Author(s) Ana Sofia Carneiro Martins
Advisor(s) Pedro Miguel Freitas
Year 2017
Synopsis In medieval times, where the inquisitorial criminal proceedings prevailed, the defendant was considered a mean of proof, being forced to testify against himself and to swear the absolute truth before the court, otherwise he would be severely punished. The confession of the defendant constituted probatio probatissima and it was sufficient for him to found a conviction, without being conceivable evidence to the contrary or any possibility of appeal. The first modern conception of the privilege against self-incrimination was the transition from the inquisitorial criminal procedure to an accusatory one, where the aim was to combat the abuses provoked by the institutes that had hitherto been in force and which made the accused an instrument of the process and self-incrimination. With the change to accusatory criminal proceedings, the defendant is no longer seen as an object of the process, to be start being considered a procedural subject, where procedural rights and duties are conferred. One of these rights, whose study is the central theme in this dissertation, consists of the Latin script nemo tenetur se ipsum accusare, where the defendant is allowed not to contribute to his self-incrimination. However, will this principle be applied when, in the course of an investigation, we are faced with a due diligence where the defendant is asked to write by his own hand elements that will later be skillfully analyzed, and may lead to his incrimination? Or is there a limitation to nemo tenetur principle? And if so, based on what criteria? Is the defendant’s refusal to cooperate in this proceeding to be unlawful and may be punished with a crime of disobedience? We will try to answer, this and other issues in a synchronic study of the doctrine with the jurisprudence and national and international legislation.
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Author(s) Ana Sofia Carneiro Martins
Advisor(s) Pedro Miguel Freitas
Year 2017
Synopsis In medieval times, where the inquisitorial criminal proceedings prevailed, the defendant was considered a mean of proof, being forced to testify against himself and to swear the absolute truth before the court, otherwise he would be severely punished. The confession of the defendant constituted probatio probatissima and it was sufficient for him to found a conviction, without being conceivable evidence to the contrary or any possibility of appeal. The first modern conception of the privilege against self-incrimination was the transition from the inquisitorial criminal procedure to an accusatory one, where the aim was to combat the abuses provoked by the institutes that had hitherto been in force and which made the accused an instrument of the process and self-incrimination. With the change to accusatory criminal proceedings, the defendant is no longer seen as an object of the process, to be start being considered a procedural subject, where procedural rights and duties are conferred. One of these rights, whose study is the central theme in this dissertation, consists of the Latin script nemo tenetur se ipsum accusare, where the defendant is allowed not to contribute to his self-incrimination. However, will this principle be applied when, in the course of an investigation, we are faced with a due diligence where the defendant is asked to write by his own hand elements that will later be skillfully analyzed, and may lead to his incrimination? Or is there a limitation to nemo tenetur principle? And if so, based on what criteria? Is the defendant’s refusal to cooperate in this proceeding to be unlawful and may be punished with a crime of disobedience? We will try to answer, this and other issues in a synchronic study of the doctrine with the jurisprudence and national and international legislation.
See more here.