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This arcle is published in a peer-reviewed secon of the Utrecht Law Review
The Presumpon of Innocence as a
Counterfactual Principle
Ferry de Jong & Leonie van Lent*
1. Introducon
The presumpon of innocence is widely, if not universally, recognized as one of the central principles of
criminal jusce, which is evidenced by its posion in all internaonal and regional human rights treaes as
a standard of fair proceedings.1 Notwithstanding this seemingly rm normave posion, there are strong
indicaons that the presumpon of innocence is in jeopardy on a praccal as well as on a normave level.
The presumpon of innocence has always been much discussed, but in the last decade the topic has
generated a parcularly signicant extent of academic work, both at the naonal and at the internaonal
level.2 The purport of the literature on this topic is twofold: many authors discuss developments in law and in
the pracce of criminal jusce that curtail suspects’ rights and freedoms, and cricize these developments as
being violaons of the presumpon of innocence. Several other authors search for the principle’s normave
meaning and implicaons, some of whom take a crical stance on narrow interpretaons of the principle,
whereas others assert – by somemes totally diering arguments – that the presumpon of innocence
has and should have a more limited normave meaning and scope than is generally aributed to it. An
important argument for narrowing down the principle’s meaning or scope of applicaon is the risk involved
in a broad concepon and a consequently broad eld of applicability, viz. that its specic normave value
becomes overshadowed and that concrete protecon is hampered instead of furthered.3
The ever-increasing internaonal interest in the topic is reected also in the regulatory interest in the
topic on the EU level. Aer having delivered a Green Paper on the presumpon of innocence in 2006,4 the
next step is the adopon of a Direcve containing minimum rules as to certain aspects of the presumpon of
* Prof. Dr. F. de Jong (f.dejong1@uu.nl) is Professor of Criminal Law and Criminal Procedure at Utrecht University and aliated with the
Utrecht Centre of Accountability and Liability Law (UCALL). Dr. L. van Lent (email: l.vanlent@uu.nl) is Assistant Professor of Criminal Law
and Criminal Procedure at Utrecht University and aliated with the Montaigne Centre for Judicial Administraon and Conict Resoluon
of Utrecht University. The authors want to thank the two anonymous reviewers for their very valuable comments on an earlier version of
this arcle.
1 Art. 6(2) ECHR; Art. 48(1) EU Charter of Fundamental Rights; Art. 11(1) Universal Declaraon on Human Rights.
2 To name but a few: A. Stumer, The Presumpon of Innocence. Evidenal and Human Rights Perspecves (2010); V. Tadros, ‘The Ideal of
the Presumpon of Innocence’, (2014) 8 Criminal Law and Philosophy, pp. 449-467; V. Tadros, ‘Rethinking the Presumpon of Innocence’,
(2007) 1 Criminal Law and Philosophy, no. 2, pp. 193-213; V. Tadros & S. Tierney, ‘The Presumpon of Innocence and the Human Rights
Act’, (2004) 67 The Modern Law Review, pp. 402-434; A. Ashworth, ‘Four Threats to the Presumpon of Innocence’, (2006) 10 Internaonal
Journal of Evidence and Proof, no. 4, pp. 241-278; E. van Sliedregt, Tien tegen één. Een hedendaagse bezinning op de onschuldpresumpe
(inaugural lecture, Free University Amsterdam) (2009); L. Stevens, ‘Pre-trial Detenon: The Presumpon of Innocence and Arcle 5 of the
European Convenon cannot and do not Limit its Increasing Use’, (2009) 17 European Journal of Crime, Criminal Law, and Criminal Jusce,
no. 2, pp. 165–180; A. Galea, ‘The Changing Nature of the Presumpon of Innocence in Today’s Surveillance Sociees: Rewrite Human
Rights or Regulate the Use of Surveillance Technologies?’, (2013) 4 European Journal of Law and Technology no. 2; (the contribuons to
the) (2013) 42 Netherlands Journal of Legal Philosophy, no. 3, Special Issue on the Presumpon of Innocence.
3 Stumer 2010, supra note 2, pp. 52-87; cf. R. Glover, Review of A. Stumer, ‘The Presumpon of Innocence: Evidenal and Human Rights
Perspecves’, (2011) 15 The Internaonal Journal of Evidence and Proof, no. 1, pp. 89-92; L. Campbell, ‘Criminal labels, the European
Convenon on Human Rights and the Presumpon of Innocence’, (2013) 76 The Modern Law Review, no. 4, pp. 681-691; T. Weigend, ‘There
is Only One Presumpon of Innocence’, (2013) 42 Netherlands Journal of Legal Philosophy, no. 3, pp. 193-204. Cf. footnote 46, infra.
4 Green Paper on the Presumpon of Innocence, 26 April 2006 COM(2006) 174.
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Utrecht Law Review | Volume 12 | Issue 1 (January) 2016
innocence, as part of the EU’s procedural rights’ agenda.5 The underlying purpose of the currently proposed
EU Direcve, as was the case in the Direcves that have previously been enacted, is the harmonizaon of
safeguards in criminal procedure in the Member States with a view to interstate cooperaon.6 Similar to the
other EU Direcves concerning procedural rights, the proposal for the Direcve on certain aspects of the
presumpon of innocence draws strongly from the case law of the European Court of Human Rights.
The fact that the EU chose to include the presumpon of innocence in its harmonizaon eorts seems
in part to have been insgated by the oen heard complaint, voiced by experts and praconers from
EU Member States in the context of the EU’s Green Paper on the presumpon of innocence, that this principle
is being eroded and that guilt presumpons are exceedingly being tolerated.7 Indeed, a rough overview
of the literature shows both crical wrings in which recent criminal jusce measures and competences
are claimed to amount to violaons of the presumpon of innocence, and authors who maintain that the
presumpon of innocence is a principle of limited normave meaning, considering its restricted impact on
criminal jusce pracce.
Considering that one of the essenal problems addressed by the literature concerning the presumpon
of innocence is the lack of clarity or consensus as to what this principle essenally means and what standards
ow from its raonale, it comes as no surprise that the EU’s harmonizaon enterprise now also focuses on
this principle. We can safely assume that this lack of clarity is at least partly caused by the paradoxical and
abstract nature of the presumpon of innocence. Considering that the elusive and thus ever debatable
nature of the presumpon of innocence prevents the academic discussion about the compability of certain
aspects of today’s criminal jusce with the presumpon of innocence from producing operaonal results
that are acknowledged in pracce, whereas a harmonized operaonalizaon is the purpose of the proposed
EU Direcve, we consider it necessary to shi the discussion on the presumpon of innocence (once again)8
to a more fundamental level.
The last few decades have shown developments in criminal jusce that as such raise important quesons
with regard to the presumpon of innocence, but also, and more importantly, signicant changes in society
and shis in percepons of crime and criminal jusce that are reected in policy and legislaon. Our asseron
is that these changes and shis fundamentally challenge or even jeopardize the presumpon of innocence,
since they bring in their wake a distoron of the ‘tradional narrave’ and corresponding framework of
criminal law and criminal procedure. The presumpon of innocence, abstract as it is, is embedded in this
tradional narrave (or so we will try to show in this arcle).
This arcle’s primary aim is to highlight the fundamental level on which the discussion on the presumpon
of innocence needs to take place, by taking into account the developments that fundamentally endanger
the presumpon of innocence. We thereby hope to provide insights into the principle’s central normave
meaning in today’s criminal jusce systems and thereby to contribute to preserving that meaning. The path
we take is the following: rst we discuss the values and funcons that are aributed to the presumpon
of innocence in the relevant literature, in order to provide an acceptable outline of the central ideas it
contains or is supposed to contain (Secon 2). We then introduce the concept of ‘counterfactuality’ and
explain that a counterfactual perspecve can further clarify the nature and essence of the presumpon of
innocence (Secon 3). Subsequently, we briey discuss several fundamental shis in society and criminal
jusce that aect the presumpon of innocence and lend all the more urgency to disclosing its essence and
normave power (Secon 4). In the conclusion (Secon 5) we argue that today’s threats to the presumpon
of innocence are of a fundamental nature, and that aempts to preserve the principle’s ecacy should
focus on its context, while taking into account its counterfactual nature.
5 Proposal for a Direcve of the European Parliament and of the Council on the Strengthening of certain aspects of the Presumpon of
Innocence and of the Right to be Present at Trial in Criminal Proceedings, COM(2013) 821/2 (hereinaer: the proposed EU Direcve).
6 Explanatory Memorandum to the proposed EU Direcve, Secon 1: Context of the Proposal.
7 Explanatory Memorandum to the proposed EU Direcve, para. 19.
8 We do not profess to be the rst ones to advocate a discussion on the meaning of the presumpon of innocence on a fundamental-
theorecal level; nor do we submit that the views that we advocate in this arcle are enrely, or even largely, novel. See for example
H.L. Packer, The Limits of the Criminal Sancon (1968), pp. 160-168.
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34
2. The presumpon of innocence: qualicaons, implicaons, and funcons
As was stated in the introducon, all of the aenon for the presumpon of innocence has not led to
clarity or consensus as to what it essenally means, which requirements it sets within the sphere of the
administraon of criminal jusce, and how these requirements should be implemented in pracce. An
analysis of the meaning that is aributed to it is too big an enterprise to complete, if that would entail
research into the dierent norms and interpretaons in dierent legal systems. In our (more limited) aempt
to oer a descripon of the central ideas harboured by the presumpon of innocence, we will instead bring
together the main qualicaons and raonales provided in recent literature that covers dierent Western
criminal jusce systems.9
In describing the meaning of the presumpon of innocence, the rst problem that comes up is its
paradoxical nature. The paradoxical nature of the presumpon of innocence is well captured in Weigend’s
words: ‘It works against experience and intuion.’10 Aer all, the presumpon of innocence is supposed to
apply to persons who are suspected of having commied a criminal oence; prima facie there is a profound
conceptual contradicon between presuming a suspect to be innocent, on the one hand, and the fact that a
suspect is someone in relaon to whom a reasonable presumpon of guilt exists, on the other.11 This paradox
is theorecally resolved in the general recognion of the non-factual, non-cognive but instead normave
character of the presumpon of innocence.12 However, the normave qualicaon of the presumpon of
innocence also diers among authors. Some qualify the presumpon of innocence as an exclusively or at
least primarily procedural norm that sets more or less rm standards for pracce.13 Others use ‘soer’
qualicaons and consider the presumpon of innocence to amount to a ‘hypothecal point of departure
for a fair trial’, a ‘source of inspiraon’, or a ‘basic assumpon’.14
As to the queson of what, then, is the principal raonale and content of the presumpon of innocence,
we encounter several dierent consideraons and categorizaons. In the following we categorise the main
raonales of the principle along the lines of three wide-ranging normave characterizaons, which are
broadly recognised in both the literature and the internaonal case law: its portrayal as a safeguard against
wrongful convicons (2.1), as a shield against intrusive state powers (2.2), and as a norm of treatment and
mind-set (2.3).
