Keep silence for yourself: The protection of the right to silence in the Italian criminal justice system

Abstract

The present article aims to discuss the protection of the right to silence in the Italian criminal justice system for an international audience. In Italy, the right to silence is a right that stems directly from the protection offered by the Constitution to the right of defence. Much debate revolves around the extent to which the right deserves to be safeguarded. Although the majority of scholarship favours the broadest extension of the right possible, this view is not endorsed unanimously. The legislature has introduced some limits, the most important being that which confines the right to silence to the facts concerning one’s own responsibility, save for exceptions. The courts, in turn, have taken a softer approach in the protection of the right to silence, which may allow the possibility of using the suspect’s silence to draw adverse consequences. Although the Italian system offers comparatively strong protection to the right to silence, it nonetheless leaves some openings that undermine the effectiveness of the right. This article therefore argues that compensating for the possible side effects of the rules on cooperation, removing some negative consequences of silence and the strengthening of remedies are the main fronts where the Italian system can still improve the protection of the right to silence.