The right to silence, for which every suspect is informed immediately after being arrested, is linked to the privilege against self-incrimination2 . In the Cypriot legal order, the above mentioned rights are considered to arise from the presumption of innocence and constitute the core of fair trial. The well-known presumption of innocence is enshrined in Article 12(4) of the Cypriot Constitution ("Constitution"), where "the accused has the legal right for a court to consider him or her innocent until proved otherwise". Thus, the accused is not obliged to say anything, and it is his right not to say anything that can be charged against him3 .
In view of the above, the present article analyses the right to silence and the privilege against self-incrimination. The inspiration behind this study is the proposition that through the development of case law, the choice of the accused to remain silent affects his criminal case negatively. By analysing Cypriot case law, this article will first examine if the evidence collected from the abandoned objects are lawfully collected by the police in order to investigate a crime. Then, it critically discusses why the Cypriot courts dismiss evidence followed by threatening and and ill-treating of the accused. It will then proceed to analyse if evidence used by undercover agents in order to build a criminal case against the prospective offender could be accepted. Finally, this study will argue that based on the recent developments in Cypriot Supreme Court case law, one could even ascertain a significant widening of the scope of admissible evidence that violates both the right of silence and the privilege against self-incrimination of the accused.
II. The Admissibility and Exclusion of Evidence:
The criminal trial is a mechanism "to impose a society's response to a particular crime"4 . However, when the criminal trial turns into an enforcement mechanism, the need to protect the accused by the police, arbitrariness is considered obvious in a democratic and liberal system, while his right to silence and his privilege against self-incrimination are treated as "social" rights. Thus, this Chapter will examine the evidence which is admissible or not to be collected by the police and how the acceptable evidence affects the above mentioned rights.
A. Evidence Collected from the Abandoned Objects:
This sub-Chapter discusses why the accused does not invoke a violation of Article 15 of the Constitution which provides a right to respect one's "private and family life" when he abandons personal evidence5 such as: documents secured after legitimate investigation, breath samples, blood samples, urine samples and body tissues to detect genetic material6 , palm prints7 , fingerprints8 , vocal samples and cigarettes9 , that will incriminate him.
Depending on the circumstances of each case, it is possible to violate the right of selfincrimination and the evidence from the abandoned objects by the accused to be rejected. This happened in Psillas Andrea Michalis v. The Republic of Cyprus10 . This case was about house burglaries, where in two houses the same DNA of an unknown person was detected. The police wanted to receive the DNA of the accused to compare. Thus, they managed to collect two straws through which the accused drank in the presence of the authorities.
Without a DNA sample, the accused would not have been condemned for the burglary. Due to the fact that the accused had previously expressed his refusal to provide his DNA, the Supreme Court held that the police exercised incorrect ways of securing his DNA. Indeed, the police's behavior violated his right of silence and his privilege against self-incrimination, which are derived from the presumption of innocence. This fact rightly led to the exclusion of evidence collected by the police and to the cancellation of the accused's conviction.
1. Advocate at Areti Charedimou & Associates LLC.
2. The European Court of Human Rights ("ECHR") in Funke v. France Application no. 10828/84 (ECHR, 25 February 1993) recognized for the first time, the right to silence and the privilege against self-incrimination of the accused.
3. G Pikis, Criminal Procedure in Cyprus (2nd edn, Proodos Press 2013) 74.
4. A Choo, Evidence (5th edn., Oxford University Press 2018) 177.
5. Giannidis v. The Police (2002) 2 CLR 143; John, otherwise Athos and Other v. The Republic of Cyprus (2003) 2 CLR 171.
6. Attorney General of the Republic of Cyprus v. Kourea (2004) 2 CLR 51; The Republic of Cyprus v. Avraamidou and Others (2004) 2 CLR 51.
7. R v. Matemba (1941) AD 75.
8. S v. Huma (2) (1995) SACR 411.
9. PG and JH v. The United Kingdom Application no. 44787/98 (ECHR, 25 September 2001)
10. Psillas Andrea Michalis v. The Republic of Cyprus (2003) 2 CLR 353.
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