¡PRESUMED
INNOCENT¡
beyond
a reasonable doubt…..
The presumption of
innocence is at the heart of our criminal justice system. As a cornerstone of
criminal law principles, the presumption of innocence guarantees a fair trial
for all. By ensuring only those individuals who are found guilty will be
punished, it protects the vulnerable individual from the awesome powers of the
State. It is indeed a fundamental principle, constitutionally entrenched in our
Charter, and an integral part of our rule of law.
As important as this
principle is to our concept of justice, the presumption of innocence has become
much more than a legal tool; it has become part of the fabric of our society.
Today, every citizen is aware of the presumption of innocence in a criminal case.
This principle has transcended the legal arena to become one of our society’s
fundamental values. It is not only a value understood by all but it is part of
our culture. It can be found in journalism, literature, movies, and television.
The presumption of
innocence is the principle that one is considered innocent unless proven
guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio
qui dicit, non qui negat (“the burden of proof is on the one who declares, not
on one who denies”).
In many states,
presumption of innocence is a legal right of the accused in a criminal trial,
and it is an international human right under the UN's Universal Declaration of
Human Rights, Article 11. Under the presumption of innocence, the legal burden
of proof is thus on the prosecution, which must collect and present compelling
evidence to the trier of fact. The trier of fact (a judge or a jury) is thus
restrained and ordered by law to consider only actual evidence and testimony
presented in court. The prosecution must, in most cases prove that the accused
is guilty beyond reasonable doubt. If reasonable doubt remains, the accused
must be acquitted.
Under the Justinian
Codes and English common law, the accused is presumed innocent in criminal
proceedings, and in civil proceedings (like breach of contract) both sides must
issue proof.
The criterion of
maintaining the presumption of innocence until the guilt is proved beyond
reasonable doubt (beyond a reasonable doubt) is deeply rooted in the
Anglo-Saxon Law, and is one of the basic principles of the American procedural
system, linked to the law constitutional to a due process (due process of Law).
however, recently in
Colombia, the call to declare before the Supreme Court of Justice, politic
Alvaro Uribe Velez, for procedural fraud, has generated commotion in social
networks, and the political debate between friends and opponents has blurred in
a stormy judicial debate, attempting against the presumption of innocence of
the leader.
Álvaro Uribe Vélez has
always been accused of forming paramilitary groups, of being a friend of the
drug trafficking mafia in Antioquia, his political opponents call him a
criminal and a murderer, of having come to power through hundreds of deaths of
guerrilla peasants presented as false positives, but until now no judge of the
republic has been able to condemn it, nor demonstrate effectively that these
assertions are true.
Lawyers, judges,
prosecutors and magistrates have spent much of our lives studying law; I still
remember very well the probatory law classes, of procedural law, where we
learned the proper way to assess a judicial test, as it is contributed to the
process and the chain of custody, in short; But find one with an infinity of
risky opinion leaders to blame another person without having the slightest
criterion to do so, only at the mercy of some publications in a hateful media
outlet that makes politics through its editorials.
Many of those
responsible for this phenomenon of judicial debate in the networks is as I said
earlier thanks to journalists charged in addition to a gross passion, a
fearsome political resentment, publishing all kinds of tendentious and
inflammatory comments with the sole purpose of destroying their political
opponent, his opponent from the press freedom trench as the SEMANA magazine in
Colombia does more than 8 years ago ceased to be a serious, respectful and
credible means of communication.
Of course, we can all
say and consider what we believe, but talking about a judicial process, about
the material elements of evidence, whether the testimonies are true or not, is
extremely dangerous for the democracy itself, which has questioned the great
principle due process and the presumption of innocence; The signs that are made
in social networks must be true and have the same elements that are required to
publications in the media.
The presumption of
innocence constitutes one of the basic pillars of the penal system of a
democracy. Too many journalists and much of the media in Colombia, abusing the
freedom to inform, systematically violate the right to the presumption of
innocence, a right that corresponds to all accused in a criminal proceeding to
be treated as if innocent until a sentence in firm declare him guilty.
The judicial debate only
takes place in the courts, and not in the media or in social networks; but
there is something even more worrying is a press that wants to influence in a
harmful way in justice, wants to force judges to condemn or absolve based on
journalistic information and that is a serious attack on democracy and worse,
injures the state of Law, putting justice at the mercy of pressure groups is
reprehensible from every point of view.
Despite the clear
constitutional texts and the reiterated jurisprudence of the Constitutional
Court, in Colombia the practice of slander and syndications against people has
become a sport, both in the media and in social networks and in publications,
generally for political reasons . And this, without that, when it comes to
crimes, there is a condemnatory sentence against the people affected, whose
honor and good name are mistreated, often irreversibly. Because it happens,
moreover, that almost always these species -especially if they have been
disseminated by whoever holds a high position or is a public figure- these
species make a career and, by force of being repeated, become
"truths", without that there be a final guilty verdict.
Social networks are of
course a space for political deliberation, (but not judicial) but unfortunately
we have found ourselves with a kind of junk opinion or what I have called the
scrapping of opinion, where people lacking sufficient elements of judgment
formulate all kinds of sensationalist injurious expressions (media show);
flagrantly attacking with the presumption of innocence, because now all the
opponents have become respectable analysts, but in which they surround too
misguided and inaccurate ideas.
In the United Kingdom
this debate has already arisen, as the columnist Paul Chadwick The Guardian
with a headline : Social media are testing the legal boundaries of free speech.
Given the issues that
have been discussed it may well be that the Senior Judiciary in England are
suggesting that judges avoid engagement with blogs and social media precisely
because of the risks attending upon such activity. On the other hand there
seems to be a view that there should be greater engagement by the Judiciary,
especially in the area of education about the judicial role and the Rule of
Law. A debate about the issue can only be useful. As ObiterJ suggests “I
suspect that this matter may have some distance to run.”
Judicial office holders
should be acutely aware of the need to conduct themselves, both in and out of
court, in such a way as to maintain public confidence in the impartiality of
the judiciary.
Blogging by members of
the judiciary is not prohibited. However, officer holders who blog (or who post
comments on other people’s blogs) must not identify themselves as members of
the judiciary. They must also avoid expressing opinions which, were it to
become known that they hold judicial office, could damage public confidence in
their own impartiality or in the judiciary in general.
The above guidance also
applies to blogs which purport to be anonymous. This is because it is
impossible for somebody who blogs anonymously to guarantee that his or her
identity cannot be discovered.
Judicial office holders
who maintain blogs must adhere to this guidance and should remove any existing
content which conflicts with it forthwith. Failure to do so could ultimately
result in disciplinary action. It is also recommended that all judicial office
holders familiarise themselves with the new IT and Information Security
Guidance which will be available shortly.
Finally and this time I
manifest it as a lawyer, we can not be equally irresponsible as the media do,
we can not pronounce on substantial aspects of a judicial process, this is only
for the parties, and if we do not know the law , much less the people who
distantly understand even basic aspects of a test, therefore, we continue in
the political debate, and we close once the space to that unfortunate judicial
debate in the social networks.
Wirtten be:
Omar Colmenares
Trujillo.
