*Av. Elif SODAZİ
Presumption of Innocence; means that a person is presumed innocent until it is proven with conclusive and convincing evidence that the person has committed the crime.
Although the presumption of innocence has different names in modern legal systems, its origin is based on Ancient Roman law. It was principled in the law with the words of ‘’Ei incumbit probatio qui dicit, non qui negat’’ ( "Proof lies on him who asserts, not on him who denies").
In addition, the effects of this presumption in the Talmud which regulates the Jewish Sharia and in Islamic law show the importance and antiquity of the principle in terms of legal history and natural law.(jus naturale)
Although the effects of the presumption of innocence in the sense of modern Western Law are seen in the Magna Carta dated 1285, it was first included in the opening paragraph of The Declaration Of Rights Of Man And The Citizen on 6 August 1789.
Art. 9:‘’As every man is presumed innocent until he has been declared guilty, if it should be considered necessary to arrest him, any undue harshness that is not required to secure his person must be severely curbed by Law.’’
Until the date, the general attitude in western law was that the person on trial was considered guilty. With the development of humanity, the spread of liberal ideas and the French Revolution, the old approach was abandoned and the Presumption of Innocence took its place in international conventions and national legislations. Thus, the presumption of innocence has found its place in the constitutions of many countries and in international conventions.
Presumption of Innocence in terms of Turkish law
The presumption of innocence in Ottoman- Turkish law was first included in the
Ottoman Code Of Civil Law (named Mecelle) which was compiled between 1868 and 1876. The presumption of innocence was not explicitly regulated in the 1924 and 1961 Constitutions adopted during the Turkish Republic. In the periods the presumption of innocence took its place in positive law through the Penal Codes. With the signing of the European Convention on Human Rights, the presumption of innocence was enshrined in the 1982 Constitution
In the last sentence of Article 15 of our Constitution:’’ No one can be considered guilty until his/her guilt is determined by a court decision.'’ and in paragraph 4 of Article 38,: 'No one can be considered guilty until his/her guilt is proven by judgment.'
The presumption of innocence is one of the inviolable rights even in extraordinary situations.
2. Presumption of innocence in terms of the European Convention on some Cases
ECHR art. 6/2:’’ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’’
According to the article, the presumption of innocence to be asserted depends primarily on the presence of a criminal charge against the person.( criminal charge in the sense of criminal law.)
While the European Court of Human Rights determines what crimes are in terms of criminal law, it does not consider itself fully bound by the domestic law of the contracting states.
Thus, In the Case of Öztürk v. Turkey; it has been accepted that the act, which is an administrative offense according to the German legislation, is of a "criminal" nature in terms of Article 6 of the Convention.
It is not essential that a criminal case has been brought in view of the effects of the presumption of innocence
The presumption begins to have its effects from the moment the first prosecution is made on the suspicion that the individual has committed a crime.(Case of Minelli v. Switzerland)
In this respect, the presumption of innocence shows its effect not only in the criminal case and its consequences, but also in all phases of the trial and in other cases related to this case.
Case of Englert v. Germany; the applicant requested compensation from the state for the days he was detained after a trial in which he was acquitted. However, this request was rejected by the German local court.
The court stated that the reasons given by the local court in rejecting the claim for compensation regarding the length of detention did not point to a still existing suspicion of guilt on the acquitted accused, and therefore the presumption of innocence was not violated.
European Court of Human Rights, in the case of Barberá, Messegué v. Jabardo v. Spain ;
it was stated that the judges of the local jurisdiction shall not start the proceedings with the prejudice that the accused committed the crime which is the subject of the charge. The burden of proof during the jurisdiction shall be on the prosecutor, not the defendant.
The prosecutor is under an obligation to present to the court sufficient means of evidence to convict the accused. The prosecutor must inform the defendant of the case to be opened. Thus, the accused can have the opportunity to prepare and present his defense.
The presumption of innocence is violated if the idea that the accused is guilty is reflected or implied even though guilt has not been officially established.
In the Case of Minelli v. Switzerland, it has been stated that it is against the presumption of innocence to bear a portion of the trial costs on the accused in case the case ends due to the statute of limitations without proving the accused guilty.
The presumption of innocence imposes obligations not only on the judiciary, but also on all state organs.
In the Case of Sekanina v. Austria, It has been considered as a violation of the presumption of innocence that a minister made a press statement incriminating the accused without a final judicial decision.
Presumption Of Innocence And Period Of Detention
In the Art. 5/3 of the Con. : 3. ‘’ Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.’’
The "reasonable time" referred to is the reasonable time to be spent in detention. It is stipulated in Article 6 of the contract that the trial should conclude within a reasonable time.
Art. 6/2. : ‘’Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’’
Accordingly, in the presence of justifiable reasons, the case may have continued for a long time. In that a case, there had been no violation of Article 6. Whether the reasonable period of detention has been exceeded should be determined according to the circumstances of each concrete case. In the established jurisprudence of the Cort, it is decided that the following issues should be taken into account in the determination of the reasonable period.
-The period of restriction of freedom.
- The qualification of the crime and the possible punishment.
- pecuniary lost, intangible damages and other effects of the restriction of freedom
exc.
In summary; The presumption of innocence, which is one of the indispensable elements of the rule of law, is a principle that is also included in ancient legal thoughts and is also guaranteed in today's modern laws. Also prevents the person from being considered guilty and stigmatized by society unless it is proven with precise and clear evidence beyond reasonable doubt.
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