The right to silence is an express manifestation of the principle of the right against self-incrimination (nemu tenetur se ipsum accusare). These two rights are not equivalent, and the right to silence is part of the latter.
As the Constitutional Court states with reference to the link between these two rights, the right to silence “translates into the power granted to the accused not to comment on the facts of which he is accused, unlike what happened in proceedings governed by the inquisitorial principle in which compulsory statements by the accused, forced confession, tend to turn him into an instrument of his own condemnation", while the right not to self-incrimination ‘prevents the transformation of the accused into a means of proof through involuntary collaboration obtained through coercive or deceptive means’. (see Constitutional Court Ruling No. 298/2019, of May 15).
*
In turn, the right to silence is guaranteed by other fundamental rights, such as the freedom to make statements without being obliged to tell the truth and to be subject to sanctions or prohibitions on the probative value of silence (or, in other words, it is guaranteed by the freedom to lie).
In fact, in the context of the protection of this principle, as evidenced by the case law of the Higher Courts, its importance and recognition is highlighted by its provision in international law, either implicitly, as is the case in Article 6 of the European Convention on Human Rights, or expressly, as is the case in Article 6 of the European Convention on Human Rights, or expressly, as in Article 14(g) of the International Covenant on Civil and Political Rights (“During the trial, everyone charged with a criminal offense shall be entitled in full equality to the following minimum guarantees: (...) (g) not to be compelled to make a statement against himself or to plead guilty.”).
More recently, Directive (EU) 2016/343 of the European Parliament and of the Council of March 9, 2016, on the strengthening of certain aspects of the presumption of innocence (and the right to stand trial in criminal proceedings), has materialized the respective principle in a preponderant way, establishing in its article 7 that “1. Member States shall ensure that a suspected or accused person has the right to remain silent in relation to the criminal offense which he or she is suspected of having committed or in relation to which he or she is accused; (...) 5. The exercise of the right to remain silent and the right not to incriminate oneself by suspects or defendants shall not be used against them, nor may it be considered as evidence that they have committed the criminal offense in question. (...)”.
In the Criminal Procedure Code in force in our legal system, the right to silence is provided for in Article 61(d) of the Criminal Procedure Code, and it is the defendant's right “not to answer questions put to him by any body about the facts of which he is accused or about the content of the statements he makes about them”, and it is specified in Article 343(1) of the Criminal Procedure Code, In the context of the defendant's statements, “The presiding officer shall inform the defendant that he has the right to make statements at any time during the hearing, provided that they relate to the subject matter of the case, but that he is not obliged to do so and that his silence may not be prejudicial to him.”
*
As for the consequences of exercising the right to silence inherent in the Defendant's procedural position, although it cannot harm him, it is certain that it cannot benefit him either. As the jurisprudence of the Supreme Court of Justice states, “(...) the choice to remain silent can have consequences, which do not involve unduly valuing it: by not speaking, the accused forgoes the possibility of enjoying important mitigating circumstances, such as confession and repentance” (see Judgement of the S.T.J., handed down in case 08P295, of 20/02/2008), as well as causes excluding guilt or illegality (see, by way of example, articles 31 to 39 and 70 to 74, all of the Penal Code).
On the other hand, this principle does not benefit from an absolute/unrestricted nature, and restrictions are allowed in certain circumstances which are analyzed on a case-by-case basis, but which, taking into account the case law of the European Court of Human Rights, can be materialized in consideration of the following circumstances: a) Valuation insofar as it is capable of corroborating and attributing (or not) credibility to other evidence; b) Valuation when it is an unjustified silence, that is, when it results from the maxims of experience that, if there is a plausible explanation for a given reality, any normal individual and in the same circumstances, would present a version (if they had one), when the probability intrinsic to the evidence produced “imposes” an explanation; and c) that the accused has been informed of the circumstances in which silence is valued, does so freely and is duly assisted by a defender.
In other words, as far as the right to silence is concerned, even if it cannot harm the accused, it is certain that it cannot benefit him either, and in practical terms, inevitably, and namely while being judged by Humans, it will be analyzed within the possible limits, and interpreted in the light of the other evidence produced.
*
In this way, considering the probable conviction of the Court based on the evidence produced or to be produced, carefully valuing and analyzing the risks and benefits inherent in silence or speaking (or even confessing, even partially), it is the Lawyer who will be in the best position to outline the best course of action.
Final note: The non-benefit mentioned here in no way conflicts with the principle of in dúbio pro reo or the presumption of innocence, since the aforementioned “non-benefit” does not imply an inversion of the burden of proof.
Comments