Abstract
This article examines the provisions of the Directive 2016/343 related to the right to remain silent with special emphasis on pre-trial proceedings and police interrogations. It focuses on the inherent contradictions and unclarities of the respective provisions, particularly when interpreted in light of the respective ECtHR case law. The article also identifies areas, relevant to regulation of suspect interrogations and the right to silence, which are not addressed in the Directive or the ECtHR jurisprudence. It concludes by critically assessing the likely effectiveness of the Directive provisions in ensuring the right to silence in criminal proceedings.
Highlights
The goal of this article is to expose the uncertainties in the interpretation of the provisions of the Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings[1], as related to the right to remain silent at the investigative stage of the proceedings
European Parliament and Council Directive (EU) 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L 65
The complicated, at times convoluted, adoption history of the Directive has resulted in a recognition of the right to silence that is neither especially coherent nor, as it seems, of considerable added value in the absence of further interpretation of the respective provisions
Summary
The goal of this article is to expose the uncertainties in the interpretation of the provisions of the Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (hereafter – Directive 2016/343/EU)[1], as related to the right to remain silent at the investigative stage of the proceedings. The second part of the article critically analyses the Directive provisions, relevant to the protection of the right to remain silent at the investigative stage, with reference to the relevant ECtHR case law It begins with the provisions on the scope (art 2), the content of the right to remain silent and the privilege against self-incrimination (art 7), the aspects of the burden on proof relevant to the content of the above-mentioned right (art 6), and remedies for breaches of the right to remain silent (art 10). Drawing on the scholarship, which examines the link between certain properties of EU legislative texts and practical implementation of EU law, the article concludes with reflections on the likely effects of the respective directive provisions in Member States (hereafter, MS) laws and practices
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
