Note: Although the presumption of innocence is one of the widely applied practical principles (al-usul al-‘amaliyyah) of Islamic judicial jurisprudence, its application is not confined to Islamic jurisprudence and law, as it is also posited in other legal systems. This, of course, does not imply a consensus among legal systems regarding the acceptance of this principle. Dr. Mohammad Ashouri, in his article “The Presumption of Innocence and Its Effects in Criminal Matters,” published in issue 1159 of the Journal of the Faculty of Law and Political Science at the University of Tehran in October 1993, explores the various theories of legal schools concerning this principle and its effects on judicial law. An excerpt of this article follows:
Introduction
The presumption of innocence, which may be considered the shared legal heritage of all progressive nations worldwide, has garnered special interest and attention from legal scholars and legislators in domestic legal systems over the past century or two, particularly following World War II, as well as becoming the subject of declarations and conventions at regional and international levels. Historical studies indicate that in the distant past, and even up until the last century or two, except in certain legal systems (such as Islamic law), the presumption of innocence of accused persons—at least regarding certain charges—was not accepted. In the absence of sufficient evidence presented by the complainant against the accused, the burden of proving innocence was placed upon the accused themselves. This critical matter was achieved during certain historical eras through recourse to ordeals or divine judgment, which were rooted in pagan beliefs; judges believed that the deities would come to the aid of the innocent accused, and that such an accused would emerge triumphant from the ordeal trial.
For instance, in the Code of Hammurabi, the outcome of cases involving charges of witchcraft and adultery was determined by divine judgment: according to Article 132 of this Code, “If a married woman is accused of sleeping with another man, but her husband has not caught her in the act, she must submerge herself in the sacred river once to prove her innocence.”
In ancient Iran, divine judgment was customary through recourse to thirty-three ordinances, which were divided into var-e garm (hot ordeal) and var-e sard (cold ordeal). In medieval Europe as well, particularly during the Frankish period, ordeal was a common means of proving the guilt or innocence of certain accused persons; an accused who failed to provide sufficient evidence of their innocence was, in some cases, compelled to undergo trial by red-hot iron, toxic plant juices, and the like. In the body of laws pertaining to Hindu judicial affairs, known as the Code of Manu, it is stated: “A truthful oath belongs to him whom fire does not burn, whom water does not drown, and whom it envelops (so that he remains floating on the water unharmed).”
It is thus observed that the innocence of the accused, as contemplated in the contemporary era, was not taken into account by legislators in past eras. Although in Roman law, under the decree of Antoninus, it was established that “in cases of doubt regarding the guilt of the accused, judgment must be rendered in his favor, and everyone is innocent until proven guilty,” medieval courts treated it with their characteristic indifference and, in practice, substituted the presumption of guilt for the presumption of innocence.
World War II, the occupation of Europe by Nazi Germany, and the imprisonment of patriots—including jurists and judges—led post-war society to accord greater attention to the presumption of innocence, a principle to which due weight had previously been given in the French Declaration of the Rights of Man and of the Citizen of 1789. In particular, judges who had been imprisoned by invading forces due to resistance or non-cooperation with the occupiers, and who had experienced imprisonment and the deprivation of the right to defense firsthand, realized the tangible truth that, in addition to actual criminals, innocent citizens could also fall under unwarranted suspicion and suffer the fate of felons.
The end of World War II in Western Europe coincided with the termination of autocracy, and renewed attention to sublime values and human dignity rendered the establishment of protective legal institutions necessary, particularly at the international level. In this context, attention to individual rights and freedoms assumed special significance through emphasis on the presumption of innocence in criminal proceedings. Although the French Declaration of the Rights of Man and of the Citizen of 1789, drawing upon the achievements of the Great Revolution and following Roman law, had previously emphasized the said principle with the phrase “Every man is presumed innocent until he has been declared guilty,” the United Nations Universal Declaration of Human Rights in 1948 re-emphasized the necessity of observing the presumption of innocence in Article 11, using similar phrasing, in order to draw the specific attention of member states. Finally, the European Convention on Human Rights, also known as the Convention for the Protection of Human Rights and Fundamental Freedoms, devoted paragraph 2 of Article 6 to declaring the presumption of innocence with the phrase “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law,” thereby refocusing the attention of European member states of the Council of Europe that ratified the Convention and its Additional Protocols on the necessity of creating specific conditions for applying the said principle at the regional level.
