Bissacco, Cristina (2008) Il canone in dubio pro reo: tra concezione classica e moderna della prova. [Tesi di dottorato]
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The aim of this research is to rediscover an epistemological awareness to help understand the information principles for current criminal trials, with special reference to researching trial truth and the mechanisms that are adopted to prevent judicial errors.
The examination is divided in three chapters. The first contains a historic analysis of the canon of in dubio pro reo, from late Roman law to current day; the current formulation of the ancient canon is given by presumed innocence as given at art. 27, paragraph 2 of the Constitution, which tells the Judge how to behave in the case of doubt, and gives a clear definition of how the trial should be understood. In fact, we can see that this particular principle is acknowledged in the accusatory systems that have been imposed in those countries or moments when liberal instances circulated; however it has been refused by the inquisitorial systems, that have always reflected an authoritarian, if not absolute, power.
Presumed innocence is imposed above all as a "judgement rule", which means it becomes important when the Judge is called on to assess the proof and consequently pronounce the defendant's guilt or otherwise; this is why we considered it opportune to trace back to the origins of the question, dedicating a large part of this research - the second and third chapters - to analysing the evolution of the concept of proof in history. This excursus has shown that in legal culture two concepts of proof can be identified. The first is the traditionally defined "classic concept of proof" which was created and developed - in accusatory systems typical of ancient Greece and Republican Rome - through the theory of "signs" of the Attic orators, the Aristotelian theories, and the theorisation of status by Hermagoras, right up to the further developments brought by Roman culture to the Greek heritage. The passage has then been analysed from this concept to the one that was affirmed by applying scientific methods to legal practice. After a few brief comments on the trials by ordeal and medieval methods, which belong to the transition phase from one concept of proof to another, the modern concept of proof has been analysed, which was immediately given substance in the system of legal proof and inquisitorial type trials, characterised by their strongly rational method.
Through a comparative approach, the method was then examined that connotes the modern concept of proof in antithesis to the classic concept. In particular, evidence has been given of how there is the acceptance of a different meaning of the term probability at the basis of the distinction de qua on an epistemological level. In fact the term can have two meanings; it can designate the level of confirmation of a hypothesis relative to certain proof or the relative frequency of an event in a long series of events. The first definition was historically accepted in the classic concept, where the proof was taken as argumentum, or rather as that quid through which something that was unknown became known thanks to the argumentation. The second definition is constantly applied in the modern concept of proof, traced back to the concept of induction elaborated by Jeremy Bentham. This way we have witnessed a changing perspective and objective of the proof, through the progressive affirmation of an acceptance of probability intended as id quod plerumque accidit in objective and statistic terms, i.e. probability hypostatized to certainty. But if legal proof represented the acknowledgement at legislation level of the statistic-objective concept of probability, it is easy to understand the subsequent and absolute irrelevance of the debate phase, in purely trial terms, as it is reduced to simply reproposing the results of the research by the Public Prosecutor, the only uncontested dominus of the trial.
In the light of the two conceptions of traditionally recognised proof, this research then focused on analysing the canon of in dubio pro reo, trying to understand, through further analysis, whether the acceptance in our legal system of the principle in question, constitutes the reflection of adherence to the classic or modern conception of proof, in epistemological terms. Consequently, only when the proof is logically configured as an argumentum is there any point, on one hand, of discussing the results of the Public Prosecutor's investigations, with the aim of reviewing them in the light of the various reconstruction hypotheses suggested by the other parties in the trial; on the other hand, doubting the conclusions that are reached by a first and, eventually, a second judge, considering the defendant innocent until finally sentenced. But if, as happened in the regime of legal proof, the elements that are gathered unilaterally and in secret by the Prosecution are identified with the "facts to be proved" in relation to the believed responsibility of the person and, therefore, "certainty" regarding the prosecution thesis, the concept of doubt is not only rationally incompatible with the structure of this system generally, but it is even more so after sealing a first or second degree sentence.
At this point it would be easy to object that in a criminal trial the stakes are high because, without any false rhetoric, the judge effectively decides about a person's life, without forgetting that in criminal trials there is also a "superior" interest: that of the State to punish the criminal and protect the public from criminality. In this aspect, we could have the impression that including a classic method and epistemology in such a context is riskier than an abstract and preformed prevision of a system of regulations that control the judge's work, especially in probatory proceedings. With regards to this, it must be pointed out that if a system of free conviction contrasts with one of legal proof, it does not contrast with the legal prescription of the proof method: in the way that freedom of conviction does not mean arbitration, in the same way the legal proof method is not a synonym for inquisitorial logic. Therefore a proof method is necessary, but at the same time it must not imply a reduction of the proof to a preformed and predefined definition.
In fact, it is in the light of this tension that the presumed innocence has a cardinal role in our system. In my opinion, this principle involves numerous profiles in criminal trials and has a balancing function between inquisitorial and accusatorial instances, because of its dual connotation. At an epistemological level, the presence of doubt about a person's guilt until the final sentence is compatible with the qualification of the proof as argumentum, or rather, with a judgement that is imposed as the dialectic research for a result and not as a trial crystallisation of a result that has already been obtained elsewhere; in purely trial terms however, the canon in question is imposed as a judgement rule that tells the judge how to behave in case of doubt; if there is no proof, if it is contradictory or insufficient, the judge must absolve the person, there is no other choice. This imposition has become fixed and definite in the Criminal Procedure Code, at art. 533, paragraph 1, in the reformulated form given by art. 5 of Law no. 46 on 20 February 2006, which establishes that "the judge pronounces the sentence if the defendant is guilty of the crime beyond all reasonable doubt". Therefore on one hand this indicates that if there is any doubt the defendant is absolved - the probatory method - on the other hand, it suggests that there can be doubt in our system, with all the resulting implications at epistemological level.
Finally, the principle of presumed innocence allows, by the elaboration of a legal proof method, revaluating the application of scientific knowledge to the trial on the condition, however - which must be underlined - that the awareness of the excesses that rationality and science can lead to, delimits their effectiveness in the proof method, without any unscrupulous and dangerous attempt to extend them to the proof itself.
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