C O M P A R AT I V E S T U D Y
When discussing the relationship between the principle of unfettered
consideration of evidence and in dubio pro reo, the question arises whether
these principles are in collision. In theory, there are two different
standpoints. According to one, mainly present in older literature, the
in dubio pro reo principle is a formal evidentiary rule which limits the
unfettered consideration of evidence because it instructs the court on how
to resolve the doubt it might find itself in when deciding about facts. „If
the in dubio pro reo rule is regarded as the method for assessment of evidence
or instruction to the Court that any doubt in the existence of facts should be
resolved to the benefit of the accused, then this rule is contrary to the principle
of unfettered consideration of evidence.”343
Such an opinion is not acceptable as it does not take into account the fact
that in dubio pro reo principle applies only when the court has finished
assessing the evidence according to its free consideration, and has not
established with certainty the existence of a decisive fact, but has remained
in doubt. In dubio pro reo principle, which, in such a situation, requires
from the court to decide in favour of the accused is hence not a rule for
evaluating the evidence, but a method for resolving the doubt which
occurs once the evidence has been evaluated. The German Federal court
was right when it warned about the frequent incorrect practice where in
dubio pro reo principle was considered as a rule of evidence rather than a
principle applied in the process of making a judgment.344
The same position was shared by the Supreme Court of Croatia in few
consecutive decisions, as stated below:
In this regard, it should be noted that the notions contained in the
appeal of the accused are not legally feasible, since it required that
the court, in line with the in dubio pro reo principle, should have
accepted the alternative presented by the defence that is more
favourable for the accused. Namely, this case is not about the doubt
in the facts that is resolved during the criminal proceedings in a
manner that shall be more beneficial for the accused, but simply
about evaluating the credibility of the defendant’s testimony as an
evidentiary instrument, which has been approved by the Appellate
and Supreme Court, to which the appellant was referred to. The
opposite understanding of the meaning and application of the in
dubio pro reo principle, on which the appeal insists, would lead
to absurd situations where the court should accept any, even the
most illogical version of the accused’s defence, only if that version
is more favourable for him.345
and
Zlatarić, B., Krivično pravo. Opći dio, Zagreb, 1977, p. 89.
Safferling, C., Terror and Law – Is the German legal System able to deal with Terrorism? (The
Federal Court of Justice decision in the case against El Motassadeq), German Law Journal, no. 5, 2004,
p. 524.
345
Supreme Court of Republic of Croatia, Judgment I Kž-349/1990-3, 04.09.1990.
343
344
81
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