Article 11 – Innocent

What does this right mean?

Article 11 of the Universal Declaration contains the so-called ‘presumption of innocence’. This means everyone suspected of a punishable act is innocent until proven guilty. The second part of the article determines that you cannot be convicted for something that was not punishable at the time you did it.

Presumption of innocence is not just a legal concept. In commonplace terms, it rests on that generosity of spirit which assumes the best, not the worst, of the stranger.

What is the history of this right?

These two legal concepts are important parts of the right to a fair trial (Art. 10 of the UDHR). They can be traced back to Roman law predating Christ. After that, these principles were adopted in nearly every legal system, such as in Islamic law and European Union law.

However, these basic principles were absent in the legal system implemented by the Nazis. During the Second World War, the Gestapo, the German state police, were responsible for tracking down, investigating and eliminating dangers to the Nazi regime. In this, the state police were free and not bound by the judgement of the judicial power. The state police could arrest whoever they wanted, whenever they wanted. During cases which were presented to the Volksgerichthof, the court for political affairs, there was no presumption of innocence either. In such a trial, which would sometimes last only 15 minutes, the suspect's name was read, usually followed by an immediate conviction.

With this history in mind, and because most countries already put it into law long ago, it was clear and important to the representatives of most states that Article 11 had to be included in the Universal Declaration.

Where and how is this right documented?

At an international level, the right is included in Article 14 Subsection 2 of the International Covenant on Civil and Political Rights (ICCPR) from 1966 and in Article 66 of the Rome Statute of the International Criminal Court.

At a European level, the presumption of innocence can be found in Article 6 Subsection 2 of the European Convention on Human Rights and in Article 48 of the Charter of Fundamental Rights of the European Union.

In the Netherlands, unlike most countries, the presumption of innocence is not included in the constitution. This does not mean it is not important in the Netherlands. In the Netherlands, the presumption of innocence is implicitly included in criminal law. In this, you can think along the lines of how the presumption of innocence affects the right to remain silent and the fact that a judge has to acquit a suspect when in doubt. For a ‘suspect’, there is a suspicion of guilt, but as long as there is no ruling confirming this suspicion, one is innocent and should also be treated as such.

How topical is this human right?

Presumption of innocence is a crucial principle in criminal law. It is important from the very beginning of a criminal case, specifically as soon as the police starts tracking down the suspect. For instance, imagine that the police has a national DNA database with DNA samples of all Dutch citizens. Proponents of this idea have the opinion that this would make police investigations much more efficient. The argument is: Who would not want criminals to be caught earlier and more often? You have nothing to hide, right?

Opponents believe that providing DNA, even if it is voluntary, violates the right to privacy. And violation of privacy is prohibited as long as someone has not been designated as a suspect. The opponents have the opinion that a national DNA database would reverse the presumption of innocence: everyone will be considered guilty until proven innocent.

In the media, too, one often hears: ‘innocent until proven guilty’. An example of this is the MeToo movement, which started in 2017 on Twitter and quickly became a worldwide movement paying attention to sexual or otherwise transgressive behaviour. In the Netherlands as well, there are regular news items in which Dutch celebrities are accused of transgressive behaviour. It often does not take long before such a person is boycotted or ‘cancelled’ on social media. This usually quickly leads to counteraction, often in the form of the presumption of innocence. ‘Everyone can accuse everyone, I won't believe it until I've seen evidence.’ Because of the rise of the internet, it can happen that a suspect's name and photo are already shared on Twitter or Facebook. This is not an official accusation, but it often has big consequences for the suspect, and for their relatives and friends too.