The defendant's right to remain silent and not incriminate himself according to the criminal procedure code. The respect of the provisions of article 6 of the european convention on human rights

Author:Maria Magdalena Bârsan
Position:Senior Lecturer, PH.D - Faculty of Law, Transilvania University of Brasov
Pages:166-172
SUMMARY

A defendant's right to remain silent regarding the actions for which he is prosecuted and to not contribute to his own incrimination represent essential aspects of an equitable criminal procedure law. The article aims to discuss the extent to which the provisions of the Criminal Procedure Code are violated, as well as the provisions of the European Convention on Human Rights in this matter. Based on the right to remain silent and not incriminate oneself as regulated in article 6, the criminal investigators are prevented from obtaining evidence by defying the will of the culprit and not to testify against him. Each accused individual has the right to remain silent and not incriminate himself, although the provisions of article 6 of the European Convention on Human Rights does not expressly mention this right, it is acknowledged by international legal regulations which are found at the center of the concept of equitable trial. The Romanian legislator should take a closer look at the provisions of the Romanian procedural code that currently establish these procedural measures and corroborate them with those of the Romanian Constitution and those of the ECHR.

 
CONTENT
166 MARIA MAGDALENA BÂRSAN
THE DEFENDANT’S RIGHT TO REMAIN SILENT AND NOT
INCRIMINATE HIMSELF ACCORDING TO THE CRIMINAL
PROCEDURE CODE. THE RESPECT OF THE PROVISIONS
OF ARTICLE 6 OF THE EUROPEAN CONVENTION
ON HUMAN RIGHTS1
Maria Magdalena BÂRSAN2
Abstract: A defendant's right to remain silent regarding the actions for which he is
prosecuted and to not contribute to his own incrimination represent essential aspects of an
equitable criminal procedure law. The article aims to discuss the extent to which the
provisions of the Criminal Procedure Code are violated, as well as the provisions of the
European Convention on Human Rights in this matter. Based on the right to remain silent
and not incriminate oneself as regulated in article 6, the criminal investigators are
prevented from obtaining evidence by defying the will of the culprit and not to testify
against him. Each accused individual has the right to remain silent and not incriminate
himself, although the provisions of article 6 of the European Convention on Human Rights
does not expressly mention this right, it is acknowledged by international legal regulations
which are found at the center of the concept of equitable trial. The Romanian legislator
should take a closer look at the provisions of the Romanian procedural code that currently
establish these procedural measures and corroborate them with those of the Romanian
Constitution and those of the ECHR.
Key words: Public Law, Criminal Law, Defendant’s right to remain silent, Criminal
Procedure Code, European Convention of Human Rights.
Introductory notes
Across time, almost all European procedural laws acknowledged the
defendant’s right to not incriminate himself, by remaining silent and ensuring
access to legal assistance from the early stages of an investigation.
1 The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, held in Braşov (Romania)
and organized by the Faculty of Law – Transilvania University of Braşov on the 29th and 30th of
November 2019.
2 Senior Lecturer, PH.D - Faculty of Law, Transilvania University of Brasov (magdalena_maria_
neagu@yahoo.com).
Law Review special issue, Decembre 2019, pp. 166-172
The defendant’s right to remain silent and not incriminate… 167
The system of the European Convention on Human Rights regulates the right
to an equitable trial in two regards: a wide meaning, stating that it entails all
guarantees regulated by article 6 first paragraph, namely any person’s right to
equitable trial by an independent and impartial court, publicly and within a
reasonable term, in regard to civil rights and obligations or any criminal charge;
article 6 second paragraph states any individual who is accused of committing a
crime has the right to be presumed not guilty until his guilt is legally established,
by definitive court decision; article 6 third paragraph regulates some special
guarantees in criminal matter, namely: any accused has the right to be informed of
the nature and cause of his accusation in a language he understands, he must be
ensured the time and necessary means to prepare his defense; he must be assisted
by a chosen defender or assisted by a public defender free of charge, he must be
able to question de prosecutor’s witnesses and has the right to the hearing of his
witnesses in the same conditions; he can be assisted by a translator without pay, if
he does not understand the language of the court hearings3.
In national law, along with the suspect or defendant’s right to remain silent
(article 78 Criminal Procedure Code and article 83 first alignment letter a of the
Criminal Procedure Code), the lawmaker has acknowledged, on a declarative
level, the witness’s right to not incriminate himself (article 118 of the Criminal
Procedure Code).
