PRESUMPTION OF INNOCENCE

Starting with the Constitutional Court decision STC 31/1981 of 28 July, constitutional jurisprudence has established the right to the presumption of innocence, from the point of view of trial rights, as the right not to be found guilty without valid evidence. This means that there must be a minimum of evidential procedures with the necessary guarantees relating to every essential item of evidence that might show reasonably that the defendant has been involved in criminal activities (STC 229/1999 of 13 December, FJ 4; 249/2000, of 30 October, FJ 3; 222/2001 of 5 November, FJ 3; 219/2002 of 25 November, FJ 2; 56/2003 of 24 March, FJ 5; 94/2004 of 24 May, FJ 2; and 61/2005 of 14 March). The Constitutional Court has also ruled that it is not entitled to review the assessment process by which a legal body has decided on the value of evidence under the function which has been granted it exclusively by Article 117.3 of the Spanish Constitution, and neither does an appeal to the Constitutional Court allow a precise and complete knowledge of the evidential procedures, nor does it guarantee that the type of knowledge needed to assess the evidence correctly fulfils the guarantees of being public, oral, immediate and dependant on examination and cross-examination (STC 220/1998 of 16 November, FJ 3; 229/1999 of 13 December, FJ 4; 41/2003 of 27 February, FJ 3; and 137/2005 of 23 May, FJ 2). The Constitutional Court is only responsible for ensuring that the discourse that links the evidence and the resulting factual account is properly reasoned, because a request for protection made to the Constitutional Court is not an appeal against a court decision and the Constitutional Court is not a court of third instance (STC 278/2000 of  27 November, FJ 8; 141/2001 of 18 June, FJ 4; 155/2002 of 22 July, FJ 7; and 8/2006 of 16 January, FJ 3).

The application of the constitutional principle of presumption of innocence requires that it was not been nullified or rendered ineffectual by any prosecution evidence, or by sufficient evidence or by sufficient reasons to do so

The presumption of innocence, as a trial rule and from a constitutional point of view, is established as the right not to be convicted without valid evidence. This implies that a minimum of evidential procedures carried with all the necessary guarantees should be carried out on all the essential elements of the crime from which the facts and the defendant’s involvement in them might reasonably be inferred. 

In effect, this basically procedural constitutional principle is a right to react insofar as no active behaviour is required, because burden of proof for prevailing over the presumption of innocence lies with the prosecution, and not the defence. Thus our criminal procedure with respect to the “burden of proof” is governed by the presumption of innocence, with this right receiving the protection of a safeguarded from the Constitutional Court. Nobody can be convicted if his or her guilt is not fully proved beyond doubt since the burden of the proof lies with the prosecution (STC 31-5-85), and it must proved during the court hearing. 

The Supreme Court Decision 24-9-2003 pronounced the legal force of the presumption of innocence and lists decisions related to it stating: “This right is fundamental in our jurisprudence as it is included in the Article 24 of the Constitution. It states that any person accused of committing a crime must be presumed innocent until proven guilty in accordance with the law, and that the burden of proof lies with the prosecution, in so that no action in this respect should be required from the defendant. It is also recognized by: Article 11 of the Universal Declaration of Human Rights, Article 6.2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 14.2 of the International Covenant on Civil and Political Rights. Appeal to it during the criminal trial obliges the appeal court to verify that the criminal court has considered the prosecution evidence, legally obtained and introduced during the trial in accordance with the rules; and that because of this the reality certain specific events may be considered to be proved, as may any aggravating factors which are legally and criminally relevant, and the involvement of the defendant in these criminal activities.

The appeal court should also verify that the assessment of evidence follows the rules of logic and is not irrational, absurd or arbitrary.  However, this does not imply that the court of appeal is entitled to deal with the assessment of evidence, as this is the competence of the court trial court, before which such assessment is carried out, and which can thus carry out a complete overall analysis of the whole assessment process. 

