scholarly journals Case translation: Belgium

2020 ◽  
pp. 94-96
Author(s):  
Belgium: Case translation
Keyword(s):  
Human Rights ◽  
Criminal Offence ◽  
Encrypted Data ◽  
European Court ◽  
Right To Silence

4 februari 2020 P.19.1086.N/1, Hof van Cassatie, tweede kamer (Court of Cassation, second chamber), 4 February 2020 Belgium; encrypted data; right to silence; refusal to reveal key to authorities; criminal offence; article 6(2) European Court of Human Rights

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

Police misunderstanding the scope of public order powers in Northern Ireland

2017 ◽  
Vol 91 (3) ◽  
pp. 249-263
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Northern Ireland ◽  
Public Order ◽  
Criminal Offence ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
Do So

It is a common feature of public order legislation throughout the UK that those who organise public processions must give the police advance notification that they are to be held, and that it is a criminal offence to fail to do so. Whilst the European Court of Human Rights has accepted that such a requirement is not necessarily incompatible with the Article 11 freedom to peacefully assemble, recent litigation concerning the policing of the ‘flag protests’ in Belfast suggests that the officers in charge were mistaken as to the scope of their powers under the relevant legislation, the Public Processions (Northern Ireland) Act 1998, and that they failed to appreciate that the protection afforded to protestors by Article 11 has important limits.

scholarly journals Ireland: Curtailment of the right to silence through statutory adverse inferences

2021 ◽  
pp. 203228442110283
Author(s):  
Yvonne M. Daly
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Presumption Of Innocence ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
European Court ◽  
Right To Silence ◽  
The Right ◽  
Right Of Access ◽  
Police Questioning

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.

Legalità e mutamenti giurisprudenziali nel diritto penale

2021 ◽  
Author(s):  
Andrea Galante
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
The State ◽  
Criminal Offence ◽  
The Past ◽  
Temporal Effect ◽  
European Court ◽  
The Individual

Over the past several years, constitutional, supreme and human rights courts had to deal with the problem of adjudicative retroactivity in criminal law with ever-greater intensity. Following the case Contrada c. Italie, in which the European Court of Human Rights found a violation of the legality principle under Art. 7 due to an unforeseeable retrospective application of a judicially created criminal offence, the issue of citizens’ safeguard upon an overruling occurrence is even more in the foreground. What temporal effect is best given to an unfavorable overruling decision? Should its application be limited to acts and conduct occurring after it or should it operate retrospectively and subject to criminal responsibility those who, acting in reliance on an earlier decision, did only what courts declared to be lawful? A limited prohibition of adjudicative retroactivity in criminal law seems to help foster an up-to-date relationship between the individual and the state.

coercive questioning (that is, where a suspect's silence can be used in evidence against him or her) can be used in matters under s (as amended) of the Official Secrets Act 1911. There are also wide powers under the Companies Act 1985 to require officers and agents of companies to assist inspectors appointed to investigate the company. Refusal to answer questions can be sanctioned as a contempt of court 431) and as a criminal offence 447). A person can also be required to answer questions to him or her by a acceptances of them under the Drug Trafficking Offences Act 1986. The closest English law comes to creating a duty to give one's name and address is the power given to the police under s 25(3) of PACE 1984 (above). Effective abolition of the right silence The Government ignored the recommendations of the Runciman Commission and, in ss 34-37 of the CJPO 1994, effectively abolished the right to silence. 'Abolished' may be too strong a word because everyone still has the right to remain silent in the same circumstances as they did before the 1994 Act; what has changed is the entitlement of a judge or prosecuting counsel to make adverse comment on such a silence. The issue has now been addressed by the European Court of Human Rights (ECtHR). The leading case is Condron v UK [2000] Crim 679. In 2000, two convicted drug dealers won a landmark ruling in Europe that the UK Government's curbs on the right to silence denied them a fair trial. The ECtHR in Strasbourg stated that, where juries are allowed to draw adverse inferences from silence under police questioning, they must be properly directed by the judge. In a key finding, it ruled that the Court of Appeal should look not just at whether a conviction was 'safe', but also at whether a defendant received a fair trial. The ruling will be likely to lead to other appeals. The case, backed by Liberty, the human rights group, was brought by William and Karen Condron, who were convicted of supplying drugs in 1995. The pair, who did not answer police questions, were jailed for four years. The ECtHR said that the jury had not been properly directed. As a result, the couple's right to a fair trial, as guaranteed by Art 6 of the European Convention on Human Rights, was breached. It awarded each defendant £15,000. Silence could not be regarded as 'an absolute right', the court said, and drawing inferences was not itself in breach of the right to a fair trial, but caution was needed. The jury should have been directed that, ' .. .if it was satisfied that the applicants' silence...could not sensibly be attributed to their having no answer, or none that would stand up to cross-examination, it should not draw an adverse inference'. The law report from Times appears below.

