Pravo na odbranu ćutanjem

Abstract

Right to silence and privilege against self-incrimination are generally accepted principles that lie at the heart of the notion of a fair procedure. In spite of the fact that this guaranties are often considered as 'one and the same thing', they must be seen as a two partly overlapping circles. The right to silence is narrower and it refers to verbal communication alone the right of accused not to speak. The privilege goes further and means protection of any person not to present evidence at the own expense. Both privileges originated from the common-law system, and even today they have various meaning and implementation in accusatorial system typical for the common law countries, and mixed procedural model, characteristic for the countries of continental Europe. Illustrative example is the fact that in the mixed system, accused rarely used his right to silence during the main hearing, while in the common law countries the accused rarely used his right to speak on the own trial. Practical application of right to silence in Serbian and American criminal procedure is given as an illustration of differences between two opposite models. First part of the Article deal with the historical development of the guarantees, their regulation in international documents and interpretation in the practice of European Court of Human Rights. In the second part is explained right to silence during the police interrogation and Miranda warnings, while the third part copes with the using of this right during the trial. At the same time are clarified the differences between common law trial and European main hearing, as well as diverse role of the defense counsel, what all together contribute (and explain) various practical application of the right to silence.