The Presumption of Innocence

“Innocence Is the Natural State of the Human Being”

A Foundational and Comparative Study in Light of Doctrinal Theories, International Instruments, the Legislation of the Gulf Cooperation Council States, and Comparative Law

Advocate and Legal Consultant — GCC-Accredited Arbitrator — Accredited Mediator — Forensic Accounting Expert — Court-Certified Legal Translator

Mohammed Alhayki Law Firm for Legal Consultancy & Mediation — Kingdom of Bahrain

This article examines the presumption of innocence as the governing rule of criminal proceedings and as the essential safeguard by which the State’s power to punish is balanced against the individual’s right to liberty and dignity. It seeks to move beyond the conventional treatment that merely repeats the constitutional formula “the accused is innocent until proven guilty,” and instead explores the philosophical foundations of the principle; the doctrinal controversy over its legal characterisation as either a “legal presumption” or an “original legal status”; its roots in Islamic Sharia, which anticipated positive legal thought by many centuries; its expression in international instruments; a comparative survey of the six Gulf Cooperation Council States and of the leading legal systems worldwide; and, finally, the contemporary threats to the principle — reverse legal presumptions, prolonged pre-trial detention, trial by media, and predictive algorithms — together with a set of practical recommendations.

The civilisation of a legal system is not measured by the severity of its penalties, but by the extent of the safeguards it affords to the person who stands defenceless before the power of prosecution. Among all such safeguards, the principle that innocence is the natural state of the human being occupies the position of the original rule from which every other guarantee is derived. It has rightly been said that it is not one guarantee of a fair trial among others, but rather the guarantee that generates the guarantees.

The importance of the principle flows from the very nature of the criminal confrontation: it is an unequal contest between an individual who possesses nothing but his liberty and a State that commands the machinery of law enforcement, investigation, expertise and imprisonment. Were this imbalance left uncorrected, criminal proceedings would be reduced to a formality in which the accusation is ratified rather than tested. Hence the principle intervenes to restore the equilibrium, placing the entire burden of proof upon the prosecuting authority and resolving every doubt — whatever its source — in favour of the accused.

In recent decades the principle has simultaneously expanded in content and narrowed in application. It has expanded because constitutional courts and regional human rights courts have extended its reach to the pre-trial phase, to statements made by public officials, and to the media treatment of criminal cases. It has narrowed because counter-terrorism, anti-money-laundering, organised-crime and anti-corruption legislation has created an increasing number of reverse presumptions that shift the burden of proof onto the accused.

This study aims to offer an integrated treatment of the principle — foundational, theoretical, legislative and comparative. It is organised into nine chapters, preceded by this introduction and followed by a conclusion setting out the principal findings and recommendations.

1.1 Linguistic and Technical Definition

In Arabic, barā’ah (innocence) derives from the root bari’a, meaning to be free, clear, or discharged of a defect or a liability; hence the expression bari’at al-dhimmah — “the conscience is discharged,” that is, free of obligation. In technical legal terms, the presumption of innocence means that every person is deemed innocent of any accusation directed against him, and retains that status throughout every stage of the proceedings — from the gathering of evidence, through investigation, to trial — until a final and unappealable judgment of conviction is rendered by a competent court following a lawful and fair trial in which the rights of the defence are guaranteed.

It should be observed that the common Arabic formulation, “the accused is innocent until proven guilty,” is narrower than the original conception of the principle. In substance the principle does not address the “accused” alone; it addresses the human being as such. For this reason the more precise doctrinal formulation is that innocence is the natural state of the human being — because the very status of being “accused” arises only after a procedural step has been taken, whereas the principle precedes that step and governs it.

1.2 Historical Development

The principle was not the product of a single historical moment; its roots accumulated as follows:

•    Roman law: recognised the rule that the burden of proof lies upon the party who asserts, not upon the party who denies (ei incumbit probatio qui dicit, non qui negat), as well as the rule that in case of doubt the accused is to be favoured (in dubio pro reo).

•    Islamic Sharia: established the foundational maxim that the original state of a person’s liability is discharge (al-aṣl barā’at al-dhimmah), and the maxim that prescribed punishments are averted by doubt (idra’ū al-ḥudūd bi-al-shubuhāt), from the first Islamic century onwards — a historical precedence over European legal thought by more than ten centuries (examined in detail in Chapter Five).

•    The European Middle Ages: the principle suffered a severe reversal under the inquisitorial system, which made confession “the queen of proofs,” permitted torture as a means of extracting it, and inverted the original rule so that the accused was required to establish his own innocence.

•    The Enlightenment: marked the decisive turning point, when the Italian jurist Cesare Beccaria, in his treatise On Crimes and Punishments (1764), attacked the system of torture and pre-judgment, and held that no person may be described as guilty before judgment is pronounced, and that society may not withdraw its protection from him before it has been established that he has breached the compact under which that protection was granted.

