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Presumption of Innocence: Procedural Rights in Criminal Proceedings Social Fieldwork Research (FRANET)

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Presumption of Innocence: Procedural Rights in Criminal Proceedings Social Fieldwork Research (FRANET) Presumption of Innocence: procedural rights in criminal proceedings Social Fieldwork Research (FRANET) Country: PORTUGAL Contractor’s name: Centre for Social Studies Authors: Conceição Gomes, Paula Fernando, Carolina Carvalho, Marina Henriques Date: 05 June 2020 (Revised version: 14 July 2020; second revision: 18 August 2020) DISCLAIMER: This document was commissioned under contract as background material for a comparative analysis by the European Union Agency for Fundamental Rights (FRA) for the project ‘Presumption of Innocence’. The information and views contained in the document do not necessarily reflect the views or the official position of the FRA. The document is made publicly available for transparency and information purposes only and does not constitute legal advice or legal opinion. Table of Contents PART A. EXECUTIVE SUMMARY .................................................................................................... 5 PART B. INTRODUCTION ............................................................................................................... 7 B.1 PREPARATION OF FIELDWORK ........................................................................................... 8 B.2 IDENTIFICATION AND RECRUITMENT OF PARTICIPANTS ................................................... 8 B.3 SAMPLE AND DESCRIPTION OF FIELDWORK ...................................................................... 9 B.4 DATA ANALYSIS ................................................................................................................ 11 B.5 LEGAL FRAMEWORK ......................................................................................................... 11 PART C. MAIN REPORT ANALYTICAL STRUCTURE ......................................................................... 13 C.1 The right to be presumed innocent in general ................................................................. 13 a. How are the different professions implementing the presumption of innocence? ............. 14 b. Potential factors that have an effect on guaranteeing the presumption of innocence ....... 18 c. The role of prejudices and stigma ......................................................................................... 20 d. Discussion of findings ............................................................................................................ 23 C.2 Public references to guilt .................................................................................................. 23 a. How do the different professions liaise with the media? ..................................................... 25 b. Effects media has on presumption of innocence ................................................................. 30 c. Differences in media coverage concerning certain groups .................................................. 35 aa. Men and women ................................................................................................................. 35 bb. Children and adults ............................................................................................................. 35 cc. Nationals and non-nationals (including ethnic minorities, e.g. Roma) ............................... 35 dd. Persons with disabilities...................................................................................................... 35 d. Discussion of findings ............................................................................................................ 35 C.3 The presentation of suspects and accused persons ....................................................... 36 a. Measures used to present the accused and its impact on their presumption of innocence ... 36 b. Clothing ..................................................................................................................................... 40 c. Presentation of vulnerable groups ............................................................................................ 41 d. Reactions to presenting accused as being guilty ...................................................................... 42 e. Discussion of findings ................................................................................................................ 44 C.4 Burden of proof ............................................................................................................... 44 a. Exceptions to the burden of proof ........................................................................................ 45 b. Confession ............................................................................................................................. 47 c. Discussion of findings ............................................................................................................ 49 C.5 The right to remain silent and not to incriminate oneself ............................................. 50 2 a. The right to remain silent in practice ........................................................................................ 50 b. How is information on the right to remain silent and not to incriminate oneself shared with the accused? ........................................................................................................................................ 55 c. Self-incrimination ...................................................................................................................... 57 d. Right to remain silent ................................................................................................................ 58 e. Discussion of findings ................................................................................................................ 59 C.6 The right to be present at the trial and to have a new trial ........................................... 60 a. Consequences of non-appearance ............................................................................................ 61 b. What has been understood as “effective participation”? ........................................................ 64 c. Vulnerable groups ..................................................................................................................... 65 d. Discussion of findings ................................................................................................................ 67 C.7 Challenges and improvements ........................................................................................ 68 a. Challenges ............................................................................................................................. 68 b. Improvements ....................................................................................................................... 71 c. Suggestions ........................................................................................................................... 73 PART D. GENERAL ASSESSMENT ................................................................................................. 74 PART E. CONCLUSIONS ............................................................................................................... 75 Annex A - SR 23 Presumption of innocence - Case study .............................................................. 79 3 List of Tables Table 1: Sample professionals ................................................................................................................ 9 Table 2: Challenges concerning the presumption of innocence ........................................................... 68 Table 3: Have defendants’ procedural rights become stronger or weaker over the past 2-3 years? .. 71 Table 4: Further protection of the right to be presumed innocent ...................................................... 73 4 PART A. EXECUTIVE SUMMARY This report is based on the results of 12 semi-structured interviews with judges, public prosecutors, lawyers and police officers, as well as desk research and two case studies. The interviewees made a positive overall assessment of the legal framework that ensures the protection of the presumption of innocence and acknowledge that it is a generally accepted and embodied principle in the daily practice of the criminal justice system. Nonetheless, interviewees also have, at some point, identified circumstances that challenge the application of that principle in practice. These challenges can be divided in: a) the ones that undermine the presumption of innocence inside the criminal proceeding and may influence the final outcome or, at least, the way the procedure is conducted; and b) the ones that hinder the presumption of innocence in the general public eye. In general, the case studies analysed in this project confirm the main findings of the interviews concerning the practical application of the right to be presumed innocent. The right to be presumed innocent in general: All interviewees recognise that the legal framework accurately guarantees and protects the right to be presumed innocent. However, the interviewees also pointed out some factors (e.g. the public pressure of the justice system, the personal views or pre-conceptions of the professionals) that may hinder the application of the presumption of innocence in practice. Public references to guilt: The interviewees emphasized the absence of an efficient, transparent and ethical relationship between the judicial system and the media that has several negative consequences. Therefore, even though they all acknowledge that the media could play a
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