2.1. A safeguard against wrongful convicons and the burden of proof
The most generally recognised qualicaon of the presumpon of innocence is that it serves as a safeguard
against wrongful convicons. This concepon focuses on the dangers inherent in convicon as such. It is the
very nature of the consequences of being found guilty of a criminal oence that is believed to necessitate the
safeguarding of the defendant from wrongful convicons by, rstly, adhering to the in dubio pro reo principle
and, secondly, by burdening the prosecuon with proving guilt and thereby defeang the presumpon of
innocence. Ashworth takes this raonale to be the rst and foremost reason for recognizing the principle.15 To
Van Sliedregt, the prohibion of wrongful convicons constutes the core of the presumpon of innocence;
9 We will pay no specic aenon to the so-called ‘proporonality inquiry’ in connecon with the juscaon of limitaons on the
presumpon of innocence; for this, see Stumer 2010, supra note 2, pp. 119-151, Tadros 2007, supra note 2 and Tadros & Tierney 2004,
supra note 2. Nor will we address the implicaons of the presumpon of innocence for substanve criminal law, for instance with regard
to the statutory design of criminal oences; see for this Tadros 2014, supra note 2 and R.A. Du, Answering for Crime (2009), pp. 195-228,
239-242.
10 T. Weigend, ‘Assuming that the Defendant is not Guilty: The Presumpon of Innocence in the German System of Criminal Jusce’,
(2014) 8 Criminal Law and Philosophy, no. 2, p. 287.
11 See for example G.J.M. Corstens, Het Nederlands strafprocesrecht, revised by M.J. Borgers (2014), pp. 45-47.
12 Weigend therefore nds the term ‘presumpon’ to be awed; it is an ‘assumpon’, a legal con; see Weigend 2014, supra note 10,
p. 287. See also N. Keijzer, ‘Enkele opmerkingen omtrent de praesumpo innocenae in strafzaken’, in Ch.J. Enschedé et al. (eds.), Naar
eer en geweten (liber amicorum J. Remmelink) (1987), p. 243; Stevens 2009, supra note 2, p. 168.
13 Weigend 2013, supra note 3; Weigend 2014, supra note 10; Keijzer 1987, supra note 12.
14 See for example Van Sliedregt 2009, supra note 2; and Y. Buruma, book review (review of E. van Sliedregt, ‘Tien tegen één. Een hedendaagse
bezinning op de onschuldpresumpe’ (orae VU Amsterdam)), (2009) Delikt en Delinkwent, no. 8, p. 859.
15 Ashworth 2006, supra note 2, pp. 246-247.
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the rule of in dubio pro reo is a direct deducon of this.16 Keijzer speaks of the right to be acquied if the
charge has not been legally and convincingly proved.17
In the common law legal doctrine the presumpon of innocence is taken to be primarily a rule of evidence,
seng standards for the decision on guilt.18 Taken in this sense, the noon dictates that the burden of proof
is on the prosecuon authories,19 and it sets a standard with regard to the threshold of required proof: the
presumpon of innocence must be defeated by proof of guilt beyond a reasonable doubt before guilt can
be regarded as established and a convicon can take place.20
Outside of the common law jurisdicons the presumpon of innocence is related to evidenal issues
more loosely; general principles such as in dubio pro reo and ‘the burden of proof is on the prosecuon’
are recognized as noteworthy aspects of the presumpon of innocence, but the essenal meaning of the
principle is not pinpointed on maers of proof. Weigend, for example, considers that the presumpon of
innocence, on the one hand, and evidenary standards, on the other, apply in dierent contexts and have
dierent purposes; a violaon of the presumpon of innocence in the context of proof could only occur if
the law would generally require defendants to disprove the charges against them, because such a law would
imply that anyone who is charged is in eect presumed to be guilty.21
2.2. A shield against intrusive state powers
As we saw, the risk of wrongful convicons that is inherent in criminal proceedings fuels the normave
power of the presumpon of innocence. In addion to seng standards with regard to the burden of proof
and the threshold of proof, the presumpon of innocence is also widely acknowledged to spulate a set of
norms that provide a protecve ‘shield’ against intrusive state acons, which, aer all, might in the end turn
out to be unwarranted. In this connecon an important queson is whether the presumpon of innocence
applies to the trial phase only, or to both the pre-trial phase and the trial phase.
For Weigend, the fact that the presumpon of innocence is a rule of procedure means that it applies ‘from
the iniaon of a criminal process to its nal conclusion’. According to him, the very aim of the presumpon
of innocence is to protect the suspect from overbearing situaons as a consequence of state acons.22
Therefore it prohibits state agents from taking acon that necessarily presupposes that the suspect is in fact
guilty. In this context Weigend denes the presumpon of innocence as a ‘counterweight’ against all the
real risks involved in an individualized suspicion (it puts his social status in jeopardy, it submits him to the
State’s vast powers, and it sets in moon processes possibly leading to convicon and detenon).23
Ashworth concludes that the applicaon of the presumpon of innocence to the pre-trial phase is
dictated by the same aim that also underlies the interpretaon of the presumpon of innocence as a rule
of evidence, that is: following up on the State’s duty to recognize the defendant’s legal status of innocence
prior to convicon.24 This is so because subjecng the individual to the vast state powers that are part and
parcel of the criminal procedure seems to contradict the noon that only the court’s decision occasions the
consequences of the status of a guilty person.
16 Van Sliedregt 2009, supra note 2, p. 39.
17 Keijzer 1987, supra note 12.
18 Campbell 2013, supra note 3, p. 683; Du 2009, supra note 9, pp. 19-22, 195-228.
19 For which it is oen cited from Woolmington v DPP, in which Viscount Sankey stated that this principle is part of the common law of
England, labelling it as ‘one golden thread’ in the web of English criminal law, [1935] AC 462. See Stumer 2010, supra note 2, pp. 152-189.
20 R.A. Du, ‘Who must Presume whom to be Innocent of What?’, (2013), 42 Netherlands Journal of Legal Philosophy, no. 3, p. 170;
Campbell 2013, supra note 3, p. 681. The standard ‘beyond reasonable doubt’ is also reected in the case law of the ECtHR. Ashworth
argues, however, that this parcular standard is not dictated by the presumpon of innocence; not seng the standard lower than
this is an implicaon of the values underpinning the presumpon of innocence; see Ashworth 2006, supra note 2, p. 250; see also
Weigend 2014, supra note 10. See also the proposed EU Direcve, Art. 5; it should be noted that this proposed Art. 5(2), which summarizes
the relevant ECtHR case law, is heavily disputed behind the scenes: see <hp://www.europarl.europa.eu/oeil/popups/cheprocedure.
do?reference=2013/0407%28COD%29> for pro-posed amendments (last visited October 2015).
21 Weigend 2014, supra note 10, pp. 291-292; see also S.A.M. Stolwijk, Onschuld, vrijspraak en de praesumpo innocenae (valedictory
lecture, University of Amsterdam) (2007), pp. 15-17.
22 Weigend 2013, supra note 3; Buruma 2009, supra note 13, p. 855, likewise describes the essence of the presumpon of innocence as ‘a
shield against burdening of the suspect’.
23 Weigend 2013, supra note 3; we will come back to the noon of a ‘counterweight’ in Secons 3 and 4, infra.
24 Ashworth 2006, supra note 2, p. 244.
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The idea that the presumpon of innocence implies a norm for the pre-trial phase that the defendant
should be treated as innocent is, however, not generally recognised under the common law doctrine of the
presumpon of innocence,25 although this idea is generally embraced in the literature26 and in the European
Court of Human Rights’ case law.27
This does not alter the fact that the conceptualizaon of the presumpon of innocence as a shield
against (unjused) punishment and as protecon against state intrusion before convicon has a rm
historical basis.28 Quintard-Morénas relates it to society’s acknowledgment – founded on the contrat social
prohibing private vengeance and guaranteeing the right to an imparal tribunal – that ‘there is a me for
innocence and a me for guilt’.29 The presumpon of innocence’s roots in anquity give the impression of
an elementary rule of jusce that follows up on the fact that one can be accused of a crime without in fact
having commied it. Ancient maxims and rules maintain that allegaons must be proven by those who
make them, and the accused must be considered innocent, and must therefore normally not be deprived of
status and liberty in the interval between accusaon and judgment.30
Quintard-Morénas describes how the maxim non stam qui accusator reus est gained ground in the
early French universies and in French law pracsed by the Parliaments, even throughout the ancien regime
when many pracces contradicted this rule – the legalizaon of torture being the ulmate violaon of the
presumpon’s long tradion.31 In the pre-revoluonary wrings and during the build-up to the Revoluon,
the posion and treatment of suspects were among the most important topics in the discussion on criminal
jusce reform. Beccaria invoked the presumpon of innocence (‘no man has the right to consider someone
guilty as long as the court has not reached a verdict’ and ‘in the eye of the law every man is innocent whose
guilt has not been proved’) in order to make a case against pre-trial torture and for the beer treatment
of suspects, especially those in pre-trial detenon.32 Unsurprisingly, the ‘shield’ noon of the presumpon
of innocence is also clearly reected in its subsequent expression in the Déclaraon de droits de l’homme
(Arcle 9): ‘Tout homme étant présumé innocent jusqu’à ce qu’il ait été déclaré coupable, s’il est jugé
indispensable de l’arrêter, toute rigueur qui ne serait pas nécessaire pour s’assurer de sa personne doit être
sévèrement réprimée par la loi.’