•    Constitutional codification: this culminated in the celebrated Article 9 of the French Declaration of the Rights of Man and of the Citizen of 26 August 1789, which declared that every person is presumed innocent until declared guilty, and that if it is deemed indispensable to arrest him, any severity not necessary to secure his person must be severely repressed by law.

•    Internationalisation: the principle passed to the global level with the Universal Declaration of Human Rights of 10 December 1948, followed by the International Covenant on Civil and Political Rights of 1966, and from these into national constitutions.

The principle cannot properly be understood in isolation from the intellectual foundations on which it rests and the schools of thought that have contested it. The most significant of these are set out below.

2.1 Social Contract Theory

This theory — in the formulation of Jean-Jacques Rousseau and its criminal-law application by Beccaria — holds that individuals surrendered a minimal portion of their liberties to society in exchange for the protection of the remainder, and that the power to punish is no more than the minimum necessary to preserve that compact. It follows that the individual continues to enjoy the protection of the social contract unless it is established with certainty that he is the party who has broken it. Conviction is therefore the exception, which must be proved; innocence is the original contractual position.

2.2 The Classical School

The classical school — led by Beccaria, Bentham and Feuerbach — was founded upon freedom of choice and moral responsibility: man is responsible because he chooses, and he may be held answerable only for an act established against him. The presumption of innocence is thus the logical corollary of the principle of legality, nullum crimen nulla poena sine lege: just as no act may be punished without a pre-existing text, no crime may be attributed to a person without conclusive proof.

2.3 The Positivist School and Its Critique of the Principle

By contrast, the Italian positivist school — Lombroso, Ferri and Garofalo — attacked the principle directly. Proceeding from criminal determinism and from the notion of “dangerousness” as a substitute for moral responsibility, it maintained that the protection of society requires preventive intervention before a crime has been established. Enrico Ferri went so far as to argue that the presumption of innocence loses all justification in cases of flagrante delicto, confession and recidivism, and advocated confining it to first-time offenders charged with less serious offences.

This critique has been answered on the ground that it confuses probability with certainty. Flagrante delicto and confession are items of evidence submitted to the judge for his appraisal; they neither dispense with the trial nor relieve the prosecution of its burden of proof, since a confession may be the product of coercion, mental illness, or self-sacrifice for another, and an apparently flagrant act may conceal a ground of justification or an excuse negating responsibility. Moreover, to adopt the positivist logic is to open the door to punishing persons for what is expected of them rather than for what they have done — the very antithesis of the rule of law.

2.4 The New Social Defence School

This school — developed by Filippo Gramatica and subsequently by Marc Ancel — sought to reconcile the protection of society with the protection of the individual. It preserved the presumption of innocence as an inviolable procedural guarantee, while acknowledging the legitimacy of preventive measures on condition that they follow a judicial decision, remain subject to periodic judicial review, and are not used as a pretext for punishment without conviction.

2.5 The Formal and Substantive Theories

Procedural doctrine has divided over the scope of the principle. The formal (narrow) view treats it as a rule of evidence only, meaning that the burden of proving the accusation lies with the public prosecution, that doubt is construed in favour of the accused, and that its effect is confined to the trial stage. The substantive (broad) view — which is the preferable position and the one more consistent with contemporary judicial development — treats it as a substantive rule governing the individual’s legal position vis-à-vis the State from the first moment of suspicion, so that its effects extend to preliminary enquiries, arrest, search, pre-trial detention, media treatment and official statements.

One of the most delicate theoretical questions in this field is that of characterisation: is innocence a “legal presumption” or an “original legal status”? The question carries significant practical consequences that cannot be overlooked.

3.1 The Legal Presumption View

One body of doctrine — reflected in the drafting of most Arab constitutional provisions — holds that innocence is a legal presumption (présomption légale) inferred by the legislator from what is ordinarily the case among people, since uprightness is the norm and crime the exception. Accordingly, the accused enjoys the benefit of that presumption until evidence is adduced to rebut it.

A cogent criticism has been directed at this characterisation: a presumption, by its nature, infers an unknown fact from a known one, is capable of rebuttal by the opposing party subject to conditions, and may indeed be reversed or restricted by the legislator. This weakens the principle and renders it hostage to the will of the ordinary legislator, whereas in truth it is a rule that stands above ordinary legislation.

3.2 The Original Legal Status View (the Preferable Position)

The preferable view — settled upon by a substantial body of French and Egyptian criminal-law doctrine — holds that innocence is not an inferred presumption but a legal status (état juridique) inherent in human personality, established by nature rather than by inference. A person is born innocent; his innocence is not the outcome of a chain of reasoning undertaken by the legislator, but the natural condition that is displaced only by a final judicial judgment.

The practical significance of this characterisation is considerable. It entails that:

•    The principle is not capable of waiver by the accused, since it is not a purely personal right but a matter of public policy.