On a simple reading of article 118 of the Criminal Procedure Code regarding
the witness’s right not to incriminate himself, we note that this procedural
regulation conflicts with the right to an equitable trial, in which the presumption of
innocence needs to be effectively respected with all its components and the right to
a defense must benefit from all its values, according to the provisions of article 21
of the Romanian Constitution corroborated with those of article 6 of the European
Convention on Human Rights.
The right to not self incriminate oneself and to refuse incriminating statements
results from the very acknowledgement of the principle according to which the
accused is not held to prove his innocence, as it is the duty of investigators to prove
the deed without any help from the accused party. Beyond the specific
manifestation and the meaning of the right to not self incriminate, of the same
importance is the correlative obligation of the judicial investigators to ensure the
defendant with the complete exercise of this right.
In national law, the obligation to warn the suspect or defendant on the right to
remain silent is found in the provisions which regulate the right to a defense, in
article 10 fourth alignment of the Criminal Procedure Code, thus the criminal
investigators are held to inform the defendant of his right to remain silent, before
the hearing of the suspect or defendant.
3 C. Birsan, European Convention on Human Rights, Comments by articles, Second edition, C.H.Beck
Publishing House, 2010, page 359
168 MARIA MAGDALENA BÂRSAN
The defendant’s right to remain silent is a right which results from the
provisions of article 6 of the European Convention on Human Rights; in national
law, similar regulations are found in the Criminal Procedure Code, as it is an
essentially procedural guarantee which exists and causes consequences only in the
context of a criminal trial. 4 An suspect’s right to remain silent in regard to the
deeds he is accused of and to not contribute to his own incrimination are essential
aspects of an equitable procedure in the criminal trial. The European Court has
constantly ruled that, even if article 6 of the Convention does not expressly
regulate these rights, they are generally acknowledged regulations, which are the
center of the notion of an equitable trial, as regulated in this text.
The reason for their acknowledgement is the need to protect the accused
person of committing a crime from pressure from the criminal investigators, in
order to avoid any judicial error in criminal trials and to allow the fulfillment of the
purposes regulated in article 6 of the Convention.
The European Convention has shown that, on one hand, it is obliviously
incompatible with the demands of the Convention for a conviction to be
exclusively or essentially based on the silence of the defendant, his refusal to
answer questions or to testify in court; on the other hand, it is similarly obvious
that these interdictions might prevent the court from considering the silence of the
interested party in situations which require an explanation in order to appreciate
the force of persuasion of the elements of the accused file5. There is no clear
distinction between these two situations, thus “the right to remain silent” must not
be seen as an absolute right.
Preliminary aspects
First, we must discuss the extent to which the right to remain silent must be
respected and the right not to incriminate oneself in the time previous to the
criminal court, namely before the criminal investigation. The philosophy of the
Romanian lawmaker was that of acknowledging the right to remain silent only for
the suspect or the defendant, thus, in order to discuss the existence and exercise of
such a right, we must get past the time of the in personam criminal investigation,
according to article 305 third alignment6 of the Criminal Procedure Code.7
4 F. Sudre, European and International law of human rights, Polirom Publishing House, Iasi, 2006,
page 297
5 C. Birsan, op. cit., page 515
6 Also see Decision no 111 of February 28th, 2019, regarding the non-constitutionality exception of
the provisions of article 10 first and fifth alignments, articles 33 and 88 first alignment, article 305 third
alignment and article 309 first alignment of the Criminal Procedure Code.
7 Article 105 third alignment of the Criminal Procedure Code states that: „ when there is evidence to
prove reasonable doubt that a certain person commited the crime for which he is investigated and none of the
cases regulated in article 16 first alignment apply, the criminal investigator continues the inquiry, thus the
The defendant’s right to remain silent and not incriminate… 169
What is relevant in this matter is knowing to what extent the criminal
investigators would be obliged to respect a de facto but not de jure suspect’s right to
remain silent, by considering the fact that the lack of the official quality of suspect
is the result of the lack of manifestation of will of the same criminal investigators,
by failing to issue the ordinance mentioned in article 305 of the Criminal Procedure
Code. If they were to disregard this interdiction of hearing witnesses of those who
is the de facto suspect, the criminal investigators are in the situation of irrevocably
affecting the right to an equitable trial, even in case those statements are not used
as evidence.