Generally, the only evidence that is binding for the courts are those that are presented during the trial hearing, as the evidentiary process must be carried out during the examination and cross-examination carried out orally before the judge or judges who are to issue the decision. In this way the decision is taken after on the facts in dispute in direct contact with the evidence presented for this purpose by the parties. (STC 195/2002 of 28 October, FJ 2; and 206/2003 of 1 December, FJ 2). However, since the Supreme Court Decision 80/1986 of 17 June, FK 1, jurisprudence has admitted that the general rule can have exceptions through which it is possible on certain occasions, in accordance with the Constitution, to integrate the result of the pre-trial investigations into the assessment of evidence at the hearing if these investigations have themselves been subject to certain examination and cross-examination requirements.  Specifically, depositions given during the pre-trial investigations will only be considered as documentary prosecution evidence if they fulfil a series of criteria and requirements which have been classified as follows:  a) Material: if there is a legitimate cause that prevents the deposition from being heard during the trial; b) Subjective: in this case the intervention of the investigating judge is essential; c) Objective: if the possibility of cross-examination is guaranteed, in which case the defendant’s lawyer must be present at the deposition; and d) Formal: if the content of the declaration made during the pre-trial investigations is introduced either through a reading of the document in accordance with Article 730 of the Law on Criminal Proceedings, or through the examination and cross-examination process. In this way the information in the deposition is included in the public trial and it can be tested against the other declarations of those taking part in the trial hearings.

According to the Supreme Court Decision 120/1999 of 28 June, “Neither does Article 24.2 of the Spanish Constitution question the specific legal function of qualifying and subsuming facts found in legislation, nor is it within the competence of this Court to assess the evidence according to criteria of quality or appropriateness. The protection of the right to the presumption of innocence requires, as we have stated, that: 'first... the supervision of the evidentiary process has been carried out with sufficient guarantees for its adequate assessment to safeguard the right of defence; …secondly… that we check, if we are asked to do so, whether the court has expounded the reasons that led it to its decision on what the facts found were, as resulting from the evidentiary process; …and thirdly and lastly, that we supervise externally the reasoned argument linking the assessment of evidence and the resulting facts found.' (STC 189/1988, FJ 2; STC 220/1998, FJ 3). As a result, “The presumption of innocence can only be found to be breached  if there is not valid evidence, in other words, if the legal authorities have accepted evidentiary procedure which damages other fundamental rights or which does not offer guarantees, if the result of the assessment is not sufficiently reasoned or the logical link leading from the evidence to the found facts is deemed unreasonable as illogical or insufficient.

When the evidence is from witnesses, its assessment depends greatly on direct perception, so that determining the credibility of the witness depends on the trial court because of its immediate nature. Its decision cannot be appealed to the Supreme Court except in those exceptional cases in which additional evidence is presented.  The Supreme Court stated in its Decision 951/99 of 14 June 1999 that: “Judgement on evidence produced during the trial hearing can only be revised on appeal to the Supreme Court on the grounds of its rational structure, in other words by assessing whether the court has followed the rules of logic, the principles of experience and scientific knowledge.  Aspects of the trial that depend substantially on their immediacy, that is to say the direct perception of the statements given before the judge, may not be appealed. It has been stated on several occasions that the credibility of witnesses may, not be appealed to the supreme court. (cf. STS 22-9-1992 and 30-3-1993).

DIRECT EVIDENCE AND CIRCUMSTANTIAL EVIDENCE

The presumption of innocence can be overcome not only through direct evidence but also by circumstantial evidence.  Circumstantial evidence implies an unknown fact through a known fact through the mutual relation between both. The link must be immediate and necessary, serious and conclusive; to put it in other words, when the existence of a fact can be deduced from one that has been fully demonstrated, because there is a precise and direct relation between both, as decided by a rational mental process in accordance with the rules of human reasoning (STC 174/1985, 229/1988, 197/1989, 124/1990, 78/1994 y 133/1995).

In effect, since its Decision 174/1985 of 17 December, the Constitutional Court has held that if there is no direct evidence, the prosecution evidence can be circumstantial if it complies with the following requirements in order to distinguish it from simple suspicions:

a) It must be based on proven facts; and

b) the facts constituting a crime must be deduced from this evidence through a rational mental process in accordance with human reasoning, and this must be made explicit in the judgement.

The extent to which the discourse is reasoned, in other words the solidity of the inference can be determined through its logic and coherence (it will be irrational if the accepted evidence excludes the facts inferred from it or do not lead naturally to it), as well as through its sufficiency or categorical character: there is an absence of reasoned argument if the inference is too open, weak or indeterminate. (STC 189/1998 of 28 September, FJ 3; 220/1998 of 16 November, FJ 4; 120/1999 of 28 June, FJ 2; 44/2000 of 14 February, FJ 2; 155/2002 of 22 July, FJ 14; 135/2003 of 30 June, FJ 2).

