The changing nature of the presumption of innocence in today’s surveillance societies: rewrite human rights or regulate the use of surveillance technologies?

Surveillance technologies and practices are widely used by police and security forces today. They represent the cornerstone of modern investigative methodologies and techniques and their added value is associated with effectiveness and smartness. Although the way surveillance technologies and practices operate is pretty known, their manifold and subtle effects on human rights are mostly unknown and obscure. This is particularly the case when analysing the role of surveillance measures (used for police and security purposes) in criminal proceedings. The impact of surveillance on the right to be presumed innocent is not a novelty in surveillance studies. However, it has not been debated in detail and has not caught the due attention it deserves.

The widespread use of surveillance technologies and their huge technological potential emphasise the need to focus on the relationship between surveillance and the presumption of innocence. The link between surveillance and the presumption of innocence is very close, considered that surveillance measures are deployed to control, detect, deter and prevent crime. However, the extensive use of surveillance technologies has caused a substantial rift in the relationship between them. From a criminal law point of view, the presumption of innocence is applicable only in the framework of a criminal proceeding. It provides a procedural guarantee only to persons charged with a criminal offence before a court, notably to persons labelled as 'suspects' in a criminal trial. By contrast, the right to be presumed innocent cannot be enforced out of the context of a trial or before a charge is formally submitted. The limited applicability of the presumption of innocence clashes with the massive deployment of surveillance technologies which are used today not only to detect crime but also to prevent it.

Further to an analysis of the legal framework that applies to the presumption of innocence and of the relationship between surveillance and the presumption of innocence, this paper will try to figure out how to overcome the limits of the presumption of innocence. While doing so, it will address the rather provocative question of whether it is desirable either to reformulate human rights or better regulate the use of surveillance technologies.

Jaar van publicatie:2013

Trefwoorden:Surveillance, Presumption of innocence