The Presumption of Innocence, a Fundamental Principle of the Rule of Law

Background

For several weeks, the news has been dominated by allegations involving a particularly well-known singer.

With each new revelation, the same phrase is repeated: “He benefits from the presumption of innocence.”

This expression is omnipresent in public debate, yet its legal meaning is often misunderstood.

Contrary to a common misconception, the presumption of innocence does not mean that a person is innocent, but that they must be regarded as innocent (“to presume” meaning “to take as established”).

It is one of the fundamental safeguards of the rule of law.

A fundamental principle

Under Luxembourg law, the presumption of innocence is primarily grounded in European and international legal instruments.

It is guaranteed in particular by:

• Article 6(2) of the European Convention on Human Rights;
• Article 48(1) of the Charter of Fundamental Rights of the European Union;
• Article 3 of Directive (EU) 2016/343;
• Article 14(2) of the International Covenant on Civil and Political Rights.

The Court of Cassation regularly recalls that, even in the absence of a general autonomous provision in the Code of Criminal Procedure, these texts fully guarantee its application in Luxembourg.

Thus, in a judgment of 26 October 2023 (No. 108/2023, CAS-2022-00123), the Court held that “even in the absence of a specific general provision guaranteeing the right to the presumption of innocence, compliance with this principle […] is guaranteed through its direct application in domestic law.”

Above all, a procedural safeguard

In judgment No. 39/2022 of 10 March 2022, the Court of Cassation recalled that the presumption of innocence is not a principle of substantive criminal law.

It is first and foremost a safeguard of criminal procedure, as reflected in the Court’s wording: “The presumption of innocence constitutes, on the one hand, a rule determining how the accused must be treated in the context of criminal proceedings and, on the other hand, a rule relating to the administration of evidence.”

In practical terms, it requires every person prosecuted to be presumed innocent until their guilt has been established according to law.

It also requires courts to examine both incriminating and exculpatory evidence and therefore lies at the heart of the right to a fair trial.

Who bears the burden of proof?

The presumption of innocence has one essential consequence: the burden of proof lies with the prosecution.

It is not for the accused to prove their innocence, but for the prosecution to establish their guilt.

In this respect, the Court of Cassation has reiterated that judges cannot start from the preconceived assumption that the defendant committed the acts of which they are accused.

Accordingly, in case of doubt, that doubt must benefit the accused in accordance with the principle “in dubio pro reo”.

Guilt must therefore be proven; it cannot be presumed. An acquittal on the benefit of the doubt is, in reality, an acquittal based on the proper application of the law.

An effective safeguard during the trial

The presumption of innocence is not limited to an abstract rule governing the burden of proof. It also affects the conduct of criminal proceedings themselves.

In several judgments delivered in 2023, the Court of Cassation recalled that the defendant must be given an effective opportunity to respond to the submissions of the Public Prosecutor’s Office.

It notably held that certain irregularities in the order of oral submissions could infringe the rights of the defence and the presumption of innocence.

The principle therefore also protects the procedural balance of the hearing.

Protection against premature statements of guilt

The presumption of innocence prohibits public authorities from presenting a person as guilty before a final decision has been handed down.

The existence of suspicions, even serious ones, never relieves the prosecution of its obligation to establish guilt in accordance with the rules governing criminal proceedings.

This requirement also applies to institutional communications.

Article 8 of the Code of Criminal Procedure allows certain judicial authorities to communicate about ongoing cases, while requiring them to respect the presumption of innocence.

A safeguard that may survive an acquittal

In judgment No. 86/2024 of 30 May 2024, the Court of Cassation recalled that the presumption of innocence may continue to produce effects beyond the criminal trial itself.

A person who has been acquitted cannot be treated by public authorities as though their guilt had been established.

The protection therefore does not only seek to prevent premature findings of guilt. It also aims to prevent certain legal or reputational consequences from continuing after the trial.

Is the presumption of innocence always genuinely effective?

The answer may be yes, although the principle nevertheless has certain limitations.

Today, the presumption of innocence is effective as a standard against which judicial practices and public communications are assessed. Judgments delivered in 2022, 2023, 2024 and 2025 show that the Court of Cassation pays close attention to the presumption of innocence as a safeguard of the right to a fair trial, the order of oral submissions, the benefit of the doubt and the treatment of acquitted persons after proceedings have ended.

