EIRP Proceedings, Vol 8 (2013)

Abstract

A person's right not to incriminate oneself or to remain silent and not contribute to their own incrimination is a basic requirement of due process, although the right not to testify against oneself is not expressly guaranteed.

This legal right is intended to protect the accused/ the defendant against the authorities’ abusive coercion. The scope of the right not to incriminate oneself is related to criminal matter under the Convention, and thus susceptible or applicable to criminal proceedings concerning all types of crimes as a guarantee to a fair trial. The European Court of Justice ruled that despite the fact that art. 6 paragraph 2 of the Convention does not expressly mention the right not to incriminate oneself and the right not to contribute to their own incrimination (nemo tenetur are ipsum accusare) these are generally recognized international rules that are in consistence with the notion of “fair trial” stipulated in art. 6.

By virtue of the right to silence, the person charged with a crime is free to answer the questions or not, as he/she believes it is in his/her interest. Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the accused/ defendant not to incriminate oneself. Thus, the accused/defendant can not be compelled to assist in the production of evidence and can not 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 society.

It is essential to clarify certain issues as far as this right is concerned. First of all, the statutory provision in question is specific to adversarial systems, which are found mainly in Anglo-Saxon countries and are totally different from that underlying the current Romanian Criminal Procedure Code, which observes the tradition of continental trial systems. This type of system was traditionally adopted in our country and it underlies the entire judicial doctrine and practice endorsed by our scholars and practitioners from the foundation of the modern state to date.