Notwithstanding the foregoing, not all jurists and legal schools have reached a consensus regarding its scope of application. Certain historical events, particularly the rise of autocratic and fascist governments, have contributed to such interpretations. After a brief examination of the views of opponents in the first section, we shall devote the second section to providing the necessary explanations regarding the effects of the presumption of innocence.
Section One: Opposing Perspectives
A. The Positivist School: Among the schools of penal science and criminology of the late nineteenth and early twentieth centuries, the Positivists, led by Enrico Ferri, criticized the presumption of innocence. From the perspective of this scholar, the presumption of innocence undoubtedly signifies that every citizen should be viewed with respect and considered an honorable individual; however, this interpretation should not be taken to extremes: “When an offender is caught in the act of committing a crime (flagrante delicto), or in cases where the accused confesses to committing the offense, the presumption of innocence is undermined in such instances. In other words, the said principle cannot hold the same logical and legal validity in all cases; its value is diminished even further, especially when dealing with born or professional criminals rather than emotional or opportunistic ones.” Thus, from Ferri’s viewpoint, the presumption of innocence can be valid only regarding opportunistic offenders, and even then on the condition that they have not confessed to the crime and were not caught flagrante delicto!
Nevertheless, as proponents of the presumption of innocence have long pointed out, and particularly in light of the modern achievements of criminal sciences and criminology, the above view stands in contradiction to contemporary scientific and legal realities:
First, the necessity of conducting a fair trial and observing procedural principles, even in flagrante delicto offenses, is recognized in the laws of all countries, including Iran. Furthermore, the Universal Declaration of Human Rights subsequently made no distinction between offenders caught flagrante delicto and others, employing the phrasing “Everyone charged with a penal offence has the right to be presumed innocent…” Accordingly, conducting a fair trial, observing criminal procedure, and the necessity of presenting sufficient evidence to satisfy the judicial conscience—even in flagrante delicto cases—rest upon the public prosecutor’s office and the complainant, which itself demonstrates the acceptance of the presumption of innocence even in flagrante delicto offenses.
Second, the theory of the “born criminal” as propounded by the Positivist School, particularly by Ferri and Lombroso, was rejected as early as the beginning of the present century by the French Sociological School led by Dr. Alexandre Lacassagne and Émile Durkheim. From the very First Congress of Criminal Anthropology (Rome, 1885), Lacassagne declared that “societies have the criminals they deserve,” substituting his sociological interpretation of crime, the criminal, and the role of the social environment in criminology for the born criminal theory of Lombroso and Ferri. Additionally, it must be noted that given the achievements of psychological and medical sciences throughout the present century, the factors behind criminal behavior must inevitably be sought beyond the physical characteristics and appearances of offenders.
Third, regarding professional offenders and recidivists, the presumption of innocence cannot be disregarded on the basis of their prior offenses: no matter how extensive an accused person’s criminal record may be, there remains the possibility that they did not commit the newly alleged offense and that the actual perpetrator is another individual. The accused’s criminal record can only serve as an aggravating factor to increase the penalty or alter its type and degree; it absolutely does not exempt the prosecuting authority or the private complainant from presenting sufficient evidence regarding the new charge. Article 6(1) of the European Convention on Human Rights emphasizes the necessity of a fair trial for any charge brought against anyone in the following terms: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
B. A Neutral Stance Toward the Accused During Proceedings: Among liberal jurists as well, some, influenced by specific political circumstances, have questioned the presumption of innocence and proposed a judicially neutral stance toward the accused. For instance, Professor Jean Carbonnier, a professor at the Faculty of Law of the University of Paris, influenced by contemporary Italian penal developments in the 1930s, believed that the French revolutionaries had acted somewhat imprudently in the 1789 Declaration of the Rights of Man when declaring the presumption of innocence, sacrificing tangible judicial realities for revolutionary slogans. From this jurist’s perspective, as long as criminal proceedings are underway, we should not prejudge the guilt or innocence of the accused: the accused is simply an accused—neither a criminal nor innocent. In other words, from a legal standpoint, neither the presumption of guilt nor the presumption of innocence should be made the basis of judicial actions, and it is proper to maintain a neutral legal status, free from any prejudgment, until the outcome of the proceedings is determined.
