A puzzling presumption: determining the presumption of innocence's place in the law

The presumption of innocence is widely considered important, included in most human rights agreements, and considered fundamental to trial. Despite this, the presumption of innocence has no agreed upon place in the law. Where does it fit in? To what extent is the presumption of innocence a general principle of law, a human right, a part of criminal procedure, or something else? All of these categories have different implications for how the presumption of innocence may be used. Knowing what type of law the presumption of innocence is helps determine how it works and to what extent remedies may be available if it is not followed. Normative theorists have placed the presumption as anywhere from non-existent (Magnus Ulväng) to a merely procedural right (Larry Laudan) to an all-encompassing umbrella right and general principle (Hock Lai Ho). While these theorists try to determine what the presumption of innocence should be, the presumption is used in practice. The practice at the international and regional criminal and human rights courts and tribunals provides some clues and helps to fill in the gaps as to where the presumption falls. This paper will look at the presumption of innocence from a perspective of both theory and international practice, drawing mostly on ICC and ECHR examples, in an effort to determine what place the presumption of innocence holds in law. Ultimately arguing that the presumption of innocence is a general principle and human right this paper will also discuss why that is important and what it means for those who may need to avail themselves of the presumption’s protections