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

Published date01 September 2021
Date01 September 2021
DOIhttp://doi.org/10.1177/20322844211028319
Subject MatterArticles
Article
New Journal of European Criminal Law
2021, Vol. 12(3) 427448
© The Author(s) 2021
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DOI: 10.1177/20322844211028319
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Strengthening the protection
of the right to remain silent at
the investigative stage: What
role for the EU legislator?
Anna Pivaty
Maastricht University, The Netherlands
Ashlee Beazley
KU Leuven, Belgium
Yvonne M Daly
Dublin City University, Ireland
Dorris de Vocht and Peggy ter Vrugt
Maastricht University, The Netherlands
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 State s. The analysis is
not limited to the Directive 2016/343/EU and other procedural rightsDirectives. 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.
Keywords
Right to silence, European Union, legal regulation, investigative stage, directive 2016/343
Corresponding author:
Anna Pivaty, Faculty of Law, Radboud University, Montessorilaan, Nijmegen 10 6525 HR, The Netherlands.
Email: anna.pivaty@ru.nl
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). As noted in that introduction,
1
of the
three represented jurisdictions Belgium, Italy and the Netherlands that were under obligation to
transpose the Directive,
2
none, at time of writing, have done so via any perceptible change in their
national law.
3
A number of other EU MS consider their laws to be compliant with the Directive in
respect of the right to silence.
4
In the f‌irst part of this contribution, we analyse the laws and regulations of the four MS covered in
this Special Issue
5
in light of the Directive provisions. Although Ireland has opted out of the
Directive, it is included in this and subsequent analyses alongside the three remaining jurisdictions
to illustrate issues that may potentially exist in this area in domestic systems. Ireland is also a useful
example of a jurisdiction that despite having opted-out of the Directive, nevertheless largely (and
coincidentally) complies with its provisions. Such examples certainly engender questions as to the
usefulness of the relevant provisions of the Directive, and the extent to which it has (or has not)
facilitated greater protection of the right to silence.
We conclude that it is impossible to point at manifest non-compliance of the laws and regulations
of the examined MS with the respective directive provisions, especially given the general nature of
the latter, and the possibilities for exceptions mentioned in the recitals. This does not mean,
however, that these jurisdictions afford optimal protection of the right to silence at the investigative
stage, nor that no problematic issues arise in law or in practice in these jurisdictions. In the second
part, we consider whether adoption of a legislative instrument with more detailed provisions, such as
a new or an amended directive, presents a suitable and practicable solution for the issues that we
have identif‌ied. We argue that a more detailed binding EU regulation is not an appropriate solution.
Instead, we suggest that the EU legislator
6
should consider other, more indirectmeans of action.
1. Anna Pivaty, Ashlee Beazley,Dorris de Vocht, Yvonne Daly,Laura Beckers, Peggy ter Vrugt, Opening Pandoras box:
The right to silence in police interrogations and the Directive 2016/343/EU
0
, in this Issue, at 328.
2. Ireland having opted out of the Directive.
3. At time of publication of this article, however, the Italian parliament had just passed national legislation transposing the
Directive. Note, however, that this act in effect merely delegatespower to the government, who will now be responsible
for drafting more specif‌ic (and substantive) implementation rules. See Legge 22 Aprile 2021, no. 53: http://www.senato.
it/leg/18/BGT/Schede/Ddliter/52774.htm > accessed 3 May 2021.
4. These are, for example, the following states (according to the information on national transposition of the Directive
published by the EU): Germany,Estonia, Spain, France, Croatia, Hungary, Malta, Austria, Poland and Finland. This list is
not exhaustive as the authors were unable to verify the status of transposition for each MS due to language barrier(s). Three
MS Belgium, Italy and Portugal have not yet submitted information on national transposition. See https://eur-lex.
europa.eu/legal-content/EN/NIM/?uri=CELEX:32016L0343 > accessed 30 March 2021.
5. The four national articles as contained in this Special Issue are as follows:
Ashlee Beazley, Fien Gilleir,Michele Panzavolta, Jo ¨
elle Rozie and Miet Vanderhallen,Silence with Caution:The Right
to Silence in Police Investigations in Belgium, in this Issue, at 408.
Yvonne Daly, The Right to Silence in Police Investigations: Ireland, in this Issue, at 347.
Diletta Marchesi and Michele Panzavolta, Keep Silence for Yourself: An Overview of the Right to Silence in the Italian
Criminal Justice System, in the Issue, at 365.
Peggy ter Vrugt, A Pragmatic Attitude: The Right to Silence in the Netherlands, in this Issue, at 389.
Note that while these are referenced where appropriate, the analysis which follows is naturally lacking the same detail as contained
in the above articles. Accordingly,for more information on the jurisdictions discussed, we refer the reader to these articles.
6. This article focuses on the regulatory role of EU institutions (EU legislator), rather than the CJEU.
428 New Journal of European Criminal Law 12(3)

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