TY - JOUR
T1 - Silence with caution
T2 - The right to silence in police investigations in Belgium
AU - Beazley, Ashlee
AU - Gilleir, Fien
AU - Panzavolta, Michele
AU - Rozie, Joëlle
AU - Vanderhallen, Miet
N1 - Funding Information:
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: European Commission (grant no. 802102).
Publisher Copyright:
© The Author(s) 2021.
PY - 2021/9
Y1 - 2021/9
N2 - 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 disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian 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 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 obtaining 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?
AB - 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 disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian 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 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 obtaining 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?
KW - Directive 2013/48/EU
KW - Directive 2016/343/EU
KW - Right to silence
KW - criminal investigations
KW - police interrogations
KW - privilege against self-incrimination
KW - right to a fair trial
KW - right to legal assistance
KW - right to silence
KW - rights of the defence
U2 - 10.1177/20322844211028305
DO - 10.1177/20322844211028305
M3 - Article
SN - 2032-2844
VL - 12
SP - 408
EP - 426
JO - New Journal of European Criminal Law
JF - New Journal of European Criminal Law
IS - 3
ER -