Although, as was stated earlier, the idea that the presumpon of innocence implies a norm for the
pre-trial phase is not currently generally recognised under the common law doctrine of the presumpon
of innocence, Quintard-Morénas and Baradaran explain that the presumpon of innocence as a pre-trial
‘shield’ is not unfamiliar to the common law history; for also in the common law tradion, the principle
has been especially referred to in the context of the protecon against pre-trial detenon. Restricons
on imprisonment before trial and the possibility of bail were already laid down in the Magna Carta and
this long-standing common law tradion of restricted pre-trial detenon has always been related to the
presumpon of innocence.33 Not surprisingly, the United States Supreme Court’s case law, determining that
the presumpon of innocence requires no more than that the prosecuon must produce proof beyond a
reasonable doubt34 and the lack of discussions as to its praccal results in terms of the number of defendants
25 Campbell 2013, supra note 3, p. 685. Van Sliedregt concludes that the presumpon of innocence does not actually regulate the pre-trial
phase and she therefore concludes that it only protects against ‘excessive’ state burdening or overbearing; Van Sliedregt 2009, supra note 2,
pp. 42-43.
26 Keijzer 1987, supra note 12; Corstens/Borgers 2014, supra note 11, p. 46; Weigend 2013, supra note 3, p. 296; Ashworth 2006, supra note 2,
p. 251; Campbell 2013, supra note 3, pp. 685 and 689.
27 See Stevens 2009, supra note 2; Stumer 2010, supra note 2, pp. 88-118.
28 This historical angle is taken by Keijzer 1987, supra note 12, Stolwijk 2007, supra note 21, and especially F. Quintard-Morénas, ‘The
Presumpon of Innocence in the French and Anglo-American Legal Tradions’, (2010) 58 The American Journal of Comparave Law,
pp. 107-150.
29 Quintard-Morénas 2010, supra note 28.
30 Ibid., pp. 109-110.
31 Ibid., p. 120.
32 C. Beccaria, On crimes and punishments [1764] (1971), pp. 343-344.
33 See S. Baradaran, ‘Restoring the Presumpon of Innocence’, (2011) 72 Ohio State Law Review, pp. 729-730 and citaons; Quintard-Morénas
2010, supra note 28, pp. 127-130.
34 Bell v. Wolsh, 441 US 520 (1979): ‘the presumpon of innocence is a doctrine that allocates the burden of proof in criminal trials (…).
But it has no applicaon to a determinaon of the rights of a pre-trial detainee during connement before his trial has even begun.’
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held in pre-trial detenon,35 have evoked strong cricism by authors recalling this long-standing meaning of
the presumpon of innocence as a shield against all forms of ‘punishment’ before convicon.36
The actual applicaon of the noon of the presumpon of innocence as a ‘shield’ against state powers
causes dicules in the face of the uncontested fact that invesgaon and prosecuon authories cannot
do without coercive powers. In this connecon, some authors argue that the presumpon of innocence
primarily warns against imposing irreparable measures.37 Pre-trial detenon being the clearest example
of such a measure, the European Court of Human Rights’ interpretaon, requiring due regard for the
presumpon of innocence in deciding on pre-trial detenon, can be considered to aest to that idea. The fact
that the ECtHR has not deduced any concrete restricons as to the applicaon of pre-trial detenon from the
presumpon of innocence38 does not negate the principled funcon of the presumpon of innocence in the
context of pre-trial detenon. On a more general level, the presumpon of innocence is also considered to
be one of the normave foundaons of legal restricons on exercising invesgave powers.39 The proposal
for the EU Direcve provides a clear example of that idea, in that it expressly connects the presumpon of
innocence to the privilege against self-incriminaon.40
2.3. The right for the accused to be treated as innocent
Thirdly and relatedly, the presumpon of innocence is widely held to also imply norms with regard to the
treatment of suspected individuals, both during the pre-trial phase and during the trial phase of criminal
proceedings. Whereas the conceptualizaon of the presumpon of innocence as a protecve shield against
intrusive state measures (as discussed under Subsecon 2.2, supra) primarily involves ‘overt acts’ performed
by state ocials, the third raonale of the presumpon addionally implies a mental requirement, viz. the
requirement that criminal law ocials have and keep an ‘open mind’ with regard to the guilt or innocence
of the suspect or defendant. This third raonale can be regarded as a ‘front runner’ of the conceptualizaon
of the presumpon of innocence as a rule of evidence safeguarding against wrongful convicon; it links the
idea of a shield against intrusive state powers with the idea of safeguarding against a wrongful convicon.
The prohibion for the court and other criminal law ocials to show any convicon as to the guilt of
the defendant at trial is considered to be derived from this requirement of open-mindedness.41 According
to Corstens and Borgers, this rule also entails another important procedural consequence: the court must
provide ample opportunity for the defendant to say what he/she has to say and must pay due aenon to
this narrave.42 In other words: the presumpon of innocence preserves room for the defence to exercise
its procedural rights (we will come back to this in Secon 3, infra). Along similar lines, Keijzer argues that
the funcon of the presumpon of innocence amounts to providing a ‘counter-poison’: it must counter the
inuence exerted by the results of the preliminary invesgaons and by the experience that most defendants
are in fact guilty.43 This concepon of the presumpon of innocence as a ‘counter-poison’ also implies that
it works against anything prejudicial, such as expressions on guilt made by the authories and in the press.44
Even though Weigend, like Keijzer, qualies the presumpon of innocence as a rule of procedure, he
considers that this rule does not restrict anyone (e.g. the media) but the judicial authories in expressing an
opinion as to the guilt of the defendant. The fact that the presumpon of innocence is a rule of procedure
means that it applies ‘from the iniaon of a criminal process to its nal conclusion’ and only addresses
35 Baradaran 2011, supra note 33, p. 725.
36 Quintard-Morénas 2010, supra note 28, pp. 107-150; Baradaran 2011, supra note 33.
37 Corstens/Borgers 2014, supra note 11, pp. 46-47, claiming that the presumpon of innocence demands that pre-trial detenon should
be executed disncvely from post-convicon imprisonment; cf. (also for the ECtHR’s perspecve) Stevens 2009, supra note 2.
38 L. Stevens, ‘The Meaning of the Presumpon of Innocence for Pre-trial Detenon. An Empirical Approach’, (2013) 42 Netherlands Journal
of Legal Philosophy, no. 3, pp. 239-248.
39 Keijzer claims that legal restricons to invesgave powers as well as the privilege against self-incriminaon are determined by the
presumpon of innocence; see Keijzer 1987, supra note 12, pp. 245-250.
40 See the proposed EU Direcve, Arts. 6 and 7.
41 See also Weigend 2013, supra note 3, p. 194: the presumpon of innocence does not protect against any actual ‘bias’.
42 Corstens/Borgers 2014, supra note 11, pp. 37-38.
43 Keijzer 1987, supra note 12, p. 242.
44 Ibid.
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the judicial authories in their dealings with the suspect/defendant.45 Likewise, Ashworth nds that the
principle’s aim – due respect for the legal status of innocence, necessitated by the harm done by a convicon
and the proper relaonship between State and individual46 – also prevents public ocials from making
statements on the guilt of the defendant.47
A similar line of thought is followed by Campbell on the basis of what she considers to be the tradional
protected interests of the presumpon of innocence: respect for the person and protecon from the State.
Her interpretaon seeks to prevent the State from ‘casgang someone as criminal before a nding of guilt
and without a certain level of proof’.48 This interpretaon is premised on the proper relaonship between
State and cizen combined with the parcular censure that convicon entails, requiring that ocial
statements that usurp the criminal court’s role and evade the procedural protecons are prevented. Like
Weigend’s, Campbell’s concepon pinpoints the applicability of this aspect of the presumpon of innocence
to state ocials.49 This implicaon of the presumpon of innocence is one of the aspects that is laid down
in the proposed EU Direcve (Arcle 4), following up on the ECtHR case law nding a violaon of Arcle 6(2)
in cases in which public ocials had made public declaraons on the accused’s guilt.50 The ECtHR explains
the nding of a violaon by poinng out that these statements encourage the public to believe the suspect
to be guilty before convicon and prejudge the court’s assessment. The proposed EU Direcve repeats (and
thus endorses) this reasoning, which seems to refer to the importance of maintaining the court’s authority
to decide on guilt, while maintaining an open mind and material imparality.
3. The presumpon of innocence as a counterfactual principle
Our exposion in the previous secon of the dierent contrasng views of the role and funcon of the
presumpon of innocence in the sphere of the posive criminal law may lead one to assume that this principle
does not actually amount to much more than an empty shell. We think that it does not, or at any rate that
it should not. Reecng on the three main normave characterizaons of the principle that are reected
in the literature we discussed in the previous secon – a safeguard against wrongful convicons, a shield
against irreparable intrusive state powers, and norms regarding the treatment of suspected individuals – the
essenal raonale of the presumpon of innocence, in our esmaon, is that it constutes a counterweight
against the dierent movements inherent in criminal proceedings starng from the invesgave phase and
culminang in a possible convicon.
Consequently, the presumpon of innocence represents a pre-eminently counterfactual noon, which
is linked to a certain view of the structure of the criminal trial: the trial funcons as a forum where the
opposing pares have equal opportunies to air their views and to challenge the other’s conicng views
(audiatur et altera pars; in French this is commonly referred to as: le principe de respect du contradictoire).
A trial thus provides the possibility for a crical evaluaon of the facts, and allows the cizen a protected
posion in his conict with the powerful State. In this secon we will rst explain what we mean by the term
counterfactuality in relaon to the criminal law and to law generally (3.1); we will subsequently account for
our view of the counterfactual nature of the presumpon of innocence (3.2).
