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  • Writer's pictureThe DigitalBank Vault

#Encrochat right to a fair trial - equality of arms and presumption of innocence.

The two two fundamental principles enshrined in the right to a fair trial - equality of arms and presumption of innocence. Equality between the opposing parties means equal opportunity to present arguments and challenge the evidence and equal participation of the defence and prosecution in examining evidence.

The presumption of innocence requires that (i) the members of a court should not start with the preconceived idea that the accused has committed the offence charged; (ii) the burden of proof is on the prosecution, and (iii) any doubt should benefit the accused.

The European Court of human rights (ECtHR) has a rich case law which interprets those principles and further delineates minimum requirements for criminal procedure and evidence handling.

More comprehensive analysis is done elsewhere (Stoykova, 2022) but in extreme summary the derived requirements from the equality of arms principle are:

Fair procedure to evaluate the lawfulness and lawful use of evidence

Possibility to challenge evidence: fair disclosure and information about evidence

Sufficient time and facilities to prepare the defence evidence

Possibility to maintain equality of arms against expert evidence

Legal assistance in crucial stages of the evidence handling

The presumption of innocence protection against wrongful conviction can be translated into three further requirements for:

Accurate Fact-Finding

Protection against prejudicial effects in the evidence procedure

Protection against reverse burden of proof

The Encrochat case study demonstrates the real and imminent challenges with those legal requirements in digital evidence and digital forensics context.

The fair trial principle provides that what is essential for procedural justice is the legitimacy of the investigative process and all stages thereof. In this sense, Encrochat evidence is only a result of a process with several stages and stakeholders, but the legitimacy and quality of this process, and not the results of it, are decisive for achieving a fair trial.


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