REFLECTIONS REGARDING THE WITNESS'S RIGHT AGAINST SELF-INCRIMINATION
REFLECTIONS REGARDING THE WITNESS'S RIGHT AGAINST SELF-INCRIMINATION

Summary/Abstract: Considered for a long time as the "eyes and ears of justice", the witness has become a procedural subject around which several controversies have arisen since the entry into effect of Law No. 135/2010 on the Code of Criminal Procedure. The suspected witness, the one against whom further criminal prosecution has not been ordered yet, has acquired a distinct position, shaped by the case-law of the European Court of Human Rights and redefined by Decision No. 236/2020 of the Constitutional Court of Romania. Although the European Court of Human Rights has repeatedly ruled that the guarantees of fairness in proceedings apply once an accusation is formulated, it has also recognized the same guarantees for individuals who are heard as witnesses, but are simultaneously suspected of committing offences. Even after the official release of the contentious constitutional court’s decision, there are a series of aspects that generate debates and controversies, the most important one being whether there is a genuine right for the witness to remain silent. Has the phrase "cannot be used against him/her" in Article 118 of the Code of Criminal Procedure become predictable and, at the same time, a barrier against potential abuses? Can a "right to silence and privilege against self-incrimination" be recognized ab initio? The balance between the general interest for a good performance of the criminal proceedings and the rights of the "suspected" witness has required and continues to require practical solutions from the judicial authorities, so that the right to defence and the right to a fair trial are observed.

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