3.1. The noon of counterfactuality
What do we mean by this intriguing, albeit somewhat pretenous term ‘counterfactuality’? To begin with,
it should be noted that counterfactuality is essenally an epistemological concept: it concerns the way
in which we gain a certain cognive access to reality. In the case of law, counterfactuality concerns the
45 Weigend 2014, supra note 10, p. 289.
46 Du 2013, supra note 20, argues for a rather broad concepon of the presumpon of innocence, grounded on the noon of ‘civic trust’
that cizens owe to each other, and that the State owes to its cizens. This ‘horizontal’ broad concepon is contested by Weigend
2013, supra note 3, and by Stumer 2010, supra note 2, pp. 52-87; in the remainder of this arcle we will not occupy ourselves with this
discussion; instead, we will advocate a ‘vercal’ deepening of the noon of the presumpon of innocence.
47 Ashworth 2006, supra note 2, p. 244.
48 Campbell 2013, supra note 3, p. 691.
49 Campbell 2013, supra note 3, pp. 693-694; Stumer 2010, supra note 2, pp. 90-92.
50 See parcularly ECtHR 10 February 1995, appl. no. 15175/89, Allenet de Ribemont v France.
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relaon between juridical terms (i.e. norms, doctrinal concepts) and reality. We want to make this relaon
between juridical terms and reality somewhat clearer in three steps: with reference to the noon of order,
the arcial nature of the juridical order, and the posivity of law.51
First: the noon of order. It is a rather trivial fact that law consists of a system of norms and concepts that
are employed to produce normave judgments on empirical, social acons and states of aairs. If we view
the law as a specic system of ordering states of aairs in society, then we need to gain an adequate insight
into the way in which juridical norms and concepts are related to phenomena in the social domain. The law
authoritavely subjects the social life-world to a normave order – we could call it a ‘symbolic’ order – in
that the law spreads out a vast screen of norms and normave concepts over the everyday social world, by
means of which diering social facts are aached to juridical labels and invested with the juridical meanings
that lie behind these labels; as a result, the language of law instutes a legal ‘world’ that is by denion
not idencal to the pre-legal, social world.52 So, in a trivial and uncontroversial sense, all juridical terms, all
legal concepts, are ‘counterfactual’ in that they funcon as terms and concepts that are applied to facts, and
hence not idencal to facts. This, of course, is self-evident.
But – and this is the second step – legal concepts and norms are counterfactual also in a less trivial
sense: legal concepts and norms constute an arcial conceptual framework. And this arciality is very
important with respect to the goals pursued by law. It is precisely by virtue of the fact that law, so to
speak, ‘lters’ social reality through the screen of its own norms and concepts that it is able to carve out
an ontological domain of its own.53 Within this domain every person is provided with one common set of
procedures, one framework of concepts with the help of which every person is enabled to parcipate in the
process of shaping the public realm on an equal foong with all the others – despite the actually exisng
lack of freedom and lack of equality. In this way, the law prevents our potenally endless deliberaons on
what would constute or advance a just ordering of society from culminang in a pure exercise of power
or force.54
This funconal and ‘happy’ feature of law’s arciality leads us, thirdly and lastly, to the deepest, and
most controversial sense in which legal norms and concepts are essenally counterfactual. The fact that
people can generally agree in their answers to the queson whether or not some social fact is in accordance
with a given legal norm can solely be the result of the interposing of a ‘ground’ or a ‘foundaon’ on the
basis of which this kind of intersubjecve agreement is possible. Counterfactuality, in other words, refers
to the idea that law is always and necessarily posited.55 This implies that the legal concepts and norms that
together make up a legal system are always and necessarily constuve of a parally conngent legal order;
and within a given jurisdicon, the criminal law can be conceived of as the aggressive tailpiece of this enre
legal order.
Every operaon within a legal system refers, at least implicitly, to a background narrave that contains
several reminiscences of the way in which the polity in queson has given shape to views concerning its
51 It should be noted that our exposion of the philosophical concept of counterfactuality is akin to but does not coincide with more
‘classical’ denions of the concept, such as the one oered by Habermas in his work on ‘ideal speech situaons’ and communicave
interacon. Habermas disnguishes a number of condions for ethically and rhetorically adequate discourses. These condions funcon
as counterfactual presupposions in the sense that ‘actual discourses can rarely realize – and can never empirically cerfy – full inclusion,
non-coercion, and equality. At the same me, the idealizing presupposions have an operave eect on actual discourse: we may
regard outcomes (both consensual and non-consensual) as reasonable only if our scruny of the process does not uncover obvious
exclusions, suppression of arguments, manipulaon, self-decepon, and the like. In this sense, these pragmac idealizaons funcon as
“standards for a self-correcting learning process”’; J. Bohman & W. Rehg, ‘Jürgen Habermas’, in E.N. Zalta (ed.), The Stanford Encyclopedia
of Philosophy (2014), available online at <hp://plato.stanford.edu/archives/fall2014/entries/habermas/> (last visited October 2015).
See for example J. Habermas, Wahrheit und Rechergung. Beiträge zur Diskurstheorie des Rechts und des demokraschen Rechtsstaats,
[1998] (2014), pp. 35-39, 138-143, 674-677.
52 R. Foqué, ‘Legal Subjecvity and Legal Relaon. Language and Conceptualizaon in the Law’, in F. Fleerackers et al. (eds.), Law, Life, and
the Images of Man. Modes of Thought in Modern Legal Theory (liber amicorum J.M. Broekman) (1996), pp. 329-333; P.W. Kahn, ‘Freedom,
Autonomy, and the Cultural Study of Law’, in A. Sarat & J. Simon (eds.), Cultural Analysis, Cultural Studies, and the Law. Moving beyond
Legal Realism (2003), pp. 164-177.
53 P.W. Kahn, Polical Theology. Four new Chapters on the Concept of Sovereignty (2011), p. 33: ‘(…) the enre legal order is on view from
every point in the whole. Every norm gives us access to the enre legal world. In this sense, law is like a language. Standing within such a
system, one never gets beyond it. Thus, of every proposed acon, we can ask, “Is it legal?”.’
54 B. van Roermund, ‘Dualisme en dualisme is twee’, in B. van Roermund et al. (eds.), Symposium strafrecht. Vervolg van een grondslagendebat
(1993), p. 273.
55 B. van Roermund, Law, Narrave and Reality. An Essay in Intercepng Polics (1997), pp. 178-183.
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origin and identy. This holds true for the criminal law as well:56 by rendering certain values the protecon
of the criminal law, a given polity canonizes these values, because the violaon of these values would
constute an assault on the very condions for an enduring peaceful coexistence. In this sense, these
criminally protected values are expressive of the self-image of the polity as a just society. This narrave
unavoidably aords dominance to a certain concepon of collecve identy, and it does so necessarily at
the expense of possible alternave concepons.57
The counterfactual nature of the criminal law’s concepts, thus, refers to the idea that the narrave that
expresses a given polity’s self-portrayal is essenally an artefact. It owes its existence to a human intervenon
or choice, to which a rest of conngency always appertains.58 The point we are trying to make is that any
given legal order is by denion a posited order, an artefact, and that we have no way of knowing what a
universally jusable legal order – if at all conceivable – would look like.59 However, it is precisely due to their
counterfactual nature that the concepts of the criminal law maintain a crical distance, not only vis -à-vis the
everyday life-world, but also vis-à-vis the exisng juridical order to which the life-world is subjected.60 The
concepts and norms of the criminal law are thus also, so to speak, turned against themselves.
The foregoing implies that law, also the criminal law, can never claim to have an ulmate, absolute
juscaon for its operaons, not even in the face of the biggest of evils: ‘vis-à-vis the posive law, the
criminal (and even more so the defendant) is always in the right to a certain – however small – degree; he can
say with some juscaon that the law’s claim to universality or generality is never completely redeemed.’61
It follows that counterfactual legal concepts harbour a kind of reservaon or ‘caveat’ with respect to the
jusability of their applicaon and with respect to the claim to absolute validity of the prevailing ideal of
a just society.62 By this route, the legal concepts constute topoi which open the possibility for a procedural
arrangement that secures that there is room for a plurality of views.63 The doctrinal concepts of the criminal
law xate diering social facts in their juridical meanings; however, this xaon is not necessarily permanent,
precisely because legal concepts are characterized by a semanc potenal within the limits of which they
are amenable to new interpretaons in changed circumstances. In this sense, the system of legal concepts
constutes an always shiing normave horizon.
3.2. The counterfactual essence of the presumpon of innocence
The queson is now: what do all these abstract reecons have to bear on our primary topic, the
presumpon of innocence? Aer all, a somewhat awkward and at rst sight permissive aspect of the
noon of counterfactuality is its rather limited concrete expressiveness. What exactly do we mean when
we maintain that the core value of the presumpon of innocence lies in its ‘counterfactual’ nature? The
analyses and descripons presented in Secon 2 show us that the presumpon of innocence is found to be
operave primarily on two levels: at trial, addressing the ulmate decision-maker on guilt and innocence,
and throughout the criminal process encompassing the pre-trial phase, working as a shield against the State’s
power, addressing all judicial authories involved. When we view both levels at which the presumpon of
innocence is found to be operave together, we may note that the presumpon of innocence emphasizes
the proper relaon between cizen and State in the context of the criminal process, in view of the fact that
56 See R.M. Cover, ‘The Supreme Court, 1982 Term. Foreword: Nomos and Narrave’, (1983) 97 Harvard Law Review, no. 4, pp. 4-68;
P.W. Kahn, Legimacy and History. Self-government in American Constuonal Theory (1992), pp. 196-200; P. Schi Berman, ‘Telling a
Less Suspicious story: Notes toward a Nonskepcal Approach to Legal/Cultural Analysis’, in A. Sarat & J. Simon (eds.), Cultural Analysis,
Cultural Studies, and the Law. Moving beyond Legal Realism (2003), pp. 133-140.
