The presumption of innocence protects equality before the law.
The presumption of innocence is a principle of criminal law which states that every individual is considered innocent until proven guilty through a judicial process . This means that only when a person's guilt has been legally declared is their innocence no longer presumed.
Before going into the concept in depth, it is important to analyze the terms that comprise it. Presumption is a conjecture, assumption or belief. The idea of innocence , meanwhile, refers to the nonexistence of guilt.
It is worth noting that the Universal Declaration of Human Rights includes the presumption of innocence as a fundamental and inalienable guarantee. The notion also appears in the European Convention on Human Rights , the American Convention on Human Rights and other international treaties.
Importance of the presumption of innocence
The presumption of innocence implies that the reputation of the accused must be preserved in all instances of the criminal procedure . This innocence ceases to be considered only when guilt is proven through a fair public trial in which due process and procedural guarantees were respected. Confirmation of guilt is materialized with the corresponding final judgment, which establishes a sanction in accordance with the provisions of the law.
The right to the presumption of innocence has a double implication. On the one hand, it means that the person under investigation must be treated as innocent at all stages of the process. On the other hand, since the presumption of innocence is the starting point, the person who accuses or files a complaint is obliged to present the necessary evidence to prove guilt before the competent judge or court . The burden of proof, therefore, falls on the complainant: he is the one who must prove guilt, and not the accused to prove his innocence (since it is presumed).
The key to this principle, in short, lies in the fact that the accused does not have to prove his innocence : the process begins by assuming it as certain. Judges begin their work with this starting point and must assess the evidence presented by the complainant in order to modify the concept. It cannot be overlooked, in this context, that the evidence must comply with certain premises in order to be valid and accepted.
There is even what is known as the principle of in dubio pro reo . This refers to the fact that the judge may have a subjective doubt about what the defendant did even when the evidence is objectively convincing. In that case, if the doubt is logical and rational and the burden of proof does not generate the necessary conviction in the judge, he has the power to acquit the defendant.
In the event of a formal accusation, the presumption of innocence must be preserved.
Changes throughout history
Today, the presumption of innocence is considered to be fundamental to the rule of law and indispensable for the exercise of the right to a fair trial. However, this concept did not exist before.
Modern judicial processes are based on the principle of adversarialism : there are two parties whose legal positions oppose each other and a court or judge - in charge of issuing the sentence - who does not take any position and applies impartial justice.
In the inquisitorial law of the Middle Ages , however, the inquisitorial principle prevailed. The court that was to conduct the proceedings and issue the verdict adopted an active position and incorporated its claims and arguments.
This system, typical of absolute monarchies, was governed by secret procedures. The accused not only had no rights, but was also considered guilty from the outset . Instead of being allowed a fair defense, he was forced to incriminate himself through torture until he confessed his guilt.
In the inquisitorial process, therefore, there was no presumption of innocence, but of guilt. There was no evaluation of evidence; the (forced) confession of the accused was sufficient to determine that he was guilty.
The situation changed with the Enlightenment and the emergence of modern criminal law. The Declaration of the Rights of Man and of the Citizen in 1789 , a key document of the French Revolution , already included the presumption of innocence.
The presumption of innocence means that evidence and proof must be presented to prove guilt.
Criticism of the presumption of innocence
It should be noted that, beyond its relevance, the principle of presumption of innocence has been criticized. Most of the criticism revolves around the fact that, according to this view, it overprotects the accused , which in turn results in society being less protected against crime.
In this context, it is often pointed out that the presumption of innocence undermines precautionary measures that seek to anticipate, maintain or guarantee the effectiveness of the resolution that could be issued. Let us take the case of preventive detention , a measure decided by a judge to deprive the person under investigation of his or her freedom during the development of the criminal process with the aim of preventing him or her from committing actions that may interfere with said process or cause harm to third parties. If the presumption of innocence is privileged, preventive detention cannot take place, putting the progress of the judicial process at risk.
Another objection to the presumption of innocence is that there is a markedly unequal relationship between the parties . In this case, protecting the accused may mean leaving the complainant unprotected.
There are even those who argue that there is a right to suspicion . This perspective considers it legitimate that a suspicion of guilt motivates action by the State, leaving aside the presumption of innocence.