Human Rights Protections in Drawing Inferences from Criminal Suspects' Silence

Y. Daly*, A. Pivaty, D. Marchesi, P. Ter Vrugt

*Corresponding author for this work

Research output: Contribution to journalArticleAcademicpeer-review

4 Citations (Web of Science)

Abstract

This article sheds comparative and contextual light on European and international human rights debates around the privilege against self-incrimination and the right to silence. It does so through an examination of adverse inferences from criminal suspect's silence in three European jurisdictions with differing procedural traditions: Ireland, Italy and the Netherlands. The article highlights the manner in which adverse inferences have come to be drawn at trial in the three jurisdictions, despite the existence of both European and domestic legal protections for the right to silence. It also explores differing approaches to the practical operation of inference-drawing procedures, including threshold requirements, varying evidential uses of silence and procedural safeguards. The authors argue that human rights' standard-setting institutions ought to provide clarity on the conditions under which adverse inferences may be tolerated, including the purpose(s) for which inferences may be used, and the necessary surrounding safeguards.
Original languageEnglish
Pages (from-to)696-723
Number of pages28
JournalHuman Rights Law Review
Volume21
Issue number3
DOIs
Publication statusPublished - 1 Jul 2021

Keywords

  • right to silence
  • privilege against self-incrimination
  • adverse inferences
  • procedural rights
  • Article 6 European Convention on Human Rights
  • EU Directive on the Presumption of Innocence

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