•    The ordinary legislator has no power to abrogate it, and any provision that wholly reverses the burden of proof is unconstitutional.

•    Its scope is not confined to evidence but extends to the treatment to which the accused is entitled at every stage.

•    A judgment of acquittal does not create innocence but declares its continuance — which is why the innocence of an accused person may not be impugned after a final judgment to that effect.

The principle does not stop at a declaration of theory; an integrated body of procedural rules is derived from it, the most important of which are the following.

(1) The burden of proof rests on the prosecution

The public prosecution is charged with establishing the elements of the offence and attributing them to the accused. No burden lies on the accused to prove his innocence, for he is not required to prove what is already established. It follows that a plea denying the charge is a plea invoking the original rule, not an exception to it, and the accused bears no burden of establishing it.

(2) Doubt is construed in favour of the accused

This is the rule known as in dubio pro reo. Once doubt attaches to the evidence of guilt, acquittal must follow, because conviction is founded on certainty and not on conjecture or probability. It is not required that the judge be persuaded of the accused’s innocence; it suffices that he is not satisfied by the evidence of guilt.

(3) The right to silence and the privilege against self-incrimination

It is a necessary corollary of the principle that the silence of the accused may not be treated as evidence of guilt, that he may not be compelled to furnish evidence against himself, and that he may not be penalised for his denial even if it proves untrue — unless that denial itself amounts to a separate offence such as forgery or perjury.

(4) The exceptional character of pre-trial detention

Since innocence is the original rule, liberty is the original rule, and pre-trial detention is an exceptional precautionary — not punitive — measure. It may be resorted to only where necessity, as assessed by the judiciary, so requires; for a defined period; by a reasoned order; subject to challenge; and only after alternative measures such as travel bans, bail and residence requirements have first been considered.

(5) Legality of evidence and the nullity of what contravenes it

A judgment may not be founded on evidence derived from a void procedure, nor on a confession produced by physical or moral coercion, in application of the rule that what is built upon a nullity is itself a nullity. The Bahraini legislator has given effect to this by prohibiting physical or moral harm to the accused in Article 20(d) of the Constitution.

(6) The right to appropriate treatment before judgment

This includes the prohibition of unnecessary restraint, the separation of persons held in pre-trial detention from convicted prisoners, the prohibition of presenting the accused to the public in the guise of a convicted person, and the avoidance of official statements attributing guilt to him before judgment is rendered.

(7) Compensation for unjustified pre-trial detention

This is an advanced consequence of the principle, adopted by a number of legal systems, to the effect that a person held in pre-trial detention who is subsequently acquitted, or in respect of whom the investigation is closed, is entitled to compensation for the harm sustained, because the State has infringed — even in the absence of fault — the presumed original condition of liberty.

Scholarly fairness requires acknowledgment that Islamic Sharia established this principle and elaborated detailed rules upon it centuries before positive international instruments came to recognise it. This was achieved through a set of foundational and juristic maxims.

5.1 “The original state of liability is discharge” (al-aṣl barā’at al-dhimmah)

This is a universal maxim agreed upon across the schools of jurisprudence, meaning that a person’s legal conscience is free of rights and liabilities until evidence establishes otherwise. It rests upon the principle of istiṣḥāb — the presumption of continuity, whereby what was established remains so until something changes it — from which is derived the further maxim that certainty is not displaced by doubt.

5.2 “The burden of proof is on the claimant, and the oath on the one who denies”

Its source is the Prophetic tradition: “Were people to be given merely on their claim, men would claim the wealth and blood of others; but the burden of proof is on the claimant, and the oath on the one who denies” (reported by al-Bayhaqi; its substance appears in the two Ṣaḥīḥ collections). This maxim expresses precisely what positive legal systems articulate as the placing of the burden of proof upon the prosecuting authority.

5.3 “Avert the prescribed punishments by doubt” (idra’ū al-ḥudūd bi-al-shubuhāt)

This is a categorical maxim in the law of ḥudūd, meaning that a prescribed punishment lapses upon the slightest doubt. Its reach is in fact wider than the positive-law rule that doubt is construed in favour of the accused, because shubhah (doubt or ambiguity) is broader than “doubt” and extends to ambiguity concerning the act, the actor, the subject matter and the evidence.

5.4 The inviolability of life, property and honour

This governing rule is derived from the Prophet’s address at the Farewell Pilgrimage affirming the inviolability of the lives, property and honour of Muslims. Its import is that this inviolability is established as the original position and may not be infringed save upon an established lawful ground — which is the very rationale underpinning the presumption of innocence.

5.5 The prohibition of acting on suspicion and of prying into others’ affairs

This appears in the Qur’anic injunction: “O you who believe, avoid much suspicion; indeed, some suspicion is sin. And do not spy” (Sūrat al-Ḥujurāt, 49:12), and: “And do not pursue that of which you have no knowledge” (Sūrat al-Isrā’, 17:36). These texts establish the rule that an accusation may not be founded upon conjecture, and that investigation may not degenerate into surveillance.

