Censorship and restriction of the presumption of innocence under the guise of combating violence: a draft EP directive

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· A draft directive on combating violence against women is being discussed in the European Parliament. 

· This draft may raise concerns due to its extremely broad definition of ‘violence’, as well as the government’s mandate to censor ‘offensive’ online content or its obligation to combat ‘harmful gender stereotypes’.

· The directive may also entail a restriction of the presumption of innocence in cases of sexual offences, by indirectly presuming a man’s guilt.

· The Ordo Iuris Institute submitted a memorandum to all MEPs pointing out the fundamental flaws in the draft and calling for amendments to bring it into line with the requirements of the EU Charter of Fundamental Rights.

A draft directive on combating violence against women and domestic violence is due to have its first reading in the European Parliament at the end of April. Many positive solutions have been included, such as the criminalisation of female circumcision and the obligation to establish a 24-hour emergency telephone line for victims of sexual crimes. However, the draft also included a number of provisions that are dangerous to freedom of expression, the right to defence, and other civil rights.

The Ordo Iuris Institute sent a memorandum to all Members of the European Parliament pointing out the draft’s essential shortcomings, such as:

- the extremely wide definition of “violence”, including terms that can be interpreted very broadly;

- the criminalisation of “cyber-harassment”, understood as the dissemination of “offensive material” on the internet that „causes significant psychological harm”;

- an obligation to combat “harmful gender stereotypes”;

- a mandate for the government to censor internet content that is “offensive” or “incites hatred”;

- a restriction of the presumption of innocence by, among other things, granting the victim the right to compensation from the accused even before he or she has been convicted, as well as a prohibition on questioning the victim about issues relating to his or her private life.

The proposed measures violate the Charter of Fundamental Rights, including the right to freedom of expression, the principle of nullum crimen sine lege certa, and the right to defence. These will be able to be used not only to combat violence against women, but also to suppress criticism of politicians, publicists, bloggers, celebrities, and other public figures. This is because such criticism can easily qualify as ‘hate speech’ or the spreading of ‘offensive material’ causing ‘significant psychological harm’, given that the concepts of ‘hatred’, ‘offensive’, and ‘psychological harm’ are not defined in the draft, nor do they have an established meaning in the criminal law doctrine. Thus, in practice they will be open to free interpretation, depending on the subjective sensitivity and views of the person concerned.

On the other hand, changes in the presumption of innocence may make it easier to level false accusations of sexual offences against men. One of the fundamental assumptions of Western legal culture is the injunction to treat the accused as innocent until finally convicted, thus guaranteeing a fair trial. Under this presumption, in a criminal trial one cannot speak of a ‘victim’ and a ‘perpetrator’, but of a potential victim and a potential perpetrator, because it should not be determined who is who until sentencing. The draft directive, however, indirectly allows for the possibility of presuming the guilt of a man accused of a sexual offence by a woman. It is therefore enough for a woman merely to make an accusation and, in light of the draft directive, she will obtain the right to compensation from any man she accuses of a sexual offence. At the same time, the draft provides for a serious restriction of a man’s right to defence, because it establishes an absolute prohibition on questioning a woman (a witness to the accusation, and thus a potential victim) in terms of her private life - ignoring the fact, which is known to every professional defence counsel, that in these types of cases the facts of her private life are crucial for assessing the credibility of the witness.

The original draft likewise included a proposal to redefine the crime of rape by considering it to be any sexual intercourse to which the woman did not consent. Such a definition would have shifted the burden of proof in a criminal trial from the prosecutor to the defendant, who would then have had to prove that he had obtained the woman’s consent for the intercourse, and thus in essence would have had to prove his innocence, contrary to the elementary standards of criminal law. This proposal was rejected at the political agreement stage between the EU Council and the European Parliament, however, so it is unlikely to be included in the final version of the Directive.

In its memorandum to MEPs, the Ordo Iuris Institute calls for a number of amendments to the draft directive to be tabled so that it serves to combat actual violence against women, rather than being instrumentalised for ideological purposes.

“Violence against women deserves the utmost condemnation, and combating this phenomenon should be beyond question. Unfortunately, various circles are currently exploiting the noble idea of combating the abuse of women in order to promote their ideological aims, in a way which runs counter to the fundamental principles of law. A perfect example of this is the Directive under discussion, where it is proposed, among other things, to significantly restrict the principle of the presumption of innocence, which is one of the pillars of the European legal tradition. This is why the Institute’s experts prepared a memorandum in which they pointed out the flaws in the draft directive and proposed amendments,” emphasises Patryk Ignaszczak of the Ordo Iuris International Law Centre.