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Alina Mirabela GENTIMIR: Regulatory developments of the presumption of innocence in Romanian criminal procedure legislation

Abstract: Representing an important Romanian modern normative act, the Romanian Code of Criminal Procedure of 1968 lay down the principle of the presumption of innocence in the chapter Evidences in criminal cases, stating that it is violated when the burden of proof is shifted from the prosecution to the defense. Article 23 paragraph 8 of the Romanian Constitution rules that "everyone charged with an offense is presumed innocent until proved guilty according to law." With the same wording, article 5² the Romanian Code of Criminal Procedure is applicable in all kind of criminal proceedings, irrespective of the outcome of the prosecution, and not solely the examination of the merits of the charge. The right to be presumed innocent under Article applies only in relation to the specific offense which the accused is "accused". From moment it was proved that the defendant is guilty of the offense, the principle of the presumption of innocence may apply in relation to the allegations set about the personality and behavior of the accused as a part of the procedure for imposing the penalty, unless such claims have nature and degree of a new "charge" within the meaning of European Convention on Human Rights. The presumption of innocence will be violated if, without legal establishment of the guilt of an accused and, in particular without having the opportunity to put in practice the rights of defense, a judicial decision concerning him reflects the feeling that he is guilty. It may be exercised even in the absence of any formal finding, being satisfactory only some reasoning suggesting that the court regards the accused as guilty. An attack on the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.

Keywords: criminal procedure, presumption of innocence, European Convention on Human Rights


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