Such an interpretation was formed under the influence of the specific political-penal climate of the years preceding World War II and during the rise of fascism in Europe. However, setting this aspect aside, what is scientifically impossible is the inability to conceive of and maintain a neutral status for the accused throughout criminal proceedings. For, in addition to the fact that such an interpretation of the presumption of innocence could serve as a convenient and effective weapon in the hands of autocratic governments to deprive citizens of their liberty and dignity under the pretext of the slightest charge and to trample upon their rights, in practice, adopting a neutral status leads to the acceptance of the presumption of guilt instead of the presumption of innocence—a result that contradicts even Professor Carbonnier’s own view. In other words, in cases where sufficient evidence against the accused to satisfy the judicial conscience does not exist, what is the duty? Should doubt be interpreted in favor of society or the accused? There is no doubt that if, in such cases, doubt is interpreted in favor of society and against the accused, we have inevitably submitted to accepting the presumption of guilt; and if doubt is interpreted in favor of the accused and they are acquitted of the charge on that basis, we have accepted the presumption of innocence. Put differently, the negation of innocence and the adoption of a neutral stance, as can be observed, ultimately leads to the acceptance of the presumption of guilt, which is the exact opposite of the presumption of innocence.
C. Questioning the Scope of the Presumption of Innocence: Other jurists have questioned not the presumption of innocence itself, but rather its scope and domain. Among them, one may refer to the view expressed by Professor François Clerc. From the perspective of this Swiss jurist, the presumption of innocence pertains to the rules of proof in criminal actions, meaning that prior to trial and observance of procedural principles, an accused cannot be treated as a convicted person. In other words, the presumption of innocence relates solely to the necessity of observing the “accused’s right to defense” during proceedings by judicial authorities and does not encompass the necessity of guaranteeing the “freedom of the accused” prior to trial; thus, detaining the accused during investigations does not conflict with the presumption of innocence.
In response to such an interpretation, proponents of the presumption of innocence state that a study of the historical events leading to the declaration of the presumption of innocence by French revolutionaries in 1789 clearly demonstrates that preventing autocracy by state officials and safeguarding the liberty of citizens against public power were intended in declaring the said principle. For, as is known, in pre-revolutionary France, recourse to the King and courtiers to send political and ordinary opponents to the Bastille prison through sealed letters (lettres de cachet), particularly during the reign of Louis XVI, was widespread. In that era, the use of lettres de cachet had become so pervasive that Malesherbes, one of Louis XVI’s ministers, wrote in a report to him: “Any citizen possessing a modicum of standing and dignity considers recourse to the judiciary beneath his stature even to avenge an insult.” Therefore, after demolishing the Bastille prison, the French revolutionaries, by declaring the presumption of innocence in the Declaration of the Rights of Man, specifically aimed to preserve the freedom of citizens and prevent its deprivation, even when under suspicion of an offense. Furthermore, the phrase “…any rigor that may not be necessary for securing his person ought to be severely repressed by law,” which appears in Article 6 following the declaration of the presumption of innocence, clearly indicates the revolutionaries’ concern for ensuring individual liberties. The UN Declaration of Human Rights’ emphasis on the presumption of innocence after World War II was also due to the bitter experiences resulting from mass detentions, labor and death camps during the fascist era in Europe, and the transformation of the concept of “suspect” into an objective enemy, along with the deprivation of citizens’ liberty based on the Nazi doctrine of “probable crime” instead of “suspected offender.” Given the points mentioned above, no doubt remains that the presumption of innocence encompasses both the necessity of guaranteeing the accused’s right to defense and their pre-trial liberty.
The European Convention on Human Rights, mindful of this conclusion and after devoting Article 5 to exceptional cases in which detention is permissible, devoted Article 6 to articulating the necessity of guaranteeing the accused’s right to defense and its modalities.
In domestic law, from the synthesis of Articles 32, 37, and 38 of the Constitution and the guarantees provided in the Code of Criminal Procedure (particularly Articles 24, 28, 124, and 125) and Articles 48 et seq. of the Law on Ta’zirat, it is inferred that the Iranian legislator, by declaring the presumption of innocence as one of the valid constitutional principles, intended to ensure the liberty of citizens and prevent its deprivation except in exceptional cases and solely by order of a competent judicial authority in accordance with legal criteria on the one hand, and to guarantee a fair and impartial trial, conduct preliminary investigations expeditiously, and respect the accused’s right to defense throughout proceedings on the other hand. Examining the details of some effects of the presumption of innocence in the following section will further illuminate for us the necessity of observing this principle in daily judicial practice.
