CEU Electronic Theses and Dissertations, 2013
| Author | Bieber, Ivóna |
|---|---|
| Title | The Right to Silence in the Jurisprudence of the European Court of Human Rights and the Supreme Court of the United States of America |
| Summary | In my thesis I will compare the jurisprudence of the European Court of Human Rights (ECHR) and the Supreme Court of the United States of America (Supreme Court) on the right to silence. After a short introductory part I will examine the legal basis of the right in both legal systems, the European Convention on Human Rights (Convention) and the Constitution of the Supreme Court of the United States of America. I will analyze the jurisprudence of both the ECHR and the Supreme Court in detail to determine the content of the right and examine its relation to other fundamental rights connected to criminal justice. I will draw particular attention to compulsion defined as a negative element of the right. I will show that despite the fact that the course of development of the jurisprudence unquestionably differs under the two systems examined, the underlying principles and values evoked by both courts for the support of the right – fair trial and human dignity in particular – are very similar. Moreover, both judicial bodies unequivocally distance themselves from the inquisitorial criminal procedure. However, the views of the ECHR and the Supreme Court are significantly different on the scope and limits of the right. Through analyzing the procedures, evidence and statements covered by the right to silence I will demonstrate that the American system offers special protection only to testimonial evidence, while the ECHR extended the right to silence to handing over self-incriminating documents as well. As regards the crucial question of limitation, I will demonstrate that the ECHR allows adverse inferences to be drawn from the defendant’s silence in criminal procedures, although only under very narrowly interpreted circumstances. This would be unimaginable in the United States under the no comment rule established as early as 1878. However, the implied waiver doctrine of the Supreme Court has been recently extended to the right to silence which should make defense counsels deeply concerned, as I will argue in the last part of my thesis. |
| Supervisor | Bárd, Károly |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2013/bieber_ivona.pdf |
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