In dubio pro reo – Im Zweifel für den Angeklagten

In der deutschen Ausgabe der German American Law Journal fragt Clemens Kochinke, ob der Begriff “in dubio pro reo” auch international verwendet wird:

bq. Als Nichtstrafrechtler, der beim Verfassen eines Blogberichts soeben den Begriff ohne Zweifel verwandte, frage ich mich nach fruchtloser Internet-Recherche, ob diese Regel tatsächlich im anglo-amerikanischen Bereich unbekannt ist. Oder kommt er der Presumption of Innocence gleich? Das ist der Grundsatz, den Amerikaner oft nur in den USA, nicht im Rest der Welt vermuten.

Stimmt, es scheint vor allem in den USA, vielleicht auch in England, ein verbreiteter Irrtum zu sein, dass das deutsche (usw.) Strafrecht kein Unschuldsprinzip kennt.

Zum Begriff: für mich ist es nur deutsch. Es ist auch ein Beispiel dafür, dass ein Übersetzer nicht glauben sollten, lateinische Begriffe könnten unverändert übernommen werden.

In the German edition of the German American Law Journal, Clemens Kochinke asks whether the expression ‘in dubio pro reo’ (in cases of doubt, decide in favour of the accused) is purely German or civil law: he encounters it in English texts on the Internet.

I am no expert, but I first met this term when I first read about German law, and I don’t see it as English. It’s a good example to show that Latin phrases in one language cannot simply be taken over unthinkingly in a translation.

I did a Google search on “in dubio pro reo” defendant to get examples of the phrase in English texts. Of the first fifty hits, 49 were clearly in situations related to civil law – German, Dutch or Spanish legal systems. One was an unofficial UN text relating to Dusko Tadic’s sentence (my italics):

bq. Finally, the Trial Chamber notes that Count 8 of the Amended Indictment charged Dusko Tadic alternatively with two distinct offences, namely torture or inhuman treatment, and that the Appeals Chamber, in convicting Dusko Tadic on this Count, did not specify in respect of which of the two offences it found him guilty. As a consequence, an ambiguity undoubtedly exists. Under these circumstances, the Trial Chamber has applied the principle of in dubio pro reo (which states that any ambiguity must accrue to the defendant’s advantage), and has imposed sentence in respect of the lesser offence of inhuman treatment.

I assume that one of the judges came from a civil-law system.

A Google search on “in dubio pro reo” site:uk is even more conclusive: only six hits and none apply to English law. (I don’t suggest that Google is a perfect concordance, but it is useful for a general impression).

The Deutsches Rechts-Lexikon, which is like Creifelds on steroids, was most helpful. It expands the phrase: ‘In dubio pro reo (iudicandum es)’. It says that German law has a Schuldgrundsatz (principle that the defendant must be guilty/blameworthy) and an Unschuldsvermutung (presumption of innocence), and that ‘in dubio pro reo’ is developed from these. So it cannot be the exact equivalent of the common-law presumption of innocence. It applies only at the end of a criminal trial when all the evidence has been presented. (There is a lot more).

The Tadic quote above translates it as ‘any ambiguity must accrue to the defendant’s advantage’. Some dictionaries have ‘the defendant must be given the benefit of the doubt’.

6 thoughts on “In dubio pro reo – Im Zweifel für den Angeklagten

  1. In dubio, pro reo. Wait till the end of the trial and resolve any ambiguities in the accused’s favour. ‘It cannot be the same as the Common Law presumption of innocence’. I beg to differ.

    As our learned City Remembrancer friend used to lecture on the Eng. law of evidence – and borne out by textbooks & crammers on the subject – presumptions are a problem in gen. and ‘presumption of innocence’ as a misnomer in particular.

    It is not, in effect, a presumption at all – the German Unschuldsvermutung jumping onto the Anglo-Am bandwaggon – but a way of describing the burden and standard of proof of the suspect’s guilt. Burden: on the CPS/Prosecution to the very end of the trial, unless a spec. defence is pleaded. Standard: beyond reasonable doubt.

