Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
In dubio pro reo is not an evidentiary rule. It only implies that in
criminal proceedings the Court shall decide by reaching a verdict in
a manner that is more favourable for the accused, only if the court,
having thoroughly assessed the individual pieces of evidence and
their relevance with other evidence, still has doubts that cannot
be resolved regarding the existence or nonexistence of facts that
define the crime, or which determine the implementation of certain
provisions of criminal legislation, and it does not contain criteria
which the Court of first instance would be obliged to consider in
the adjudicating process, if certain facts are proven to a certain
degree of probability compared with the others.(…)346
The same approach is shared by the Federal Supreme Court of Bosnia and
Hercegovina and Supreme Court of Republika Srpska:
When even after complete and meticulous evaluation of every
piece of evidence and their relevance to other evidence, the court
could not exclude the possibility that the deficit which incurred in
the business transactions of the company, could have been caused
by other reasons other than the accused appropriating the money,
the court was right to resolve the doubt about the existence of that
adjudicating fact, the defendant’s appropriation of the money she
was entrusted with, by deciding in a way that is more favourable
for the accused.347
The in dubio pro reo principle does not mean that the existence of
contradictory evidence by itself excludes the possibility of reliably
determining the relevant facts and that it imposes an obligation
on the court to conclude about the existence or nonexistence of
such facts in the way which is more favourable for the accused.
This principle implies the obligation of the court to conscientiously
evaluate every piece of evidence and its relevance with the rest
of the evidence, especially an assessment of the credibility of
contradictory evidence, and in accordance with such an assessment
to conclude whether certain adjudicating facts can be considered
proven or not proven. If the court, despite of this, remains in doubt
with regard to certain adjudicating facts that define the essential
elements of the criminal offense and on which the application of a
criminal law depends on, that doubt must be resolved in a manner
that is more favourable for the accused.348
Therefore, the in dubio pro reo principle does not present a limitation
or derogation from the principle of free evaluation of evidence but, on
contrary, it practically emanates from it.349 When the court is convinced of
the existence of the decisive facts, based on the unfettered consideration
of evidence, the court expresses a belief by rendering a decision resolving
Supreme Court of Republic of Croatia, Judgement U-III/80/2010, 06.04.2011.
Supreme Court of Federation Bosnia and Hercegovina, Judgment 09 0 K 014393 13 Kž, 14.01.2014.
Supreme Court of Federation Bosnia and Hercegovina, Judgement Kž-610/06, 06.02.2006.
349
Škulić, M., op. cit., p. 68.
346
347
348
82
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