Presumption of innocence and criminal
Posted by Manuel Casal | Section Juris. Litigation , Jurisprudence
In the judgment of the Constitutional Court dated 8/6/09, speaker B. Subra, AUSA-RE 2009-1, concerning the consideration to be given to the reference of previous offenses, it contains a distinction between the institution of termination and criminal amnesty, in following terms: the amnesty, which deletes the character retroactively linked to criminal facts, results in a ban for everyone to remember, in whatever form, or to survive in any document, criminal convictions, the disciplinary or professional canceled, and the event of cancellation of Article 264 of the Code of Criminal Procedure Andorra is not a case of amnesty, then the cancellation, in the light of comparative law, it seems more close to that figure, for example, the French criminal law provides for the term "prescription", according to which the prescribed penalty is considered as executed, but the facts that has led to disappear and persist despite the disappearance of legal consequences.
In relation to the consideration of criminal records and the presumption of innocence High Court understands that any person suspected or prosecuted is innocent until his guilt has not been established and that has not been irrevocably condemned. This is the feeling you give to this rule several national laws and jurisprudence, and international texts. Article 11 of the Universal Declaration of Human Rights of 1948 provides that "Any person charged with a penal offense is presumed innocent until proved guilty according to law in the course of a procedure in which the public will be willing to all the guarantees necessary for his defense. " Article 48.1 of the Charter of Fundamental Rights of the European Union provides that "Any person charged with a criminal offense is presumed innocent until proved guilty according to law." Obviously, you must cite Article 6.2 of the Convention for the safeguarding of human rights and fundamental freedoms according to which "Any person charged with an offense is presumed innocent until proved guilty according to law." Once the presumption of innocence is defined, its violation is materialized when, before any conviction or just before the exhaustion of remedies is presented publicly as a person guilty of the facts that make the object of a investigation or a judicial instruction. It is clear that the right to presumption of innocence and the possibility of its violation only make sense and can only have a practical effect in the context of a statement which could lead to the establishment of guilt, and therefore , the pronouncement of a sanction. Indeed, the presumed innocence can not be assimilated to the innocence, as if this law provides protection to the person who is presumed innocent, especially as regards the burden of proof, because there is a risk that is not. In the instances that led first to the Magistracy, then before the Court of Parliament, the reference of criminal canceled, the appellant was not being judged, his guilt had not settling, and therefore should not be condemned. The right to presumption of innocence is not involved and therefore could not be a victim of a violation of this right characteristics which could not be applied to the case submitted to the judge.
Tags: criminal