Section Two: Effects of the Presumption of Innocence
A. The Presumption of Innocence and the Accused’s Right to Defense: Some jurists have defined the right to defense as the right by virtue of which any prosecuted individual can defend themselves in court prior to judgment being rendered. Unquestionably, the accused’s right to defend themselves in court constitutes the right to defense. However, in the above definition, the right to defense has not been considered in its broad sense. Currently, not only is respect for the rights of accused persons in courts intended, but also providing them with the necessary judicial means in public prosecutor’s offices (dadsara) and particularly before the police or judicial law enforcement officers (dabitān-e dādgostari) to prove their innocence. Thus, it can be stated that the accused’s right to defense consists of the totality of legal and judicial guarantees established at national, regional, or international levels for individuals suspected of committing an offense throughout a criminal proceeding, aiming to reach a fair decision free from judicial errors. Article 24 of the Italian Constitution of 1948, without attempting a formal definition of the right to defense, emphasized the importance of observing it as a fundamental principle as follows:
“Defense is an inviolable right at every stage and degree of the proceedings.”
In this section, given the importance of the subject—particularly the duty and method of gathering evidence by the prosecuting authority and the role of defense counsel across various stages of proceedings—a comparative analysis will be conducted.
The Obligation of the Prosecuting Authority (Prosecutor’s Office) to Obtain and Present Evidence: The first and most vital effect of the presumption of innocence lies in the obligation of the prosecuting authority to obtain and present evidence and to prove the offense attributed to the accused. As is known, in criminal proceedings, the public prosecutor—who, pursuant to Article 50 of the Judicial Organization Act, is regarded as the “attorney for the public”—is the primary claimant and is therefore, pursuant to the rule actori incumbit probatio (البینه علی المدعی), obligated to prove the accused’s guilt before the court. In other words, the accused bears no obligation to prove their innocence; rather, it is incumbent upon the public prosecutor’s office, acting on behalf of society, or the private complainant to prove the accused’s violation of regulations. However, attention must be paid to the fact that the method and manner of obtaining evidence by the prosecutor’s office are just as important and challenging as its obligation to present evidence, to the extent that in many countries, failure to observe prescribed rules during evidence gathering is considered a clear instance of violating the accused’s right to defense, leading high courts to annul the preliminary investigations and judicial actions performed.
The Manner of Obtaining Evidence: The primary issue regarding the method of obtaining evidence concerns how to address the accused’s silence following identity verification and formal notification of charges during the preliminary investigation stage. For, apart from exceptional cases where the accused personally surrenders to judicial authorities, confesses to the offense, and provides necessary explanations enabling the prosecutor’s office to perform its legal duties, accused persons in certain instances maintain silence and may even attempt to mislead law enforcement officers through false statements… In some cases, the accused is unfamiliar with the language used by law enforcement and judicial authorities. In all these and similar cases, as observed, evidence gathering must be conducted according to specific rules; otherwise, non-compliance with legal provisions and the corruption of obtained evidence may extend to subsequent investigations, invalidating their evidentiary value.
What are these rules? Pursuant to Article 38 of the Constitution of the Islamic Republic of Iran, not only is administering an oath to compel the accused to give testimony prohibited, but also, in light of the explicit provision in Article 125 of the Code of Criminal Procedure stating: “If the accused refuses to answer (during preliminary investigations), his refusal shall be noted in the official record,” it clearly follows that the accused’s right to silence is legally recognized and guaranteed within the Iranian judicial system.
However, if the accused may remain silent and their refusal to provide explanations cannot be construed as evidence of guilt, is no duty imposed upon law enforcement officers and judicial authorities during preliminary investigations regarding informing the accused of this right? In other words, are prosecutors or investigating magistrates in the Iranian legal system not obligated from the very inception of confrontation with the accused to inform them of their right to silence? The reason for raising this question is that from a comparative law perspective, in many countries—including France, Germany, and Syria (Articles 114, 136, and 69 of their respective Codes of Criminal Procedure)—the legislator has obligated investigating judges and interrogators to inform the accused of the right to silence. Article 114 of the French Code provides: “Upon the initial appearance, the investigating judge is required to… inform the accused that he may refuse to make any statement. Mention of this notification must be recorded in the official minutes. If the accused wishes to answer and give explanations, the investigating judge shall immediately proceed with the interrogation…”
Article 136 of the German Code of Criminal Procedure (StPO) uses similar phrasing to address this obligation of the investigating judge: “At the first interrogation, the accused must be informed of the law permitting him to respond to the charge or to refrain from making any statements…” Finally, Article 69 of the Syrian Code explicitly emphasizes the interrogator’s duty to inform the accused of the right to silence: “Upon appearance, after verifying the identity of the accused, the interrogator shall inform him of the acts attributed to him and request answers to questions, while informing the accused that he may refrain from answering until defense counsel is present…”