Strengthening the protection of the right to remain silent at the investigative stage: What role for the EU legislator?

Anna Pivaty,Peggy Ter Vrugt,Ashlee Beazley,Yvonne M Daly,Dorris De Vocht

doi:10.1177/20322844211028319

Abstract

This article reflects on the possible contribution of the European Union towards safeguarding the right to silence at the investigative stage of criminal proceedings in EU Member States. The analysis is not limited to the Directive 2016/343/EU and other procedural rights’ Directives. Rather, it focuses on the role of the EU as a legal and political player, pursuing the goal of enhanced protection of procedural rights in criminal proceedings. The article first examines compliance of the legal provisions of the four examined jurisdictions with the Directive. It then identifies the relevant areas, not addressed or insufficiently addressed in the existing EU instruments, which appear problematic as far as the effectuation of the right to silence is concerned. The article argues that a more detailed binding EU regulation is not an appropriate solution to address the existing problems. Instead, it suggests that the EU legislator should consider other, more indirect means of action.

Highlights

The opening article to this Special Issue argued that the provisions of Directive 2016/343/EU (‘the Directive’) relevant to the right to silence are unlikely to lead to significant changes in the laws, regulations and judicial practices of Member States (‘MS’)
The Supreme Court of Ireland has held that, first, restrictions on the right to silence as occasioned by such provisions are proportionate to the aim pursued;[43] secondly, the inferences must be evidential in nature only, and they may not be the sole basis for the conviction of the accused; and thirdly, the court is obliged to act in accordance with the principles of constitutional justice, including having regard to an accused’s right to a fair trial.[44]
We should bear in mind that our study included only four EU jurisdictions, and it is very likely that other issues would emerge if we considered other jurisdictions as well

Summary

Introduction

The opening article to this Special Issue argued that the provisions of Directive 2016/343/EU (‘the Directive’) relevant to the right to silence are unlikely to lead to significant changes in the laws, regulations and judicial practices of Member States (‘MS’). The Supreme Court of Ireland has held that, first, restrictions on the right to silence as occasioned by such provisions are proportionate to the aim pursued;[43] secondly, the inferences must be evidential in nature only, and they may not be the sole basis for the conviction of the accused; and thirdly, the court is obliged to act in accordance with the principles of constitutional justice, including having regard to an accused’s right to a fair trial.[44] On initial analysis, Ireland’s legislation on inferences may be viewed -as compliant with art 7(5), which, as argued in the opening article,[45] can be read to reflect the ECtHR case law guarantees.[46]. In Ireland, the obligation to provide the (right to silence) caution does not have a statutory nature, but is envisaged in the Judges’ Rules

63. See the Belgian and Italian articles

Intermediary conclusions

Conclusion