This Sharia foundation is directly reflected in Gulf legislation, and most explicitly in the Kingdom of Saudi Arabia, which grounded the principle in the requirements of the Sharia rather than in transposition from positive instruments, as discussed below.

The principle acquired the character of a universal norm through its entrenchment in the United Nations system and in regional frameworks, as follows:

•    Universal Declaration of Human Rights (1948), Article 11(1): everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

•    International Covenant on Civil and Political Rights (1966), Article 14(2): this is the legally binding provision for States Parties, affirming the right of everyone charged with a criminal offence to be presumed innocent until proved guilty according to law. The Human Rights Committee gave it a broad reading in General Comment No. 32 (2007), holding that public authorities are under a duty to refrain from prejudging the outcome of a trial, and that pre-trial detention must not be the general rule.

•    European Convention on Human Rights (1950), Article 6(2): the most productive of these provisions in terms of case law, owing to the jurisprudence of the European Court of Human Rights.

•    American Convention on Human Rights (1969), Article 8(2); and African Charter on Human and Peoples’ Rights (1981), Article 7(1)(b).

•    Arab Charter on Human Rights (2004 version, in force since 2008), Article 16: affirms the presumption of innocence until guilt is established by a final judgment, and enumerates the minimum guarantees of the accused, including notification of the charge, adequate time to prepare a defence, access to counsel, interpretation, and freedom from compulsion to confess.

•    Rome Statute of the International Criminal Court (1998), Article 66: among the clearest of international formulations, providing that everyone shall be presumed innocent until proved guilty before the Court, placing on the Prosecutor the onus of proving the guilt of the accused, and requiring the Court to be convinced of guilt beyond reasonable doubt in order to convict.

•    European Union Directive 2016/343: an important recent legislative development, obliging Member States to ensure that public authorities do not refer to the accused as guilty before judgment, regulating the media treatment of cases, and prohibiting the presentation of accused persons in court in restraints or prison clothing in the absence of a security justification.

The six GCC States concur in entrenching the principle, yet they differ in drafting, in the level at which it is enacted (constitutional or statutory), and in the source of authority upon which each relies. A detailed survey follows, together with a comparative table.

7.1 Kingdom of Bahrain

The Constitution of the Kingdom of Bahrain, promulgated on 14 February 2002, entrenches the principle in Article 20, which sets out the entire framework of criminal legality. Paragraph (a) provides that there shall be no crime and no penalty save on the basis of law; paragraph (b) affirms the personal nature of punishment; paragraph (c) provides that an accused person is innocent until proved guilty in a lawful trial in which the guarantees necessary for the exercise of the right of defence are secured to him at all stages of investigation and trial in accordance with the law; paragraph (d) prohibits physical or moral harm to the accused; paragraph (e) requires that every person accused of a felony have counsel to defend him with his consent; and paragraph (f) guarantees the right of recourse to the courts.

The Bahraini formulation is distinguished from most of its Gulf and Arab counterparts by an important feature: the express extension of the guarantees of defence to “all stages of investigation and trial.” This addition is of considerable practical value, since it resolves the doctrinal controversy discussed in Chapter Two in favour of the broad, substantive view. It precludes any attempt to confine the principle to the trial stage, and renders any impairment of the rights of defence during the preliminary-enquiry or investigation stage a constitutional violation rather than a mere procedural irregularity.

Decree-Law No. 46 of 2002 promulgating the Code of Criminal Procedure elaborates these guarantees, regulating counsel’s right to attend the investigation and the prohibition on separating him from his client, governing pre-trial detention, its periods and challenges to it, and providing for the nullity of non-compliant procedures. The framework is further supported by Decree-Law No. 15 of 1976 promulgating the Penal Code and by Law No. 18 of 2017 on Alternative Penalties and Measures, which — viewed from the perspective of this study — represents a significant development in that it reinforces the exceptional character of deprivation of liberty.

7.2 State of Kuwait

Article 34 of the Kuwaiti Constitution of 1962 provides that an accused person is presumed innocent until proved guilty in a lawful trial in which the guarantees necessary for the exercise of the right of defence are secured to him, and prohibits physical or moral harm to the accused. This is the earliest Gulf constitutional formulation of the principle and served as the model followed in the subsequent Bahraini and Omani texts. It is notable that the Kuwaiti provision combines the presumption of innocence and the prohibition of ill-treatment in a single article, whereas the Bahraini Constitution separates them into two distinct paragraphs. The detailed rules are set out in the Code of Criminal Procedure and Trials, Law No. 17 of 1960, as amended.

