¡PRESUMED INNOCENT¡

¡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.