To Remain or Not to Remain Silent: The Evolution of The Privilege against Self-incrimination Ten Years After Marttinen v. Finland

According to the judgment of the European Court of Human Rights (ECtHR) in Marttinen v. Finland, a debtor has the right to remain silent in a debt enforcement enquiry given that the following conditions are met: first, that the inquiry is held concurrently with a criminal procedure; and second, that the same questions of evidence are investigated in both of the concurrent proceedings. Under these circumstances, the debtor enjoys the privilege against self-incrimination in the enforcement enquiry. The scope of this article is to examine whether the debtor has not only the right to remain silent, but also the right to give false statements. The assessment of this problem is built on the moral grounds of the privilege itself, but also on the law reforms and changes in case law after the judgment in the Marttinen case. As a conclusion of this article, the problem of false statements should not be evaluated by equating silence with false statements, but by considering two basic questions. First, would the right to remain silent suffice to protect the privilege against self-incrimination; and second, whether the motives for providing false statements express the aim to achieve something else than protection against inappropriate use of coercive power

Markus, Jaakko. Oikeuksiin pääsy massavahinkotilanteissa. Prosessioikeudellinen tutkimus kollektiivisista oikeussuojakeinoista, erityisesti kanteiden yhteiskäsittelystä

Virallisen vastaväittäjän, apulaisprofessori Tuomas Huplin Lapin yliopiston oikeustieteiden tiedekunnalle antama 9.9.2022 päivätty lausunto eräin muokkauksin

To Remain or Not to Remain Silent: The Evolution of The Privilege against Self-incrimination Ten Years After Marttinen v. Finland

According to the judgment of the European Court of Human Rights (ECtHR) in Marttinen v. Finland, a debtor has the right to remain silent in a debt enforcement enquiry given that the following conditions are met: first, that the inquiry is held concurrently with a criminal procedure; and second, that the same questions of evidence are investigated in both of the concurrent proceedings. Under these circumstances, the debtor enjoys the privilege against self-incrimination in the enforcement enquiry. The scope of this article is to examine whether the debtor has not only the right to remain silent, but also the right to give false statements. The assessment of this problem is built on the moral grounds of the privilege itself, but also on the law reforms and changes in case law after the judgment in the Marttinen case. As a conclusion of this article, the problem of false statements should not be evaluated by equating silence with false statements, but by considering two basic questions. First, would the right to remain silent suffice to protect the privilege against self-incrimination; and second, whether the motives for providing false statements express the aim to achieve something else than protection against inappropriate use of coercive power

Discharge and entrepreneurship in the preventive restructuring directive

The European Council adopted the Preventive Restructuring Directive (2019/1023/EU) on June 20, 2019, which must be transposed by July 17, 2021, subject to a possible extension of a maximum of 1 year for countries encountering particular difficulties in the implementation. The Directive signals a paradigm shift in EU policy on insolvency from the traditional focus on cross-border issues. The new Directive puts insolvency squarely at the heart of internal market regulation, following the EU's policy since the Great Recession of 2008 of promoting and strengthening the economy. Since 2016, the European Commission has issued several documents to facilitate insolvency procedures, leading to the recently adopted Preventive Restructuring Directive. Besides restructuring, the Directive promotes the discharge of pre-insolvency debt for entrepreneurs. The Directive does not require that discharge be extended to other natural persons but recommends it. This article discusses the relationship between entrepreneurs and non-entrepreneurs in an insolvency situation and concludes that a fair interpretation of the new Directive requires that the situation of the ordinary person with liability for business debt be closely scrutinised.</p