Art. 186. After being duly qualified and made aware of the entire content of the accusation, the accused will be informed by the judge, before starting the interrogation, of his right to remain silent and not to answer questions put to him.
Single paragraph. Silence, which will not amount to a confession, cannot be interpreted to the detriment of the defense. (Included by Law No. 10,792, of 12.1.2003)
The right to remain silent
Constitutional right to remain silent: Article 5, LXIII, of the CF states : “The prisoner shall be informed of his rights, including the right to remain silent, being assured the assistance of his family and a lawyer”. that the accused is not obliged to produce evidence against himself, see the subheading Nemo tenetur se detegere under the heading Principle that the accused is not obliged to produce evidence against himself , in comments to article 155.
Silence cannot be interpreted to the detriment of the defense: Article 198 says that the silence of the accused will not imply a confession, “but it may constitute an element for the formation of the judge’s conviction”. In the opposite direction, the sole paragraph of article 186, which is effective after article 198, imposes that “silence, which does not imply a confession, cannot be interpreted to the detriment of the defense” . Article 186 only did not revoke 198 because, when it entered into force, 198 was already devoid of effectiveness, as it was not approved by the 1988 CF ( article 5, LXIII ).
The defense can waive the interrogation: Although the interrogation is a means of proof (in addition to the defense), considering that the defendant has the right to remain silent, the defense is authorized to waive the act. It will, however, be mandatory for the accused to be present at the hearing whenever recognition by the victim or witnesses is required.
Unanswered questions : They cannot be included in the minutes, as they may imply an interpretation to the detriment of the accused. If the hearing is filmed, once the accused declares that he wishes to exercise his right to remain silent, the judge must respect his choice, omitting to ask different questions just to hear the accused keep repeating that he will exercise the right to remain silent. keep silent. It’s a matter of civility.
Right to remain silent during the investigation: The right to remain silent extends to interrogation during the investigation phase ( article 6, item V ).
Doctrine
Lenio Luiz Streck: 2 in 1: The prohibition of the defendant’s silence and the prohibition of overcoming precedents . Conjure
Jurisprudence
Failure to notify the accused of the right to remain silent is a cause of relative nullity, the recognition of which depends on proof of harm. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).
Judgments:
AgInt no AREsp 917470/SC, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/02/2016, DJE 08/10/2016
RHC 067730/PE, Rel. Minister Jorge Mussi, Fifth Panel, judged on 04/26/2016, DJE 05/04/2016
HC 348104/SP, Rel. Minister Maria Thereza de Assis Moura, judged on 04/05/2016, DJE 04/15/2016
HC 328448/SC, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/27/2015, DJE 11/11/2015
HC 320876/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 08/06/2015, DJE 09/01/2015
HC 295176/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/21/2015, DJE 06/11/2015
