Is exercising the right to remain silent an indication of guilt?

The case of Begoña Gómez Fernández has generated significant social and political repercussions in Spain due to accusations of influence peddling and facilitating public contracts worth 10 million euros to companies with which she had friendly relations, especially those associated with businessman Juan Carlos Barrabés. It is alleged that she used her position as the wife of Pedro Sánchez Pérez-Castejón, President of the Government of Spain, for these purposes. Gómez Fernández exercised her right not to testify on two occasions, while her lawyer asserts that she has nothing to hide.

This article analyzes the assessment of the accused’s silence or refusal to testify during the investigation and oral trial from a jurisprudential perspective, which is crucial for establishing an adequate defense strategy. A relevant example is Madrid Provincial Court Judgment no. 100/2014, of February 6, supported by various resolutions:

Constitutional Court Judgment No. 61/2005

It is logical and reasonable to deduce an indication of guilt from the passive conduct of the accused, but this deduction must be made within the context of a conviction formed by evaluating all available evidence.

Constitutional Court Judgment No. 202/2000

It is considered that, in the presence of certain objective evidence presented by the prosecution, the accused’s lack of explanations due to exercising the right to remain silent may be used by the judge to support a conviction. However, this conviction cannot be based solely on the fact that the accused chose to remain silent.

Supreme Court Criminal Chamber Judgment 21-10-2004

It is recognized that the accused’s silence in the oral trial, by refusing to testify, is a legitimate right and part of their right to defense, and therefore this silence cannot be considered as incriminating evidence. However, in cases where the prosecution has presented sufficient evidence requiring an explanation from the accused, their silence is not taken as evidence against them, but it can be considered an element when evaluating the evidence presented.

And Judgments of the European Court of Human Rights of February 8, 1996 (Case Murray v. United Kingdom), and of March 20, 2001 (Case Telfner v. Austria)

It is considered that the Court may draw conclusions from the accused’s silence when, given the evidence presented by the prosecution, the only logical conclusion is that the accused has no explanation for the case. The Supreme Court, for its part, has affirmed that the assessment of the accused’s silence must be complementary, acting as a final argument on the existence of incriminating evidence. That is, there must always be other evidence that proves the fact and the accused’s involvement.

Ultimately, the Judgment and the support of these resolutions indicate that the accused’s silence will never be incriminating evidence or a rational indication of criminality, as it constitutes a fundamental right recognized in Art. 24.2 of the Spanish Constitution.

However, the court may assess silence when evaluating incriminating evidence not refuted by the accused, suggesting that silence can be interpreted as a certain acceptance of the prosecution’s thesis and its evidence by not offering a contradiction or alternative explanation.

Author: Antonio Mamo Pérez

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