The EmpRiSe (‘Right to silence and related rights in pre-trial suspects’ interrogations in the EU. Legal and empirical study and promoting best practice’) project seeks to examine the issues surrounding the implementation, in law and in practice, of the right to silence and other relevant rights, such as the right of access to a lawyer and to legal aid, and the right to information and access to material evidence, at the investigative stage in four jurisdictions: Belgium, Ireland, Italy and the Netherlands.
The right to silence in the context of pre-trial suspect interrogations is one of the most controversial procedural rights. Issues arise with regard to defining its precise scope, rationales, permissible limitations, as well as its practical implementation. The implementation of the provisions of Directive 2016/343 on the right to remain silent in the context of pre-trial suspect interrogations is likely to raise many questions.
Whilst in principle the right to silence is well-embedded into national and international legal systems, in practice it is often seen as interfering with the authorities’ ability to effectively investigate crime. There are possibly cultural barriers to the enforcement of the right to silence. For instance, in countries with post-inquisitorial systems, suspects, being traditionally seen as an object of a judicial inquiry, were expected to cooperate with the investigation from its very outset, and attaching “penalties” to non-cooperation has been viewed as acceptable. By contrast, in countries with an adversarial tradition (e.g. Ireland), suspects had not been expected to provide an answer before a prima facie case against them was established. In the modern reality, however, this moment has shifted to the very beginning of the investigation, enabling suspects’ detention to facilitate their questioning. Yet, this shift has not been accompanied with a commensurate obligation to provide access to the existing case-related information prior to any questioning.
To date, there has been no systematic European study of the legal and practical factors inhibiting (or facilitating) the effectuation of the right to silence and other related rights (such as the right of access to a lawyer/legal aid or the right to information) in the context of pre-trial suspect interrogations.
In addition to undertaking research to inform legislative and policy processes in the EU and in individual Member States, we undertake action on the level of daily practice of judicial actors effectuating the right to silence and other rights in pre-trial proceedings. Our experience shows that professional cultures aimed at facilitating procedural rights at pre-trial procedural stages are lacking, and training is critically needed to enable genuine compliance of the relevant judicial actors with such rights.
With regard to the right to silence and other related procedural rights in the context of pre-trial questioning of suspects, we promote training to:
a) raise awareness of judicial actors (and especially, police, prosecutors and judges) of their value and significance, and of the conditions for genuine compliance;
b) equip the relevant actors (and especially lawyers, who find themselves at the forefront of effectuating the procedural rights Directives in the interest of their clients) with strategies to enable effective implementation of these rights .