Guarantee of the Right to Silence and of the Right not to Contribute to One's Own Incrimination in Romanian Law

• Author: Carmen Adriana Domocos
• Position: University of Oradea, Faculty of Law
• Pages: 37-50

Center for Open Access in Science ▪ https://www.centerprode.com/ojls.html

Open Journal for Legal Studies, 2018, 1(1), 37-50.

ISSN (Online) 2620-0619 ▪ https://doi.org/10.32591/coas.ojls.0101.04037d

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© Authors. Terms and conditions of Creative Commons Attribution 4.0 International (CC BY 4.0) apply.

Correspondence: Carmen Adriana Domocos, e-mail: carmendomocos@gmail.com.

Guarantee of the Right to Silence and of the Right not to

Contribute to One’s Own Incrimination in Romanian Law

Carmen Adriana Domocos

University of Oradea, Faculty of Law

Received 29 May 2018 ▪ Revised 29 June 2018 ▪ Accepted 19 July 2018

Abstract

The r ight to silence enjoys increased attention from the Romanian legislator and is currently

regulated by the Criminal Procedure Code (Law no. 135/2010), which entered into force on 1st

February 2014. The right to silence (to remain silent) and the right not to contribute to one’s own

incrimination (the privilege against self-incrimination) are the implicit procedural guarantees of

the right to a fair trial, which results from the case law of the European Court of Justice within

the meaning of Article 6 paragraph 1 of the European Convention on Human R ights. They are

also stipulated in t he field of preventive measures. Fo r the first time, the New Code of Criminal

Procedure also regulates the witness’s right not to incriminate himself. The paper contains also

some considerations about the purpose of the privilege of silence within the meaning of the

ECHR.

Keywords: the right of silence, the privilege against self-incrimination, procedural guarantees,

witness’ right not to incriminate himself.

1. Introductory issues regarding the right to silence and to non-self-incrimination

The right to silence (to remain silent) is the implicit procedural guarantee of the right

to a fair trial, which results from the case law of the European Court of Justice within the meaning

of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial

authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a

suspect or a defendant to make statements, while having, however, a limited power to draw

conclusions against them, from their refusal to make statements.

The right not to contribute to one’s own incrimination (the privilege against self-

incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from

the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the

European Convention, according to which judicial bodies or any other state authority cannot

oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or

a witness to cooperate by providing evidence which might incriminate him or which could

constitute the basis for a new criminal charge. Such persons may refuse to make statements,

answer questions, or hand over written documents, objects that might incriminate them (nemo

debet prodere se ipsum – no one is obliged to accuse himself).

Thus, unlike the former regulation from which only the essence of those rights