Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
Below can be found an exhaustive elaboration by the Constitutional Court
of Bosnia and Hercegovina from 2006 and 2014 on the court reasoning
and how it may affect the application of the principle of in dubio pro reo:
(…) The unfettered consideration of evidence is, hence, freed of the
legal rules that would a priori determine the probative value of
certain evidence. However, the unfettered consideration of evidence
requires that every item of evidence and its relevance with the rest
of the evidence be explained, and that they be brought into a logical
mutual connection. The principle of unfettered consideration of
evidence does not represent an absolute freedom. This freedom is
limited by general rules and regulations of human thinking, logic
and experience. This is why the court has an obligation to describe
in the verdict rationale the process of evaluation of individual
evidence, to bring every single evidence in relation with other
available evidence and make conclusions as to whether certain facts
are proven. (…) In the light of this, the Constitutional court stresses
that the Court of first instance evaluated the testimonies of several
witnesses as arbitrary, without providing more detail on the basis
of which the Court gained that impression, and not explaining the
process of evaluation of the evidence as required by the principle
of unfettered consideration of evidence. The Constitutional Court
holds that such an explanation does not satisfy the requirement
of careful and conscientious assessment of evidence since the
subjective belief of the court that the appellant committed the
criminal offense he is charged with is not sufficient, but there must
be real truth in the conclusion of the court, explained and grounded
on the objective facts. Regular courts cannot just say that they do
not believe a particular witness just because his testimony is in
contradiction with the testimony of another witness they trust,
nor is it enough to subjectively qualify the evidence as “arbitrary”.
(…)Taking this into account, the Constitutional court finds that
the lack of satisfactory explanation of the appellant’s guilt, and
the lack of objectification of court’s subjective evaluation with a
comprehensive analysis and assessment of the presented evidence,
does not correspond to the demand of a fair trial prescribed in
Article 6 Paragraph 1 of the European convention. The court also
considers that the opinions of the challenged judgments do not
satisfy the obligation of respecting the in dubio pro reo principle.
Based on everything said, the Constitutional Court considers
that the opinions of the disputed judgments do not meet the
requirements of a fair trial, but give the impression of arbitrariness,
so they violated the appellant’s right to a fair trial under Article 6
paragraph 1 of the European Convention.(…) 352
(…) With regard to the appellant’s allegations about the violation
of the principle of in dubio pro reo, the Constitutional Court
352
84
Constitutional Court of Bosnia and Hercegovina, Judgment AP 1603/05, 21.12.2006.
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