Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

Observance of the accused person's rights in the courtrooms of Greek courts One of the first things that fascinated me in Legal Science was the absolute certainty that formed in me, perhaps even from the first day of my studies, that I live in a state governed by the rule of law, within whose legal system every possible provision is taken so that the “weak” person in criminal proceedings, the “accused”, is protected. This certainty was reinforced and strengthened by the study of the rights recognized by our legal system for the purpose of safeguarding the position of the accused. Unfortunately, over the years this certainty turned into a feeling and then into … uncertainty. The fact that a multitude of rights for the accused are provided in analytical and detailed terms is, in my view, a basic indication and proof that we live in a state governed by the rule of law. The co-signing of international conventions safeguarding the rights of accused persons should have strengthened this conviction. Indeed, the rights of the accused are considered so important that the legislator requires their observance and defence under threat of invalidity of the procedure if the opposite occurs. What remains to be examined is the extent to which these rights are applied in practice within the exercise of the so-called “judicial power”. Part A: Wanted … presumption of innocence I would like to begin with what is, in my opinion, the cornerstone of the principles of criminal procedure: the presumption of innocence [Nomika Epilekta: “Strauss-Kahn and the presumption of innocence”]. The presumption of innocence is a fundamental right recognized by the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFR). Indeed, according to article 6 of the Treaty on European Union, the European Union respects fundamental rights as they are guaranteed and protected by the ECHR. One of the objectives of the European Union is the creation of an “area of freedom, security and justice”, as follows from article 2 TEU. Within this framework, forms of judicial cooperation are established, which presuppose the existence of common safeguards regarding the taking of evidence, so that trust is increased and cooperation is improved. Thus the European Council approves the Hague Programme, for strengthening freedom, security and justice in the EU, with the safeguarding of fundamental rights as a basic objective by establishing common procedural guarantees. One of these procedural guarantees is the presumption of innocence, which is laid down in article 6 paragraph 2 of the ECHR and also in article 48 of the CFR. According to article 6 para. 2 ECHR, «Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law», while according to article 48 of the CFR, «1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed». From the case law of the European Court of Human Rights, rules emerge that must be taken into account so that the presumption of innocence of the accused is safeguarded in the criminal trial. It has thus been held that the accused must be treated by judges without prejudice, must not be treated as guilty unless guilt has been proved beyond doubt, the burden of proof must lie with the state and every doubt must be interpreted in favour of the accused, property belonging to him must not be confiscated without observance of the necessary guarantees and, above all, he must not be remanded in custody except where there are extremely important reasons. In the event of pre-trial detention the conditions of detention must be compatible with his presumed innocence. The presumption of innocence is based, in my opinion, on a very basic rule of logic: the inability to prove the non-existence of a punishable act. How can someone prove that he did not commit a punishable act? For this reason, the existence of guilt, not of innocence, must be proved. Recently, I first had the sense, and now, unfortunately, the certainty, that the presumption of innocence in practice tends to be abolished. In the courtrooms of the Greek courts, the impression is created that it does not apply, is not taken into account and, unfortunately, is often replaced by a “presumption of guilt”. I observe, often with anger, I must admit, long-suffering accused persons trying tooth and nail to prove their innocence. And those “trying and usually convicting” observe with the calm and assurance that they can convict without a second thought if the accused before them does not manage to prove his innocence, which is often genuinely very difficult to prove. For it is simple and logical: how can an innocent person have in mind to gather evidence of innocence, since he is innocent and therefore does not imagine that he may need it. Imagine if, for every lawful thing that any citizen does every day, he had to gather evidence showing how whatever he does is lawful… Unfortunately, we are returning to tactics of “finding” the truth that recall other eras, and we see established gains being lost without that loss being accompanied by the self-evident reaction of society as a whole, as I had believed. Gains acquired over the course of centuries through the sacrifices of innocent people are reaching our days only to be considered “obstacles” to the “exercise of judicial power”. I very much fear that what follows will surprise us, and not pleasantly…