57 R. Foqué & A.C. ’t Hart, Instrumentaliteit en rechtsbescherming. Grondslagen van een strafrechtelijke waardendiscussie (1990), pp. 52-64,
138-140, 344-369; F. de Jong, Straf, schuld & vrijheid. Pijlers van ons strafrecht (2012), pp. 70-73.
58 Of course we do not mean to imply that law is completely conngent. For an interesng analysis of the role of convenonality in law, see
A. Marmor, Social Convenons. From Language to Law (2009), especially pp. 155-175.
59 It is worth nong here that it might or might not be intelligible to suppose that a legal order could exist which does in fact sasfy all of
the requirements necessary to be objecvely and universally jused or legimate – that is to say: we do not here submit any view as
to whether such a legal order could in fact exist. Scholars within the natural law tradion have to be commied to the view that such an
order can exist. See for example S.J. Shapiro, Legality (2010).
60 Foqué & ’t Hart 1990, supra note 57, pp. 138-140; De Jong 2012, supra note 57, p. 72. Cf. J. Habermas, Fakzität und Geltung (1992), p. 37.
61 Van Roermund 1993, supra note 54, p. 272; see also Van Roermund 1997, supra note 55, p. 182.
62 Van Roermund 1993, supra note 54, pp. 279-280.
63 R. Foqué, De ruimte van het recht (inaugural lecture, Erasmus University Roerdam) (1992).
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the State is entled to exercise overwhelming powers over the individual, having potenally harsh and long-
lasng consequences, before the individual’s guilt has been determined in the proper way. The core of the
presumpon of innocence is therefore the counterweight that it oers against the inherent64 tendencies of
the criminal process, in its progression from suspicion unl the judicial determinaon of guilt.
By this we mean to say, in the rst place, that the meaning of the noon of the presumpon of innocence
is ‘underdetermined’ by the dierent norms and regulaons in which the noon is given shape on the level
of posive law. Taken in the abstract, the presumpon does not per se prescribe the performance (or the
omission) of any specic act – therefore, every concrete specicaon of the regulaons that are taken to
ensue from this principle will potenally always be controversial. What is more: the counterfactual nature
of the presumpon of innocence is exactly what prevents the meaning of this principle from ever being
fully exhausted by exisng regulaons on the level of the posive criminal law. It goes without saying that
a highly abstract noon such as the presumpon of innocence strongly depends for its ecacy on more
or less concrete and suciently clear regulaons that esh out the normave ideas that are taken to lie at
the heart of this principle. However, to our mind, these concrete regulaons in which the presumpon of
innocence takes shape on the level of posive law do not – and can never – lay bare the principle’s enre
normave core meaning.65
Secondly and more importantly, the characterisaon of the presumpon of innocence as a counterfactual
concept is meant to highlight the crical potenal of the noon. It is exactly this crical potenal that cannot
be fully exhausted by exisng regulaons on the level of posive law. The presumpon of innocence is not
to be equated with a factual presumpon and is therefore not inconsistent with factual suspicions that
usually trigger the commencement of criminal proceedings.66 The presumpon of innocence does not force
upon the authories an actual presumpon that the suspect is innocent and therefore does not conict with
the presumpon of guilt with which the criminal process commences.67 On the contrary, the presumpon
of innocence is rather symbioc with the factual presumpon of guilt.68 As such, the presumpon of
innocence impels the relevant authories to act ‘as if’ the defendant is innocent in order to suspend any
denive judgment on the defendant’s culpability. The presumpon funcons as a normave counterforce
or counterweight in opposion to factual suspicions or reasonable presumpons of guilt that, aer all, may
be falsied during proceedings.
The term presumpon of innocence misleadingly suggests that it is primarily concerned with actual
innocence as a counterpart of actual culpability; rather, however, it is concerned with the idea of a ‘not yet
established culpability’.
The ecacy of the principle of the presumpon of innocence impresses the realizaon that a given
suspicion may prove to be false or undeserved.69 The presumpon of innocence is eecve when the
judicial authories allow themselves to be guided, and when necessary to be corrected, by the constant
64 Émile Durkheim and Max Weber, for example, viewed the criminal process as an originally purely repressive and excluding instrument
with which a given community reacts to the damage that is caused by a criminal act to the moral consensus or the collecve moral
conscience of the group. By implicaon, the criminal process principally served as a means to regenerate society as a moral community,
at the cost of the degeneraon of the criminal individual. Over the course of centuries, the criminal law systems in Western sociees
have gradually developed into more raonal and humane forms of state-governed administraon of criminal jusce. In the modern era,
the ‘primive’ funcon of public chassement has therefore faded into the background, become ‘residual’, and been partly taken over by
the media; see É. Durkheim, De la division du travail social (1967), pp. 70-71; M. Weber, Rechtssoziologie (1967), pp. 117-140. Yet, it has
never disappeared enrely. The ‘natural’ inclinaon to outcast delinquents, to consider them as non-humans without any entlement to
humane treatment, must be combaed connuously. The Dutch criminal law scholar Peters therefore believed that construing a legally
secured arcial space within which suspects are protected by powerful procedural safeguards was the best and most ecient means
to combat this always lurking ‘natural’ tendency; see C.J.M. Schuyt et al. (eds.), Recht als krische discussie. Een selece uit het werk
van A.A.G. Peters (1993), pp. 97-98; F. de Jong & C. Kelk, ‘Overarching Thought. Criminal Law Scholarship in Utrecht’, in F. de Jong (ed.),
Overarching Views of Crime and Deviancy. Rethinking the Legacy of the Utrecht School (2015), pp. 53-55, 60-66.
65 Cf. on Peters’ view of principles as open-ended phenomena: Schuyt et al. 1993, supra note 64, pp. 15-34; De Jong & Kelk 2015, supra
note 64, p. 66.
66 See also: Weigend 2013, supra note 3, pp. 193-194; Ashworth 2006, supra note 2, pp. 249-250.
67 The term ‘innocence’ in this respect is very important however since it reects the more fundamental noon that the State must regard
and encounter its cizens alike and with due trust and respect, and in the context of the principle highlights that nothing has yet happened
to change this; cf. Du 2013, supra note 20.
68 This term is also used by Weigend 2013, supra note 3, p. 196. See for a similar view Packer (1968), pp. 160-162.
69 Corstens/Borgers 2014, supra note 11, pp. 45-46.
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awareness of the fact that appearances can be deceiving.70 This awareness needs to be externalized in
criminal proceedings: in the invesgaons conducted by the judicial authories, in the atude adopted by
the ocials towards the suspect, and in the unprejudiced and detached atude of the trial judge who proves
to be recepve to the views that the defendant wishes to submit, before he reaches his nal judgment. To
our mind, one of the things that this implies, in more concrete terms, for the invesgave phase of criminal
proceedings is that the judicial authories ought to constantly work with symmetrical pairs of hypotheses
concerning the suspect’s possible involvement in a criminal oence and his possible culpability: all truth-
nding measures should be carried out, and all obtained evidence should be scrunized on the basis of, a
dialeccal opposion of the working hypothesis that the suspect is guilty and the contrasng hypothesis
that he is innocent of the crime.71
In order to make room for the desired awareness, the presumpon of innocence eectuates a delay,
a deceleraon, and it stresses the inherently provisional nature of all dealings that take place before the
court’s nal and authoritave judgment on the defendant’s criminal liability. The court’s judgment marks
the moment when provisionality or temporariness changes into deniveness. For this reason we wish to
emphasize the (historical) connecon between, on the one hand, the key posion of the judge or court at
the end of the criminal proceedings and, on the other, the ecacy of the presumpon of innocence in the
earlier stages of the proceedings: only the binding judgment of the court can authoritavely discriminate
between culpability and innocence.72 Every preceding step is geared towards this decision, but is for that
very reason essenally preliminary. It is here, in the arcially instanated and prolonged interval between
provisional suspicions and denive judgment, that the presumpon of innocence is able to eectuate its
crical potenal, that is: its funcon as a counterforce in opposion to the dierent movements inherent in
criminal proceedings starng from the invesgave phase and culminang in a possible convicon.
Whereas an important part of the counterfactual funcon of the presumpon of innocence can be made
operave by the measures such as the hypotheses menoned above, which implement the provisional
nature of the pre-trial invesgaon, during trial it is mainly the court that has the task of securing the
ecacy of the presumpon of innocence, by showing openness towards the defence and procedural rights.
Precisely in its capacity as a counterforce, the presumpon of innocence carves out an arcial space in
which the defendant is enabled to employ his procedural rights. These procedural rights do not merely
constute a set of tools with which the defence is equipped and that have to be respected (this is self-
evident); addionally and more fundamentally, the defendant needs to be brought to a posion wherefrom
he is able to exercise his rights in an eecve and non-illusory manner. This posion is what the presumpon
of innocence essenally seeks to bring about. To be sure, our exposion of the crical potenal of the
presumpon of innocence is by no means novel. Already in 1968, Packer characterized the raonale of the
presumpon of innocence in a similar vein:
‘By opening up a procedural situaon that permits the successful asseron of defenses having nothing to do
with factual guilt, it vindicates the proposion that the factually guilty may nonetheless be legally innocent
and should therefore be given a chance to qualify for that kind of treatment.’73
The characterisaon of the presumpon of innocence as a counterfactual noon means, thirdly and lastly,
that it funcons, on a deeper level, as a counterweight in opposion, not only to any factual suspicion, but
also to the dominant narrave of the ‘image of a just society’ with which the polity idenes itself, and on the
basis of which the criminal law system claims, however implicitly, the legimacy of its dierent operaons.74
70 See S.J. Clark, ‘The Juror, the Cizen, and the Human Being: The Presumpon of Innocence and the Burden of Judgment’, (2014) 8 Criminal
Law and Philosophy, pp. 421-429. See also Buruma 2009, supra note 14, who discusses the organisaon of evoking ‘internal objecons’
within the Public Prosecutor’s Oce as an aspect of the presumpon of innocence.
71 Cf. the recent discussion that has arisen in the Netherlands in the wake of a number of miscarriages of jusce that have come to light;
see for example K. Rozemond, ‘Slapende rechters, dwalende rechtspsychologen en het hypothesche karakter van feitelijke oordelen’,
(2010) 39 Rechtslosoe en Rechtstheorie, no. 1, pp. 35-51.
