Presumption of guilt

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The presumption of guilt ( in dubio contra reum ) is a legal presumption and is always present when the specific guilt / responsibility of a person has not yet been determined, but is assumed by law ( de iure ) as probable (there are still doubts about the act or the act or execution) and this already goes far beyond suspicion or suspicion .

The presumption of guilt is to be seen as the opposite of the known and legally recognized presumption of innocence . While the presumption of innocence is seen as one of the basic principles of constitutional criminal and administrative criminal proceedings as well as criminal tax law, the presumption of guilt is permissibly used in many areas of state procedural law.

On the occasion of the Green Paper on the presumption of innocence published by the European Commission in 2006 , independent experts and members of the legal profession pointed out that the undermining of the principle of the presumption of innocence is becoming more and more widespread and that a principle of the "presumption of guilt" seems to be more and more tolerated. This is particularly the case with investigations against foreigners or non-residents.

It can basically be divided into the legal and the factual presumption of guilt.

Word derivation and meaning

Guilt presumption consists of the words guilt and presumption .

From a legal point of view in the present context, guilt can e.g. B. mean

In the present context, the presumption can be:

  • actual presumption (evidence based on experience - praesumptio facti ),
  • rebuttable legal presumption (the burden of proof is shifted by law - praesumptio iuris ) or
  • irrefutable legal presumption (requirements for proof are completely eliminated - praesumptio iuris et de iure ).

The legal presumption of innocence limits the scope of government action with regard to a possible limitation of the individual freedom of the individual. The statutory presumption of guilt, on the other hand, makes it easier for the state to accuse individuals of behavior that can be sanctioned.

Legal basis

In the countries of the Council of Europe , the principle of the presumption of innocence is guaranteed on the basis of Article 6, Paragraph 2 of the European Convention on Human Rights (ECHR):

"Anyone charged with a crime is presumed innocent until proven guilty by law."

However, the presumption of innocence is not an absolute principle according to Art 6 Para. 2 ECHR, but a rebuttable presumption. For example, presumptions of guilt in criminal law do not fundamentally violate Article 6 (2) ECHR, provided that they are reversible.

The European Union is bound to the principle of the presumption of innocence by Art. 48 para. 1 Charter of Fundamental Rights even before it joins the ECHR. In principle, therefore, it may not enact any legislative act that conflicts with the presumption of innocence, in which the presumption of guilt is thus given irreversible priority.

Content of the presumption of guilt

Statutory presumption of guilt

A legal presumption of guilt always exists if the doubt about the individual guilt / responsibility does not necessarily benefit the suspect or accused in a state proceeding.

The presumption of guilt stipulates that anyone potentially suspected or accused of an act is treated as absolutely or relatively guilty throughout or during part of the proceedings. The suspect or accused often has to prove his innocence to the authorities during the proceedings (reversal of all or part of the burden of proof).

  • A permissible legal presumption of guilt exists if the state or a sovereign official imputable to it assumes the guilt of the suspect or accused as given, but rebuttable, under certain conditions.
  • An inadmissible legal presumption of guilt exists if the state or a sovereign official imputable to it assumes the guilt of the suspect or accused as given under certain conditions and on this basis holds him responsible. If the suspect / accused cannot defend himself sufficiently, there is also a relevant violation of the rule of law .

Factual presumption of guilt

The factual presumption of guilt is given if, under certain conditions , people assume that the suspect or accused is guilty. The factual presumption of guilt, especially through the media (see below) or social networks, is difficult to refute, as there is almost always an imbalance between reporting / allegation and the possibility of justification.

Statutory presumption of guilt

Presumption of guilt in criminal law

The European Court of Human Rights has admitted in narrowly defined cases that the burden of proof can be shifted to the defense without this constituting a violation of the presumption of innocence. However, the principle of the “ fair trial ” must always be observed and this must be seen in this context.

The " Proposal for a directive of the European Parliament and of the Council to strengthen certain aspects of the presumption of innocence and the right to be present at the hearing in criminal proceedings " partially overturns the principle of the presumption of innocence and allows a presumption of guilt within certain limits and criminal proceedings.

Presumption of guilt in cost law

The overburdening of procedural costs in criminal proceedings on the accused, although an acquittal was made, was judged several times as a violation of the presumption of innocence and, in effect, as a (public) presumption of guilt. This is especially true because the public does not distinguish between costs and fines.

Presumption of guilt in administrative law

In administrative law there is no general presumption of innocence. In numerous cases, for. B. the citizen of the authority can prove compliance with special duties of care. If he cannot provide this evidence, it is sometimes assumed that he has acted at least negligently (culpably). In administrative law, in particular, the basic procedural rights of not having to incriminate yourself and the right to refuse to testify do not generally apply as a discharge in favor of the accused and thus reinforce the presumption of guilt.

