Sunday, August 3, 2014

The Future of the Right to Remain Silent in Europe

During my most recent trip to Germany in July, I asked several German law professors whether there were any “wrongful convictions” in Germany.   The widely agreed answer was “no.” That led me to wonder whether inquisitorial systems of justice are perhaps better structured to prevent wrongful convictions.  

Given that the success of the inquisitorial form of justice has historically depended on securing the confession of the accused, the more important question may be whether the law adequately protects a suspect’s right to remain silent. Indeed, in the U.S., the use of the method of questioning suspects has led to false confessions- one of the main causes of wrongful convictions in this country.

During the recent Juris Diversitas conference in Aix-en-Provence, France, I sat on a panel with Michelle- Thérèse Stevenson, a Ph.D. candidate at the University of Limerick. Her research indicates that the right to remain silent is under fire across Europe despite the fact that Article 6(2) of the European Convention on Human Rights upholds a suspect’s presumption of innocence. According to Stevenson, in both Ireland and France, there are signs that a suspect’s presumption of innocence and right to remain silent are being eroded despite the fact that both the European Convention and the respective state constitutions/case law recognize the right.

Ireland features an adversarial system of justice. Although the presumption of innocence is not explicitly stated in the Constitution, it is said to flow from Article 38.1 of the Irish Constitution. Additionally, courts have recognized a constitutional right to silence.  In France’s inquisitorial system, the presumption of innocence is well recognized throughout the law. Despite these protections, in both countries, according to Stevenson, the role of defense counsel is held in low esteem.  In Ireland, recent case decisions have held that where a suspect relies on counsel’s advice to remain silent, a jury may draw an adverse inference from that silence if it believes that the reason for his or her silence is they are “sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give.” In France, following the ECtHR decision in Salduz v. Turkey, France enacted legislation that recognized suspects’ rights to have a lawyer present during questioning and reaffirmed the fact that police have a duty to inform suspects that they possess the right to remain silent. Still, there is some evidence to suggest that resistance to this new legislation exists.

In sum, there is definite reason for concern for the future of the right to remain silent in Ireland. In France, the picture is less clear.



Code procédure pénale . Art. 63-1

Code civil, article 9-1

Déclaration des droits de l’homme et du citoyen du 26 Aout, 1789

ECHR Art. 6(2)

Dimitrios Giannoulopoulos, “Custodial Legal Assistance and Notification of the Right to Silence in France: Legal Cosmopolitanism and Local Resistance,” Criminal Law Forum. September 2013, Volume 24, Issue 3, pp 291-329

Heaney v Ireland [1996] IESC 1 IR 580. 

Innocence Project, “The Causes of Wrongful Conviction,” Available online at:       

Irish Criminal Justice Act, 2007.

 Pat McInerney, “Equality of Arms” Between the Suspect Interrogated in Garda Custody and the Gardaí? 2 Judicial Studies Institute Journal (2010), pp 1-33, citing [2004] E.W.C.A. Crim. 784, at para. 51.  

 Salduz v. Turkey, 49 EHRR 421.

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