Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
judgment and convicted the applicant of having participated only in some
of the thefts and acquitted him of the remainder of the charges. In the
meantime, the prosecutor requested the judge to issue an order for the
confiscation of an illegally obtained advantage which, according to the
public prosecutor, amounted to 67,020.16 Euros, including also goods
related to the charges the applicant had been acquitted of. The applicant
argued that a confiscation order could only be imposed in respect of the
offences of which he had been found guilty. The local Court of Appeal
granted the request of the prosecutor, thus referring the confiscation
also to goods related to the crimes the defendant had been acquitted of.
In the case of Telfner601 the Court stated that there had been a shift of the
burden of proof, since the accused, who refused to give evidence, had been
convicted of a road traffic offence on the basis of the fact that he was the
driver of the vehicle, despite the fact that no evidence had been found to
corroborate the statement. More specifically, the decision of the national
court was based on the facts that, although the car was registered under
his mother’s name, the accused was the main user of the vehicle and that
he was not at home the night of the accident - facts which required from
him, according to the national court, to present evidence that he was
not the driver. The Court recalled that Article 6 (2) “requires, inter alia,
that the burden of proof is on the prosecution, and any doubt should benefit
the accused … Thus, the presumption of innocence is infringed where the
burden of proof is shifted from the prosecution to the defence … In requiring
the applicant to provide an explanation although they had not been able to
establish a convincing prima facie case against him, the (national) courts
shifted the burden of proof from the prosecution to the defence”602.
In the Heaney and McGuinness603 case, the Court underlined the connection
between the right of the defendant to remain silent, guaranteed by Article
6 (1) and presumption of innocence envisaged in Article 6 (2), specifying
that the obligation for the accused to talk, foreseen in the national law,
violated the principles enshrined in Article 6 (1) and (2) of the convention.
Namely, a large explosion occurred in County Derry in Ulster and five
British soldiers were killed. Approximately an hour and a half after the
explosion, Irish police officers on surveillance duty noted a light in a
house around four miles from the scene of the explosion and shortly after,
having obtained a warrant, searched the house and found an assortment
of gloves (rubber and knitted), balaclavas, caps and other clothing. The
men in the house, including the owner and the applicants, were arrested
and detained by the police under section 30 of the Offences against the
State Act 1939. It was suspected that the bombing had been carried out
by the IRA and the two applicants were suspected of involvement in the
Telfner v. Austria, no. 3501/96, ECHR, 20.06.2001.
Ibid.§15§18.
603
Heaney and McGuinness v. Ireland, no. 34720/97, ECHR, 21.03.2001
601
602
128
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