Examples

Section 5 (1) of the Austrian Administrative Penal Act 1991 states: Unless an administrative regulation stipulates otherwise on fault, negligent conduct is sufficient to make it criminal. Negligence is to be assumed without further ado in the event of a violation of a prohibition or non-compliance with a command, if the occurrence of damage or danger does not belong to the offense of an administrative offense and the perpetrator does not credibly show that he is not at fault for the violation of the administrative regulation. Since this standard has existed, according to the case law of the Administrative Court z. For example, no company in Austria has ever succeeded in certifying that it has done everything necessary in individual cases to prevent an administrative violation from occurring.

In the case of a proven infringement in a company, it is generally assumed that the entrepreneur knew about it and approved it, or at least not effectively prevented it.

A potential employee can, as soon as he is passed over in a hiring process, simply demonstrate that this was done on discriminatory grounds. The employer must prove otherwise in court. If he cannot do this, the presumption of guilt applies instead of the presumption of innocence.

Presumption of guilt in passenger law

With regard to the extensive collection and screening of personal data from passengers, without any basic suspicion, it is argued from various sides that there is a state circumvention of the presumption of innocence, which, among other things, Article 6 (2) ECHR and Article 48 (1) GRC does not is compatible (this is also a disproportionate interference with the freedom of the individual). This could not be justified with any counter-terrorism measures, since such a danger must first be real and concrete. However, this is systematically a general suspicion (see below: Delimitation).

Presumption of guilt in tax law

As in administrative law, the accused also has to prove compliance with the relevant tax and / or tax law provisions in the context of tax law and, if he does not succeed in providing this evidence, is charged at least partial responsibility.

Presumption of guilt in sports law

If the test result is positive, a presumption of guilt applies in doping proceedings in sports law.

The principle of absolute liability applies to doping controls according to the rules of NADA and WADA . H. if a substance is detected in the urine or blood of a controlled athlete that is on the doping list , the athlete is considered guilty. The only possible defense is that the test result was wrong. Whether the athlete knew that he was consuming the substance, however, is irrelevant.

Only a few doping suspects have so far been able to prove their innocence through lengthy and complicated procedures. Thus Diane Modahl acquitted of doping because it could prove ultimately that inadequate cooling may have led to their urine samples to erroneous results. She then lost the £ 450,000 damages lawsuit against the British Athletics Federation (BAE), which left her with financial ruin. Athletes are now obliged to give their whereabouts three months in advance in order to be able to plan training controls. If an athlete is not found three times, this is considered to be an offense on the same level as proven doping, which is then sanctioned accordingly.

The differences between the unconditional obligation to stand up for the imposition of sports law sanctions by sports organizations or their jurisdiction and the presumption of innocence in German criminal proceedings make it difficult to draw up an anti-doping law with penalties in Germany. The German Olympic Sports Confederation fears that an anti-doping law will soften the standards that have previously been in force in sport.

Factual presumption of guilt

The general prohibition contained in the various laws and regulations in Europe with regard to a violation of the presumption of innocence is sometimes reversed by some media to the presumption of guilt when the dutiful statement is interwoven in a report that, of course, the presumption of innocence applies to the accused. By using this standing sentence, exactly the opposite of what is guaranteed in the law can be conveyed to the media user without committing a direct breach of the law.

With regard to social media such as B. Facebook and similar, a legal regulation can generally only apply with difficulty if a factual presumption of guilt has been raised against a specific person. The means of criminal law to act against it are z. B. way too slow.

Demarcation

The presumption of guilt is different from the general suspicion, since the general suspicion is generally directed against a whole group of people before a specific (new) act is committed. The presumption of guilt applies to a certain person individually after an act has been committed, but the perpetrator has not yet been adequately identified. In addition, the person who is suspected of guilt can exempt himself from this accusation (at least in a constitutional state), while this is usually not possible for persons of a certain group who are under general suspicion.

The presumption of guilt can only be directed against persons , not against things or legally relevant situations (such as general suspicion or suspicion ).

See also

Wiktionary: Assumption  - explanations of meanings, word origins, synonyms, translations

