Re: COE Recommendation No. R (95) 13

>
>>Forgive me if this point has already been raised, but couldn't an 
>>objection to such laws be based on the protection against 
>>self-incrimination? 
>
>There is no such right in most (if not all) european countries. In
>France there is not even the presumption of innocence.

[Further depressing news deleted]

Yes, this was my understanding. I guess the point I was groping 
toward was that while  we could hardly expect that our rights vis-a-vis
electronic privacy would be any _better_ than our rights in 
obviously analogous non-electronic areas, they might well be worse;
it's important to be clear, and to make clear, that what rights 
we have left have obvious extensions to our net.activities, and 
try to prevent the thin end of the wedge from being inserted in 
our portion of the perimeter.

Of course, this only applies to the set of people who live in 
countries where people _have_ any rights, and as Phill implies, 
that may soon be the null set.   

--Michael Smith
  smithmi@dev.prodigy.com

sorry, but there is a right to remain silent in Europe:

[quoting from footnote 360 (whatsamatter you didn't get that far?) of my
Clipper paper:] 

The European court of Human Rights recently ruled that the
right to right to remain silent is guaranteed under the European
Convention on Human Rights (formerly known as the Convention for the
Protection of Human Rights and Fundamental Freedoms), Nov. 4, 1950, art.
6(1), 213 U.N.T.S. 221. See Funke v. France, 256 Eur. Ct. H.R. (ser. A) at
8 (1993) (holding that Article 6(1) of the European Convention on Human
Rights guarantees the right against self-incrimination); Ying H. Tan, Use
of DTI Interviews Unfair, INDEPENDENT (London), Sept. 30, 1994, at 30
(reporting the decision of the European Commission of Human Rights in
Saunders v. United Kingdom). 



On Fri, 17 Nov 1995, Michael Smith wrote:
0
> >
> >>Forgive me if this point has already been raised, but couldn't an 
> >>objection to such laws be based on the protection against 
> >>self-incrimination? 
> >
> >There is no such right in most (if not all) european countries. In
> >France there is not even the presumption of innocence.
> 
> [Further depressing news deleted]
> 
> Yes, this was my understanding. I guess the point I was groping 


A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.

>sorry, but there is a right to remain silent in Europe:

Pity the British Tories do not understand that. Because they brought in
the stupid "right of the prosecution to bring attention to the 
defendants refussal to answer questions" it probably means that a
very large number of current prosecutions will get sent down in about
three years time. Guess the cost of that!

It was only done because they had nothing else to spout at their conference.
My father (who is a conservative and whose cousin was chairman of the party
until recently) said he felt sick when he saw the conference on TV. Three 
strikes and you are out type stuff... 

Actually there is a set of crimes relating to fraud where there is a 
specific crime of refusal to answer interrogation. They messed this one
up as well. Rather than phrase it that the trustees of a fund have a duty to
account for the whereabouts of the funds at all times when asked they
simply removed the right to silence. Since trustees take on a position
voluntarily I don't see the same problems in requiring them to perform
certain duties (which involve disclosure) as removing their right to 
silence.


I don't think that the right to remain silent would be read in the manner
asserted however. It is a question of refusal to provide materal evidence
rather than a refusal to testify.


	Phill