7.3 State of Qatar

Article 39 of the Permanent Constitution of the State of Qatar of 2004 provides that an accused person is presumed innocent until proved guilty before a court of law in a trial in which the guarantees necessary for the exercise of the right of defence are afforded to him. The Qatari formulation is distinctive in adding the words “before a court of law,” a significant addition because it confines the power to displace the presumption of innocence to the judiciary alone, thereby precluding any administrative or executive authority from attaching the consequences of conviction. This framework is completed by the Code of Criminal Procedure, Law No. 23 of 2004.

7.4 United Arab Emirates

Article 28 of the Constitution of the United Arab Emirates of 1971 provides that punishment is personal, that an accused person is presumed innocent until proved guilty in a lawful and fair trial, and that the accused has the right to appoint a person capable of conducting his defence at trial, together with a prohibition of physical and moral harm, torture and treatment degrading to dignity. Notably, the Emirati formulation adds the qualification “fair” to the trial — a qualitative addition, since it raises the standard from mere formal legality to substantive fairness.

At the procedural level, Federal Decree-Law No. 38 of 2022 promulgating the Code of Criminal Procedure was issued, replacing Federal Law No. 35 of 1992 and Law No. 5 of 2017 on the use of remote communication technology. It reorganised the stages of proceedings and the guarantees of the accused, including the mandatory assignment of counsel to every person accused of a felony punishable by death or life imprisonment, and the right of a person accused of a felony punishable by a term of imprisonment to request the assignment of counsel where his financial inability is established — a development that strengthens the effectiveness of the principle rather than merely proclaiming it.

7.5 Sultanate of Oman

The Basic Law of the State, promulgated by Royal Decree No. 6/2021 (replacing the 1996 Basic Law), enshrines the principle in Article 27, providing that an accused person is presumed innocent until proved guilty in a lawful trial in which the guarantees necessary for the exercise of the right of defence are secured to him in accordance with the law, and prohibiting physical or moral harm to the accused. Article 28 follows, affirming the right of the accused to appoint a person capable of conducting his defence, referring to legislation the determination of the cases in which the attendance of counsel is mandatory, and guaranteeing to those without financial means the means of access to the courts and of defending their rights — an advanced provision linking the principle to the concept of legal aid. At the procedural level, the corresponding instrument is the Code of Criminal Procedure promulgated by Royal Decree No. 97/99.

7.6 Kingdom of Saudi Arabia

The Kingdom is distinctive in having grounded the principle directly in the authority of the Sharia rather than in transposition from positive formulations. The Basic Law of Governance, promulgated by Royal Order No. A/90 of 1412 AH, provides in Article 26 that the State protects human rights in accordance with the Islamic Sharia, and in Article 38 affirms the personal nature of punishment and the principle of legality, providing that there shall be no crime and no penalty save on the basis of a Sharia or statutory text, and no punishment save for acts subsequent to the text.

The clearest statutory expression of the principle appears in Article 3 of the Law of Criminal Procedure, promulgated by Royal Decree No. M/2 of 1435 AH, which provides that no criminal penalty may be imposed upon any person save after his guilt has been established in respect of an act prohibited under the Sharia or by statute, following a trial conducted in accordance with the requirements of the Sharia. Article 2 adds a prohibition on arresting, searching, detaining or imprisoning any person save in the cases provided for by statute, together with a prohibition on subjecting a detained person to physical or moral harm, torture, or treatment degrading to dignity. Article 4 then guarantees to every accused person the right to be assisted by a representative or an advocate for his defence at both the investigation and the trial stages — an important provision, since it expressly extends the guarantee to the investigation stage.

It is worth observing that the Saudi formulation is cast in the negative (“no criminal penalty may be imposed … save after guilt is established”) rather than in the affirmative (“the accused is innocent …”). Although the two differ in form, they are identical in substance; indeed, the negative form is closer to the classical uṣūlī method of stating a rule by confining its exception. Nevertheless, the affirmative formulation retains greater symbolic force and is easier to invoke before a court.

Comparative Table — GCC States

The comparison yields the conclusion that the GCC States share three essential elements: the entrenchment of the principle in an instrument superior to ordinary legislation; its linkage to the right of defence; and the prohibition of physical and moral harm. They differ on two points: the extent to which the principle is expressly extended to the pre-trial phase (clearest in Bahrain and Saudi Arabia), and the extent to which it is linked to legal aid (clearest in Oman and the UAE).

8.1 The Civil Law Tradition — France as a Model

France is the cradle of the modern codification of the principle. Following the 1789 Declaration, the principle was inserted into the body of the Code of Criminal Procedure by Law No. 2000-516 of 15 June 2000, expressly entitled the “Law Reinforcing the Presumption of Innocence and the Rights of Victims,” which introduced a Preliminary Article (article préliminaire) at the head of the Code, providing that every person suspected or prosecuted is presumed innocent so long as guilt has not been established, and that infringements of the presumption of innocence are subject to the sanctions prescribed by law.

