1996: 0208JUD001873191.

  18. 18.

    ECtHR ruling of February 27, 2007, case Nestak v. Slovakia, CE: ECHR: 2007: 0227JUD006555901.

  19. 19.

    ECtHR ruling of May 24, 2011, case Konstas v. Greece, CE: ECHR: 2011: 0524JUD005346607.

  20. 20.

    ECtHR ruling of July 12, 2013, case Allen v. UK, CE: ECHR: 2013: 0712JUD002542409.

  21. 21.

    ECtHR ruling of February 16, 2016, case Vlieeland Boddy and Marcelo Lanni v. Spain, CE: ECHR: 2016: 0216JUD005346511.

  22. 22.

    In Spanish law, the presumption of innocence is recognized – albeit with no definition provided – in article 24.2 of the Constitution, and in arts. 846 bis c) e) of the LECrim and 70.2 of the LOTJ, whilst the jurisprudence of the Supreme Court and the Constitutional Court has made an effort to determine the boundaries, contents and requirements of this fundamental right. In this regard, they have envisaged that the presumption of innocence “represents a rule of judgment and, from the constitutional perspective, the right not to be convicted without valid evidence, which implies that there is a minimum of presenting of evidence, carried out with the necessary guarantees, referring to all the essential elements of the crime, and that as a result of this it is reasonable to infer the deeds and the participation of the accused in these” (STS No. 3/2020, of January 16, 2020, ES: TS: 2020: 92; or SSTC 123/2006, of April 24, 2006, ES: TC: 2006: 123; 68/2010, of October 18, 2010, ES: TC: 1010: 68; or 59/2018, from July 7, 2018, ES: TC: 2018: 58, for all).

  23. 23.

    Available at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0343.

  24. 24.

    And also for the Spanish. For all, and among the most recent, see SSTS No. 338/2015 of June 2, 2015, ES: TS: 2015: 2555; No. 644/2019 of December 20, 2019, ES: TS: 2019: 4286; No. 2/2020 of January 16, 2020, ES: TS: 2020: 179; and SSTC 33/2000 of February 14, 2000, ES: TC: 2000: 33; 185/2014 of November 6, 2014, ES: TC: 2014: 185; o 34/2017, of March 1, 2017, ECLI: ES: TC: 2017: 34.

  25. 25.

    The appropriateness of such a review is even admitted by Spanish jurisprudence (STS 335/2017, of May 11, 2017, ES: TS: 2017: 1851).

  26. 26.

    In this regard, see Observation No. 13, paragraph 7, approved in the twenty-first session (1984): “By virtue of the presumption of innocence […] the accused has the benefit of the doubt”; No. 32, section IV, No. 30, of the 90th session (2007): “The presumption of innocence, which is fundamental for the protection of human rights […] ensures that the accused has the benefit of the doubt”; and resolution (communication) No. 1773/2008, adopted on October 21, 2014, v. Belarus, § 9.8: “The Committee recalls that the presumption of innocence, which is fundamental to the protection of human rights […] ensures that the accused has the benefit of doubt”.

  27. 27.

    CJEU judgment of September 19, 2018, Milev, C-310/18 PPU, EU: C: 2018: 732.

  28. 28.

    CJEEU judgment of November 28, 2019, DK, C-653/19, EU: C: 2019: 1024.

  29. 29.

    In a similar regard, the Italian Court of Cassation pronounces, for all, in judgment No. 26,869, of June 18, 2019, IT: CASS: 2019: 26869PEN.

  30. 30.

    CJEU order of September 24, 2019, C-467/19, EU: C: 2019: 776.

  31. 31.

    Available at eur-lex.europa.eu/eli/dir/2019/1937/oj?locale=en.

  32. 32.

    ECtHR ruling of July 12, 1988, case Schenk v. Switzerland, CE: ECHR: 1988: 0712JUD001086284.

  33. 33.

    ECtHR ruling of June 9, 1998, case Teixeira de Castro v. Portugal, 1998, CE: ECHR: 1998: 0609JUD002582994.

  34. 34.

    ECtHR ruling of May 12, 2000, case Kahn v. UK, CE: ECHR: 2000: 0512JUD003539497.

  35. 35.

    ECtHR ruling of July 11, 2006, case Jalloh v. Germany, CE: ECHR: 2006: 0711JUD005481000.

  36. 36.

    The issue becomes rather complicated when it is necessary to distinguish between evidence obtained in direct breach of fundamental rights and that resulting indirectly from that breaching the right. Both the classic doctrine of the fruits of the poisoned tree (fruit of the poison tree doctrine) and art. 11.1 of the Spanish LOPJ, establish that the evidence obtained directly or indirectly in breach of fundamental rights must be eliminated from the proceedings. However, the fruit of the poison tree doctrine, of American origin, led to the so-called balancing test, which includes a large number of exceptions to the original principle. In Spain, art. 11.1 LOPJ has been interpreted – de facto, with case-law modifications – by the so-called theory of the connection of illegality which, with complex reasoning that finally ends with subjectivity on the part of the judge, determines that for evidence deriving from illicit proof to be also illicit, the causal connection between them is not sufficient, but that rather a legal connection must exist, in terms of parameters we consider highly evaluative and to a large extent difficult to determine a priori.

  37. 37.

    ECtHR ruling of June 28, 2001, case Lizaso Azconobieta v. Spain, CE: ECHR: 2011: 0628JUD002883408.

  38. 38.

    ECtHR ruling of April 12, 2011, case Celik (Bozkurt) v. Turkey, CE: ECHR: 2011: 0412JUD003438805.

  39. 39.

    ECtHR ruling of February 27, 2014, case Karaman v. Germany, CE: ECHR: 2014: 0227JUD001710310.

