Presumed Guilty: How the European Court Handles Criminal Libel Cases in Violation of Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms

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This Note challenges the European Court of Human Rights’ (ECtHR) acceptance of its member states’ common practice of allowing the burden to prove truth or good faith to be placed on the defendant in criminal defamation cases. The ECtHR is charged with the duty of protecting European citizens from violations of the Convention for the Protection of Human Rights and Fundamental Freedoms. Among the rights enshrined in the Convention are the rights to free speech and the presumption of innocence. While the court has expressed concern over the presumption of innocence of the person allegedly defamed, it has allowed presumptions of falsity and bad faith to be placed on the defendant. This Note argues that these presumptions both negate the presumption of innocence and fail to comport with the court’s test for acceptable presumptions in a criminal trial. Finally, suggestions are made for the correction of this error that better comport with the presumption of innocence and the belief, espoused by the court, that freedom of expression is one of the foundations of a democratic society.

[pdf]http://jtl.columbia.edu/?p=2795[/pdf]