Author(s) Joana Eugénia Pinheiro Alves
Advisor(s) Mário João Ferreira Monte
Synopsis The theme that we propose to analyze concerns the various facets of the right to silence. The principle nemo tenetur se ipsum accusare is used to characterize the right to silence, which is a result of the right to non self-incrimination. The right to silence allows the defendant to refrain from answering questions and to provide evidence against himself opting for silence, that is, it does not allow the defendant to make statements which might be self-incriminating. The right to silence is characterized as a defense mechanism of the individual against possible abuses by the State in persecutio crimins. In addition to the defendant, the witnesses, and the legal persons can all be holders of the right to silence. In an initial perspective, we will make a brief reference to the origin and development of the right to silence, from its inception to the present times, and characterize it as to its nature and legal basis. Although no provision for this right is expressly made, it is considered an constitutional warrantee which is based on fundamental rights such as the human being´s dignity, so it finds its basis on the Constitution of the Republic and the Portuguese Code of Criminal Procedure, European Convention on Human Rights and in the ONU´s International Covenant on Civil and Political Rights. Then we will analyse the right to silence in the defendant´s questioning moment, -for example, the duty to inform on the right to silence, the accused’s duty to collaborate or not with justice, and the limits of the exercise of this right to silence. The primary object of our study is being able to determine the reach of the right to accused’s silence as far diligences of evidence are concerned, i.e, if its subordination to such evidence does not result in violation of the nemo tenetur. The sacrifice of fundamental rights of citizens by the State, namely the right to non self-incrimination, with the objective to pursuit the material truth and the re-establishment of legal peace, should start from a consideration of the legal interests in conflict in terms of their necessity and proportionality according to the article 1 and 18 no. 2 of Constitution of the Republic, in order to respect the principle of the human being´s dignity and the freedom of the individual.
See more here.