Witness’s right not to accuse himself. Comparative case-law

DEZBATERI

Abstract

The present study extracts from multiple romanian and foreign judicial decisions a series of jurisprudential rules concerning the premises and effects of the breach of the principle nemo tenetur se detegere through the deposition given by the witness in his own cause. The violation is decided by the functionality of the deposision as an incriminating evidence and the suspicion concerning the witness, and the suspicion may reasonable result from the data at the disposition of the interogating officer or may be manifest in the conduct of the officer. The deposition of the witness may be used against him in the proceedings for false testimony on the condition that, in the underlying proceedings, the witness was not suspected of the crime which was the object of the deposition. If the witness was suspected, the fairness of the trial is protected in advance in the preliminary chamber through the exclusion of the deposition as illegally obtained. The apparently false character of the testimony does not deteremine, by itself, the illegal character of the obtaining of the evidence. 

Keywords: nemo tenetur se detegere; the quality of witness in his own cause; the risc of self-incrimination; suspicion; manifest suspicion; reasonable suspicion; obtaining of evidence; use of evidence; violation of the right to a fair trial; functionality of evidence; underlying proceedings; proceedings for false testimony; anticipated protection of the right to a fair trial; sua sponte exclusion; apparently false testimony