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