More significantly still, the French legislator extended the protection into the civil sphere: Article 9-1 of the Civil Code affirms the right of every person to respect for the presumption of innocence, and empowers the judge — including in summary proceedings — to order measures to bring an infringement to an end, such as the publication of a corrective statement at the expense of the party in breach. This marks a qualitative shift: from a procedural guarantee to a personal right capable of civil protection.

8.2 The Common Law Tradition

In England the principle rests not on an enacted text but on the celebrated decision of the House of Lords in Woolmington v. DPP (1935), which described the burden of proof borne by the prosecution as the “golden thread” running through the web of English criminal law, subject only to narrow exceptions such as the defence of insanity and any statutory exception expressly enacted by Parliament.

In the United States the principle is not expressly stated in the Constitution, but the Supreme Court has derived it from the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court established its contours in three landmark decisions: Coffin v. United States (1895), holding that the presumption of innocence is an axiomatic and elementary principle of criminal law whose protection lies at the foundation of the administration of justice and precedes the introduction of any evidence; In re Winship (1970), making proof beyond a reasonable doubt a constitutional requirement not susceptible of dilution, applicable even in juvenile proceedings; and Taylor v. Kentucky (1978), holding that a trial court’s refusal to instruct the jury on the presumption of innocence may vitiate the trial itself.

8.3 The Germanic Tradition and European Constitutions

In Germany the principle is derived from the rule-of-law principle (Rechtsstaatsprinzip) enshrined in the Basic Law, and from Article 6(2) of the European Convention as part of federal law; in practice it is expressed through the maxim in dubio pro reo. In Italy the principle appears expressly in Article 27(2) of the Constitution, providing that a defendant is not considered guilty until a final judgment of conviction — an advanced formulation, since it ties the displacement of the presumption to the finality of the judgment rather than to its mere issuance.

8.4 Egypt and the Arab States

Article 96 of the Egyptian Constitution of 2014 provides that an accused person is innocent until proved guilty in a lawful and fair trial in which the guarantees of his defence are secured, and requires the legislator to regulate appeals against judgments rendered in felonies. The Supreme Constitutional Court of Egypt has contributed substantially to the elaboration of the principle, holding that the presumption of innocence accompanies the accused at every stage of the proceedings, that the legislator has no power to presume guilt, and that every restriction upon liberty prior to a final judgment is an exception to be construed narrowly.

8.5 The Jurisprudence of the European Court of Human Rights

The case law of the Strasbourg Court is the richest source for the development of the principle’s content. Among its leading decisions:

•    Barberà, Messegué and Jabardo v. Spain (1988): the Court held that the burden of proof lies on the prosecution, that any doubt must benefit the accused, and that the judge must not embark upon the trial with the preconceived idea that the accused has committed the offence.

•    Allenet de Ribemont v. France (1995): among the most important decisions, holding that an infringement of the presumption of innocence may emanate not only from the judge but from any public official. The Court held that statements by senior police officials at a press conference describing the applicant as an instigator of murder — before any formal charge — constituted a violation of Article 6(2).

•    Salabiaku v. France (1988): the leading authority on reverse presumptions. The Court held that the Convention does not in principle prohibit presumptions of fact or of law, but requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence — that is, a reverse presumption is legitimate provided it is proportionate and rebuttable.

•    Minelli v. Switzerland (1983): the Court held that ordering an accused to bear the costs of proceedings discontinued by limitation, with reasoning implying that he would probably have been convicted, infringes the presumption of innocence even in the absence of any judgment of conviction.

9.1 Reverse Legal Presumptions

Modern legislation in the fields of narcotics, customs smuggling, money laundering, illicit enrichment and terrorist financing has tended to create presumptions that shift the burden of proof — wholly or partly — onto the accused: for example, the presumption that a person in possession of a narcotic substance is aware of its nature, or the presumption that wealth disproportionate to declared income is of unlawful origin. The settled test for the legitimacy of such presumptions is threefold: they must be prescribed by law; they must be rebuttable (simple, not conclusive, presumptions); and they must be proportionate to the gravity of the offence and the importance of the interest protected. Anything beyond this becomes a presumption of guilt, which the Constitution invalidates.

9.2 Prolonged Pre-Trial Detention

Pre-trial detention represents the gravest practical threat to the principle: where it is prolonged and renewed as a matter of routine formality, it is transformed from a precautionary measure into a penalty imposed in advance of judgment. The remedy lies in genuine, rather than stereotyped, reasoning of detention orders; the fixing of a maximum period; the expansion of alternative measures; and the establishment of compensation for unjustified detention.

