Protecting Migrant Victims: What Room for the Right to Silence?

This paper aims at addressing the issue of access to justice for victims of crimes with an irregular migration status. One of the prominent side effects of punishing irregular migration is the substantial exclusion of these individuals from the circuit of the criminal justice system, as they fear being tried or ordered to leave the country after approaching the police. The article draws on the similarities between the condition of victims with an irregular migration status and the “cruel trilemma” of the defendant forced to choose between maintaining his silence and being held in contempt of court; lying and thereby perjuring, or incriminating himself. Thus, the paper questions whether the nemo tenetur se detegere principle can be used to protect these victims. After reviewing a series of remedies and reliefs that somehow protect the right to silence of the migrant victim, the paper shows discriminations that are still affecting these individuals and it proposes to extend the scope of application of this guarantee, originally conceived for the defendant.