In a legal system based on the presumption of innocence, where the onus is on the prosecution to prove the offence, the defense regularly raises the issue of the accused’s right to silence. But is the right to silence really a panacea for the defence? Today, in our “Caught in the act” column, we look at the potential “boomerang” effects of this right to silence.
The right to silence means that the accused is not obliged to incriminate himself or herself, and can choose not to answer questions asked by the authorities during the investigation and criminal trial. This right is linked to the principle of presumption of innocence, according to which a person is presumed innocent until proven guilty.
In principle, the fact that an accused person exercises his or her right to remain silent should not be interpreted as an admission of guilt or as an incriminating or aggravating circumstance. The prosecuting authorities, and the courts in particular, must therefore respect this right and not draw negative conclusions from the silence of the accused.
But there are exceptions to every principle, and in this case we’ll call them the boomerang effect of the right to silence . Indeed, in certain circumstances, silence can be taken into account in the overall assessment of the evidence, or even become an incriminating circumstance.
A brief review of the main legal bases(A) and relevant case law(B):
A) Legal basis
In Switzerland, the main applicable sources (national and supranational) concerning the right to silence are as follows:
- Swiss Code of Criminal Procedure (CCP ): The CCP governs criminal procedure in Switzerland and contains provisions protecting the rights of parties to criminal proceedings. In particular,article 113 CPP provides that defendants have the right to remain silent and not be forced to participate in their own incrimination: ” The defendant is not obliged to testify against himself. In particular, he has the right to refuse to give evidence and to refuse to cooperate in the proceedings. He is, however, obliged to submit to the restraint measures provided for by law. “
- European Convention on Human Rights (ECHR ): Switzerland is a party to the ECHR, an international treaty designed to protect human rights and fundamental freedoms. Article 6 ECHR enshrines the right to a fair trial, which includes the presumption of innocence (6 §2), from which derives the right not to incriminate oneself: “The right to a fair trial includes the presumption of innocence, from which derives the right not to incriminate oneself. §2. Anyone charged with an offence is presumed innocent until proven guilty according to law. “.
B) Case law
With regard to the case law handed down in application of these provisions, the European Court of Human Rights (ECtHR) on the one hand(1) and the Swiss Federal Supreme Court on the other(2) have regularly been confronted with the issue of the unfavorable assessment of the right to silence by criminal courts.
1) The European Court of Human Rights
In the case of the European Court of Human Rights, the following judgments concerning the “burdened” interpretation of the right to silence can be cited as examples:
- John Murray v. United Kingdom (1996) : This case, of principle, concerns the right to silence and the effect of a suspect’s silence on the presumption of innocence. The Court concluded that the use of the accused’s silence by the national court, in the absence of other solid evidence capable of corroborating the charges, had infringed the accused’s right to silence and the principle of the presumption of innocence.
- Telfner v. Austria (2001) In this case, the plaintiff was accused of fraud and chose to remain silent during his trial. The Austrian court had drawn unfavorable conclusions from his silence, in particular to establish that the accused had indeed committed the fraud of which he was accused. The ECHR found that the Austrian court’s reliance on the accused’s silence had not violated Article 6 of the Convention, as the court had also taken into account other evidence and had not based its decision solely on the accused’s silence.
- Beckles v. United Kingdom (2002) In this case, the applicant was accused of armed robbery and chose to remain silent during his trial. The judge had allowed the jury to draw adverse inferences from his silence. The ECtHR concluded that the applicant had been warned of the consequences of his silence and that he had been given the opportunity to provide plausible explanations to the questions put to him. The Court thus held that the national court’s use of the accused’s silence had not violated Article 6 of the Convention.
- Murtazaliyeva v. Russia (2018) In this case, the Court concluded that there had been no violation of Article 6 of the Convention with regard to the use of the accused’s silence during her trial. The Court emphasized that the national court had indeed taken the accused’s silence into account, but among other pieces of evidence, so that drawing unfavorable conclusions from the accused’s silence did not in itself constitute a violation of the right to silence and the principle of presumption of innocence.
- Chaldayev v. Russia (2019) In this case, the Court once again examined whether the use of an accused’s silence during the evaluation of evidence constituted a violation of Article 6 of the Convention. The Court concluded that there had been no violation of Article 6, as the national court had taken into account the accused’s silence among other evidence and had not interpreted it as an admission of guilt.
2) The Federal Supreme Court
In Switzerland, the following Federal Court rulings are particularly noteworthy:
- Ruling 6B_825/2014 (2014) In this ruling, the Federal Court emphasized that, when the accused gives evidence and refuses to answer only on certain points, or refuses to cooperate in the presence of evidence which, according to his own statements, could only be of relief to him, under certain conditions, remaining silent can be considered as evidence against him.
- Ruling 1299/2016 (2017) In this case, the Federal Court reiterated the principle that, according to case law, an accused person’s exercise of the right to remain silent does not justify an increase in the penalty, unless there is an absence of remorse and awareness of the offence. In this case, the appellant had not cooperated with the legal proceedings and had expressed neither remorse nor awareness. On this basis, the appellant’s sentence was increased, and the Federal Court ruled that this did not violate the appellant’s right not to incriminate himself.
- Ruling 6B_769/2019 (2020): In this case, the Federal Supreme Court considered whether drawing adverse inferences from an accused’s silence violated the right to silence and the principle of presumption of innocence. The Tribunal confirmed the importance of these principles and recalled that, although an accused’s silence may be taken into account in the overall assessment of the evidence, it should not be interpreted as an admission of guilt.
- Stop 6B_101/2021 (2021) In this case, the Federal Court noted that all defendants have the right not to incriminate themselves, but that taking into account their behavior during the proceedings – in this case, poor cooperation – did not violate the right to silence, since the defendant’s attitude during the proceedings is a relevant factor in sentencing.
C) In conclusion
These various cases demonstrate that both the European Court of Human Rights and the Federal Supreme Court recognize that the silence of an accused person can be taken into account in the overall assessment of evidence, without necessarily violating the right to silence and the principle of presumption of innocence. Particular care must therefore be taken when using this right, which always presupposes a thorough analysis of the particular circumstances of the case and the evidence available to the prosecuting authorities.
In passing, we would point out that in road traffic matters, the right to remain silent does not prevent the Court from finding that the owner of the vehicle was indeed the driver at the time of the alleged offences, even if he or she invokes the right to remain silent (recently stop 6B_1168/2020 (2022) and references cited).
On a different note, the Federal Court upheld the conviction of a person for refusing to disclose his identity, without this conviction violating the principle of the right to silence(ruling 6B_1297/2017 (2018), recently upheld ruling 6B_1325/2021 (2022)).
Last but not least, we are not setting aside the cohabitation between the right to remain silent and the obligation to cooperate under administrative law, and the use of evidence derived therefrom in criminal proceedings.
The right to silence is like a boomerang. So if you decide to throw it, you need to be sure you can catch it. A bon entendeur …