  40. 40.

    ECtHR ruling of October 11, 2016, case Turyev v. Russia, CE: ECHR: 2016: 1011JUD002075804.

  41. 41.

    ECtHR ruling of January 10, 2017, case Trufanov and others v. Russia, CE: ECHR: 2017: 0110JUD001813004.

  42. 42.

    ECtHR ruling of January 31, 2019, case Maslarova v. Bulgaria, CE: ECHR: 2019: 0131JUD002696610.

  43. 43.

    ECtHR ruling of January 29, 2019, case Stirmanov v. Russia, CE: ECHR: 2019: 0129JUD003181608.

  44. 44.

    ECtHR ruling of February 21, 2019, case Lolov et al. v. Bulgaria, CE: ECHR: 2019: 0221JUD000612311.

  45. 45.

    ECtHR ruling of March 14, 2019, case Kangers v. Latvia, CE: ECHR: 2019: 0314JUD003572610.

  46. 46.

    ECtHR ruling of October 3, 2019, case Fleischner v. Germany, CE: ECHR: 2019: 1003JUD006198512.

  47. 47.

    Of relevance here are the Sentences of the Spanish Supreme Court (Chamber 2) issued in cases with great social impact: STS 344/2019, of July 4, 2019 – Case “La Manada”-, ES: TS: 2019: 2200 and STS 459/2019, of October 14, 2019 – Case “Procés” –, ES: TS: 2019: 2997. In both cases, various relevant political authorities – Minister of Justice, Secretary of State, etc.– held public demonstrations before the sentence was passed, expressly attributing to the accused the commission of the criminal acts being prosecuted. On the allegation by the defence counsels of those subsequently convicted regarding breach of the right to presumption of innocence, the SC resolved that, although there were “anticipatory and unacceptable claims of guilt”, these had not been finally reflected in the evidentiary assessment process by the sentencing court. Moreover, breaches of the presumption of innocence by authorities or political representatives cannot result in a cessation of proceedings, or, obviously, the issuance of an acquittal, for this reason. What is truly decisive in terms of the presumption of innocence – concluded the SC – is that guilt is the outcome of evidence presented in accordance with constitutional principles, that judgment concerning perpetration has been based on the evidence brought forward in the plenary, and not on a collective, anticipatory and indicial perception by certain authorities linked to criminal prosecution, or by the media. Besides – the 2nd Chamber of the Spanish Supreme Court also highlighted – media pressure is already a common element in jurisdictional activity, and the fact that the finding finally coincides with the state of opinion created is irrelevant here.

  48. 48.

    In Spain, the courts and tribunals appear in the “Protocol on Communication of Justice”, in its 2018 version. Available at: https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunal-Supremo/Oficina-de-Comunicacion/Protocolo-de-Comunicacion-de-la-Justicia/.

  49. 49.

    In Spain, the Judicial Ethics Commission of the General Council of the Judiciary applies the Code of Ethics for the judicial profession, a document approved by the GCJ Plenary, dated 20 December 2016. Available at: http://www.poderjudicial.es/cgpj/en/Topics/Judicial-Ethics-Commission/Documents-of-interest/Principles-of-Judicial-Ethics/.

  50. 50.

    In Spain, see Instruction 3/2005, of the Attorney-General’s Office, “On the relations of the Public Prosecutor’s Office with the media”.

  51. 51.

    CJEU ruling of September 19, 2018, Milev, C-310/18 PPU, EU: C: 2018: 732.

  52. 52.

    In similar terms, the CJEU Order of February 12, 2019, C-8/19, EU: C: 2019: 110.

  53. 53.

    CJEU ruling of September 5, 2019, AH and others, C-377/18 PPU, EU: C: 2019: 670.

  54. 54.

    In Spain, we understand that this obligation imposed by the Directive is fulfilled, at least at the legislative level, in view of the provisions of art. 520 LECrim, regarding “treatment of detainees and prisoners”: “Detention and pre-trial detention should be carried out in the manner least harmful to the character, reputation and property of the detainee or prisoner. Those who agree to the measure and those responsible for putting it into practice as well as for subsequent transfers, shall ensure the constitutional rights to honour, privacy and image, in respect of the fundamental right to freedom of information”. Also applicable here the provision of art. 525 LECrim: “No extraordinary security measure shall be adopted against the detainee or prisoner except in the event of disobedience, violence or rebellion, or when they have attempted or made arrangements to escape”. In the framework of entering and searching closed premises, art. 552 LECrim stipulates: “When carrying out searches, useless inspections should be avoided, taking care not to harm or harass the interested party more than necessary, and all kinds of precautions should be taken so as not to adversely affect their reputation, respecting their secrets if these are of no interest for the proceedings”.

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  1. University of Valladolid, Valladolid, Spain

    Montserrat de Hoyos Sancho

  2. University of Málaga, Málaga, Spain

    Salvador Guerrero Palomares

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  1. Montserrat de Hoyos Sancho
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Correspondence to Salvador Guerrero Palomares .

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  1. Faculty of Law - Procedural Law, University of Valladolid, Valladolid, Spain

    Coral Arangüena Fanego

  2. Faculty of Law - Procedural Law, University of Valladolid, Valladolid, Spain

    Montserrat de Hoyos Sancho

  3. Faculty of Law - Procedural Law, University of Valladolid, Valladolid, Spain

    Alejandro Hernández López

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de Hoyos Sancho, M., Guerrero Palomares, S. (2021). Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence in Criminal Proceedings. In: Arangüena Fanego, C., de Hoyos Sancho, M., Hernández López, A. (eds) Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-030-61177-4_4

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