9.3 Trial by Media and by Public Opinion

The danger is no longer confined to the traditional press but has been aggravated by social media, whose verdicts are instantaneous, collective and unappealable, and which inflict upon the accused harm that no acquittal can erase. Its manifestations include the publication of images of arrested persons before investigation, the leaking of investigation records, and the drafting of official statements in assertive language suggestive of guilt. The proposed legislative remedy includes regulating publication concerning pending cases; obliging official bodies to adopt neutral wording in their statements; and establishing the right of an acquitted person to have the judgment of acquittal published on the same scale as the accusation was published.

9.4 Exceptional Counter-Terrorism Legislation

The legislative wave that followed the events of 2001 produced exceptional regimes expanding administrative detention and restricting access to evidence on grounds of secrecy. The governing criterion here is that the exception may not be permitted to empty the rule of its content; that any restriction must be subject to effective judicial review; and that the secrecy of evidence may not result in a conviction founded on material the defence has had no opportunity to contest.

9.5 Artificial Intelligence and Predictive Justice

A new challenge has emerged in recent years in the form of algorithmic tools used to assess the “dangerousness” of an accused person for the purposes of pre-trial detention or release. These tools present a structural tension with the presumption of innocence, because they evaluate the individual by reference to statistical data concerning cohorts resembling him rather than by reference to what he personally has done — an unacknowledged return to the positivist logic of criminal dangerousness. To this must be added the opacity of the algorithm (the “black box”), which prevents the defence from contesting it, and the demonstrated tendency of such systems to reproduce the biases latent in their training data. The necessary safeguard is that such tools serve only as an advisory aid to the judge, that their criteria be disclosed, and that they remain open to challenge.

9.6 Administrative Sanctions and Blacklisting

Among the forms of indirect infringement of the principle is the imposition of administrative, financial or professional sanctions — such as inclusion on prohibition lists, suspension from employment, or the freezing of assets — upon the mere institution of proceedings and before their determination. Although precautionary in appearance, such sanctions produce a genuinely punitive effect. They must therefore be subjected to judicial review and to the test of proportionality, with provision for compensation where the accusation is not sustained.

Principal Findings

•    Innocence is not an inferred legal presumption at the disposal of the ordinary legislator, but an original legal status inherent in human personality, displaced only by a final judgment, and incapable of waiver because it is a matter of public policy.

•    Islamic Sharia established the principle and elaborated detailed rules upon it — through the maxims that the original state of liability is discharge, that the burden of proof lies on the claimant, and that prescribed punishments are averted by doubt — more than eleven centuries before the French Declaration of 1789.

•    The six GCC States are unanimous in entrenching the principle in an instrument superior to ordinary legislation. The Bahraini formulation is distinguished by the express extension of the guarantees to all stages of investigation and trial; the Qatari by confining the power of conviction to the judiciary; the Emirati by requiring the trial to be fair; the Omani by linking the principle to legal aid; and the Saudi by grounding it in the requirements of the Sharia and extending the right to counsel expressly to the investigation stage.

•    The real gap in the region lies not in the text but in the machinery: the Gulf provisions are advanced in their drafting, yet their effectiveness depends upon the reasoning of detention orders, alternatives to custody, compensation for unjustified detention, and the regulation of media publication.

•    Reverse presumptions, exceptional legislation and predictive justice constitute the three principal threats to the principle in the coming decade. The governing test for all three is proportionality, coupled with the preservation of rebuttability and of judicial review.

Recommendations

•    Expressly enact the presumption of innocence at the head of the Gulf codes of criminal procedure — on the model of the French Preliminary Article — rather than relying upon the constitutional provision alone, so that it operates as an interpretative rule governing all other provisions.

•    Establish an independent civil protection for the presumption of innocence, on the model of Article 9-1 of the French Civil Code, entitling the injured party to apply to the summary judge to bring the infringement to an end and to obtain the publication of a correction.

•    Enact legislation regulating publication concerning pending cases; oblige official bodies to adopt neutral wording in their statements; and establish the right of an acquitted person to have the acquittal published on the same scale as the accusation, at the expense of the party in breach.

•    Expand the range of alternatives to pre-trial detention and make its renewal conditional upon individualised, substantive reasoning, together with a maximum period that may not be exceeded save by order of a higher court.

•    Codify the right to compensation for pre-trial detention that ends in the closure of the investigation or in acquittal, and establish an accessible administrative mechanism for claiming it without requiring the injured party to prove gross fault.

•    Review the reverse presumptions contained in narcotics, money-laundering and illicit-enrichment legislation to verify that the requirements of proportionality and rebuttability are satisfied, and repeal any that are conclusive and incapable of being displaced.

•    Adopt a regulatory framework for the use of artificial intelligence tools in criminal justice, founded on transparency, prohibiting any decision depriving a person of liberty from being based on algorithmic output alone, and guaranteeing the right of the defence to contest such output.

•    Incorporate the presumption of innocence and its practical applications into mandatory training programmes for members of the public prosecution, judicial police officers and advocates, rather than confining it to theoretical instruction.

