Opening Pandora’s box: The right to silence in police interrogations and the Directive 2016/343/EU
| Author | Ashlee Beazley,Peggy ter Vrugt,Dorris de Vocht,Yvonne M Daly,Laura Beckers,Anna Pivaty |
| DOI | 10.1177/20322844211028304 |
| Published date | 01 September 2021 |
| Date | 01 September 2021 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(3) 328–346
© The Author(s) 2021
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DOI: 10.1177/20322844211028304
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Opening Pandora’s box: The
right to silence in police
interrogations and the
Directive 2016/343/EU
Anna Pivaty
Faculty of Law, Maastricht University, The Netherlands
Ashlee Beazley
Institute of Criminal Law, KU Leuven, Belgium
Yvonne M Daly
School of Law and Government, Dublin City University, Ireland
Laura Beckers, Dorris de Vocht, and
Peggy ter Vrugt
Faculty of Law, Maastricht University, The Netherlands
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.
Keywords
Right to silence, police interrogation, pre-trial proceedings, privilege against self-incrimination,
Directive 2016/343
Corresponding author:
Anna Pivaty, Faculty of Law, Radboud University, Montessorilaan 10, Nijmegen 6525 HR, The Netherlands.
Email: anna.pivaty@ru.nl
Introduction
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. It is argued that as
the result of the vague and contradictory nature of the respective provisions, the effects of the
Directive on the laws or practices of Member States around the right to silence are likely to be
compromised.
2
In line with the theme of this Special Edition, our focus is on oral or written
statements elicited from suspects in the course of the investigative stage.
Directive 2016/343/EU has been described as the most ‘eccentric’
3
piece of legislation from the
‘procedural rights’package.
4
It addresses an eclectic set of ‘other’issues which were not among
those designated a specific legislative instrument in the 2009 Roadmap setting out plans for EU
action on procedural rights.
5
In addition to its peculiar adoption history, Directive 2016/343/EU
differs from other procedural rights’directives in that many of its provisions concern not only
(suspects’) rights, but that these also lay down rules and principles of criminal procedure law (such
as the burden of proof, presumption of innocence, and trials in absentia). It may therefore be viewed,
theoretically at least, as a more ‘far-reaching’attempt to harmonise national systems of criminal
procedure, as compared to the other directives.
6
The right to remain silent and the privilege against self-incrimination are considered elements of
the presumption of innocence.
7
Consequently, Directive 2016/343/EU devotes an entire article to
the right(s) to remain silent and not to incriminate oneself (art 7). Other provisions relevant to the
(protection of) the right to silence –as described below –are contained in art 2 (the scope), art 6 (the
burden of proof) and art 10 (remedies). Recitals, which precede the text of the Directive, are
1. European Parliament and Council Directive (EU) 2016/343/EU on the strengthening of certainaspects of the presumption
of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L 65.
2. The absence of information about national implementation impedes the assessment of compliance of Member States with
the directive. As of 1 April 2018 (deadline for the transposition of the directive), 11 Member States –Bulgaria,Cyprus,
Greece, Croatia, Latvia, Luxembourg, Malta, Austria, Romania, Slovakia and Sweden –had not communicated the
measures taken on the transposition of the directive to the Commission. See Commission, Report from the Commission
to the European Parliament andthe Council on the implementation of Directive (EU) 2016/343 of the European Parliament
and of the Council of 9 March 2016on the strengthening of certain aspects of the presumption of innocence and of the right
to be present at the trial in criminal proceedings, COM/2021/144 final.
3. Francesca Ruggieri and Elena Militello, ‘Chronicle of 2016 EU Law Developments with Criminal Law and Procedure
Implications’e-Revue Internationale de Droit P´
enal <http://www.penal.org/en/eridp-2017> accessed 1 May 2021.
4. It includes, additionally: European Parliament and Council Directive (EU) 2010/64/EU on the right to interpretation and
translation in criminal proceedings [2010] OJEU L 280/1; European Parliament and Council Directive (EU) 2012/13/EU
on the right to information in criminal proceedings [2012] OJEU L 142/1; European Parliament and Council Directive
(EU) 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings,
and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and
with consular authorities while deprived of liberty [2013] OJEU L 294/1; European Parliament and Council Directive
(EU) on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest
warrant proceedings [2016] OJEU L 297/1; European Parliament and Council Directive (EU) on procedural safeguards
for children who are suspects or accused persons in criminal proceedings [2016] L 132/1.
5. Council Resolution (EC) on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal
proceedings [2009] OJ C 295.
6. Daniel Sarmiento, ‘The April Revolution for European Human Rights Law’(17 April 2018) <https://despiteourdifferencesblog.
wordpress.com/2018/04/17/the-april-revolution-for-european-human-rights-law/> accessed 1 May 2021.
7. Saunders v United Kingdom App no. 19187/91 (ECtHR, 17 December 1996), [68].
Pivaty et al. 329
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