72 Stolwijk 2007, supra note 21, p. 15. For the sake of brevity we leave aside the dierent possibilies for the Prosecuon Service to sele
cases out of court (in the Netherlands on the basis of Arts. 257a and further of the Dutch Code of Criminal Procedure).
73 Packer 1968, supra note 8, p. 167. We are grateful to one of the anonymous reviewers for reminding us of this important work.
74 See A.C. ’t Hart, Recht als schild van Perseus. Voordrachten over strafrechtstheorie (1991).
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Earlier on we noted that law can never claim to be able to provide an ulmate or absolute juscaon for
its operaons. Even in the face of the biggest of evils, the law must confront itself with the insight that its
reacon to this evil can never be fully legimated, exactly because law is always and necessarily ‘posited’
and hence the result of a human intervenon or choice, to which a residue of conngency always appertains.
The counterfactual noon of the presumpon of innocence precisely expresses a reservaon or caveat
with respect to the dominant concepon of the self-image of the polity as a just society. By means of the
presumpon of innocence, the law implements and puts into eect the idea that it has to, temporarily,
suspend its own claim to legimacy. By implicaon, also and even in cases where there is seemingly no room
for the slightest doubt concerning the defendant’s wrongdoing and culpability, it is necessary to presume his
innocence. Under the aegis of the presumpon of innocence, the defendant is promoted to the rank of a full
and autonomous agent in the proceedings against him, and is enabled to insert his own views and narrave
into the criminal law system, which in turn has to hold these views and narraves against itself, before the
judgment is nally reached.
The presumpon of innocence, in short, funcons as a mirror: in it, the court sees reected the insight
that whatever judgment is reached, there will always remain a sediment of conngency and hence non-
jusability that scks to the grounds upon which the judgment is based. Therefore, and to that extent, not
only the defendant is brought up for trial, but also the court or the judge himself is on trial. In this sense,
the presumpon of innocence can be understood as, as Stevens has aptly put it, the conscience of criminal
proceedings.75
4. Threats to the tradional narrave underlying the presumpon of innocence
To a large extent, the posive (criminal) law can be viewed as a solidied fragment of morality.76 As we
will see in the present secon, however, morality in society has become rather uid and has started to
drain away from underneath its legal solidicaon. To the extent that this is true, it becomes all the more
urgent that the criminal law somehow manages to reect the conclusion we drew from our reecon on the
noon of counterfactuality in Subsecon 3.1, viz. the idea that the criminal law cannot provide a complete
and denive legimaon for the substance of its norms and doctrinal concepts, and neither for the way
in which they are applied in concrete cases. In this secon we discuss a number of developments in the
overall administraon of criminal jusce that pose considerable threats to the ecacy of the presumpon
of innocence.
In order to explain why and how these developments endanger the normave force of the presumpon
of innocence on a very fundamental level, we take a perhaps peculiar detour: rst we discuss some aspects
of what we view to be a ‘tradional’ narrave surrounding the administraon of criminal jusce (4.1). This
narrave is subsequently taken as a starng point for our discussion of a number of recent developments or
tendencies within the administraon of criminal jusce that can be discerned in many Western countries,
which emphasize the importance of a counterfactual reading of the presumpon of innocence (4.2).
4.1. A ‘tradional’ narrave of criminal jusce
Before we go on to discuss a number of tendencies within the administraon of criminal jusce, we rst want
to shed some light on the contents of the communal ‘background narrave’ that underlies the ‘tradional’
concepon of criminal jusce. With the term tradional jusce, we mean to refer, in a very rough sense,
to a number of characterisc and tradional traits of criminal procedures in Western democracies. It goes
without saying that we will march through this narrave with seven-league boots. In what follows, we do not
aim or pretend to do full jusce to the mulfarious facets of the main tenets of tradional criminal jusce
75 L. Stevens, ‘Strafzaken in het nieuws. Over ontsporende media en de verantwoordelijkheid van het Openbaar Ministerie’, (2010) Nederlands
Juristenblad, no. 11, pp. 660-665, p. 661.
76 Cf. J.G.J. Rinkes et al. (eds.), Van Apeldoorn’s Inleiding tot de studie van het Nederlandse recht (2009), pp. 61-64. Again – see also
footnote 59 supra – we do not here wish to submit any view with regard to the highly controversial queson of whether or not law
has any necessary conceptual relaon with morality. Our proposion here is a rather uncontroversial and trivial one: the (criminal) law
incorporates moral concepts in that legal norms and concepts oen reect moral preoccupaons.
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systems in the Western world; undoubtedly, many dierent accounts of ‘tradional’ criminal jusce can be
given. Our perforce somewhat caricatural presentaon purports to oer nothing more than a conceptual
tool with which we hope to put some contemporary developments that we think can be discerned in the
criminal law of many Western countries in perspecve. Our presentaon of this background narrave
is primarily based on the connental European tradion of criminal jusce, though we expect that our
exposion should prove to reect relevant states of aairs in other Western legal tradions as well. We draw
aenon to two sides of the narrave: the legimaon of sancons in the light of the (social) funcon of
criminal law, and the structures of criminal procedure.
In the rst place, the tradional narrave regarding the foundaons of the criminal law concerns the
old queson of whether and how state-inicted punishment can be jused. The answers that are given to
this queson are directly related to prevailing views of the principal social funcon of criminal law as such.
In this connecon, it is useful to briey digress on a rather typically European debate on these and related
topics between the adherents of the so-called Classical School and the adherents of the so-called Modern
School.77 The Classical School (chiey inspired by the wrings of Beccaria and Montesquieu) focused its
aenon primarily on the criminal act, and not, or only obliquely, on the delinquent.78 Whereas the old
philosophers that have retroacvely been designated as the ‘founding fathers’ of the Classical School
were hardly, if at all, concerned with the concept of retribuon as a jusfying ground for punishment,79
this changed rather dramacally under the inuence of the deontological Enlightenment philosophies of
primarily Kant and Hegel.80 In the so-called neo-classical thought, the jusfying ground for the imposion of
criminal sancons was primarily found in the retrospecve concept of proporonal retribuon: a just and
‘deserved’ punishment is commensurate with the seriousness of the commied crime and the culpability
of the oender.
The Modern School of criminology (inspired by the wrings of Lombroso, Ferri and Garofalo), on the
other hand, was less concerned with the criminal act, but all the more with the delinquent individual.81 This
notable shi of focus was accompanied by an equally important shi in the ideology regarding the funcon
of the criminal law: the emphasis no longer fell on the funcon of protecng cizens against possibly
arbitrary interferences by the State, but on the funcon of defending society against crime and delinquents
(défence sociale). The jusfying ground for the imposion of criminal sancons was primarily found in the
prospecve concepts of (special) deterrence and prevenon.
Now, of course, the classical and the modern views have exerted varying degrees of inuence on the
dierent criminal jusce systems in Europe. Therefore, hardly any generally valid observaons can be made
with regard to the ‘tradional’ narraves underlying the connental European criminal jusce systems. But
what could be submied is that, in fact, ulmately some form of a ‘united theory’ that combines the views
of the Classical School and the Modern School – to the eect that the sharp edges of both approaches
have been soened – has become the dominant view in many Western jurisdicons. In the Netherlands a
combined theory has prevailed at least since the middle of the tweneth century.82
The united theory – in whatever shape it has taken – is roughly based on a conceptual disncon between
the juscatory ground for punishing, on the one hand, and the dierent possible aims of punishing, on
the other. On the one side, proporonal retribuon is considered as the one and only jusfying ground for
77 See De Jong & Kelk 2015, supra note 64, pp. 23-25. It should be noted that the terms Classical School and Modern School have gained
noteworthy prominence as designaons of specic bodies of thought within primarily connental European tradions of criminal law
theory; see C. Fijnaut, Criminologie en strafrechtsbedeling. Een historische en transatlansche inleiding (2014), pp. 59-82 and 223-322.
In the Anglo-American tradion, the debate on the jusfying foundaons of punishment has tradionally been framed according to
the disncon between retribuvist and consequenonalist or ulitarian theories of punishment (and their dierent intermediate
qualicaons); see for example M.N. Berman, ‘Two Kinds of Retribuvism’, in R.A. Du & S.P. Green (eds.), Philosophical Foundaons of
Criminal Law (2011), pp. 433-457; R.A. Du, Punishment, Communicaon, and Community (2001), pp. 3-34.
78 W.P.J. Pompe, De persoon des daders in het strafrecht (inaugural lecture, Utrecht University) (1928).
79 Beccaria was a ulitarian thinker; see Beccaria [1764] 1971, supra note 32, Chapter 1. Jeremy Bentham derived many of his ulitarian
ideas from Beccaria; see J.S. Mill, Ulitarianism. On Liberty. Essay on Bentham (ed. M. Warnock) (1962), p. 7.
80 Cf. G.W.F. Hegel, Grundlinien der Philosophie des Rechts (ed. H. Reichelt), [1821] (1972) p. 96: punishment is a ‘right’ of the delinquent.
81 See on this ‘Italian School’: J. Gaakeer, ‘“The Art to Find the Mind’s Construcon in the Face”, Lombroso’s Criminal Anthropology and
Literature: The Example of Zola, Dostoevsky, and Tolstoy’, (2005) 26 Cardozo Law Review, no. 6, pp. 2345-2377.
82 See A.A.G. Peters, ‘Main Currents in Criminal Law Theory’, in J. van Dijk et al. (eds.), Criminal Law in Acon. An Overview of Current Issues
in Western Sociees (1986), pp. 19-36.
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punishment and hence for the existence of criminal law as such. Within the limits indicated by proporonal
retribuon, however, it is possible to pursue certain (ulitarian or consequenonalist) aims, such as general
and special prevenon, rehabilitaon, socializaon et cetera.83 This side of the narrave – concerning
sanconing and its juscaon – was able to do the trick in abstracto for a long me, without one being
forced to elaborate on what was concretely meant by this so-called proporonal retribuon and, above all,
how the proporonality was measured. The judge’s sensivity or Fingerspitzengefühl suced, or at least
this was predominantly trusted.
