Interrogation

Question 1

Who conducts interrogations?

Answer 1

• EN: police
• NL and G: police, prosecutor, and judicial interrogation

Question 2

How interrogation takes place?

Answer 2

• Within custody: suspect is not free (vulnerable position)
• Outside custody: suspect is not arrested

Question 3

Goals of interrogation

Answer 3

• Securing a confession
• Gain information
• Establishing the truth
• Preventing purposes (get information from other suspects to rpevent a crime about to be committed)
• Gather intelligence (how criminal organizations work)
• Social control: suppress certain population

Question 4

Importance of confession in adversarial and inquisitorial systems

Answer 4

• Adversarial: confession ends proceedings
• Inquisitorial: confession has a paramount position in the dossier

Question 5

Rights during interrogation

Answer 5

• Silence and counsel
• Translation, access to file, informed of rights…

Question 6

Content of right to silence

Answer 6

• Not speak (make statements, answer questions, speaking to police at all)
• Excluding questions regarding identity
• Right to be informed (cautioned properly and promptly

Question 7

When is the right to silence triggered?

Answer 7

• ZAICHENKO: criminal charge (official notification or individual’s position substantially affected)
• Reasonable suspicion (O’HARA) (becoming suspect)
• CAVANAUGH: questioning which officer knows is likely to elicit an incriminating response

Question 8

How can the right to silence be limited?

Answer 8

• Waver
• Adverse inferences
• Identity questions

Question 9

How should a waiver of ther ight to silence be?

Answer 9

• Established in a unequivocal and genuine manner
• Knowingly (aware of consequences)
• Voluntarily

Question 10

Adverse inferences ECHR

Answer 10

MURRAY: situations that clearly call for explanation + safeguards (jury instructions, lawyer present, specific caution)

Question 11

Adverse inferences in national laws

Answer 11

• EN: refusal to testify in court, failure to account for incriminating objects, substances, or marks, presence at the scene, ambush defence
• NL and G: overwhelming evidence is presented and no explanation offered

Question 12

Improper compulsion ECHR

Answer 12

• ALLAN criteria
• Pressure during questioning (torture and IDT, physical or emotional maltreatment, manipulation, deceut, threat, and illegal benefits)

Question 13

Improper compulsion national laws

Answer 13

• NL: 29(1) unacceptable pressure
• G: prohibited measures in 136a
• EN: s10 Code C (specific caution test)

Question 14

Content right to lawyer

Answer 14

• Legal assistance and being informed
• 3 dimenstions: consultation, pressence during interrogation, legal aid

Question 15

When is right to lawyer triggered?

Answer 15

• SALDUZ: from first interrogation of a suspect by the police
• ZAICHENKO: criminal charge
• BJARKI: no need to be arrested, as long as you are a suspect

Question 16

How can the right to a lawyer be limited?

Answer 16

• Waiver (same as for silence and can be revoked)
• SALDUZ AND IBRAHIM

Question 17

Relation between SALDUZ and IBRAHIM

Answer 17

In SALDUZ, the court established the double test (compelling reasons and defence rights not unduly prejudiced), and it said that where there was an admission of evidence obtained in violation of right to lawyer, this led to an automatic exclusion of evidence (violation of right to fair trial).
In IBRAHIM, the Court takes SALDUZ test as starting point, further developes the compelling reasons, and says that an admission of that evidence would not automatically lead to a violation of Art. 6, but that the overall fairness of the proceedings should be assessed.