Presumption of innocence
The presumption of innocence (also presumption of innocence ) is one of the basic principles of a constitutional criminal procedure and is today recognized by most countries of the world at least according to the claim. The opposite is the presumption of guilt .
The presumption of innocence goes back to the French Cardinal Jean Lemoine (1250-1313). In 1631 it was taken up and deepened in German-speaking countries with the formulation in dubio pro reo ("in case of doubt for the accused") by Friedrich Spee in the Cautio Criminalis , an extensive text against the practice of witch hunts , which was rampant at the time . In 1764 it was postulated as a legal principle (“applicable law”) by the Milanese enlightenment and legal philosopher Cesare Beccaria .
"Everyone who is accused of a criminal act is to be regarded as innocent until his guilt has been proven in accordance with the law in a public trial in which all the conditions necessary for his defense were guaranteed."
According to Article 14, Paragraph 2 of the International Covenant on Civil and Political Rights of the United Nations, everyone charged with a criminal offense has the right to “be presumed innocent until proven guilty can be established in the legal process”. In the countries of the Council of Europe , the principle is also guaranteed on the basis of Paragraph 2 of the European Convention on Human Rights (ECHR):
"Anyone charged with a crime is presumed innocent until proven guilty by law."
In the context of the European Union , Article 48, Paragraph 1 of the Charter of Fundamental Rights guarantees: "Every accused is deemed innocent until proven guilty has been legally established." Article 48 Paragraph 1 of the Charter of Fundamental Rights is directly applicable in the EU member states insofar as the member states are member states apply or implement.
Content of the presumption of innocence
To enforce the presumption of innocence, criminal prohibitions ( prosecution of innocent persons , false suspicion , defamation , defamation ) and, depending on the circumstances, various civil law defense and compensation claims (right to reply , revocation , rectification , compensation , monetary compensation , omission ) are provided.
The presumption of innocence ends with the legal force of conviction.
To what extent the presumption of innocence also has an impact on the criminal proceedings, e.g. B. for the mass media reporting on a criminal case is contentious in the details and is handled differently from country to country. In the Federal Republic of Germany, section 13 of the Press Code is devoted to the presumption of innocence : “Reports on investigative proceedings, criminal proceedings and other formal proceedings must be free of prejudice. The principle of the presumption of innocence also applies to the press. "
Presumption of innocence in the preliminary investigation
However, the presumption of innocence does not exclude criminal prosecution measures based on a certain suspicion. In particular, provisional arrest and pre- trial detention on the basis of urgent suspicions are possible without definitive evidence of the guilt of the accused. Because of the presumption of innocence, the investigative methods do not have any punitive effect, although pre-trial detention and the dissemination of this fact through the press and acquaintances of the person concerned can result in a reputation-damaging prejudice that is difficult to avert or eliminate with legal requirements. Due to the presumption of innocence, however, the measures in the preliminary investigation are also tied to certain conditions. No criminal proceedings at all may be initiated without initial suspicion .
A weighing of interests must be made in the public search and restraint must be maintained in the case of official support for the publication of a criminal accusation.
Presumption of innocence in security law
In principle, the presumption of innocence does not apply to hazard prevention law. The law of averting danger follows different provisions than the law of criminal procedure. Security measures are independent of “ guilt ” in the legal sense; there is also no formalized taking of evidence and no guilty verdict is given. However, interventions in connection with hazard prevention measures are generally only possible if there is a risk in the sense of police law and may only be used against a person who is at risk . If there is no danger, but there is a suspicion of danger, due to the existing doubts for reasons of proportionality at the level of legal consequences, only risk research interventions are permitted, i.e. measures that are not aimed at eliminating the dangerous state, but rather serve to determine the necessary scope of the final security measures.
- Carl-Friedrich Stuckenberg: Investigations into the presumption of innocence. Walter de Gruyter, Berlin [a. a.] 1998, ISBN 3-11-015724-1 (At the same time: Bonn, Univ., Diss., 1997).
- Wolfgang Staudinger: What are the consequences of the presumption of innocence in criminal proceedings? An investigation de lege lata and de lege ferenda. Nomos, Baden-Baden 2015, ISBN 978-3-8487-2670-7 (also: Regensburg, Univ., Diss., 2015).
- official EU languages , available on the European Union search engine EUR-Lex . The bilingual display can be used to compare the language versions (e.g. DE / EN). Legal notice: Only the Community law published in the printed editions of the Official Journal of the European Union is binding! , in all
- Foreign Office: German translation of the International Covenant on Civil and Political Rights (PDF; 79 kB)
- Frauke Rostalski : The scope of the presumption of innocence in the case of (acquittal) judgment 
- Oliver R. Scholz: Understanding and Rationality. Research into the basics of hermeneutics. Habilitation thesis. Free University of Berlin 1996. Klostermann, Frankfurt am Main 2001, ISBN 3-465-03136-9 , p. 149 ( Google books ).
- Cesare Beccaria: Dei delitti e delle pene ( Of the Crimes and the Punishments , 1764), Chapter 4, Section 12, Paragraph 2.
- However, this is not an absolute principle according to Art. 6 Para. 2 ECHR, but a rebuttable presumption. Presumptions of guilt in criminal law do not fundamentally violate Art. 6 Para. 2 ECHR. 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.
- Gabler Business Dictionary
- for German law: Meyer-Goßner, StPO, 49th edition. Annex 4 MRK Art. 6 Rn. 14th
- for German law: Erichsen, Jura 1995, 219, 221
- for German law: Schoch, JuS 1994, 669