You have the right to remain silent during all stages of the proceedings, regardless of the gravity of the crime of which you have been accused. This right applies from the very beginning of the investigation against you.
Self-incrimination
The right to remain silent protects you in that no one can force you to cooperate and give a testimony against yourself during the entire criminal proceedings.
example If your lawyer is not present at your first questioning, the police have to inform you very clearly that you can choose not to answer their questions and the possible consequences if you do choose to answer.
This also means that the police cannot use forceful methods against you.
example The police cannot use threats, physical force or legal sanctions in the case of your refusal to testify.
The police have to respect your choice to remain silent and it cannot use secret methods to obtain a confession.
example If you have chosen to remain silent, the police cannot use a secret informant as your cellmate to gain your trust and to obtain a confession.
Evidence obtained in violation
Although your right to remain silent should be respected, the use of evidence obtained in violation of that right does not automatically mean that it cannot be used in court. There is one exception: evidence or testimony obtained by torture or inhumane treatment can never be used in the court.
In other cases, a judge will have to decide whether the evidence is acceptable. In making that decision, the court has to take into account a number of factors:
- the degree and method of coercion
- the possibilities for you to defend your rights and challenge such evidence
- the gravity of the crime of which you are accused
- the importance of the evidence in the proceedings
example If you are asked to confess to a crime under threat of arrest or a substantial fine and you have had no opportunity to ask the court to exclude your confession from the evidence, the use of that evidence as a basis of conviction could violate your right to remain silent.
Read more about evidence.
Scope and consequences
The court cannot use your silence as basis for your conviction. This means that you cannot be pronounced guilty just because you have chosen not to cooperate. However, it also doesn’t mean that you don’t have to provide certain explanations in the court hearing or the investigation.
example You have an obligation to reveal your identity, to comply with an arrest warrant and to comply with a lawful order to provide DNA or other samples for the investigation.
When you have a duty to prove the truthfulness of your own statements, your right to remain silent will not excuse you from that duty. If you have chosen to use your right to remain silent or to cooperate as little as possible, please note that in certain instances your explanations could work to your own benefit.