The perjury following Constitutional Court’s decision no. 236/2020. The witness's right to silence and the right not to incriminate oneself. A critical note to the criminal decision no. 413/A/2021 of the Cluj Court of Appeal

Abstract

In the Decision no. 236/2020 (published in the Official Gazette no. 597 of July 8, 2020) the Constitutional Court admitted the exception of unconstitutionality and found that the legislative solution contained in Article 118 from the Code of Criminal Procedure is unconstitutional, because it does not provide the witness's right to remain silence and non-self-incrimination.

In the statement of reasons of this decision, the Constitutional Court examined the wording of Article 118 from the Code of Criminal Procedure in the light of the case-law of the European Court of Human Rights. Following this analysis, seeing that the legislative solution did not meet the standards imposed by the ECHR and the national case-law often found solutions that directly applied the principles imposed by the case law of the Strasbourg Court, the Constitutional Court declared the legislative solution unconstitutional.

The problem that arose after this decision is one of its interpretation and application. In this respect, it should be noted from the outset that this decision transformed the witness's rights to silence and non-self-incrimination into absolute rights, thus introducing an even higher level of protection than that conferred by ECtHR case law. It remains to be seen whether this protection will not exceed the discretion of states when it conflicts with the rights to an effective investigation conferred on victims who allege violations of other rights guaranteed by the ECHR.

“We also consider, on the assumption that the person heard as a witness makes false statements in order not to incriminate himself, that such conduct does not exonerate the witness from responsibility for the crime of perjury, unless it refers exclusively to his actions (for example, in this case, the witness P.G.D. said that he did not raise the knife), but he cannot declare a lie, vis-à-vis the defendant / person who is suspected of having committed the act (in this case, that the defendant B.I.P. did not have a knife on him, did not throw it, etc.)” (majority opinion). The difference of opinion in the present dispute focuses, in essence, on the interpretation of Decision no. 236/2020 (...). Thus, contrary to the finding of the majority opinion, I believe that the correct interpretation of this decision is to give any witness heard regardless of the nature or object of the case, an absolute right to silence and non-self-incrimination” (dissenting opinion).