The right to keep silence


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The right to remain silent is appreciated in the European Union address 2016/343 of the European Parliament and the council. March 9, 2016, Where the criminal procedure is taken into consideration in which factors or elements of interest are presented. In which they point to an elementary situation in the proceedings. 

Which refer to the presumption of a possible innocent, which is expressed in its Article No. 7. Where this right is proclaimed and established and the fact of not declaring against oneself. Therefore, the exposed paragraph dictates that accused suspects may use this right not to testify against themselves. 

Consequently, it will not be taken into account as a tool against you, nor will it be considered evidence. The latter may refer to a criminal act perpetrated by the suspect, or to some infringement activity. penal

The right to keep silence
The right to keep silence

The right to remain silent in the Judgments handed down by the bodies in charge

Despite the fact that many international and national writings only manage to mention a general right not to incriminate oneself. Where it has also been the subject of debate whether the right to silence is considered an autonomous choice. Or it is simply the expression of a unique and elective right by the suspect.

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It is understood that this right not to testify against oneself, also contracts a negative act. In which it is observed that the suspect must undergo an interrogation procedure where he can be charged. The Constitutional Court (TC) has always accepted it this way through multiple sentences.

Ruling of the Constitutional Court

Among many judgments handed down by the Court, we can highlight the Judgment of the Court Constitutional (STC) 161/1997 of October 2. In which it refers to the jurisprudence of the European Court of Human Rights. Where you can see the ss of December 17, 1996, which exposes the cases:

  • Saunders v. United Kingdom, paragraph 68, February 25, 1993.
  • Funke v. France, paragraph 44.
  • John Murray v. United Kingdom, paragraph 45, February 8, 1996.

This in order to make their own conclusions regarding the right to remain silent on the part of the accused. Where it is specifically expressed that the same in relation to the right not to self-incriminate, not yet expressed. Where it should be mentioned in article 6 of the Convention, it forms its bases in other rights.

The main one, being the right to an equitable and fair procedure, also closely intertwined with another right. Which is the presumption of a possible innocence in the case by the suspect. Some sectors believe that the fact of remaining silent will only be guaranteed in certain contexts.

Which assume that there will be no cost to the defendant, not even if considered in terms of probative assessment. It should be noted that silence will never be taken into account as evidence of any act perpetrated by the accused.. Therefore, the subject in question may make use of his right without concern. 

The right to silence is not a sign of guilt

As previously mentioned, silence will not be taken into account under any circumstances as evidence for a conviction. It will never be a sign of guilt, thus, a conviction can never be established based on the silence of the accused. 

However, in certain contexts, conditions can be presented so that it is not something totally neutral. That is, if the situation so presents, it can be part of a possible motive within the evidentiary assessment.. It occurs when there are attitudes or strategies in the procedure.

These strategies can be executed by the defendant in question or by another party involved. An example of this can be seen in the context where the defendant refuses to testify in writing. So expresses article 391.3 of the Criminal Procedure Law, where textual evidence is the only proof of innocence. 

Another context to consider is taken into account when the defendant refuses to undergo biological paternity tests. This, when many investigative factors give indications of the same, combined with a statement without witnesses. They may be elements to take into account in the decision to be made.

To be considered so, witnesses must allege that they witnessed events, but the defendant does not want them to testify in court. These elements are sometimes considered key to the valuable aspects of a case when making a decision. 

They help considerably to close the evidence box of the case, it does not depend on a statement as the main factor. Rather, on many occasions, some attitudes are considered as an additional element to the burden of proof. Which are used and help to shape the evidentiary assessment against the accused. 

Other important contexts in this crime

Having said the above, in criminal situations the decision of "the one who is silent grants" is not taken into account, it is false. On the contrary, when the defendant decides to remain silent, it is only taken into account that he simply decides to keep quiet. Therefore, it is emphasized that the right to remain silent is not an element of guilt.

However, it is true that, in the social sphere, verbal communication is important and fundamental in some aspects. However, this communication is a carrier of messages depending on the context, some can be transmitted imprudently. 

The lack of caution on the part of the defendant is not an element to be taken into account, so it is not prosecutable. It is taken into account as an unreliable source and hypocrisy, so the Court will only state that: The right of silence taken by the accused at the beginning is taken into consideration. 

Silence is not always neutral, taking it into account as a sum to the evidentiary assessment of the defendant. However, if there is obviously no written evidence that supposes a reliability factor for the decision. A conviction could not proceed, even on occasions these assumptions do not contribute anything to the case either. 

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