Web links

literature

  • Elemér Balogh, The Suspected Punishment as a Form of Presumption of Guilt : The Problem of the Suspected Punishment from the Abolition of Torture to the Introduction of Free Evidence , JATEPress, Freiburg i. Br. 1993, publication series: Acta juridica et politica (university publication), Univ., Diss., 1992.
  • J. Baumann, presumption of guilt in traffic criminal law , in: Neue juristische Wochenschrift (NJW), Munich 1959, Beck Verlag, vol. 12, p. 2293, ISSN  0341-1915 .
  • Maximilian Decker, presumption of guilt and liability of third parties in financial criminal law , Oberviechtach approx. 1927, Univ. Diss.
  • Uwe Diercks, State presumption of guilt instead of constitutional presumption of innocence: who monitors the guards? , in: Neue Kriminalpolitik Vol. 21 (2009), no. 4, pp. 150–159, ISSN  0934-9200 ( [2] online).
  • Tillmann Eufe, The presumption of innocence in doping proceedings : at the same time an analysis of the sports jurisdiction of the German Football Association and the German Athletics Association , Baden-Baden 2005, Nomos-Verlag, Univ., Diss. 2004, ISBN 3-8329-0989-3 .
  • Anke van Kempen, The speech in front of the court: trial, tribunal, investigation: forensic speech and language reflection with Heinrich von Kleist, Georg Büchner and Peter Weiss , Munich 1971, 1st edition, dissertation, ISBN 3-7930-9385-9 .
  • Dietmar Koppensteiner, The guilt in administrative criminal law: a dispute with the presumption of guilt of § 5 Abs. 1 Satz 2 VStG , Linz 1994, Univ., Diss.
  • Werner Lierow, Problems of the presumption of guilt in the course of the historical development of German criminal proceedings , around 1957, dissertation, Mainz 1957.
  • Carl-Friedrich Stuckenberg: Investigations into the presumption of innocence. Walter de Gruyter, Berlin et al. 1998, ISBN 3-11-015724-1 (also: Bonn, Univ., Diss., 1997).
  • Johannes Wilkmann, The transfer of the athlete in the doping process: direct and indirect evidence in the light of the presumption of innocence Hamburg 2014, Lit-Verlag, ISBN 978-3-643-12433-3 .

Presumption of guilt in literature and media

Individual evidence

  1. ↑ This is understood to mean doing , tolerating and omitting .
  2. ↑ The presumption of guilt is to be distinguished from the guilt principle (see: nulla poena sine culpa ).
  3. ↑ COM (2006) 174 final of April 26, 2006 .
  4. ↑ Quoted from: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL to strengthen certain aspects of the presumption of innocence and the right to be present at the hearing in criminal proceedings (PDF) of November 27, 2013, p. 5.
  5. ↑ See e.g. B. the Salabiaku v. France, judgment of 7 October 1988, 10519/83; Case Radio France And Others v. France, judgment of March 30, 2004, 53984/00; Case Haxhishabani v. Luxembourg, judgment of January 20, 2011 - 5213/07.
  6. ↑ See the opinion of the German Lawyers' Association by the Criminal Law Committee on the proposal for a directive of the European Parliament and of the Council to strengthen certain aspects of the presumption of innocence and the right to be present at the hearing in criminal proceedings (2013/0407 (COD)), p. 3.
  7. ↑ See e.g. For example: Salabiaku v France, judgment of 7 October 1988, complaint no. 10519/83; Barberà, Messegué and Jabardo versus Spain; Telfner v Austria, judgment of March 20, 2001, complaint no. 33501/96. See also BGH 4 StR 47/52 on the old § 259 StGB (stealing) online .
  8. ↑ See text (German): Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL to strengthen certain aspects of the presumption of innocence and the right to be present at the hearing in criminal proceedings (PDF) of November 27, 2013 and Interinstitutional dossier: 2013/0407 (COD ) of November 20, 2014 and the criticism of it by the German Lawyers' Association (Committee on Criminal Law) [1] . See also the amended draft directive by the draft report of the European Parliament of January 21, 2015 (2013/0407 (COD)) and the rejection of the presumption of guilt by the Committee on Civil Liberties, Justice and Home Affairs (LIBE).
  9. ↑ See: Carl-Friedrich Stuckenberg, Investigations on the Presumption of Innocence. , P. 156 f with reference to Swiss legal practices.
  10. ↑ Nicolaus Raschauer in Zeitschrift für Finanzmarktrecht (ZFR), 6/2017, p. 266.
  11. ↑ See e.g. B. BVerfG 9, 167, 169 ff; BVerfG NStZ 1987, 118; 1988, 21; BVerfG decision of December 1, 1986 in BvR 1029/86, p. 3. See also ECJ in case "Hansen", C-32/88, Coll. 1990, p. 2911.
  12. ↑ Quoted from: German Bundestag; Application: "No further job cuts - withdraw the anti-discrimination law", printed matter 15/5019.
  13. ^ Daily Telegraph, December 14, 2000
  14. ↑ Arnd Krüger : Basics of doping prophylaxis. In: Rico Kauerhof, Sven Nagel, Mirko Zebisch (eds.): Doping and violence prevention (= series of publications by the Institute for German and International Sports Law. Volume 1). Leipziger Universitätsverlag, Leipzig 2008, ISBN 978-3-86583-300-6 , pp. 143–166.
  15. ↑ According to the law is before the law , FAZ.net of November 11, 2014
  16. ↑ See e.g. B. Zif. 13 Press Code Germany . See e.g. B. Art 7b Austrian Media Act or Art 9-1 Civil Code .
  17. ↑ See e.g. For example: judicial populism new: the presumption of guilt applies , Die Presse, February 7, 2014.