2012 ◽  
pp. 415-419
Keyword(s):  
Human Rights ◽  
Drug Trafficking ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Right To Silence ◽  
The Government ◽  
The Uk ◽  
The Right ◽  
Court Of Appeal

10 Right to Silence

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
The Other ◽  
International Level ◽  
Criminal Offence ◽  
Criminal Courts ◽  
Other Hand ◽  
Right To Silence ◽  
The Right

This chapter discusses the right of anyone accused of a criminal offence not to be compelled to ‘testify against himself or confess guilt’. This right helps to protect the defendant from torture and other forms of ill-treatment by prohibiting the use of evidence obtained through those methods. It aims to reduce the risk that unreliable evidence will be produced, and seeks to ensure the equality of arms between the prosecution and defence. The right not to be compelled to testify against himself or confess guilt provides defendants with two distinct but overlapping rights: the right to silence and the right not to incriminate oneself. The right not to incriminate oneself is narrower than the right to silence in that it only allows a defendant to refuse to provide answers that may be incriminating, whereas the right to silence means he may refuse to answer any question at all. On the other hand, whereas the right to silence only protects oral statements, the right not to provide incriminating evidence also applies to documents and other material. Although the right not to be compelled to testify against himself or confess guilt is recognised in many domestic jurisdictions, many aspects of the right are either undefined or inconsistently defined at the international level by human rights bodies and criminal courts.

The Notion of Criminal Penalty and the Lex Mitior Principle in the Scoppola v. Italy Case

2011 ◽  
Vol 80 (2) ◽  
pp. 125-142 ◽  
Author(s):  
Trine Baumbach
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
European Convention ◽  
Criminal Offence ◽  
Criminal Penalty ◽  
European Court

AbstractIn a ruling of 17 September 2009 the European Court of Human Rights has reinterpreted Article 7 of the European Convention on Human Rights (ECHR). The two most important issues in the Court's judgment are whether a provision of a Code of Criminal Procedure may be categorised as a “penalty” in the sense of Article 7, and whether Article 7 guarantees the lex mitior principle (providing for the applicability of the more lenient law). Focus is particularly placed on the outcome and implications of the Court's reinterpretation of Article 7 ECHR to include the lex mitior principle. Arguably, in the case of Scoppola v. Italy, the Court recognised both parts of the principle (the constitution of the criminal off ence and the imposition of the penalty). This article argues that the lex mitior principle should not have been included in the Convention by interpretation. Furthermore, it demonstrates that reinterpretation of the part of the principle concerning the constitution of the criminal offence is inconsiderate and may lead to inappropriate results.

scholarly journals State access to encrypted data in the United Kingdom: The ‘transparent’ approach

2019 ◽  
Vol 49 (3-4) ◽  
pp. 223-244
Author(s):  
Bernard Keenan
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Law Enforcement ◽  
Encrypted Data ◽  
Normative Framework ◽  
The United Kingdom ◽  
European Court ◽  
Police Agencies ◽  
The Uk ◽  
Domestic Law

This article foregrounds four key powers through which the UK intelligence and police agencies (broadly referred to hereafter as ‘law enforcement’) may access encrypted communications and data. It is structured as follows. First, a brief overview of the European Court of Human Rights’ jurisprudence on communications surveillance contextualises the overarching normative framework that must be translated into domestic law. The four powers are then discussed, both in legal and practical terms. The first two powers operate covertly, without the knowledge of the target. The latter two operate coercively, allowing police to demand individuals unlock encrypted data on penalty of prosecution. The article argues that the overall effect is to weaken encryption systems globally.

Sign in / Sign up

Export Citation Format

Share Document