Silence lawyer disclosure search
14 important questions on Silence lawyer disclosure search
What kind of right does the suspect get when he is questioned?
- right to silence is main consideration/ privilege against self-incriminaiton.
What are the minimal rights in art.6
B. Preparation
C. Defend oneself & Legal Assistance
D. Examination of witnesses
E. Interpretation (translation)
Art.6 (2) what is the presumption of innocencE?
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What are the implicit fair trail right of art.6?
Right to silence/ privilege against self-incrimination
Undercover operations
What if you dont want a lawyer? Zaichenko vs. Russia
zaichenko vs russia
typical russia case, steals from company as a driver. suspended prison sentence. he was stopped police .conviction was based on admission made to the police before trail without laywer. they hear explanation where diesel came from, they write report, and supervisor say it is criminal. they he waived the assistence. here the stages were normal, as soon he had real suspicion, he said he didnt want. you cannot blame the russian authority. in the first stage they didnt know it, and after that it was denied, no violation.
What is informal questioning?
What is waiver of legal assistence?
you are free to choice the court will look at the situation especially with funarable people like children etc. People would provid from legal assitence. like a police saying sign you dont want a waiver. it needs to be free and you need to know the consequences.
When are you well or niet entitled to a lawyer?
whole race of people asking when lawyer or not?
Wel:
- line up and reconstruction, beuze v. belgium
- confrontation questioning different suspects melnikov
- of the record inleidende orienterende gesprekken met politiemensen ( titarenko)
not
- mere taking of fingerprints or other bodily samples (chuayev)
- material facts registered in presence suspects on occasion police control ( alexandr zaichenko vs russia
- investigative actions executed in presence suspect + that require expect active input from suspect.
•investigative actions executed in presence suspect + that require/expect active input from suspect
•Note: handover password according to Belgian case law: no active input…
What is legal assistence?
or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require
Right to legal assistence with a questionaire?
Form with questionnaire, insofar as facts simple and defendant does not dispute them.
Police must, however, respect presumption of innocence and the right to non-incrimination + suspect always possibility of questioning with assistance lawyer if wants to contest or shed other light
Belgian courts: no questioning, legal authors divided
Iwan wertz case questionaire?
ECtHR: questionnaire submitted in context of technical findings made during traffic control, specific questions only probed for limited information and driver informed orally and in writing of the right to remain silent
SO: possible if warning of right of silence + limited information collection, material findings (red-handed traffic violations), no questions about other facts
What is directive 2016 about?
Implementation by MS before 1st of abril 2018.
EU Directive 2013 on the right of access to a lawyer
Communication
Criminal procedures + judicial review of not formally but from Strasbourg perspective criminal procedure
Role of the lawyer (active)
Exceptions: when can you stop/ limit access to lawyer?
Waiver
Sanction if not respected
How is protecting witnesses also about art.8 ?
protecting witnesses is also about protecting art.8 evrm. first it protects the rights after that the exceptions
- is there an interferes in the private life? when is government interfering? depends if you have public instagram or closed whatsapp group. this is a debate. if there is an inferences?
- is it according to law?
- to protect legitimate aims?
- neccesary in a democratic society to achieve those aimes?
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