Guidebook 1.4.5. Presumption of innocence and the right to remain silent and the privilege against self-incrimination RELEVANT QUESTIONS: »» Was there any public reference to guilt during the criminal proceedings? »» How was the defendant presented during the procedure? • Were restraint measures such as shackles or glass boxes used? »» Did the suspect or accused remained silent during the interrogation • If not, why not? Was there any coercion or misguidance? The presumption of innocence is a norm that has customary law character192 and is recognized in numerous international standards.193 It is often referred to as the ‘golden thread’ running through criminal law.194 The Directive regulates the presumption of innocence, the right to remain silent and the privilege against self-incrimination,195 all essential elements of a fair trial. Not only can a public reference to guilt render the proceedings unfair, but can also impact the dignity of the person, especially if the defendant is presented in a way as looking guilty (e.g. use of shackles or glass boxes).196 Accordingly, these rights fulfil several purposes, namely: »» Ensuring that the person is innocent until found guilty by a competent judicial authority; thereby securing the fairness of the trial, the integrity of the justice system, and the dignity of the accused197 »» Safeguarding the right that a suspect or accused persons do not have to incriminate themselves and that the right to remain silent is not used against them or is considered as a confession »» Evidence obtained by the breach of the right to remain silent or the right not to incriminate oneself, contradict the right to a fair trial and to defense; especially statements and evidence that were obtained as a result of torture or other forms of ill-treatment must be excluded Which rights does the Directive cover? The Directive provides that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in 46 STANDARDS a public trial at which he has had all the guarantees necessary for his defence.198 In line with ECtHR standards, there are two main components in the context of the presumption of innocence: the public reference to guilt by state authorities; and the presentation of the defendant.199 With regard to the public reference to guilt, in the case Milev the CJEU stated that for judicial decisions on the continuation of pre-trial detention, based on suspicion or on incriminating evidence, provided that such decisions do not refer to the person in custody as being guilty.200 Moreover, the Directive states that the defendant must not be presented as looking guilty in court or public, e.g. through the use of shackles or glass boxes, except if it is strictly necessary. 201 According, to the case law of the ECtHR, the use of glass cages or metal boxes is unnecessary and a violation of Article 3 ECHR, establishing that these practices are degrading treatment.202 Finally, the Directive additionally establishes the right to remain silent and the right not to incriminate oneself. This is applicable throughout the proceedings. Moreover, the Directive further elaborates that exercising these rights cannot lead to the assumption that the person is guilty. Main findings on the practice Despite the recognitions of the importance of this right, violations are frequent, and may include statements about the guilt of a suspect or accused also in the media coverage. In some countries, it is common that the suspect is paraded in physical restraints at arrest, during transfer and in the court. This presents the suspect and accused persons as guilty and can affect the whole proceeding.203 The right to remain silent and the right not to incriminate oneself is oftentimes circumvented. Especially, the right to silence is often presented in a way that stresses the adverse consequences of its exercise. Similarly, the right to access of a lawyer is often put in a light that the request only prolongs the proceedings and as the exercise of this right directly mean that the person is guilty. Moreover, often the suspects and accused are not aware about the consequences of waiving procedural rights as they are either not fully informed or they are, but only formally without understanding those rights.204 47