The Presumption of Innocence: The International Perspective

The presumption of innocence is firmly entrenched in the Anglo-American justice system. As discussed my last two postings, found here and here, the presumption of innocence has grown into its own: from simple beginnings as a rule of evidence, it is now the cornerstone of our criminal law.

As a result of the development and acceptance of the presumption of innocence in the Western legal tradition, the presumption has also taken root internationally. Most International human rights documents speak to the presumption of innocence as a required element of a fair trial.

The presumption of innocence protection appears under Article 11(I), in the post-World War II Universal Declaration of Human Rights, of which I have discussed in a prior posting. Additionally, the International Covenant on Civil and Political Rights of 1966 in Article 14 contains the right to the presumption of innocence. As a signature nation to the UN, Canada has adopted these documents as evidenced by our own Charter equivalent found in s.11(d).

However, it is easy to see why Canada, the United States, and other Commonwealth countries would readily implement this right into their legal process considering the English common law legal origin of the presumption of innocence. For other signatory countries following the differing tradition of an inquisitorial based legal system or Continental Law, the issue of implementing the presumption of innocence is not as simple despite their acceptance of the Latin maxim of in dubio pro reo, meaning “when in doubt, for the accused.”

In France, for instance, the presumption of innocence or presomption d'innocence comes not from case law, but from the political and philosophical heart of the Nation as found in the 1789 Declaration of the Rights of Man and of the Citizen under article 9, which reads in part “Tout homme etant presume innocent jusqu'l ce qu'il ait eti dc'clare coupable” or “As all persons are held innocent until declared guilty.” As argued by Francois Quintard-Morenas in an excellent journal article in The American Journal of Comparative Law on The Presumption of Innocence in the French and Anglo-American Legal Traditions, although the French have arrived at the presumption in a more cultural manner and have implemented it consistent with their legal tradition, it is still a defining principle of French continental law.

The German concept of the presumption of innocence or unschuldsvermutung derived from the Latin maxim of in dubio pro reo was integrated into their legal system as a result of the adoption of International human rights documents such as the 1950 European Convention on Human Rights in article 6(2). Again, World War II had a large impact on the acceptance of this principle.

Interestingly, Spain and Russia have, within the last decade, turned to a jury trial system requiring the implementation of the presumption of innocence as an integral part of the jury trial process. Although continental law accepts the concept, it is quite another matter to integrate the concept into the continental inquisitorial system. It becomes even more complicated when the jury system, a purely English common law construct, is imposed. For an interesting discussion of this issue, see Stephen Thaman’s article Europe's New Jury Systems: The Cases of Spain and Russia in Law and Contemporary Problems, Vol. 62, No. 2, The Common Law Jury (Spring,1999), pp. 233-259.

In the People’s Republic of China, the presumption of innocence does not exist, but neither does the presumption of guilt. Instead, the Chinese legal system “presumes” nothing, preferring to seek “truth from facts” by “taking facts as the basis and the law as the yardstick.” Yet, this seemingly neutral manner of deciding guilt or innocence contradicts case reality: certainly the “Gang of Four” trial would suggest otherwise. For an interesting discussion of these issues, see The People's Republic of China and the Presumption of Innocence by Timothy Gelatt found in The Journal of Criminal Law and Criminology (1973-), Vol. 73, No. 1 (Spring, 1982),pp. 259-316.

All of this leads us to appreciate that Anglo-American legal principles do not “rule” the world. There are many other jurisdictions where our fundamental core principles are either not followed or are merely general guidelines. Legally, this may be acceptable. When, however, a fundamental value like the presumption of innocence is involved, it becomes more difficult to accept the differences.