Week 4 Flashcards
(18 cards)
When can interrogation take place?
- After arrest (custody)
- Without arrest (voluntary attendance): suspect is invited/summoned to the station, his legal status may change from witness to suspect if incriminating evidence arises
- Informal interrogation outside the station
Interrogation in adversarial systems
police may lead investigations + conduct interrogations
emphasis on early, police led evidence gathering since quick charging is required (24h)
interrogation in inquisitorial systems
investigations are divided into sequential stages
- preliminary investigation (by police)
- formal investigation (by investigative judge + prosecutor)
- suspect can be interrogated multiple times by diff authorities
Right to silence
the suspect doesn’t have to talk to the police if he doesn’t want
However, he is obliged to answer questions about his identity
Waive the right by talking, but only after having been sufficiently informed about the consequences (called ‘cautionning’) = informed consent
What are the interrogation stages in Germany
interrogation regarding personal identification = NO right to silence
questionning regarding facts of the case = RIGHT to silence
when is the right to silence triggered according to the ECHR?
Zaichenko
- at the moment someone is charged: either from an official notification (arrest, summons, interrogation…) or when the legal status changes from witness to suspect
what are exceptions to the right to silence
silence should not be used to infer guilt, unless it is an adverse inference
In NL: silence can be interpreted negatively if overwhelming evidence is presented, & the suspect does not offer any explanation
Right to counsel
inquisitorial: lawyer at pre trial stage is not necessary due to the neutral judge
Adversarial: parties are at war from the first moment = need lawyer from the beginning
3 dimensions
- consultation (receiving legal advice)
- participation (during police interrogations)
- right to legal aid (free)
consultation dimension of right to counsel
before OR after interrogation
In NL: consultation may be as short as 30min. suspects who are summoned are not entitled to this right
participation dimension of right to counsel
all systems allow lawyers to attend interrogations
UK: right for a suspect in police custody to have lawyer present during interrogations (also those interrogated under caution without custody)
NL: right for lawyer to be present for those arrested + for those summoned (unless it’s an “on the spot” interrogation
G: same applies
What is the ECHR’s view on the right to a lawyer
BJARKI
- the right to a lawyer is to be enjoyed also by those questionned in the police station, not arrested. = exist in all situations where someone is a suspect & questionned at the police station
Exceptions ONLY
- when there are compelling reasons that justify a limitation + as long as it does not result in prejudicing the rights of the defence
exceptions of right to counsel
NL: counsel’s participation is restricted if she is disruptive of the interrogation
UK: permits access to lawyer to be delayed in certain urgent situations (eg: presence may interfere or harm evidence)
G: defence attorney can only be excluded. when interviewing the witness, not from interrogations
what are compelling reasons to limit the right to a counsel in ECHR
Temporary, individual assessment, exceptional circumstances + avert serious danger to life, freedom, physical integrity
Prejudice rights of the defence
what is considered prejudicing the rights of the defence (ECHR)
BEUZE
Very → Vulnerability (a): whether the applicant was particularly vulnerable (age, mental capacity).
Fair → Framework (b): legal framework and compliance, especially exclusionary rules.
Challenges → Challenge authenticity (c): opportunity to challenge evidence/authenticity.
Raise → Reliability (d): quality/reliability of evidence and how it was obtained.
Ethical → Evidence unlawfully obtained (e): unlawfulness and any Convention violations.
Standards → Statements (f): nature of statement and whether retracted/modified.
Justly → Judgment use of evidence (g): how central the evidence was to conviction.
Using → Understanding by fact-finders (h): whether judges/jurors assessed guilt and guidance given.
Judges’ → Justification of public interest (i): weight of public interest in investigation/punishment.
Impartiality → Internal safeguards (j): other procedural safeguards in domestic law.
Conditions & manner of interrogation in NL
minimalistic attitude: allows more flexibility & adaptation, leaves door open for holistic weighing of the case regarding admission of evidence
- general prohibition of coercion + written report of how the interrogation was conducted
- mandatory audiotaping only in offences causing death/GBH
- mandatory video recording when suspect is a minor/vulnerable or when psychologist assists
Conditions & manner of interrogation in Germany
detailed attitude: more control of police
prohibited: impairment of suspects’ freedom to decide or express his will / induced fatigue / physical intervention / administration or drugs, torture, deception
–> in such cases statements given by the suspect must be causally attributed to the violations to be excluded
- mandator video recording only for murders
Conditions & manner of interrogation in England
suspect shouldn’t stand / at least 8 hours of rest within 24h / 15 min breaks every 2 hours / specific scripts and instructions
- all interrogations are audiorecorded
what is improper compulsion in the ECHR?
when the core right not to self incriminate is undermined
factors considered to classify unlawful pressure (ALLAN)
- nature & degree of compulsion
- existence of procedural safeguards
- use of evidence obtained
