The Witness's Right Against Self-Incrimination. National Standard

AuthorIoan-Paul Chis
LESIJ NO. XXV, VOL. 1/2018
Ioan-Paul CHI
This study is meant to reveal the legal solution in the Romanian system rega rding the
witness’s right not to contribute to self-incrimination. Thus, as a translation of the principle nemo testis
idoneus in r e sua , the Romanian legislator stipulated the witness’s r ight aga inst self-incrimination
under the p rivilege of not using his statements, in consideration of his locus standi, against him,
regar dless of the fact that he later on was given the status of a defendant for the same offence or whether
he is a defendant in a different case, which is connected to the one where he is a witness. Likewise, the
privilege of not using his statements against him, stipula ted under these conditions in the criminal
procedure law, seems to respo nd to the three difficult choices that the witness ha s, a premises for the
necessity to for mulate, on a jur isprudential ba ses, the witness’s right to remain silent and the right
against self-incrimination.
Keywords: r ight to remain silent, self-incrimination, nemo testis idoneus in re sua , nationa l
legal solution.
1. Legal framework
According to the Reasoning of the
project for the La w regard ing the Criminal
Procedure Code, it was e xplicitly regulated
according to the European Court of Human
Rights (the case Serves v. Fr ance), the
privilege against self-incrimination, also in
respect to the hearing of the witness.
In its initial form, the proposed
legislation, the privilege against self-
incrimination was marginally defined, under
Article 118 Criminal Procedure Code, The
right of the witnesses to avoid self-
incrimination that is the witness’s statement
may not be used in a trial a gainst him. Later
on, Article 102 point 75, Law no. 255/2013
for the implementation of the criminal
procedure law, the content of Article 118
Assistant Lecturer, Faculty of Law, Nicolae Titulescu University, PhD Candidate, Faculty of Law, University
of Bucharest (e-mail:
suffered a series of changes, practically
lacking utility, the text thus became the
witness’s statement given by a per son who
had the capa city as suspect or defendant
before such testimony or subsequently
acquired the capa city of suspect or
defendant in the same case, may not be used
aga inst him. The lega l authorities have the
obligation to stipulate, when the declaration
is written, the previous capa city of that
For a better understanding of the law-
maker and of the elements that accounted for
its legal acknowledgement, for the
patrimony of the witness’s rights, of the
privilege against self-incrimination, we
consider it necessary to highlight the
relevant circumstances that the E uropean
Court took into consideration in the above-

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