It's been almost 50 years since the Supreme Court of the United States established, in the famous Miranda case, that an accused or a defendant cannot be questioned before being informed of his or her right to remain silent and to have counsel. Testimonies obtained otherwise cannot be used as evidence during trial.

Letter of rights

The same principle is reflected in the new 2013 EU directive on the right to information in criminal proceedings. The directive requires law enforcement authorities to give to any arrested or detained person a written "letter of rights," which should include information on basic rights such as the right to be assisted by counsel, to be informed of the charges, to remain silent, etc. The letter should be drafted in an easily comprehensible manner and it should be provided to the person concerned, making sure the person has the opportunity to read it and to keep it. The directive even provides a sample of such letter. The deadline to implement the EU directive, for all member states, was June 2, 2014.

The Association for the Defense of Human Rights in Romania is currently in the process of evaluating this implementation for all members states, together with the UK organization Fair Trials International and other partners from across the EU. It seems that in Romania there is no such letter of rights yet; however, in the process of implementation, a new provision was included in the Code of Criminal Procedure (article 209 (17)), which states that all detained persons should receive, in writing, information on their rights.

However, the practice of communicating such information is not uniform: it seems, in practice, that most people are asked to sign a paper declaring that they are aware of the provisions of article 83 of the Code of Criminal Procedure, although sometimes they have those provisions read to them, or they are written in the paper they are signing - it all depends on the police officer who is dealing with the situation. Therefore, the current practice can lead to abuses and does not guarantee the provision of information on the rights of the defendant.

Innocent people confess

In a study conducted in the US, which examined cases of accused persons later proven to be innocent on the basis of DNA evidence, it was shown that approximately 30% of these persons confessed to committing the crime before their innocence was established through DNA evidence – therefore, in almost 30% of such cases, people confessed to crimes they were not guilty of committing. It is hard to understand why an innocent person would confess to having committed a crime, and it is difficult to determine if that person would have gone to prison if DNA tests weren't available. But this is a good example for understanding why the right to remain silent is important, and why defendants must be aware of this right in order for it to be effective.

These rights were created mainly because of the legal gaps observed in judicial practice. It is not sufficient, however, to simply acknowledge their existence; we must also make sure they are used effectively in preventing abuses. Many of us may be aware of the right to remain silent, yet it is still easier to make use of this right when having something "at hand," such as a letter of rights. This might help people to remain confident and not confess to having killed a neighbor who is still alive, as happened in the famous case of the Boorn brothers.

By June 2, 2015, the EU Commission will have to report on how the directive has been implemented. It is our hope that by that time, countries such as Romania will have made more of an effort to ensure that all people arrested and detained are aware of their rights and are not being abused.