Silence with caution: The right to silence in police investigations in Belgium
| Date | 01 September 2021 |
| DOI | 10.1177/20322844211028305 |
| Published date | 01 September 2021 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(3) 408–426
© The Author(s) 2021
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DOI: 10.1177/20322844211028305
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Silence with caution:
The right to silence in police
investigations in Belgium
Ashlee Beazley
Institute of Criminal Law, KU Leuven, Leuven, Belgium
Fien Gilleir
Faculty of Law, University of Antwerp, Antwerpen, Belgium
Michele Panzavolta
Department of Criminal Law and Criminology, KU Leuven, Leuven, Belgium
Jo¨
elle Rozie
Faculty of Law, University of Antwerp, Antwerpen, Belgium
Miet Vanderhallen
Faculty of Law, University of Antwerp, Antwerpen, Belgium
Abstract
This article is about the right to remain silent within Belgium. Although the right has always been
considered applicable, both the courts and parliament have historically demonstrated a disincli-
nation to define or engage with this. The right to silence is now formally recognised in the Belg ian
Code of Criminal Procedure, albeit with the classic distinction between those who are not (yet)
accused of a crime and those who are formal suspects: while all enjoy the right not to incriminate
themselves, only formal suspects in Belgium enjoy the explicit right to remain silent. Accordingly,
whilst no one may be obliged to assist with their own conviction or be forced to co-operate with the
authorities, it remains unclear how far the right not to cooperate effectively stretches. The case law
seems to be moving, albeit slowly, in the direction of confining this right within narrower borders,
particularly by excluding its applicability with regard to the unlocking and decryption of digital
devices. This is not, however, the only idiosyncrasy concerning the right to silence in Belgium.
Among those also addressed in this article are: the lack of caution on the right to remain silent
given to arrested persons immediately following their deprivation of liberty (an absence striking
for its apparent breach of Directive 2012/13/EU on the right to information in criminal
Corresponding author:
AshleeBeazley, Departmentof Criminal Law and Criminology,KU Leuven, Hooverplein9, box3418, Leuven 3000, Belgium.
Email: ashlee.beazl ey@kuleuven.be
proceedings); the possible inducement to breach the right to silence via the discretionary powers
of the public prosecutor to offer a reduction or mitigation in sentence; the obscurity surrounding
the definition of ‘interrogation’and the consequences of this on both the caution and the ob-
taining of statements; and the extent to which judges can draw adverse inferences from the right
to silence. The question remains: is the right to silence currently protected enough?
Keywords
Right to silence, privilege against self-incrimination, rights of the defence, right to a fair trial, police
interrogations, criminal investigations, right to legal assistance, Directive 2013/48/EU, Directive
2016/343/EU
Introduction
While the right to silence is always present in Belgian law, its boundaries have been built slowly
over time. The Belgian parliament and courts have, historically, demonstrated a disinclination
to further either the definition of the right to remain silent, or clarify its limitations within the
Belgian realm, beyond its expression and recognition in international treaties.
1
It was long the
case that corollaries of the right,for example, the right to be informed(i.e. the duty to caution) werenot
a part of the broaderright. As will be discussed,although the rightto silence is now formally codifiedin
Belgium–and more readily distinguishable fromits legal kin, the privilegeagainst self-incrimination–
it cannot be said that the right enjoysan absolute protection. Rather, its recognition is a qualified one,
subject as it is to a number of legislative omissions and exceptions.
As a federal state composed of multiple languages and communities, the Belgian legal system is
a complex model. Broadly speaking, the Belgian legal system is a constitutional system, with
compatibility scrutiny carried out by the Constitutional Court (Cour constitutionelle/Grondwettelijk
Hof). Belgium is also considered a monist state, in which international law has direct application and
effect over the Belgian legal order. Although the Constitution is the highest domestic norm,
prevailing over all other levels of law, this is subordinate to any and all international legal norms
which are of direct applicability. It is of note that while the Constitution prohibits arrest ‘except by
a reasoned order of the judge’,
2
it contains no further provisions on the rights of the defence and
excludes –perhaps fundamentally –the presumption of innocence.
3
In reviewing the compatibility
of legislation, the Belgian Constitutional Court therefore draws heavily on the case law of the
European Court of Human Rights (‘ECtHR’), often reading the national constitutional provisions in
line with the interpretations given by the Strasbourg Courts on the equivalent rights outlined in the
1. For example: art 14, International Covenant on Civil and Political Rights; art 6, European Convention on Human Rights.
2. Article 12, La Constitution Belge/De Belgische Grondwet. See < https://www.senate.be/doc/const_fr.html > accessed 31
July 2021.
3. The presumptionof innocence is neverthelessgiven full protection,even if not constitutionally guaranteed, as it is contained
within art 6(2)of the ECHR. See Raf Verstraeten andPhillip Traest, ‘Het recht van verdediging in de onderzoeksfase [The
right of defensein the investigationphase]’(2008) 2 Nullum Crimen85. Further, it is considereda general principle of law:
Court of Cassation, 17 September 2003, AR P.03.1018;Benoˆ
ıt Dejemeppe, ‘La pr´
esomption d’innocence entre r´
ealit´
eet
fiction’[The presumption of innocence between reality and fiction], in Benoˆ
ıt Dejemeppe, Patrick Henry, Ernest Krings
(eds), Liber amicorum Paul Martens. L’humanisme dans la r´
esolution des conflits: utopie ou r´
ealit´
e?[Liber amicorum
Paul Martens. Humanism in the resolution of conflicts: utopia or reality?] (Larcier 2007) 19.
Beazley et al. 409
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