Right To Remain Silent and Not to Incriminate Oneself in the European Union System

Abstract

The paper examines the issue of the right to silence and not to self-incriminate in the European Union system. Appeared for the first time more than 30 years ago, in a case not concerning criminal matters, the right to remain silent has been implicitly, though unequivocally, enshrined in the basic texts of the EU, the Treaty of the European Union and the Charter of Fundamental Rights. Furthermore, while implementing the Stockholm Program, the Union adopted, in 2012 and 2013, the Directives on information and on the access to a lawyer , that reinforce what are, as well known, the main prophylactic rules protecting the privilege against self-incrimination Eventually, the EU legislator passed in 2016 the Directive on (certain aspects of) the presumption of innocence, that takes explicitly position on the defendant’s entitlement to keep the silence throughout the entire criminal proceeding. The normative set of principles and rules gives therefore to the protection of the right to silence a great potential, certainly higher than that resulting from ECtHR jurisprudence, especially in the light of the recent interpretative trend concerning the so-called ‘compensative measures’. However, reality appears rather different from the idyllic framework depicted. Great part of comments emphasizes primarily the limits and contradictions of the EU set of principles and rules, wondering if, and how, the future development of the defendants’ safeguards, especially the most crucial ones - such as the right of access to counsel and the right to remain silent - will live up to the promises and expectations borne in the legislative framework adopted after Lisbon and Stockholm. This sense of disappointment and uncertainty has more than one ground. The first is the global scenario, that has tended, in the last decades - the ones during which the normative EU framework on individual rights has evolved - to undermine or restrict due process rights, even in deep-rooted democracies. The second concerns the uncertain bases on which the right to silence and the privilege against self-incrimination is built. The question is if this tendency toward a ‘perversely, uniform mediocrity’ is inevitable, or if it could be avoided. After all, thanks to the legislative reforms passed in the last years, all the seeds for a new defendant’s rights blossoming are already there. The problem is then how to reverse such status quo, finding the way to make the most of the legal sources of the EU with regard to the right to silence.