In practice, the principle therefore primarily protects against procedural infringements, premature declarations of guilt, reversals of roles during hearings and certain post-acquittal consequences. However, it does not allow the credibility of witnesses or the evidential value of documents to be freely reassessed.

For a person involved in criminal proceedings in Luxembourg, the presumption of innocence can currently be defended mainly on four grounds:

• During the trial itself, through Article 6(2) ECHR, Article 48 of the Charter of Fundamental Rights, Directive 2016/343 and judicial review of procedural rules;
• In evidential matters, through the burden of proof resting on the prosecution and the benefit of the doubt;
• In public and judicial communications, through the prohibition on presenting a person as guilty before a final conviction;
• After the trial, through post-acquittal protection and, in cases of miscarriage of justice, review proceedings and compensation.

As matters currently stand, the presumption of innocence is therefore a living, enforceable and protected principle, although its practical effectiveness remains dependent on demonstrating a specific infringement.

The presumption of innocence and the media

In relation to the press and the media, journalists may report on criminal proceedings, but they cannot present someone as guilty before a final conviction.

The Court of Cassation, in its judgment of 28 January 2021 (No. 14/2021, CAS-2020-00014), made this clear: a “public communication, by means of a notice displayed at the court and through the press” made “before the expiry of the time limits for exercising legal remedies” and while the decision was “not yet final” “manifestly and seriously and disproportionately infringes the right to the presumption of innocence.”

This approach was confirmed by the Court of Cassation in its judgment of 27 April 2017 (No. 18/2017; 3782), which stated that “no newspaper, journalist or public authority responsible for communicating about ongoing criminal cases could or should, in the name of freedom of information or freedom of expression, openly infringe that presumption of innocence.”

Under current law, Article 8 of the Code of Criminal Procedure establishes the same balance: investigation and pre-trial proceedings are “secret”, but the Public Prosecutor may make information public “while respecting the presumption of innocence”, as well as the rights of the defence, privacy and the dignity of individuals.

In essence, the media may report on the existence of criminal proceedings, but they must limit their comments to a factual and contextual explanation of the case so as not to turn ongoing proceedings into a public declaration of guilt before a final judgment.

A person whose presumption of innocence has been infringed by the media may consider several possible remedies:

• A civil liability action against the author of the article or, failing that, the publisher or distributor, on the basis of Article 21 of the Law of 8 June 2004 and Articles 1382 and 1383 of the Civil Code;
• Criminal proceedings where the elements constitute a press offence, in particular calumny or defamation, in accordance with the cascading liability mechanism under Articles 42 and 43 of the Law of 29 July 1881;
• Ancillary requests for a correction to be published, or for content to be withdrawn or deleted, although such measures are interpreted restrictively and are not automatic;
• It is also possible to apply to the interim relief judge where a media publication manifestly infringes the presumption of innocence, pursuant to Article 933 of the New Code of Civil Procedure. The judge may then order protective measures or measures aimed at restoring the previous situation.

For example, recent case law expressly recognises that an infringement of the presumption of innocence may constitute an unlawful interference justifying interim relief. The District Court of Diekirch, sitting in interim proceedings, held on 20 January 2026 (case No. TAD-2025-01634) that an accusatory publication presenting someone as a sex offender in the absence of any final conviction could justify, on a provisional basis, an order to cease further publications, delete the disputed messages and prohibit contact with professional third parties for the purpose of spreading the allegations.

By contrast, interim proceedings are only useful where the disturbance is shown to be current and imminent. In the same Diekirch judgment, the court rejected requests that were too general or had become devoid of purpose, in particular where it had not been established that the content remained accessible or that a specific act was still ongoing.

Brucher Thieltgen & Partners supports you

Are you the subject of a criminal investigation or criminal proceedings?

Do you believe that your fundamental rights have not been respected during the proceedings?

The BT&P Criminal Litigation team can assist you in:

• Reviewing the lawfulness of the proceedings;
• Ensuring that your defence rights are respected;
• Identifying any infringements of your fundamental safeguards;
• Developing a defence strategy with you.

 

➡️ For any questions relating to criminal law, please contact Fanny Gilliers and Bastien Desjardins.