The statutes dictate that the presumption of innocence only applies in criminal proceedings
The language used in international and regional human rights conventions and international criminal statutes supports the idea that the presumption of innocence applies in the general context of criminal law. The Universal Declaration
Who has the right and when is it operable? 39 of Human Rights provides that ‘[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.’[1] Similarly, the European Convention on Human Rights and the International Covenant on Civil and Political Rights state that the presumption of innocence applies to ‘[e]veryone charged with a criminal offence.’ The American Convention on Human Rights, ad hoc Tribunals, Special Court for Sierra Leone, and Extraordinary Chambers in the Courts of Cambodia provide that it is the ‘accused’ who can benefit from the presumption of innocence. These documents all state that the presumption of innocence applies to people who have been charged or accused, which necessarily implies that they are involved in criminal procedure.
Only the African Charter for Human and Peoples’ Rights is less specific about the context in which the presumption of innocence applies. Article 7 of the African Charter states that ‘[e]very individual shall have the right to have his cause heard.’ This article then includes a number of subsections which specify what ‘the right to have his cause heard’ means. Subsection (b) provides ‘[t]he right to be presumed innocent until proved guilty by a competent court or tribunal.’ Although it uses the word ‘guilty,’ which is inherently a criminal law idea, this still seems to not limit the applicability of the presumption of innocence to any particular type of law. The ‘Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,’ which aids in interpreting and applying the African Charter and was written to ‘further strengthen and supplement the provisions relating to fair trial in the Charter and to reflect international standards,’ clarifies this issue. Section N6(e) states that the presumption pertains to ‘[e]veryone charged with a criminal offence’ and elaborates on some of the presumptions of innocence’s protections that apply ‘in any criminal case.’ This section also makes it clear that the presumption of innocence is applicable to statements made about ‘criminal investigations or charges.’ Thus the presumption of innocence concerns criminal proceedings.
There has been some debate about whether the presumption of innocence has application beyond criminal law. This discussion first arose during the negotiation of the Universal Declaration of Human Rights and appears to have been resolved during the drafting process. The discussion around the appropriatecontext of the presumption of innocence arises from the fact that a number of early drafts did not use the phrase ‘charged with a criminal offence.’[2] However, the Commission’s third session rectified this by including the charging requirement. This had the dual effects of harmonising the French and English versions and clarifying that Article 11 of the Universal Declaration specifically related to criminal law. The implication of this is that the presumption of innocence does not apply outside the general context of criminal law and procedure.
More recently, Antony Duff revived the argument of whether the presumption of innocence can apply outside criminal law. He theorises that there are many presumptions of innocence that relate to different normative situations. This means that there is room for a civic presumption of innocence that exists between citizens in everyday interactions. This civic presumption of innocence, however, is separate and different from the presumption that applies in the criminal context. Based on a mutual civic trust, rather than law, this attempts to explain that individuals have a duty to approach each other with a general trust, unless or until there is a specific reason to not trust a particular person. Duff describes the civic presumption as a theoretical tool used to describe normative human interactions, rather than a presumption that has been proven through practice. While theoretical, if this civic presumption exists, it is a different entity than the presumption of innocence discussed in this book because it is not based in law.
- [1] UDHRart 11(1). 2 ECHRart 6(2); ICCPRart 14(2). 3 ACHR art 8(2); ICTY Statute art 21(3); ICTR Statute art 20(3); SCSL Statute art 17(3); Internal Rules, Extraordinary Chambers in the Courts of Cambodia (as amended 16 January 2015) art 35 new. 4 African Charter art 7. 5 African Charter art 7(1), 7( 1 )(b). 6 The African Commission on Human and People’s Rights, ‘Principles And Guidelines On The Right To A Fair Trial And Legal Assistance In Africa’ DOC/OS(XXX) (2003) preamble. 7 Ibid, arts N6(e), N6(e)(l), (2), (3). 8 Ibid.
- [2] Trechsel (n 9) 155; Weissbrodt (n 6) 20. 2 Commission on Human Rights (n 6). 3 Ibid. 13; Trechsel (n 9) 155; Weissbrodt (n 6) 20. 4 Antony Duff, 'Who must presume whom to be innocent of what?’ (2013) 42(3) NJLP 170. 5 Ibid. 180. 6 Ibid. 181. 7 Ibid.; Antony Duff, ‘Presumptions broad and narrow’ (2013) 42(3) NJLP 268. 8 Trechsel (n 9) 155; Christoph Grabenwarter, European Convention on Human Rights (Beck, Hart 2014) 166, para 153; William A Schabas, The European Convention on Human Rights: A Commentary (OUP 2015) 270-271. 9 Human Rights Committee, ‘General Comment No. 32: Right of Equality Before Courts and Tribunals and to Fair Trial’ (23 August 2007) UN Doc No CCPR/C/GC/32 (2007); Schabas, The International Criminal Court (n 8) 1002.