Although internal law regulates, in article 118 of the Criminal Procedure Code8
the „witness’s right to not incriminate himself”, it expressly mentions the
impossibility to use the statement of a witness who subsequently became a suspect
or defendant, as things are not so simple as the text would let us believe. This is
because the legal solution of article 118 of the Criminal Procedure Code does not
regulate the right of the witness to not give a statement which would incriminate
him and to benefit from the assistance of a lawyer; at the same time, the criminal
investigator’s obligation to warn the individual of this is missing and the sanction
of such statements is deceptive, thus allowing the use, in a criminal trial, of
illegally obtained evidence. Criminal procedural law offers a remedy in the
provisions of article 118 and 109 third alignment, according to which the witness’s
statement given in the course of a in rem criminal investigation by a person who,
within the same investigation has subsequently become a suspect as a result of that
statement can’t be used against him and, in the course of the hearing, namely after
the criminal investigation begins in personam, the suspect can exercise his right to
remain silent in regard to any of the facts and circumstance about which he is
questioned. As a result, the lawmaker has regulated the suspect’s right to not
contribute to its own accusation, a fact which represents an essential element of the
right to an equitable trial.
Maybe the best example in this matter is the case Brusco vs. France9. Although
a statement from the injured party exists which implicates Brusco in committing
the crime of attempted murder, as well as the statement of a co accused which
indicated that he had hired Brusco to commit the crime, the criminal investigators
had heard the defendant as a witness and subsequently used his statements
against him, including in order to indict him and subsequently convict him. Under
these circumstances, the Court appreciated that, when the defendant was detained
person becomes a suspect. The measure undertook by the criminal investigsator is subject to confirmation by the
district attorney within 3 days, as the investigator is held to present the file of the cause to the district attorney.”
8 Article 118 of the Criminal Procedure Code: “A witness statement given by a person, who had the
capacity of suspect or defendant before such testimony or subsequently acquired the capacity of suspect or
defendant in the same case, may not be used against them. At the moment when they record the statement,
judicial bodies are under an obligation to mention their previous capacity.”
9 V. Puşcasu, The right to remain silent and not incriminate oneself, A collection initiated and
coordinated by Sergiu Bogdan, Universul Juridic Publishing House, Bucharest, 2010, page 147
170 MARIA MAGDALENA BÂRSAN
and had to be sworn in, he was under criminal investigation and benefited from
the right to remain silent and not contribute to his own incrimination, as regulated
by article 6 first and third paragraphs of the Convention.
Sanctions for violating the right to remain silent and to not self-incriminate
In order for the right to remain silent and not self-incriminate oneself to not
remain unachievable and doubtful, but to manifest as an effective and specific
guarantee, the procedural provisions are not enough, as certain legal tools are
required which are meant to ensure efficiency, namely the Romanian lawmaker
should study the international regulations in this matter, by identifying the
inconsistencies which occur in practice; at the same time, the lawmaker should
regulate sanctions in order to remove the consequences of this legal guarantee. We
can distinguish between two categories of regulations: those of substantial law,
which attract responsibility from the person who violated the right to remain silent
and not incriminate, as well as essentially procedural provisions whose effect is
that of sanctioning the validity of evidence and procedural acts which impair on
the previously mentioned right10. The criminal law regulations send us to the
provisions of the special part of the Criminal Code, namely those in the category of
“Crimes against performing justice”. The judicial object of the crimes against
performing justice is the ensemble of social relations which are performed in
regard to ensuring justice, independence, impartiality and efficiency in the process
of enforcing laws, by criminally sanctioning the deeds which are likely to seriously
influence, ignore or undermine the authority of justice. The crime of abusive
investigation, stated in article 280 of the Criminal Code11has, as an judicial special
object, the social relations regarding the activity of performing justice, an activity
whose normal performance is incompatible with the use of illegal means against
the individuals who are investigated or tried in a criminal case.
