GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

Carmen Adriana Domocos

Abstract


The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.

The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.

Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.

The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.


Keywords


fair trial; right to remain silent; procedural guarantee; penal code

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References


The doctrine has unanimously considered that the rule laid down in the former Criminal Procedure Code concerned the right to silence. In this respect, see Gr. Theodoru, Drept procesual penal (Criminal Procedural Law), 3rd Edition, Hamangiu, Bucharest, 2013, pp. 364-365; I. Neagu, Drept procesual penal. Partea generală Tratat (Criminal Procedural Law. The General Part. A Treatise), Global Lex, Bucharest, pp. 376-377; A. Crişu, Drept procesual penal (Criminal Procedural Law), 2nd Edition, Hamangiu Publishing House, Bucharest, 2011, pp. 220-221; I. Griga, M. Ungureanu, Dreptul la tăcere al învinuitului sau inculpatului (The Right to Silence of the Accused or the Defendant), in R.D.P. (Criminal Law Journal) no. 1/2005, pp. 37-42; M. Duţu, „Semnificaţiile procedural penale ale dreptului la tăcere” (“The Criminal Procedural Significance of the Right to Silence”), in Dreptul (Law), no. 12/2004, pp. 173-188.

S. Trechsel, Human Rights in Criminal Proceedings, Oxford University Press, 2006, Oxford, p. 342.

See The High Court of Cassation and Justice of Romania (I.C.C.J.), Criminal Division, Decision no. 1877/2003, available on the website www.scj.ro 4 For a detailed analysis, see S. Trechsel, op. cit., pp. 354-355.

For a detailed analysis of the warning procedure, see D. Ionescu, „Procedura avertismentului. Consecinţe în materia validităţii declaraţiilor acuzatului în procesul penal” (“The Warning Procedure. Consequences for the Validity of the Accused’s Statements in the Criminal Trial”), in C.D.P. (Criminal Law Notebooks), no. 2/2006, pp. 11-62.

See the Supreme Court of the United States of America, judgment of 13th July 1966, in the case Miranda v. Arizona, available on the website www.supremecourtuk.gov. For a detailed analysis, see W.R. LaFave, J.H. Israel, Criminal Procedure, 2nd edition, West Publishing Co., 1992, pp. 313-351. Analyzing in detail this judgment, D. Ionescu states that “the decision in the Miranda case was based on the following considerations: 1. it is the right to silence, not the theory of voluntary statements, which constitutes a primary criterion in the checking of the validity of statements; 2. the object of the right to silence is not the reliability of the evidence, but the right of free option; 3. the test of verification based on this criterion concerns not the voluntary nature but the constraint exercised by the judicial bodies; 4. constraint is considered objectively, regardless of the mental state of the accused and of the manner in which he perceived the constraint”. (D. Ionescu, Procedura avertismentului. Consecinţ n materia validităţii declaraţiilor acuzatului în procesul penal / The Warning Procedure. Consequences for the Validity of the Accused’s Statements in the Criminal Trial, in C.D.P. (Criminal Law Notebooks) no. 2/2006, p. 28).

According to Art. 75 letter c) of the Criminal Code, the attitude of the offender after committing the criminal offence, resulting from presenting himself before the authorities, a truthful behaviour throughout the proceedings, the facilitation of the discovery or arrest of the participants, constitutes a mitigating judicial circumstance.

Available on the website http://eur-lex.europa.eu

In the same sense, M. Duţu, „Semnificaţiile procedural penale ale dreptului la tăcere” (“The Criminal Procedural Significance of the Right to Silence”), in the Journal Dreptul (Law), no. 12/2004, p. 184, D. lonescu, op. cit., pp. 44-62; I. Griga, M. Ungureanu, „Dreptul la tăcere al învinuitului sau inculpatului” (“The Right to Silence of the Accused or the Defendant”), in Revista Drept Penal (Criminal Law Journal), no. 1/2005, p. 41. As regards the applicability of the relative nullity sanction, see: I. Neagu, Drept procesual penal. Partea generală (Criminal Procedural Law. The General Part), op. cit., pp. 376-377; A. Crişu, Drept procesual penal (Criminal Procedural Law), 2nd Edition, Bucharest, Hamangiu Publishing House, 2011, pp. 220-221; The High Court of Cassation and Justice of Romania (ICCJ), Criminal Division, Decision No. 828/2006, available on the website www.scj.ro

For a detailed analysis of the regulation of the institution of evidence exclusion at European level, see the study conducted by the EU Network of Independent Experts on Fundamental Rights, Opinion on the Status of Illegally Obtained Evidence in Criminal Procedures in the Member States of the European Union, available on website www.europa.eu

The European Court of Human Rights, Case Cesnieks v. Latvia, judgment of 11th February 2014, available on the website www.echr.coe.int.

