The Right to Silence in the EU Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence from the Perspective of Polish Criminal Proceedings

Abstract

The right to remain silent is one of the most fundamental principles of domestic and international criminal law. It is also closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follows that the accused should not be forced to assist the prosecution by being forced to speak. The right to remain silent expresses the individual’s right not to be compelled to say anything even if it would not be incriminating or confesses guilt. Its core component is the freedom to choose whether or not to give answers to individual questions or to provide explanations. The consequence of the right to silence proposes that one cannot be required to give information or answer questions as well as this right includes protection of an accused against compulsion. Such freedom of choice is effectively undermined in a case in which the suspect has elected to remain silent during questioning and the authorities use subterfuge to elicit confessions or other statements of an incriminatory nature from the suspect which they were unable to obtain during such questioning. This * Andrzej Sakowicz, Professor, Department of Criminal Proceeding, Faculty of Law of the University of Biaystok; e-mail: sakowicz@uwb.edu.pl; ORCID ID: 0000-00016599-4876. 1 The current article is financed by the National Science Center as a part of research project no. 2013/11/B/HS5/04119, entitled Standard of protection for the right to silence in the criminal process. Publikacja sfinansowana ze środków Narodowego Centrum Nauki w ramach projektu badawczego Nr 2013/11/B/HS5/04119, zatytułowanego “Standard ochrony prawa do milczenia w procesie karnym”.