The right to silence and the privilege against self-incrimination in the European Criminal Procedure

The fulfilment of the right to remain silent and the privilege against self-incrimination plays an important role in the European criminal procedure. These rights can be included in the general definition of rights not to collaborate, which are granted to the individual in order to protect him from abuse of powers and to assure his right to a fair trial. Focusing on the European legal framework these safeguards are provided or implied by the European Convention on Human Rights and upheld by the European Court of Human Rights and on another level by the Charter of Fundamental Rights of the European Union, which relies on the European Union institutions, as the European Court of Justice.The two supranational regimes build their own system of protection of these legal safeguards, as in the ECHR Article6 enshrines the right to a fair trial, and it implies the respect of the right to remain silent and the privilege against self-incrimination; on the other hand, Article47 and 48 of the Charter of Fundamental Rights deal with the same concept separating the right to an effective remedy and to a fair trial in the former and the presumption of innocence and right of defense in the ladder. The protection regime under the Court of Strasbourg relies on the Convention and in particular on Article 6, but the case law is one of the most fundamental tools for the development and clarification on the scope of the right to remain silent and the privilege against self-incrimination. In the first part Article 6 is presented, posing particular attention to the presumption of innocence and the overall assessment of fairness. A brief analysis of the criminal proceedings is shown with a close focus on the various techniques of interrogation. Considering the Reid techniques and the Enhanced Interrogation, which concern the less virtuous example of fulfillment of the European Court of Human Rights jurisprudence. Also referring to the PEACE model, which configures as a step forward on the respect of minimum safeguards granted by the ECHR and an approach pursuant to the case law of the Court of Strasbourg. In the second part, the right to remain silent and the privilege against self-incrimination are deeply discussed, focusing especially on the case law. It analyses the development of the scope of the rights from Funkev.France, and it takes into consideration the various notions connected. Subsequently having clarified the scope of the rights not to collaborate, the use of torture and other inhuman or degrading treatment is analyzed through the case of Gäfgen v. Germany. It also shines a light on the correlation between the right to access to a lawyer and the right to remain silent and the privilege against self-indictment via the famous case of Salduz v. Turkey. Then,the role of the Charter of Fundamental Rights of the European Union, the directives and different instruments and recent steps of the EU on the right to remain silent and the privilege against self-incrimination are examined. Article 47 of the Charter of the European Union grants the right to a fair trial and Article 48 the presumption of innocence and the right to defense, and the analysis focuses on the rapport between the protection offered by these articles and the one granted by the framework of the European Convention on Human Rights, and mostly underlining the equivalence principle.Then, the steps of the Europe Union towards the protection of the rights not to collaborate are considered.