Dreptul la tãcere si privilegiul contra autoincriminãrii
The Right to remain silent. The Privilege against Self-Incrimination.

Summary/Abstract: The author proposes an investigation into aspects of the right to remain silent that have rarely been touched upon in Romanian doctrine and jurisprudence, in the context of its recent introduction in the country’s legal system. The first part of the article analyzes the judicial nature and the purpose of the privilege against self-incrimination, starting from multiple perspectives, mostly put forward by the British literature. The author shows that the right to remain silent is a procedural right, and not a substantial one, deriving from the necessity of guaranteeing the presumption of innocence. This right is not a substantial one, as the consequence of breaching it is, as it is unanimously admitted, the nullity of proofs obtained in this way- this is specific to rights of procedural nature. Therefore, any explanation of the judicial nature of this right from a substantial perspective (human dignity, right to privacy) is not acceptable. The privilege is, the author maintains, a consequence of the presumption of innocence, and not a distinct guarantee of the accused, as the majority of the ECHR jurisprudence appears to claim. The European Court’s perspective on the issue cannot be admitted, as it would lead to the absurd situation in which this right would only be given to the person already under criminal prosecution. It is acknowledged that art. 6 § 1 of the European Convention on Human Rights, stipulating the right to a fair trial, is only applicable, in penal cases, to the individuals under prosecution, while, as shown by a constant jurisprudence, art. 6 § 2, consecrating the presumption of innocence, can also be applied to individuals who are not yet or who are no longer under criminal prosecution. The second part of the study aims at determining the content of the right to remain silent, with special emphasis on the less-typical situations in which statements of the accused are given to authorities without his consent. The author states that, as long as the right to silence brings about an implied limitation, justified by the need to fight against crime, the criteria applied by the British jurisprudence can be useful in configuring the exact hypothesis in which information offered by the accused can be utilized, as these criteria appear to draw the best delineation between balancing rights and interests. Finally, the study examines the right to silence in what concerns the witness. Considering the ECHR jurisprudence on the matter as absurd, the author finds a starting point in creating a Romanian legal system of protection of this right in the jurisprudence of Belgium’s courts, which are deemed to have found the exact border line that has to be drawn in this situation.

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