Presumption of Innocence

The principle of the presumption of innocence is provided for in Brazilian law, constituting one of the guiding principles of the Criminal Procedure. The same rule is enshrined in several international normative texts such as the American Convention on Human Rights (art. 8.2), International Covenant on Civil and Political Rights (art. 14.2.), European Convention on Human Rights (art. 6.2), highlighting the need to guarantee, to any person accused of an offense, the presumption of innocence as long as the guilt has not been legally proven.

It is, therefore, a structuring principle of criminal procedural systems that materializes in a double sense: it establishes a rule of judgment and a rule of treatment. In summary, as a rule of judgment, it imposes that the burden of proof rests entirely with the accuser, and the doubt will benefit the accused (in dubio pro reo). As a rule of treatment, it imposes that the accused be considered innocent until the final judgment, preventing, for example, the abuse of precautionary prisons.

In addition to these endo-procedural manifestations, the principle also fulfills an important mission external to the process: it requires the state to guarantee protection against abusive advertising and the early stigmatization of the accused, especially those arising from state public agents.

There are important precedents that attest to the importance of the principle of the presumption of innocence as a rule of treatment.  In the Allenet de Ribemont v France case (Application no. 15175/89), Mr. Patrick Allenet de Ribemont was charged and arrested for having participated in the murder of a member of the French Parliament. During the investigation, therefore, before the formation of guilt, several public agents, such as the Minister of the Interior of France, gave interviews to the local press stating that Allenet de Ribemont reportedly participated in the crime. Due to the interviews given by the Public Agents, in 1989, the question was submitted to the European Court of Human Rights (ECHR) under the argument of violation of the principle of the presumption of innocence (art. 6.2.). The ECHR recognized that the principle of the presumption of innocence constitutes a procedural guarantee and, in addition, considered that its scope should be broader than the procedural framework, imposing obligations not only on the Judge, but also on other authorities. In the judgment, it was also emphasized that the presumption of innocence should not impede the right to information, but it does require that information should always be disclosed in a discreet and prudent manner. In this scenario, it was recognized that the interview given by French Public Officials imputing the practice of the crime to Mr. Allenet de Ribemont would violate the principle of the presumption of innocence, as it is a clear declaration of guilt, encouraging the French public to consider him guilty.

A similar situation occurred in the case of GCP vs Romania (Application No. 20899/03), in which the Court considered pre-trial advertising, recognizing that the statements of the Prosecutor responsible for the investigation of the investigator’s guilt in an article published in newspaper consisted of a violation of the principle of the presumption of innocence.

Both precedents acknowledge the violation of the principle of the presumption of innocence based on the active conduct of public authorities, consisting of verbal or written statements about the guilt of suspects.

In my opinion, a similar violation can also result from the omission of public authorities. In Brazil, for example, there are countless television programs where the suspects are submitted, with the consent of the public agents, to media staging whose only objective is not to inform, but to confirm the culpability.

In such cases, it would be reasonable to say that the Public Authority, responsible for the custody of the suspect, should also watch over the fair process, preventing the most primitive expectations of the human being from overriding a fundamental right, such as the presumption of innocence.

The acknowledgment of violation of the presumption of innocence from the active or omissive conduct of the Public Agents responsible for the process and / or criminal investigation does not constitute any violation of the principle of publicity or prior censorship of the informational law that governs the Democratic State of Law. In that case, information useful to society could be provided in a discreet and moderate way without jeopardizing the reliability and legitimacy of the criminal process.

On the other hand,  is not possible to conceive the transformation of the investigated into an object of satisfaction of primitive and economic impulses disguised as freedom of expression. There is no fair process when the evidence (still precarious) is presented by the prosecution and validated by the media, without the right to contradict (crossexamination), with the justification that society is longing for an answer or information.