Right to silence and the obligation to speak the truth
It is possible to incidence both during an interrogation?
Recently, was published in the press decision given by Minister Carmen Lucia, in the company of Habeas Corpus, in favor of the reserve colonel Hélcio Bruno de Almeida, of the Força Brasil Institute, convened to testify at Covid's CPI. The patient was guaranteed the right to remain silent during the inquiry regarding the facts/questions that may criminally commince him/her, but i was obliged to tell the truth, as a witness, about the other facts that do not incriminate him[1].
In that decision, the minister stressed that "convened that it was in this condition (witness), may he remain silent if questioned about facts and acts that may lead to his criminal commitment, but as a witness he cannot claim to exempt himself from the right to 'tell the truth'".
The case involves a clear situation of confrontation between the right to silence and the guarantee of non-self-incrimination and the witness's duty to speak the truth.
The Federal Constitution, in art. 5º, LVIII item[2], Enshrines, in criminal proceedings, the defendant's right to silence and, thus, the principle of non-self-incrimination or nemo tenetur if detegere, than, all in all, is characterised by the right of the accused not to be obliged to produce evidence against him.
This right of the accused is. 186 of the Code of Criminal Procedure, establishes that "after duly qualified and scientificized of the entire content of the, the accused will be informed by the judge, before starting the interrogation, your right to remain silent and not to answer questions that are asked of you"., not being the silence to be interpreted in his disfavor.[3] This right/guarantee shall be respected in all criminal persecutory spheres, which includes the CPI.
On the other hand, the art. 342 penal code defines the situation that is considered a crime of false witness[4], Imposing, thereby, to every witness the duty to speak the truth.
In this scenario, regardless of the initial commitment to speak the truth, no deponent is obliged to speak the truth about questions that might incriminate him. The condition of accused/investigated is the result of the position taken by the person in the investigation, than, in a statement, is characterized by the targeting of questions that may result in a possible self-incrimination.
That is, or status established by a body pursuing a deponent is irrelevant to its framing as a witness or accused in an inquiry. This quality should be measured at the time of the interrogation.
According to the decision given by Minister Carmen Lucia, to the patient of the referred Habeas Corpus, summoned to testify at the CPI on the condition of witness, the right to silence was assured with respect to the questions that incriminate him, just as the duty to speak the truth as to events that does not incriminate him has been.
It occurs that this hybrid situation that the patient was framed by the aforementioned decision (accused/witness; right to silence/duty to speak the truth) it is difficult to control and impossible to accurately assess when the right to silence or the duty to speak the truth should prevail.
A question, even apparently, in the investigator's view, dissociated from the performance of the interrogated, can be interpreted as incriminating by the interrogated. Thereby, as situations (Questions) of constant subjectivism of the parties, questioner and questioner, can be accurately measured, during the performance of the act, as a question that atheify the right of defence of the interrogator (exercise of the right to silence) or witness character question (duty of truth)?
The hybridization of the interviewee ends up resulting in the unviability of the act (testimony), being necessary, in fact, be defined in advance which status the interrogated will take over in the act (accused or witness).
If there is any possibility of the testimony being framed as a situation of gathering evidence to the disfavor of the interviewee, the right to silence must prevail, which should be removed only in cases where the deponent clearly presents himself as a witness.
[1] Available at: <https://g1.globo.com/politica/cpi-da-covid/noticia/2021/08/09/carmen-lucia-autoriza-coronel-helcio-bruno-a-ficar-em-silencio-na-cpi-para-nao-se-incriminar.ghtml>.
[2] Art. 5# All are equal before the law, without distinction of any nature, guaranteeing brazilians and foreigners residing in the country the inviolability of the right to life, to freedom, equality, to security and property, in the following terms:
(...)
LXIII - the prisoner will be informed of his rights, among which to remain silent, assured of the assistance of the family and lawyer;
(...)".
[3] Art. 186. After being duly qualified and scientificized of the entire content of the accusation, the accused will be informed by the judge, before starting the interrogation, right to remain silent and not to answer questions that are asked of you. (Wording given by Law No. 10.792, of 1st.12.2003)
Single paragraph. Silence, that won't matter in confession, cannot be interpreted to the detriment of the.
[4] Art. 342. Make false statement, or deny or silence the truth as a witness, expert, accountant, translator or interpreter in court proceedings, or administrative, police inquiry, or in arbitral tribunal: (Wording given by Law No. 10.268, from 28.8.2001)
Penalty - seclusion, from 2 (two) the 4 (four) Years, and fine. (Wording given by Law No. 12.850, from 2013) (Duration)
§ 1 - Penalties increase from one sixth to one third, whether the crime is committed by bribery or if committed for the purpose of obtaining evidence intended to take effect in criminal proceedings, or in civil proceedings in which it is part of the entity of the direct or indirect public administration. (Wording given by Law No. 10.268, from 28.8.2001)
§ 2º The fact is no longer punishable if, before the judgment in the case in which the unlawful, the agent retracts or declares the truth. (Wording given by Law No. 10.268, from 28.8.2001)
Source: https://www.jota.info/opiniao-e-analise/artigos/direito-ao-silencio-e-a-obrigacao-de-falar-a-verdade-20082021