Interrogation Flashcards
1
Q
By whom?
A
- EN Police
- NL and GR Police, prosecutor, investigative judge
- Does not have formal settings:
- Not necessarily in custody
- Not necessarily in law enforcement premises - Strong evidence
2
Q
Is the interrogation lawful?
A
- Privilege against self-incrimination:
- If material is dependent on the will of the suspect (includes bank statements)
- No privilege if material is will-dependent - Presumption of innocence
- Right to silence and access to counsel:
- Must be informed of both existence and consequences - Other rights and safeguards:
- Translation
- …
3
Q
Right to silence
A
- From Art. 6 ECHR but not explicit
- Right not to speak and not to be forced to answer
- Not absolute, can be waived:
- Freely
- Unequivocal
- In full awareness of facts and consequences
- With minimum safeguards - You must be cautioned:
- In a language you understand
- Oral and written
- Know that you are not forced to speak and that there will be no consequences to your silence - Does not apply to evidence that is independent of your will or to suspect’s identity
4
Q
Consequences to silence
A
No consequences unless:
- The situation clearly calls for an explanation - But needs safeguards - Right to lawyer, specific caution and jury instructions
- EN If you do not testify at trial, if you were present at the crime scene, if you are/were in possession of an object of interest to the case or in case of ambush defence
- GR In case of partial silence
- NL If there is an intention to conceal the truth which clearly calls for an explanation
5
Q
What is improper compulsion?
A
- Torture - Violation of art. 3 - No need for Allan
- Maltreatment includes physical, emotional and/or psychological maltreatment - Use Allan
- Deceits, threats and illegal benefits, withholding information or inducement by undercover agents is prohibited
- No clear cut, what matters if whether the will of the suspect was respected
- Leads to exclusion of evidence
6
Q
Right to legal assistance
A
- Must be practical and effective
- Informed - If not, automatic violation and exclusion
- Right to consultation:
- Private
- Confidential
- Promptly - Right to presence
- Also if you cannot afford it
7
Q
When are you a suspect?
A
- Perspective of police officer
- GR - a) Subjective (Did you understand that the police officer asked you to make incriminating statements?) + b) Objective (Would an objective observer understand that the police officer asked you to make incriminating statements?)
8
Q
Caution
A
- ECHR as soon as there is a criminal charge or your legal situation has substantially changed
- National systems - When arrested, charged or summoned and when you are a ‘newborn’ suspect
- Oral or written
- In a language you understand
9
Q
Legal assistance, when?
A
NL - Upon police custody (after 9 + 9 time period). If arrested both before and during. If summoned, only during.
GR - When interrogated by investigative judge/PP
EN - When arrested
ECHR:
- From 1st interrogation
- Unless compelling reasons = Serious adverse consequences or substantial jeopardy of investigations
- Unless not detained by police
- Includes presence, active participation, free choice of lawyer, waiver, before and during interrogation
10
Q
Right to silence, when?
A
- As soon as there is a criminal charge Official notification
- Once the legal situation of the suspect has been substantially affected
- As soon as you become a suspect From the perspective of the officer
11
Q
Allan criterion
A
Used for maltreatment only, not torture
- Nature and degree of compulsion (check suspect characteristics, duration, type, breaks, facilities, context…)
- Procedural safeguards (lawyer, right to silence…)
- Was the evidence used?
12
Q
Right to legal assistance, why?
A
- Vulnerability
- Prevention of improper compulsion
- Promotes fair trial