In the second place, the tradional narrave regarding the foundaons of the criminal law concerns
the structures of criminal procedure. This side of the narrave is less old. In the predominantly inquisitorial
criminal jusce systems of connental Europe it was developed mainly in the 1960s and 1970s.84 In what
has come to be known as ‘procedural jusce’ discourses, it is commonly argued that between the ‘input’
of the public prosecutor and the ‘output’ delivered by the judge in his verdict, a process takes place in
which something happens that is of independent importance for the funcon of the criminal law: already
in the course of the strongly ritualized criminal procedure – and hence not only on the occasion of the
pronouncement, let alone the execuon of the judgment – the negave eects of a criminal oence can be
addressed in such a way that public indignaon ebbs away.85
The independent funcon of the trial and of proceedings as a whole consists in the ‘sublimaon’ of
public emoons or feelings of discomfort: in a criminal process emoonal reacons are lied to a higher
level and being raonalized, that is cleansed from their potenally destrucve overtones. If the criminal
process is to full this funcon, it needs to meet certain condions. For example, the criminal process ought
to constute a relavely autonomous sphere, at a beng distance from moral preoccupaons and public
emoons, and that is governed by an ethics of procedural raonality within which sucient room is secured
for an eecve parcipaon of the involved pares.86 The procedural model emphasizes that the legimacy
of the exercise of authority is dependent upon the way subordinates are being treated by the authories.
The idea is essenally that the quality of the procedures followed and of the treatment of subjects within
these procedures is of decisive importance for the acceptance of the outcomes of the procedures.87
This ‘pull towards the procedural side’ of the criminal law undoubtedly found a notable seed-bed in several
societal developments of the 1970s that can be summarized with catchwords such as democrazaon,
individualizaon, scepcism towards authority, and the accompanying increase of the number of liberated
and arculate cizens.88 Perhaps it is even not too daring a proposion that the paral absorpon of suchlike
social developments in the criminal process has funconed as a lightning rod that (for as long as it lasted,
and by the grace of the solid condence that, despite the social processes, was commonly invested in the
person of the judge and in other criminal law ocials) has diverted fundamental cricism being levelled at
the relavely wide discreon of the judge or court, for example with respect to the establishment of the
punishment.
4.2. Threats to the presumpon of innocence
But of course things have changed since the 1970s. Several disorientang developments have put the
tradionally solid condence in the judge’s Fingerspitzengefühl under a lot of pressure. The threats related to
terrorism, the increased individualizaon, and the increased social and normave fragmentaon in society,
among other things, have engendered a commonly felt loss of a shared identy. The ‘tradional’ narrave
83 Cf. Du 2001, supra note 77, pp. 11-14, on ‘side-constrained consequenonalism’.
84 With regard to the Anglo-American tradion, see: R.A. Du et al., ‘The trial under aack’, in R.A. Du et al. The Trial on Trial. Volume
Three: Towards a Normave Theory of the Criminal Trial (2007), p. 2.
85 In the Netherlands, it was chiey Peters who forcefully emphasized the ‘independent funcon’ of criminal proceedings; see A.A.G. Peters,
Opzet en schuld in het strafrecht (doctoral dissertaon, Leiden University) (1966), pp. 281-294.
86 See for example V. Lazić, ‘Procedural Jusce for “Weaker Pares” in Cross-border Ligaon under the EU Regulatory Scheme’, (2014) 10
Utrecht Law Review, no. 4, hp://doi.org/10.18352/ulr.293, pp. 110-117; F. de Jong, ‘A Reciprocal Turn in Criminal Jusce? Shiing
Concepons of Legimate Authority’, (2013) 9 Utrecht Law Review, no. 1, hp://doi.org/10.18352/ulr.209, pp. 1-23.
87 T.R. Tyler, Why People Obey the Law (2006), p. 163; T.R. Tyler, ‘Legimacy and Criminal Jusce: The Benets of Self-regulaon’, (2009)
Ohio State Journal of Criminal Law, pp. 307-346.
88 See for example P. Spierenburg, Please, please me’s number one (valedictory lecture, Erasmus University Roerdam) (2013).
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of criminal jusce no longer suces; for many, it is too abstract and insensive to contemporary moral
preoccupaons and needs. In addion, the noon of procedural jusce with its emphasis on protecve
safeguards for defendants can as such no longer avert the increasing cricisms levelled at the criminal
jusce system.
The background narrave that we discussed in the previous subsecon has consequently been put
under considerable pressure by a number of relavely recent developments, ve of which we menon
here in brief. First and foremost, there is the remarkably increased and sll increasing aenon currently
being paid to vicms of crimes and the concept of vicmhood in general. While some criminal law systems
– not in the least the Dutch criminal law system – have tended to neglect the vicm in the past, his/her
possibilies to parcipate in criminal proceedings have gradually been expanded, and are sll increasing in
many jurisdicons.89 Secondly and relatedly, the aenon to restorave jusce mechanisms as supplements
to the tradional criminal jusce procedures has increased notably.90 Then, thirdly, there is the strong public
demand for more ‘puniveness’ in criminal jusce; be it actual or assumed, the public opinion concerning
sentencing (sentences not being harsh enough, judges being too so) remains a constant and inuenal
factor of interest, debate and research.91 Fourthly, there is the inuence of the noon of ‘responsiveness’:
the idea that the criminal jusce system should be more aenve to the public’s needs and expectaons
of criminal jusce now provides a juscaon of its own for shi emanang from societal developments.92
Fihly and lastly, the contemporary focus on security and risk avoidance has engendered a shi towards a
more proacve and predicve type of criminal proceedings.93
These ve developments point in the direcon of a shi in what is considered (implicitly or explicitly)
as the main funcon of criminal jusce, and more parcularly the funcon of criminal proceedings.
These shis seem related to the generally felt discomfort in our contemporary, late-modern Western ‘risk
sociees’ – a discomfort engendered by an increasingly experienced lack of a communally shared identy or
of a shared self-image of society at large.94 The aforemenoned developments within the administraon of
criminal jusce aest to an underlying need for (re)construcng a shared background narrave concerning
the identy and origin of the polical community in queson.
Within the tradional criminal jusce sengs there exists a rmly established background narrave
underlying the criminal law, pertaining to the identy of the polical community in queson (see Subsecon 3.1),
that is to say: a narrave is in place that addresses, among other things, the deeply polical queson of which
individuals are said to belong to the polical community, so as to be subjected on an equal foong to the
juridical order under the authority of which the community has collecvely placed itself.95 This background
narrave is not normally the object of erce controversies. On the contrary: such a narrave is typically the
tacit and undisputed background against which all concrete instances of legal adjudicaon take place.96
However much the ‘tradional’ forms of administraon of criminal jusce may diverge in important
respects, they typically have very lile to do with any pursuit of fabricang ‘originaon myths’ that give
expression to the identy of the polical community of which they form a part. Typically, rather the contrary
is the case: in criminal procedures, acts are scrunized that constute violaons of norms, with respect to
89 See Direcve 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing Minimum Standards on the
Rights, Support and Protecon of Vicms of Crime; R.S.B. Kool & G. Verhage, ‘The (Polical) Pursuit of Vicm Voice: (Comparave)
Observaons on the Dutch Dra on the Adviesrecht’, (2014) 10 Utrecht Law Review, no. 4, DOI: hp://doi.org/10.18352/ulr.292,
pp. 86-99; Du et al. 2007, supra note 84, p. 2; R.A. Du et al., ‘Normave Concepons of the Trial in Historical Perspecve’, in R.A. Du
et al., The Trial on Trial. Volume Three: Towards a Normave Theory of the Criminal Trial (2007), p. 53; A. Ashworth & L. Zedner, ‘Defending
the Criminal Law: Reecons on the Changing Character of Crime, Procedure, and Sancons’, (2008) 2 Criminal Law and Philosophy,
pp. 21-51, at p. 42.
90 See for example E. Girling et al., ‘The Trial and its Alternaves as Speech Situaons’, in R.A. Du et al., The Trial on Trial. Volume Two:
Judgment and Calling to Account (2006), pp. 65-81; E. Claes et al., Punishment, Restorave Jusce and the Morality of Law (2005).
91 Cf. Ashworth & Zedner 2008, supra note 89, pp. 42-44.
92 The locus classicus of this concepon is P.H. Nonet & P.H. Selznick, Law and Society in Transion (2001). On the dangers involved in
responsivity in criminal law, see Y. Buruma, ‘Een al te responsief strafrecht’, (2008) Delikt en Delinkwent, no. 2, pp. 105-120.
93 Galea 2013, supra note 2; Ashworth & Zedner (2008, supra note 89, pp. 42-44.
94 Cf. Z. Bauman, Liquid Modernity (2000); U. Beck, Risk Society. Towards a New Modernity (1992).
95 In fact, in shaping a new communal narrave on the identy and origin of the polity, the source of sovereignty or polical power is being
framed narravely and thereby dened anew. See, on a more general note, the fascinang study of Kahn 2011, supra note 52.
96 This is not to say that such narraves are never brought up or explicitly referred to (for example in the United States, ‘We, the people’).
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which we have already agreed – statutorily or otherwise, and whether on good or less solid grounds – that
they are of such importance that these norms deserve the protecon of the criminal law. In other words:
the narrave on the identy of our polical community is ‘there’ already, and every single criminal act forms
an excepon that only proves the validity of the pre-established rule.
Within the administraon of criminal jusce in a ‘tradional’ sense, deviaons from the rule (crimes)
are thus usually classied rather easily in terms of the exisng norms. In spite of the self-evident fact that
criminal oences may concern serious and starkly reprehensible acts, these norm deviaons are nevertheless
amenable to a ‘neutralizaon’ in the sense that their occurrence does not in fact threaten the normave
system as such, which is to say: the administraon of jusce seeks to ensure that their occurrence does not
gravely undermine the general public’s condence in the validity of the norms from which the criminal acts
departed.
