DOUBT IN FAVOUR OF THE DEFENDANT, GUILTY BEYOND REASONABLE DOUBT Comparative study Здружение за кривично право и криминологија на Македонија Copyrights 2016 OSCE Mission to Skopje This publication is available in pdf form on the web site of the OSCE Mission to Skopje ISBN Published by OSCE Mission to Skopje Boulevard 8 September, 1000 Skopje www.osce.org/skopje Authors: Zoran Dimitrievski, Radmila Dragicevic-Dicic, Gianfranco Gallo, Michael G.Karnavas, Ruzica Nikolovska, Gordan Kalajdziev, Denis Pajic. Edited by: Ljubica Mishevska, OSCE Mission to Skopje Printed by: Polyesterday The content of this publication does not necessarily represent the view or the position of the OSCE Mission to Skopje. The Mission adheres to PC.DEC/81. This study complements the efforts of the OSCE Mission to Skopje to support the transition in practicing the new adversarial model of criminal procedure in the country, largely based upon similar legislative transitions in countries across Europe. Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt 4 * Editor’s note The principle of in dubio pro reo was introduced in the national criminal procedure legislation in 1997. The new, party driven, Law on criminal procedure from 2010, (hereinafter: domestic LCP)1, continues to regulate this principle in Article 4, which reads that “The Court shall decide in favour of the defendant whenever there is doubt regarding the existence or non-existence of facts comprising the elements of crime, or facts which lead to the application of a certain provision of the Criminal Code”. The domestic LCP goes a step further by introducing the standard, in Article 403, that the prosecution shall prove the guilt beyond reasonable doubt, without giving any further definition. In order to make a distinction between the suspicion whether a person has committed a crime (suspicion that is detrimental to the defendant and is always in favour of the indictment) and the suspicion whether that person is really the perpetrator of the crime, i.e. suspicion which is in favour of the defendant’s innocence (positive suspicion which is always in favour of the defendant and is reflected in the principle ofin dubio pro reo as well as in the standard that the prosecution has the burden of proof beyond reasonable doubt), the countries in the Anglo-Saxon world, as well as Italy, have been using two different terminologies. Namely, the term suspicion (in Macedonian language: сомневање) is used in a detrimental sense for the defendant and is in favour of the indictment, while the term doubt (in Macedonian language: двојба, двоумење, несигурност) is used to favour the defendant and the definition of the principle of in dubio pro reo, as well as for the standard of the prosecution bearing the burden of proving the guilt beyond reasonable doubt. Unfortunately, the domestic LCP does not offer different terminologies for these two types of suspicion. The Law uses the term “suspicion” (сомневање) when it refers to the required level of suspicion that a person has committed the crime so that certain investigative measures, restrictions or charges can be undertaken or pressed against him/her., it also refers to the application of the principle of in dubio pro reo and the standard that the guilt shall be proven beyond reasonable doubt. For the purposes of this research, however, efforts have been made to make terminological distinction between these two types of suspicion/doubt, despite the fact that such terminological distinction does not correspond with the current legal terminology. 1 Law on criminal procedure, Official gazette 150/10, 200/12, 142/16 and Constitutional Court Decision no. 2/2016 Official gazette no.193/16. Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt 6 FOREWORD “If you would be a real seeker after truth, it is necessary that at least once in your life you doubt, as far as possible, all things.” (Rene Descartes) What is doubt and what kind of feeling is doubt? Should a judge being an independent arbiter not be doubtful for the most time of the trial? Nonetheless, is the judge not required to decide at the end? How can a judge decide if in doubt, and can a judge remain in doubt despite all? The criminal procedure principle in dubio pro reo-when in doubt in favour of the defendant- and the standard that the guilt shall be proven beyond reasonable doubt deal with the doubt, so their essence and use could probably throw some light on the above questions. Whilst in dubio pro reo principle is common for most of the continental law countries, the standard of beyond reasonable doubt developed in the Anglo-Saxon world, but it has been ‘recently’ introduced on the continent as well. Nowadays, the two can have very similar, if not identical, effect and probably could have had it at different stages in the past as well. It does not mean the origin and the circumstances in which the two emerged and developed were the same. Yet, most scholars would probably agree that today both of them reflect the realistic tendency of any conscientious person or a good society to protect themselves from injustice because the purpose of the overall criminal justice to punish the guilty at the same time has the other side, acquitting the innocent. By comparing the two one can notice that unlike the standard of proving the guilt beyond reasonable doubt by the prosecution, which is applied in the end of the trial once the court has heard and seen all the evidence and is to decide on the guilt (or innocence) of the defendant, the in dubio pro reo principle literally does not restrict the moment of its application. Therefore, some may argue that in dubio pro reo has wider application and can be used in all stages of the criminal procedure, such as the stage when the court decides on imposing detention or when it accepts or rejects the Indictment, etc. However, given the fact that a judge can be doubtful during the trial, moreover, even prior to the trial, a question arises whether a judge should always apply the principle of in dubio pro reo and decide in favour of the defendant by halting the criminal procedure? Certainly not. Instead, the judge shall decide whether the prosecution has met the other necessary standards for undertaking certain investigative measures, restrictions and charges, such as the standard of reasonable suspicion that the defendant has committed the crime. Moreover, the domestic LCP requires that the court applies the principle of in dubio pro reo only when decides whether facts exist or not, which the court decides Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt on in the end of the trial. This basically means that the application of in dubio pro reo, more or less, focuses also on the ultimate question about the defendant’s guilt. So, if the judge, having considered the evidence, has doubts about the existence of facts that define the crime, the judge basically doubts the defendant’s guilt and, by applying the principle of in dubio pro reo, shall decide that those facts are not existent (were not proven beyond doubt) and shall adopt an acquitting decision. Another obvious difference between the two principles is the level of doubt. While beyond reasonable doubt standard requires taking into consideration only ‘reasonable’ doubt, the principle of in dubio pro reo does not require it explicitly. The principle of in dubio pro reo does not give gradation of the doubt, so it is up to the judge to do the same (to determine whether he/she is in doubt or not). Although the doubt is an inner state of mind and it is connected with the process of thinking as well as the consciousness of the person, it cannot be detached from the society in general and the overall level of awareness of the society at a particular point in time. In other words, an individual cannot derogate much from what could be considered doubtful in a society in a particular period of time. For example, a judge cannot doubt whether the defendant has committed the crime only because they may have twin brother or sister nobody knows about, including the judge, and who may have committed the crime instead. Even if the judge has such doubts, these doubts will not be reasonable for most of the people around him/her. But, what if such evidence corroborating this theory exists? What if, for instance, the defence presents evidence showing that a twin brother really exists, that he is not in good relations with the defendant, and he actually wants to set the defendant up? In such a case, the judge may have solid grounds to reasonably doubt the prosecutor’s case and the defendant’s guilt. So, although not specifically stated, the principle of in dubio pro reo refers also to the reasonable doubt, because any unreasonable doubt is just an assumption that may lead to a cul-de-sac with remerging doubts, doubts in everything and anything, with only limit being one’s imagination. The next question would be whether doubt always exists? Probably yes. Doubting is inevitable part of the thinking process and the judge should be doubtful throughout the trial. Having a doubt is equally important, as it is healthy. But whether the reasonable doubt always exists? Probably not. If the case is clear (that is, the prosecutor manages to refute the allegations of the defence about the twin brother beyond reasonable doubt), there will be no reasonable doubt. When a person doubts reasonably, it is improbable that he/she will remain in a stage of doubt for too long.