THE PROBATIVE VALUE OF STATEMENTS BY CO-DEFENDANTS

The co-defendant’s statement, if it fulfils the necessary requirements, can be considered an evidence and used to weaken the presumption of innocence. It is worth referring here to the decisions of the Constitutional Court, starting with STC 153/1997 of 29 September, and continuing until the present day. Broadly, the Court has ruled that:

a) A co-defendant’s incriminating statement, which is constitutionally acceptable as evidence, must be supported to some extent by an external fact, information or circumstance in order to be a relevant evidence able to overcome the presumption of evidence, as the defendant has the right to remain silent in part or totally and is not subject to the legal obligation to tell the truth (Article 24.2 of the Spanish Constitution), so that his or her statements, if they are the only evidence, are not strong enough to overcome the presumption of innocence (STC 153/1997 of 29 September, FJ 6; 49/1998 of 2 March, FJ 5; 115/1998 of 1 June, FJ 5; 68/2001 of 17 March, FJ 5; 57/2002 of 11 March, FJ 4; 207/2002 of 11 November, FJ 2; 65/2003 of 7 April, FJ 5; 55/2005 of 14 de March, FJ 1; and 1/2006 of 16 January, FJ 6). In other words, as the Constitutional Court held in STC 115/1998 of 1 June, FJ 5, if there is no other evidence at all, there is insufficient to overcome the presumption of innocence, from a constitutional point of view. (See also STC 142/2004 of 20 September, FJ 2 and 17/2004 of 23 February, FJ 3).

b) Whether there is sufficient evidence or not is left to decisions on particular cases (STC 68/2001 of 17 March, FJ 5; 181/2002 of 14 October, FJ 3; 57/2002 of 11 March, FJ 4; 207/2002 of 11 November, FJ 2; 65/2003 of 7 April, FJ 5; 118/2004 of 12 July, FJ 2; and 1/2006 of 16 January, FJ 6). However, elements relating to the objective truthfulness of the deposition such as the lack of hostility or its internal coherence are not considered relevant as external corroborating factors (STC 190/2003, 27 October, FJ 6; 118/2004 of 12 July, FJ 2; and 55/2005 of 14 March, FJ 1).

C) A minimum of corroboration is also needed in relation to the participation of the defendant in the criminal events that the court has considered to be proven (STC 181/2002 of 14 October, FJ 4; 118/2004 of 12 July, FJ 2; 55/2005 of 14 March, FJ 5; and 1/2006 of 16 January, FJ 6).

d) Finally, we must remember that the statement of a co-defendant is not sufficient corroboration of the statement of another co-defendant. (STC 72/2001 of 26 March, FJ 5; 181/2002 of 14 October, FJ 3; 65/2003 of 7 April, FJ 5; 152/2004 of 20 September, FJ 3; and 55/2005 of 14 March, FJ 1), and thus such corroboration of the content of the statements is required by way of some external element is also required if there are several co-defendants.

IN DUBIO PRO REO

The “in dubio pro reo” principle should be distinguished from the presumption of innocence. The presumption of innocence is a public subjective constitutional right that protects the defendant if there is no evidence against him or her; while the in dubio pro reo is an interpretative criterion for both the rules and the results of the trial procedure  (STS, 13-12-89, 6-2-90, 15-3- 91, 10-7-92, 24-6-93, 29-3-94). In other words, if despite the evidence, the court can not determine if the facts can be interpreted as in contravention of the law, the defendant must be acquitted, “As it is less onerous for society to free a guilty person than to convict an innocent one.” (STS 20-3-91). It should be understood that this principle cannot be integrated into an independent rule, as it is procedural in nature, rather than a law that obliges the court to doubt in certain situations. What it does require the court to acquit if there are doubts, but if the court has not had any doubt and convicts the defendant the principle is respected (STS 11-7-95).

So, despite the close relation between the presumption of innocence and in dubio pro reo, which has been highlighted a number of times by by the Constitutional Court since its 31/1981 and 13/1982, and although they are both part of a generic favor rei (in favour of the defendant) principle, there is a substantial difference between them. The in dubio pro reo principle only comes into play when after assessing the evidence properly, it is determined not to have overturned the presumption of innocence, in other words the principle is not applicable if the court has not had any doubts about the conviction.