I. Sharia Sources

•    The Holy Qur’an: Sūrat al-Ḥujurāt, 49:12; Sūrat al-Isrā’, 17:36; Sūrat al-Isrā’, 17:15.

•    The Prophetic Sunnah: the tradition “Were people to be given merely on their claim …,” reported by al-Bayhaqi, its substance being agreed upon; and the Farewell Pilgrimage address on the inviolability of life, property and honour.

•    Juristic maxims: “The original state of liability is discharge”; “Certainty is not displaced by doubt”; “Avert the prescribed punishments by doubt”; “The burden of proof is on the claimant and the oath on the one who denies.” See: al-Suyūṭī, al-Ashbāh wa-al-Naẓā’ir; Ibn Nujaym, al-Ashbāh wa-al-Naẓā’ir; al-Zarkashī, al-Manthūr fī al-Qawā‘id.

II. Constitutional and Legislative Texts

•    Constitution of the Kingdom of Bahrain, promulgated 14 February 2002 — Article 20.

•    Decree-Law No. 46 of 2002 promulgating the Bahraini Code of Criminal Procedure.

•    Decree-Law No. 15 of 1976 promulgating the Bahraini Penal Code; and Law No. 18 of 2017 on Alternative Penalties and Measures.

•    Constitution of the State of Kuwait of 1962 — Article 34; and Code of Criminal Procedure and Trials, Law No. 17 of 1960.

•    Permanent Constitution of the State of Qatar of 2004 — Article 39; and Code of Criminal Procedure, Law No. 23 of 2004.

•    Constitution of the United Arab Emirates of 1971 — Article 28; and Federal Decree-Law No. 38 of 2022 promulgating the Code of Criminal Procedure.

•    Basic Law of the State of Oman, promulgated by Royal Decree No. 6/2021 — Articles 27 and 28; and the Code of Criminal Procedure promulgated by Royal Decree No. 97/99.

•    Basic Law of Governance of Saudi Arabia, promulgated by Royal Order No. A/90 of 1412 AH — Articles 26 and 38; and the Law of Criminal Procedure promulgated by Royal Decree No. M/2 of 1435 AH — Articles 2, 3 and 4.

•    Constitution of the Arab Republic of Egypt of 2014 — Article 96.

•    French Declaration of the Rights of Man and of the Citizen of 1789 — Article 9; French Law No. 2000-516 of 15 June 2000; the Preliminary Article of the French Code of Criminal Procedure; and Article 9-1 of the French Civil Code.

•    Constitution of the Italian Republic — Article 27(2).

III. International and Regional Instruments

•    Universal Declaration of Human Rights (1948) — Article 11(1).

•    International Covenant on Civil and Political Rights (1966) — Article 14(2); and Human Rights Committee, General Comment No. 32 (2007).

•    European Convention on Human Rights (1950) — Article 6(2).

•    American Convention on Human Rights (1969) — Article 8(2); African Charter on Human and Peoples’ Rights (1981) — Article 7.

•    Arab Charter on Human Rights (2004) — Article 16.

•    Rome Statute of the International Criminal Court (1998) — Article 66.

•    Directive (EU) 2016/343 of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial.

IV. Judicial Decisions Cited

•    Woolmington v. Director of Public Prosecutions [1935] AC 462 (House of Lords, United Kingdom).

•    Coffin v. United States, 156 U.S. 432 (1895); In re Winship, 397 U.S. 358 (1970); Taylor v. Kentucky, 436 U.S. 478 (1978) (Supreme Court of the United States).

•    Minelli v. Switzerland (1983); Barberà, Messegué and Jabardo v. Spain (1988); Salabiaku v. France (1988); Allenet de Ribemont v. France (1995) (European Court of Human Rights).

•    Judgments of the Supreme Constitutional Court of Egypt concerning the presumption of innocence and the legality of criminal procedure.

V. Doctrinal References

•    Cesare Beccaria, On Crimes and Punishments (Dei delitti e delle pene), 1764.

•    Dr. Ahmed Fathi Sorour, Constitutional Legality and Human Rights in Criminal Procedure, Dar al-Nahda al-Arabiya.

•    Dr. Mahmoud Naguib Hosni, Commentary on the Code of Criminal Procedure, Dar al-Nahda al-Arabiya.

•    Dr. Ma’moun Mohamed Salama, Criminal Procedure in Egyptian Legislation.

•    Dr. Abdel Raouf Mahdi, Commentary on the General Rules of Criminal Procedure.

•    Dr. Abdel Qader Awdah, Islamic Criminal Legislation Compared with Positive Law.

•    Gaston Stefani, Georges Levasseur & Bernard Bouloc, Procédure pénale, Dalloz.

•    Roger Merle & André Vitu, Traité de droit criminel.

•    Marc Ancel, La défense sociale nouvelle.

•    Enrico Ferri, Sociologia criminale.