The crime of abusive investigation can only be committed by a public servant
who, according to the law and his duties, performs activities of criminal
investigation or criminal trial. The criminal investigators are divided in: criminal
investigators of judicial police and special criminal investigators (for example,
specialized workers of the Internal Affairs Minister specifically appointed by the
10 For a similar classification, see G. Theodoru, Criminal Procedure Treaty, Hamangiu Publishing
House, Bucharest, 2007, page 495
11 Article 280 of the Criminal Procedure Code states in the first alignment that : (1) The use of
promises, threats or violence against a criminally investigated person by an investigator, prosecutor of
judge, in order to force a statement or confession, a false statement or retraction of a statement, is
punishable by incarceration from 2 to 7 years and the interdiction of holding a public office. (2) The
same sanction is applies to the fabrication, falsification or creating false evidence by a criminal
investigator, a prosecutor or a judge.
The defendant’s right to remain silent and not incriminate… 171
General Prosecutor or the case prosecutor, the preliminary chamber judge or the
rights and liberties judge).
The typical version of this crime entails the existence of an essential condition
regarding the time when the deed was committed. This results from the quality of
the secondary passive subject, who can only be a criminally prosecuted or tried
person; thus, it results that the criminal investigation had already began at the time
the crime was committed and the deed was committed until there is a definitive
court decision in the case, ruling in any of the solutions stated in article 396 of the
Criminal Procedure Code12. A deed which was committed before the beginning of
the criminal investigation will be the one regulated by article 272 of the Criminal
Code – influencing the statements, if all other elements of the crimes are present.
Conclusions
For a long time, the Romanian criminal procedure law contained no regulation
of the right to remain silent and not incriminate oneself, thus lacking any historical
tradition of this procedural guarantee in the internal system of law, built on an
inquisitorial procedural model, in which the suspect or the prosecuted individual
would talk to the judicial investigators13. Despite the obvious evolution of laws, the
new regulation does not bring any light to this subject, as the lawmakers provided
no explanation for the numerous legal regulations of the right to remain silent and
not incriminate oneself in all aspects and phases of the criminal investigation.14
Based on the right to remain silent and not incriminate oneself as regulated in
article 6, the criminal investigators are prevented from obtaining evidence by
defying the will of the culprit and not to testify against him. Each accused
individual has the right to remain silent and not incriminate himself, although the
provisions of article 6 of the European Convention on Human Rights does not
expressly mention this right, it is acknowledged by international legal regulations
which are found at the center of the concept of equitable trial. By protecting the
defendant against abusive constraint from the authorities, these immunities help
avoid judicial errors and guarantee the desired outcome. This applies to all crimes,
regardless of their degree of severity and complexity, from the early stage of the
questioning by the police. It entails the fact that in a criminal investigation, the
prosecutors are allowed to build their prosecution without proof which was
12 Article 396 of the Criminal Procedure Code states in the first alignment: (1) The court rules on
the guilt of the defendant, by ruling for conviction, renouncing the punishment, postponing the
punishment or acquittal and end of criminal trial.
13 D. Ionescu The warning procedure. Consequences in the matter of the validity of the accused’s
statements in the criminal trial, in “Notes on Criminal Law” Magazine, no. 2/2006.
14 V. Puscasu, The right to remain silent and not self-incriminate, Ratio essendi, West University
Magazine, Law series, Timisoara, page 95
172 MARIA MAGDALENA BÂRSAN
obtained by constraint or pressure or against the will of the defendant. These rights
serve to protect a suspect’s right to choose whether to talk or remain silent when
he is questioned by the police.
This freedom of choice is compromised in case the suspect chooses to remain
silent during questioning, but the authorities use a legal subterfuge in order to
force a confession or incriminatory statements which they was unable to obtain
during questioning, thus exercising their coercion powers. In order to establish the
fact of whether choosing to remain silent can lead to conclusions unfavorable to the
defendant thus violating article 6 of the Convention, several elements must be
considered such as the existing proof and the degree of constraint15. This right is
destined to protect the individual against the coercing force of the competent
authorities during questioning. In ECHR jurisprudence, it is considered that this
right, which is not formally guaranteed by the constitution, is a guarantee given to
the defendants in the name of the right to an equitable trial, the right to freedom
and human dignity16.
15 V. Puşcasu, The right to remain silent and not incriminate oneself, A collection initiated and
coordinated by Sergiu Bogdan, Universul Juridic Publishing House, Bucharest, 2015, page 315
16 N. A. Odina, The right to remain silent. The role of silence in the protection and guarantee of natural
subjective rights, Eftimie Murgu University, Resita, page 73