However, due to the normave and social fragmentaon, morality in our late-modern sociees has
become rather ‘liquid’ (Bauman) and has started to drain away from underneath its legal solidicaon. The
intangibility is frightening; the ‘conicts’ that we call criminal oences – or that result in criminal oences –
are increasingly being experienced, not as excepons that prove the rule or as deviaons from the regular
paern of normave expectaons that can easily be ‘coded’ in terms of the legal armamentarium, but
rather as point-blank threats to the societal order and the identy of the polical community as such.
In this light it is not surprising that suspects and convicts are regularly portrayed as enemies or monsters
(‘they’) against whom society (‘we’) has to protect itself with all means available.97 The delinquent then
easily gures as a scapegoat: he is not an individual whose legally established wrongdoing in fact conrms
the validity of the infringed norm, but rather someone who, by way of his wrongdoing, has proved to
be unworthy of belonging to ‘our’ community. Neither is it surprising that the aenon for vicms and
vicmhood has expanded, both in society as a whole and in the criminal law. This increased aenon can be
viewed as a manifestaon of the broad concern for one of the perhaps very few remaining issues on which
there sll exists a rather widespread consensus in our contemporary, fragmented Western sociees: the
collecve repudiaon of suering and all forms of vicmhood.98
The ve aforemenoned developments also aect the way in which the administraon of criminal jusce
is given shape. The aenon for the vicm and for restorave jusce aests to a shi towards regarding the
criminal act more as a personal and private, ‘local’ if you will, ‘conict’, whereas in the ‘tradional’ narrave
a criminal act was conceived of as primarily an interference with public legal order.99 This is to say: crime is
being perceived not only as a threat – from a wide and abstract perspecve – to the fragile self-image of our
society, but also – from an individual and more concrete perspecve – as a miniaturized version of a social
disrupon. Both the increased aenon for the vicm and for restorave jusce instruments and the strong
public demand for more ‘puniveness’ in criminal jusce seem related to the idea that the criminal law has
the task of resolving disrupons that are viewed as threats to the normave fabric of society.100
All in all, criminal jusce is moving away from some fundamental characteriscs of the tradional
criminal procedure: its distant and abstract, public and objecve nature, founded in legal safeguards.
This rather top-down image of the criminal law operang on behalf of, and at a certain distance from, the
involved pares and the general public, is increasingly repressed by a totality of far more parcularisc
97 See also Ashworth & Zedner 2008, supra note 89, p. 39; Galea 2013, supra note 2.
98 See, with reference to the work of Richard Rorty, H. Boutellier, Solidariteit en slachtoerschap (doctoral dissertaon, University of
Amsterdam) (1993).
99 See C.H. Brants, ‘The ‘Vicm Paradigm’ in (Internaonal) Criminal Jusce’, in F. de Jong (ed.), Overarching Views of Crime and Deviancy.
Rethinking the Legacy of the Utrecht School (2015), pp. 203-229.
100 As a side note: in this connecon we may note that the discussed developments bring to mind certain aspects related to the so-called
‘transional jusce’ discourse. The term transional jusce, in other words, denotes a collecon of dierent iniaves aimed at restoring
a peaceful societal order aer brief or long-lasng, but at any rate serious polical, religious and/or social conicts in the course of which
oen many individuals were injured or killed and severe traumas were created. See C.H. Brants, ‘Introducon’, in C.H. Brants et al. (eds.),
Transional Jusce (2013), pp. 1-2. Transional jusce can be said to have ‘revoluonary’ pretences: transional jusce iniaves are
supposed to nish with the chaoc past and to substute this for a new, communal order. In their eort to achieve this, the involved
pares strive to develop a shared narrave on all which is rejected (the horrors and human rights contravenons of the past) and on all
that has to come (a new, peaceful society in which fundamental rights are secured); In this connecon, associaons with the concept of
a ‘paradigm shi’ are brought to mind. See Th. Kuhn, The Structure of Scienc Revoluon (1970), p. 5.
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narraves of the directly involved pares, including the vicm. All ve developments suggest a demand for
a less detached, abstract and formal type of criminal proceedings: the proceedings have to provide a more
concrete absorbing of feelings of revenge or indignaon, in a more individualized manner that acknowledges
the anger or resentment of the vicm and his/her need for compensaon and redress.101 Therefore, there
has come more space for the producon of ‘parcularisc’ narraves in order to ensure that those who
are directly involved have a way of having their feelings taken into account and their suerings appeased.
By creang and enhancing this space, the legislator and the criminal jusce administraon are responding,
not only to the needs of specied categories of individuals, but also to the publicly felt need for a more
recognizable, more responsive criminal jusce system.
This shi towards a more ‘parcularisc’ bedding of criminal jusce proceedings has parcular
repercussions for the meaning and funcon of the presumpon of innocence. Indeed, the presumpon of
innocence ts perfectly into the ‘tradional’ criminal procedure.102 It is a noon that is highly characterisc of
the raonally arranged, abstract, and somewhat reserved type of criminal proceedings of which safeguards
for the suspect are a prominent part. The previously menoned shis in the criminal jusce systems of many
Western sociees suggest that protecve safeguards for suspects and defendants are increasingly perceived
as obstrucons to eecve protecve measures for vicms of crime. Unsurprisingly, then, the noon of the
presumpon of innocence easily becomes disregarded. This is even less surprising if we consider the very
abstract nature of the principle: as a ‘counterweight’ it does not in and of itself postulate very hard and clear
norms that can easily be enforced.
5. Concluding observaons: the importance of a counterfactual reading of the presumpon of
innocence
We want to conclude by arguing that the dierent shis and developments that were briey menoned in
the previous secon lend all the more urgency to the idea that the presumpon of innocence constutes
an indispensable principle. If we understand the presumpon of innocence, as we do, as an essenally
counterfactual and mul-layered concept, then we can see that the concept is designed, rst and foremost,
to shield criminal proceedings from exactly those instrumentalist developments that have already proven
to pose a threat to the eecveness of the presumpon of innocence. For that reason, this principle is
deserving of a much more widely acclaimed intrinsic and inalienable value than is aached to it presently.103
The value of a counterfactual reading of the presumpon of innocence lies in the fact that it not only
liberates the presumpon of innocence from being normavely dened and xated according to its praccal
signicance, it also provides the exibility to operaonalize its value in a changing procedural environment.
We draw two main conclusions from the foregoing. First, the presumpon of innocence is rmly connected
with the authority of the court or the adjudicang judge. The principle is supposed to contribute to the
maintenance of this authority in that it postulates the inherently provisional nature of all dealings that take
place before the court’s nal and authoritave judgment on the defendant’s criminal liability. Second, the
presumpon of innocence is essenally a counterfactual noon. It does not equal a factual presumpon.
Neither can its meaning be exhausvely captured by any constellaon of actually exisng regulaons or
norms that spulate the condions under which the principle’s aims would be (completely) realized.104
In the counterfactual reading that we submit the mediang funcon of the presumpon of innocence
comes to expression: the presumpon of innocence eects a highly necessary deceleraon in the processes
of invesgaon and adjudicaon. Again, what we see is a connecon between the (factual) possibility
that a suspicion may prove to be false or undeserved, on the one hand, and the normavely procured
101 See J. van Dijk, ‘De komende emancipae van het slachtoer. Naar een verbeterde rechtsposie voor gedupeerden van misdrijven’,
(2009) Tijdschri voor Herstelrecht, no. 1, pp. 24-25.
102 See J. Hruschka, ‘Die Unschuldsvermutung in der Rechtsphilosophie der Aulärung’, (2000) 112 Zeitschri für die gesamte
Strafrechtswissenscha, no. 2, pp. 285-300.
103 See, in a similar vein: P. Roberts, ‘Loss of Innocence in Common Law Presumpons’, (2014) 8 Criminal Law and Philosophy, pp. 317-336,
especially pp. 322-326.
104 Which implies that the principle’s core meaning cannot be expected to be exhausvely reected in the dierent provisions of the
proposed EU Direcve (see Secon 1, supra) – the dierent components of which we have referred to throughout this arcle.
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temporariness and suspension of judgments on guilt. The space for diering interpretaons of the facts and
of the legal norms and concepts is partly secured by the open-ended doctrinal concept of the presumpon
of innocence, by shielding the defendant vis-à-vis the judicial authories and by oering a procedural
plaorm to the defendant to air his views. In this connecon, the trial’s funcon as a forum for adversarial
argument is of paramount importance. The presumpon of innocence requires that the defendant be given
an adequate and proper opportunity to parcipate and be heard in this forum.
The presumpon of innocence is more than a normave source of inspiraon for the individual criminal
law ocials. Considering the presumpon’s protecve raonale – protecng both the defendant and the
authority of the court – that encompasses the enre criminal proceedings from beginning to end, the
presumpon of innocence deserves to be rmly embedded in the structure of the criminal process and in the
system of criminal jusce. The proposed EU Direcve on strengthening certain aspects of the presumpon
of innocence does not advocate that. The three aspects of the principle that have been imported in the
proposed EU Direcve – namely: concerning statements made by public ocials, concerning the allocaon
of the burden of proof, and concerning the connecon with the privilege against self-incriminaon – are
very signicant in the sense that each of them aims to protect the suspect from situaons which hamper his
procedural posion and eecve use of procedural rights, but their mutual relaon remains unclear – as
does the overall normave concept of the presumpon of innocence that is behind them. As such, this
proposal does not constute a framework that reects the counterfactual core of the presumpon of
innocence as argued for in this contribuon.
The dierent, strongly ideological tendencies within contemporary criminal jusce make it the case that
above all the crical potenal of the presumpon of innocence has become its most important and valuable
asset. As we stated above, the presumpon of innocence serves to shield criminal proceedings from exactly
those instrumentalist developments. Under the aegis of the presumpon of innocence, the defendant is
promoted to the rank of a full and autonomous agent in the proceedings against him, and is enabled to
insert his own views and narrave into the criminal law system, which in turn has to hold these views and
narraves against itself, before the judgment is nally reached.