See M. Duţu, op. cit., p. 185; Gh. Radu, Măsurile preventive în procesul penal român (Prevention Measures in the Romanian Criminal Procedural Regulation), Bucharest, Hamangiu Publishing House, 2007, p. 77.

The European Court of Human Rights, Case Allan v. the United Kingdom, judgment of 5th November 2002. “Fruit of the Poisonous Tree” is a legal metaphor used in the U.S.A. to describe the fact that the evidence was obtained illegally. The logic of using this terminology is that the source (the “tree”) of the piece or pieces of evidence is itself poisonous, therefore whatever comes from that source (the “fruit”) is also poisonous. The International Covenant on Civil and Political Rights, adopted on 16th December 1966 in New York, in force as of 23rd March 1966, adopted in Rome on 17th July 1998.

The European Court of Human Rights, Case Saunders v. the United Kingdom, judgment of 17th December 1996.

Ibid.

Carmen Silvia Paraschiv, Mircea Damaschin, „Dreptul învinuitului de a nu se autoincrimina” (“The Right of the Accused Against Self-incrimination”) in Dreptul (Law), no. 2, 2005, p. 145.

The European Court of Human Rights, Case John Murray v. the United Kingdom, judgment of 8th February 1996, p. 47.

The European Court of Human Rights, Case Condron v. the United Kingdom, judgment of 29th September 1999.

The European Court of Human Rights, Case Heaney and McGuinness v. Ireland, judgment of 21st December 2000; The European Court of Human Rights, Case J.B. v. Switzerland, judgment of 3rd May 2001, quoted by Valerică Dabu, Ana-Maria Guşanu, Reflecţii asupra dreptului la tăcere (Reflections on the Right to Silence), Revista de Drept Penal (Criminal Law Journal), Bucharest, 2004, no. 4, pp. 71-72.

The European Court of Human Rights, Case Magee v. the United Kingdom, judgment of 6th June 2000.

Donna Gomien, Ghid al Convenţiei Europene a Drepturilor Omului (Guide to the European Convention on Human Rights), 3rd Edition, Chişinău, 2006, p. 66

Ibid.

Ibid., p. 67.

The European Court of Human Rights, Case Asch v. Austria, judgment of 26th April 1991; The European Court of Human Rights, Case Luca v. Italy, judgment of 27th February 2001;

For example, the European Court of Human Rights, Case Allan v. the United Kingdom, judgment of 5th November 2002.

The European Court of Human Rights, Case Bricmont v. Belgium, judgment of 7th July 1989.

For example, in the case Mayoli v. France, judgment of 14th June 2005, the Court accepted that in cases involving sexual abuse, certain measures should be taken to protect the victim. In particular, such protection is important in the case of minors. In another case, Bocas-Cuesta v. The Netherlands, judgment of 20th November 2006, the Court mentioned that it is important for the the criminal proceedings to be carried out in such a way as to protect the interests of very young minors, especially in cases involving sex offences. However, in both cases cited above, the Court found there had been a violation of Art. 6 par. 1 and par. 3 letter d) of the Convention by failing to observe the proportionality of the measures applied and the right of the accused person.

Ovidiu Predescu, Mihail Udroiu, Convenţia Europeană a Drepturilor Omului şi Dreptul Procesual Penal (European Convention on Human Rights and Criminal Procedural Law), Bucharest, C.H. Beck Publishing House, 2007, p.455.

For example, the European Court of Human Rights, Case Kostowsky v. the Netherlands, judgment of 20th November 1989. The European Court of Human Rights, Case Doorson v. the Netherlands, judgment of 26th March 1996; The European Court of Human Rights, Case Van Mechelen v. the Netherlands, judgment of 23rd April 1997; The European Court of Human Rights, Case Visser v. the Netherlands, judgment of 14th February 2002; The European Court of Human Rights, Case Krasniki v. Czech Republic, judgment of 28th February 2006.

Ovidiu Predescu, Mihail Udroiu, op.cit., p. 464.

The European Court of Human Rights, Case Liidi v. Switzerland, judgment of 15th June 1992; The European Court of Human Rights, Case Teixeira de Castro v. Portugal, judgment of 9th June 1998.




DOI: http://dx.doi.org/10.17770/acj.v2i83.3453

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