In opinion 730/2021 dated September 29, the Criminal Chamber of the Supreme Court states that:
The defendant who chooses not to testify at trial is exercising an important right. SIn that originally this action corresponds or can be interpreted as a mode of implicit recognition of the acts that are awarded to it. As well as, as a definitive element of accusation.
However, if an erroneous action has been developed in the criminal process, the silence of the presumed culprit implies a resignation. That is to say, it refuses to incorporate in any of the extremes known to it and not brought to a place that could place it in question.
Regarding this matter, the Chamber provided an extensive explanation. This, specifically in its sentence number 278/2021 dated March 25, in which it indicates:
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The defendant can opt in full right of the aforementioned by not providing any type of explanation or by giving the explanation without corroborating it. In this sense, neither silence nor inconclusive testimony can be decisive signs of his authorship or co-authorship in the criminal acts with which he is charged.
For this reason, it does not prevent the disbelievable explanation from actually being used reasonably. This, in order to validate the strength of the chain of evidence that constitutes the presumption of guilt.
Said use does not correspond, therefore, to an evidentiary act but rather refers to an argumentative one. The latter responds to a standard of social rationality that cannot be questioned:
If the conclusion of the presumption obtained through the evidentiary action carried out by the para-accuser, can only be seen in cognitive terms, affected if the accused individual, even when able, provided justifiable and validable testimony that would neutralize it or at least incorporate it a valid doubt, its absence can strengthen the solidity of the fact-consequence.
What is the Murray Doctrine?
In simpler words, the non-existence of the slightest confirmation of the alternative assumption of non-participation, in the event that this can only be offered by the accused subject, can invigorate in phenomenological fields the firmness of the presumption based on the results. probative evidence coming from pleasant compliance by the imputations of the burden of evidence that falls to them.
The improbable or the silence regarding the statement cannot be used to replace the insufficiency of the accusatory supposition test. However, neither one scenario nor the other is considered harmless to argue, on the contrary, about the strength of the inferential results offered by the accusatory evidence.
decision of the ECtHR, May 2, 2017
In accordance with what is stated in the Decision of the ECtHR, case Zschüschev v. in Belgium, reaffirming the Murray doctrine (Murray case against United Kingdom carried out on February 8, 1996). This doctrine states:
The agreement does not prevent the silence of a defendant from being taken into consideration in order to consider him responsible for the criminal act that he is adjudicated to. Unless, your punishment is based on your silence, mainly or exclusively.
The national courts defined how conclusively a body of evidence proving the responsibility of the defendant and his refusal to offer any kind of explanation on his part, was only useful to support the evidence.
In this sense, considering the relevance of the evidence against the accused, the conclusions derived from his refusal to offer testimony about the origin of the crime respond to common sense and cannot be defined as irrational or iniquitous.
In addition, they do not have the effect of substituting the burden of evidence of the imputation to the defense, contrary to the precept of presumption of innocence set out in article 6/2 of the Convention.
What does the Murray judgment affirm?
Explained in a simpler way, the Murray ruling establishes that it is essential to evaluate in each scenario whether the charges of the imputation are adequately valid to require a response. In this sense, the national court is not in a position to define the responsibility of the accused solely because he exercises his right to remain silent.
It is only when the evidence "requires" that the defendant must offer a statement. In the absence of such testimony by the accused, it is concluded that there is no possible explanation and that the accused is guilty.
In the contrary case, the absence of the explanation cannot be considered as a conclusion of the guilt of the defendant. This applies in cases where the judge has not established serious charges to require a testimony. In short, the judge has the power to extract from the elements of charge the inferences dictated by common sense. In this sense, the resolution will be the one that the latter can determine most appropriate.
It should not be used against a suspected or accused individual and should not by itself be defined as evidence
This interpretation is based on the literal nature of the sentence and reaffirms the EU Directive 2016/343 itself, which states:
The use of the right to remain silent or the right not to appear, cannot be used against a defendant. That is, it cannot be assumed as evidence against the defendant. For this, the fact that the latter refuses to plead guilty or issue judgments that could point him out as guilty applies.
This must be understood without prejudice to national rules related to the value of evidence by courts and judges. As long as the defendant's right to present his defense is respected.
Furthermore, Article 7 of the Directive defines:
“The exercise by defendants of the right to remain silent cannot be used against them nor is it considered evidence. In the same way, it applies in the case in which the accused refuses to issue judgments against himself.”