17

According to this EU press release, EU strengthens right to the presumption of innocence:

On 12 February 2016, the Council adopted a directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings.

According to the directive, member states will have to ensure that suspects and accused persons are presumed innocent until proven guilty under the law.

This document highlights the main points from the press release. The one I am interested in is:

Innocence until proven guilty: The new rules prohibit public authorities and judicial decisions from making any public references to guilt, before a person is proven guilty. There is now a common definition across all Member States of what the presumption of innocence is.

During the last years, several Romanian officials (members of the Government, members of the Parliament) complained that are pressured by media and/or opposition to resign when National Anticorruption Directorate starts investigating them (NAD deals with major corruption only).

One example is indicated in this article:

Romanian Prime Minister Victor Ponta rejected calls for his resignation on Friday after prosecutors named him in a criminal investigation into forgery, money-laundering, conflict of interest and tax evasion.

Similarly to other cases, the President asked the PM to step down:

President Klaus Iohannis, who defeated Ponta at the ballot box on an anti-corruption platform, called on Ponta to resign over the investigation, saying his position was untenable.

Some politicians argued that, according to the aforementioned EU directive, no politician should be asked to resign unless proved guilty.

Question: Does presumption of innocence work differently for politicians? Or it technically works the same, but they should generally resign due to other political rules?

Improve this question
4
  • 8
    Not an answer but: some might argue that publicly elected leaders are expected to fulfill higher standards of transparency and that their power as given by the people could be questionable if support/trust is lost from the very people that elected them. If trust is generally lost to the leadership them some countries will hold early elections. – Communisty Nov 22 '17 at 13:29
  • 2
    Here is the full text of the directive. – Philipp♦ Nov 22 '17 at 14:02
  • Kind of relevant (unfortunately in Italian) youtube.com/watch?v=Ygp2jMdbcjs :D – Federico Nov 22 '17 at 14:42
  • 2
    Perhaps the question should be "Why is a presumption of innocence not applied by newspapers?" given the same behaviour is seen in reporting of other scandalous behaviour by celebrities – JCRM Nov 23 '17 at 10:08
22

In order to answer this question, I am going to quote the directive itself. All emphasis in the following quotes are mine.

Section 11 reads:

This Directive should apply only to criminal proceedings as interpreted by the Court of Justice of the European Union (Court of Justice), without prejudice to the case-law of the European Court of Human Rights. This Directive should not apply to civil proceedings or to administrative proceedings, including where the latter can lead to sanctions, such as proceedings relating to competition, trade, financial services, road traffic, tax or tax surcharges, and investigations by administrative authorities in relation to such proceedings.

A government official stepping down from a position due to allegations which make them appear untrustworthy is not a criminal proceeding. So this directive does not apply.

Section 16 reads:

The presumption of innocence would be violated if public statements made by public authorities, or judicial decisions other than those on guilt, referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law. Such statements and judicial decisions should not reflect an opinion that that person is guilty. [...]

Note that this only applies to public authorities and judicial decision, not to the private media. Press codices usually say that media should not refer to people as guilty until convicted. But press codices are usually voluntary guidelines, not strict laws. It also doesn't mean that media can not publish comments like "[Minister] must step down until the allegations of corruption against him were proven wrong". That's within their freedom of speech rights. In fact section 19 of the directive makes clear that the freedom of media should not be restricted in order to implement this directive:

Member States should take appropriate measures to ensure that, when they provide information to the media, public authorities do not refer to suspects or accused persons as being guilty for as long as such persons have not been proved guilty according to law. To that end, Member States should inform public authorities of the importance of having due regard to the presumption of innocence when providing or divulging information to the media. This should be without prejudice to national law protecting the freedom of press and other media.

But as you can read here, this directive does explicitly apply to official press releases by the government. So now if a head of government wants a minister to resign, they may no longer say "I asked [Minister] to resign because we believe he is guilty of corruption", they would have to say "I asked [Minister] to resign because the recent allegations of corruption have destroyed the public trust". The phrasing is different, but the effect is the same.

