Silence of suspect or accused person in criminal proceedings: Right and not weakness

By George Kazoleas, Lawyer LL.M.
The silence of a suspect or accused person in criminal proceedings is a right enshrined in the European Convention on Human Rights (Article 6 (1)). Unfortunately, in some legal systems and in their criminal practice, the defendant's silence is regarded as confession or acceptance of the charge, a practice that is fundamentally affecting the core of his defense rights.
The right to silence is an important aspect of the presumption of innocence and its usefulness lies in protecting the accused person from self-incrimination.
Monitoring compliance with the right to silence, as well as the related right of self-incrimination, is particularly critical for the offense, that a person is suspected or accused of having committed, but not for example in matters related to identifying a suspect or accused.
The essence of the right to remain silent is to prohibit the suspect or the accused person from speaking, answering questions or providing information to the investigating or prosecuting authorities.
In order to determine whether the right to remain silent or the right not to self-incriminate has been infringed, the interpretation of the right to a fair trial by the European Court of Human Rights under the ECHR should be taken into account.
The right to remain silent begins at the point where the suspect is arrested and is being held at the police station for questioning. The importance of informing the detainee of his right to remain silent is such that even if that person agrees to testify with the police after being informed that the testimony may be used against him, this is not considered to be the appropriate full information, unless his right to remain silent has been clearly and publicly disclosed and his decision to testify has been made without the assistance of a lawyer. (ECtHR, Navone and Others v. Monaco, Stojkovic v. France and Belgium)
The suspect's freedom of choice on whether to remain silent or not is substantially undermined if he chooses not to speak during interrogations and the Authorities use tricks to cause confession or other statements of an incriminating nature by the suspect, which they were not able to obtain during the interrogation. The specific case heard in the ECtHR , involved confession to a police informant sharing the cell of the suspect / applicant and which statements thus obtained, were presented at trial (ECtHR, Allan v. The United Kingdom).
Of course, the European Court of Human Rights has held that the right to silence is not absolute (John Murray v. The United Kingdom, Ibrahim and Others v. The United Kingdom). According to the ECtHR, in examining whether a proceeding has infringed the core of the right, the Court takes particular account of the nature and extent of the coercion, the existence of any relevant safeguards in the proceeding and the use of any evidence obtained in the course of the proceedings. (Jalloh v. Germany, O'Halloran and Francis v United Kingdom, Bykov v Russia, Ibrahim and others v United Kingdom).
In accordance with Article 7 of Directive 2016/343 on enhancing certain aspects of the presumption of innocence and the right of the accused person to stand trial in criminal proceedings, Member States ensure that suspects and accused persons have the right to remain silent , in respect of the offense for which they are suspected or charged (paragraph 1), while the exercise by suspects and accused of the right to remain silent or of non-self-incrimination is neither used nor considered as evidence to have committed the offense (§ 5).
Ιn conclusion, the silence of the suspect or accused person should not be a tool of the investigating or police authorities that leads to his/her guilt, should not be used against him/ her and should not be considered on its own as evidence that the person in question has committed the crime. It is a right of the suspect or accused person and not his/her weakness.
*George Kazoleas is Lawyer in Cyprus, Senior Associate at Dionysiou & Partners LLC
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