Legal Rights Series – The Right to Remain Silent

The Right to Remain Silent
The Right to Remain Silent

This is part 1 of our legal rights series. Today, we will explore the fundamental right to remain silent and its’ variations in different countries. Let’s begin.

The right to silence is a legal principle that guarantees any person the right to refuse to answer court officials or law enforcement officers. It is a legal right acknowledged, by convention or expicitly, in many of the world’s democratic legal systems.

The silence rights cover several issues centered on the defendant’s right or accused to refuse to provide an answer or comment when questioned, either before or during legal proceedings in a court of law. This can be the right to bypass self-incrimination or the right to stay silent when questioned. The right may constitute the provision that the jury or judge cannot make conflicting inferences regarding the defendant’s refusal to answer questions before or at a trial, hearing, or any other official legal proceeding. The right to remain silent forms only a small part of the defendant’s rights as a whole.

The foundation of the right to silence is credited to Sir Edward Coke’s challenge to the clerical courts and their ex officio oath. In the late 17th century, it became established in England’s law as a reaction of the people to the royal examinations’ excesses in these courts. In the United States, notifying suspects of their right to remain silent and the consequences of giving up that right forms a vital part of the Miranda warning.

The Rights to Remain Silent in Different Countries:

Australia: Australia has no legal protection for the right to silence, but it is widely recognized by Federal and State Crimes Acts and Codes and is deemed by the courts as a fundamental common law right and a part of the right against self-incrimination. In general, in Australia, criminal defendants have the right to deny to answer questions posed to them by the police before trial and refuse to present evidence at trial. However, a person must provide their address, full name, place of birth, and birth date if asked to by police officials. No other question has to be strictly answered. 

Canada: In Canada, the right to silence is legally protected under the common law confessions rule and section 11(c) and section 7 of the Canadian Charter of Rights and Freedoms. The defendant may not be forced as a witness against himself in criminal proceedings, and therefore only voluntary comments made to police officials are acceptable as evidence. 

Mainland China: The right to silence is not pledged by law in China. 

European Union: Within the European Union, a continuous process of harmonizing the laws of all the states of the Union has concluded in the adoption of a joint letter of rights that will refer to everyone across the European Union (EU). The agreed law—also recognized as “the Reding Rights,” taking the name of the EU Justice Commissioner Viviane Reding, who has negotiated and proposed the measure to become law across the entire European Union—will mean that suspects in the European Union, once detained, will receive a “Letter of Rights listing their fundamental rights during criminal proceedings. The concept of the right to silence is not explicitly mentioned in the European Convention.

Germany: According to § 136 Strafprozessordnung (StPO, i.e., Criminal Procedure Code), a suspect, accused or not, has to be notified before any interrogation about their right to stay silent. 

India: The Constitution of India ensures every person the right against self-incrimination under Article 20 (3): “No person accused of any offense shall be forced to be a witness against himself.” 

Russian Federation: Clause 1 of article 51 of the Russian Constitution confers everyone the right to not testify against either themselves or against their close relatives and spouses. As the decision of whether or not an answer to a special question would lead to (self)incrimination is left to the responsibility of the person being accused, this clause allows remaining silent at any time.

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