(Also, resigning from a post is, by definition, something the incumbent does willingly. The only way to force someone to resign is if you have some kind of leverage. Usually officials are asked to resign because the regular process to get rid of them would be more complicated for everyone and more humiliating for them.)

But keep in mind that EU directives themselves are not laws. It is up to the member states to make laws which implement the goals of the directive. It is not uncommon for individual EU nations to overshoot the EU demands and make laws which go further than demanded by an EU directive. So individual EU countries implementing said directive with a local law which also protects government officials from having to step down in case of allegations not yet proven by a court of law is conceivable.

Improve this answer
6
  • 3
    But press codices are usually voluntary guidelines I do not know in other countries, but in Spain a newspaper could be sued by libel if they claim that the accused is guilty before the case has been tried (and I am not sure if the lawsuit would be thrown in the case the accused is effectively judged and condemned). But your example is perfectly fine (it does not claim that the accused is guilty, only that there are doubts). – SJuan76 Nov 22 '17 at 14:42
  • Romanian President answered journalists' questions about this issue and told that "presumption of innocence" applies to "regular persons", not politicians, but did not explain more. Unfortunately, I could not hear any analyst to provide a good explanation about the fallacy of those politicians using the directive to protect themselves against those asking them to resign. This is a very good explanation. – Alexei Nov 22 '17 at 14:53
  • 1
    "EU directives themselves are not laws" - yes, that's correct. However, Romanians are among the most euro-optimist and many think high about EU. Politicians understand that and few afford to say something contrary to EU directives, EU officials opinions etc. Even when their actions are clearly against some EU principals (e.g. changing some justice laws to be more indulgent with major corruption). – Alexei Nov 22 '17 at 14:55
  • 1
    @SJuan76 This is why responsible media usually use the word "alleged" when referring to suspects. This qualifier gets them off the hook for libel, since they're not claiming that the suspect is actually guiilty. – Barmar Nov 23 '17 at 0:15
  • EU directives may still have the full force of law. That is however exceptional. The basic exception are directives that obliges EU governments to implement a law which restricts themselves. Failing to implement the law does not let the governments off the hook as in these cases the directive does have direct working. This directive might be such a case, as it imposes an obligation on criminal proceedings, and that is an exclusive state task. – MSalters Nov 23 '17 at 14:31
10

Politicians operate on image, not fact. This is how they can make promises, often unrealistic, and keep getting elected despite not keeping those promises. Trump's wall which appeals to people out of work, but has little to do with unemployment and won't work, and Hillary Clinton's public stand for women's rights while she actively supported a sexual predator in private... are examples of politicians trying to get elected on the image they cast, not fact.

The flip side is - they can be taken down based on image, and not fact. Several US politicians are in hot water over sexual harassment charges that have yet to be proven.

Presumption of innocence doesn't necessarily apply to politicians, just as presumption of competency doesn't always apply, either. Live by image, die by image.

Improve this answer
6
  • 4
    It might be better to use European examples for an EU question. – user9389 Nov 22 '17 at 18:17
  • Best examples I could come up with. Either your politicians are more honest (uh huh) or they're better at keeping it under cover. I'm sure you have a Berlusconi in the woodpile somewhere. – tj1000 Nov 22 '17 at 23:34
  • 1
    @tj1000 "Either your politicians are more honest (uh huh) or they're better at keeping it under cover." Probably neither of the above. Most likely, it's that you're less familiar with European politics. And, why, yes, there was a Berlusconi in the woodpile, so why not use him as an example? – David Richerby Nov 23 '17 at 11:26
  • @DavidRicherby: Well, that would be a case of a politician who was proven guilty. There's no presumption of innocence there. – MSalters Nov 23 '17 at 14:33
  • @MSalters That's a very good point, though he was only proven guilty pretty recently, despite the allegations stacking up for a long time. – David Richerby Nov 23 '17 at 15:11
8

Does presumption of innocence work differently for politicians? Or it technically works the same, but they should generally resign due to other political rules?