  2. I’ll have to get back to you on this. I was hoping no-one would ask me for details, because there are a lot! But basically, presumption of innocence = Unschuldsvermutung (whether misnomer or not), while in dubio pro reo is a more specific term. Details to follow when I’ve finished the current translation!

  3. Here is a summary of what I understand about in dubio pro reo (am talking about German law, not English). The experts differ as to whether this (unwritten) principle is part of substantive criminal law or adjectival, especially as a rule of evidence.
    It applies only when the taking of evidence is completed.
    Concrete examples of matters to which it can apply: if D’s age cannot firmly be established; if the application for prosecution (Strafantrag, in the case of certain categories of offences such as defamation); whether the prosecution is time-barred. These are all elements that decide whether the state has the right to prosecute at all.
    These aren’t exactly ‘presumption of innocence’.
    It also applies to facts central to the offence – if these haven’t been conclusively proved, the principle of in dubio pro reo may acquit him or reduce the conviction to one for a lesser offence. It also applies to mistake, necessity, (lack of) criminal responsibility and whether an aggravated offence is involved.

    This is a somewhat simplified – if messy – account. In dubio pro reo is a principle developed from the presumption of innocence and the rule of law.

  4. Thanks for the NEAT explanation – or ‘discourse’.

    In Eng. law, it would be 1. an evidentiary and not substantive matter and 2. if pre-trial – at the committal stage – would approx. correspond to establishing ‘whether there is a case to answer’. Defence Counsel would usually try a ‘submission of no case to answer’ on one or more counts in the indictment if the evidence – taken at the highest standard (R. v. Galbraith) – were insufficient to secure a conviction.

    If the submission is successful, the Examining Justice would hold there is not enough evidence to let the relevant count stand or, if comprehensive, throw out the whole case.

    If I understand the Latin tag pro dubio right, it applies at the END of the trial and not at the committal proceedings or equivalent.

  5. I believe this discussion suffers from the attempt to comparing two different concepts while using three different languages.

    The concepts of:
    “benefit of the doubt”
    (“in dubio pro reo” / “Im Zweifel fuer den Angeklagten”) and
    “presumption of innocence”
    (“item quilbet presumitur innocens nisi probetur nocens” / “Unschuldsvermutung”)
    are certainly related and do have a common origin – but are not quite equal (as previously pointed out). For instance, one could have an “assumption of guilt” (e.g., locking up every accused) and still give persons the “benefit of the doubt” at verdict time (by handing down a not-guilty verdict for lack of conclusive evidence).

    “In Dubio Pro Reo” is based on ancient Roman law and found its way into the Ius Commune (the European common law) by the 14th century.

    In the 14th century Johannes Monachus, a French jurist, formulated the maxim “item quilbet presumitur innocens nisi probetur nocens” – a person is presumed innocent until proven guilty. Incidentally, this “presumption of innocence” also became part of the French Declaration of the Rights of Man and Citizen of 1789 and it is represented in the German “Unschuldsvermutung” maxim.

    Certainly no one could be “jumping on the Anglo-Am bandwagon” as these two legal concepts predate both “Anglo” and “Am” law. In fact, I can’t find presumption of innocence in the Magna Carta, the Declaration of Independence or even the U.S. Constitution. The U.S. Supreme court did not formalize this maxim until 1894 and there appear to be no records of it being formalized in Britain before 1800!

    Finally, let me point you to the fact that most European nations (Germany included) have signed and ratified the 1950 European Convention of Human Rights, in which Article 6.2 expressly states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty”. This convention also establishes the European (High) Court of Human Rights, to which every individual can take their case! The German Verfassungsgericht (Supreme Court) further clarified in 1987 that any German law is to be interpreted “in the spirit” of the ECHR – effectively elevating the presumption of innocence above German federal or state laws, thus giving it close to constitutional rank.

    In summary – I don’t believe that “In Dubio Pro Reo” is properly translated with “presumption of innocence” and neither maxim is a distinctly or uniquely “Anglo-Am” accomplishment (even though that appears to be a popular teaching by some scholars in that realm).

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