The presumption of innocence – why it matters for pre-trial detention

• In Event: Pre-trial detention and bail

Abstract

Art. 6 (2) of the European Convention of Human Rights foresees that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” At the same time, Article 5 ECHR allows for “the lawful arrest or detention of a person effected […] when it is reasonably considered necessary to prevent his committing an offence”. This means that a person may be detained even though they have not been convicted of an offence and there is no evidence that they will commit an offence in the future, although it is possible that both might happen. Moreover, in some cases both detention and bail with conditions simply anticipate punishment or treatment: detention, according to general European practice, is deducted from a custodial punishment – an act of fairness from a legal point of view, but also a possible justification for detention with less hesitation from a criminological point of view. Other problems arise when treatment in prison starts, is punitive and/or intrusive, and/or risk-oriented bail conditions are imposed colliding with the presumption of innocence. This practice coincides with the logic of today’s prevention-oriented interventions that target those populations perceived to be risky more frequently and more intensely, possibly independently from any crime being committed. This paper discusses how far European legal systems accept and even encourage anticipated punishment or treatment.

Author

• Christine Viktoria Morgenstern, Ruhr-Universität Bochum