Resignation is not a criminal punishment. Presumption of innocence does not apply to employment decisions. These would also be called administrative decisions, which @Philipp's answer shows are explicitly not covered by the directive.

The standard in criminal cases is innocent until proven guilty. This is because a criminal conviction is a big thing that should only be applied when society is sure.

The standard in civil cases is the preponderance of evidence. This is because in civil cases, both sides have equal claims until the law adjudicates. A presumption of "innocence" on one side would be an implicit presumption of "guilt" on the other side. If such a thing existed, there would be a great jockeying to be on the "innocent" side.

In administrative decisions, like employment, the standard is not qualified until proven qualified. A prospective employee must show the proper educational background, work experience, and ability in interviews and portfolios. If the candidate fails to do so, the candidate is not hired.

In this particular case, a politician is responsible to both constituents and party to show good character. A politician who is allegedly corrupt is one who will be inherently less effective, as some number of people will believe the allegations and discount the politician's statements. Further, the politician drags down the rest of the party in elections.

Part of being employed as a politician is maintaining an electable image. Allegations of corruption do not contribute to this, not even allegations that can't be proved in court. Voters are not restricted by innocent until proven guilty. They can vote against a politician for any reason that they want, even stupid reasons like the politician's gender or race.

It's also worth noting that there are ways to be corrupt within the law that may yet be worth voting against. A politician who chooses a complicated regulatory scheme because it favors a legal campaign donor over everyone else may still be worthy of voting out. Or a politician who is careful enough to avoid providing evidence may still be guilty enough to lose an election.

TL;DR: Politicians have the same presumption of innocence as everyone else in criminal trials. But a resignation is not a criminal punishment. A party is always justified in calling for the resignation of those who do not embody the principles of the party. And voters can refuse to cast their votes for such candidates.

Improve this answer
6

Legal responsibilities are not the same than political (or social) responsibilities. Presumption of innocence applies to legal responsibilities, not to political ones.

A typical example would be the responsible of Driving Safety being caught driving while drunk. The legal responsibility would be limited to what the laws about the crime prescribe, and he would have access to all of the legal protections (legal representation, appeals...) That does not change the fact that, in any barely sane country, he would be removed from his position.

The approach is multi-faceted:

  • Public officials are expected, by their position, to have a higher standards. They are working for us. Their positions are more visible than that of the ordinary citizens, which makes their actions more important.

  • A public official or politician being suspected of acting in an illegal or immoral act1 undermines the citizens confidence in the whole government.

  • Let's remember than an important issue during election time is not only the political views of the candidates but also the judgements about the character of the candidates2.

  • Of all of the above, there is a last point. If a public official or politician is seen by the public as inadequate (for whatever the reason) and the government chooses to support him, this would actively hurt the whole of the government (in the next elections, or even in dictatorships in the public support). There must

  • And let's not forget that we are talking here about positions where the individual can be dismissed at will. If the individual has a right to something, it does not lose it for being a politician (e.g., you can sack your minister but you cannot impound his house).

UPDATE:

Important hints to see if we are talking about political or legal issues:

  • Who is doing the talking. Only a proper judge/jury can decide a trial result. Everyone can opinate/pressure about political issues.

  • The mandate associated with the claims. Legal sentences are mandatory, while political ones are optional. When a judge or jury issues a sentence it has to be carried (although in the terms of the legal system, which could meant that it can be appealed, etc.) regardless of the accused's will. There are people asking Victor Ponta to resign, but he can chose to just ignore them because those people are just expressing their opinions.

1Again, this is a matter of public perception, not law. A politician or public official may be in hot water for something that could be perfectly legal but is bad received by the population (e.g. being gay in a country where a lot of people is homophobic).

2Imagine Bernie Madoff running for public office... Would it matter whatever he promised?

Improve this answer
1
  • 1
    A more contemporary (at least in the west) version of "immoral act" would be to have many millions of money stashed away in offshore tax havens (legal tax avoidance). – gerrit Nov 22 '17 at 16:37

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .