Author: Ilham Gasimov, LL.M. in International Human Rights Law at Saarland University, 2021/2022
Editor: Danai Daisy Chirawu, Erasmus Mundus Joint Masters in Human Rights Policy & Practice (2021-2023), The University of Gothenburg, University of Deusto, University of Roehampton & The Arctic University of Norway, Bachelor of Laws (With Honours) (LLBS) (2012-2016) – the University of Zimbabwe
Abstract
Although not explicitly mentioned in Article 6 of the European Convention on Human Rights (the Convention), the right to remain silent and the privilege against self-incrimination are generally recognised international standards of a fair trial. The case law of the European Court of Human Rights (the Court) recognises that anyone accused of a criminal offence has the right to remain silent and not to contribute to incriminating himself.[2] This research analyses the privilege against self-incrimination by touching on the most recent judgment of the ECtHR against the Netherlands[3], which the Court approached differently. It explores what prerequisites should be prioritised for the applicability of the privilege against self-incrimination and a set of criteria to distinguish “fishing expeditions” from fair proceedings.
Introduction
One of the more essential criminal procedural principles is the privilege against self-incrimination. As a result of this privilege, a suspect cannot be compelled to give information to the authorities that could be used against them in a criminal prosecution. If a suspect refuses to answer questions or produce documents requested by the prosecution, the suspect cannot be penalized or held in contempt of court.[4] Although not explicitly mentioned in Article 6 of the Convention, the right to remain silent and the privilege against self-incrimination are generally recognised international standards of a fair trial.[5] In recent years, the ECtHR has found the privilege to be an implicit requirement of the right in Article 6 of the Convention.[6] It was in the case of Funke v. France that the Strasbourg Court first acknowledged the existence of a privilege against self-incrimination.[7] The applicant was suspected of tax evasion and was asked to provide his bank account details.[8] If he did not, he would have to pay a daily fine of 50 francs.[9] The Court found this to be a violation of Article 6 of the Convention, noting that a person charged with a criminal offence has the right to remain silent and not to contribute to incriminating themself; thus, the unique aspects of customs law do not provide a basis for violating this right.[10]
This research concentrates on the most recent judgment of the Strasbourg Court against the Netherlands (De Lege v. the Netherlands) concerning the exception applied to the privilege against self-incrimination. It concerns the Court’s effort to clarify the applicability and scope of the privilege against self-incrimination. The Court attempted to clarify an interpretation issue preoccupied legal scholars: how to understand the exception on the applicability of the privilege as determined in the Saunders v. the U.K. case?[11] According to that exception, the privilege does not apply to evidence that exists independently of the suspect’s will.[12] In Saunders and the recent De Lege judgment, the Court formulated that the coercive accession of documents according to a warrant exceeds the scope of the privilege.[13] The reasoning was that such documents exist independently of the suspect’s will.[14] However, the obligations in Funke to submit all kinds of pre-existing documents and to provide bank statements, followed by the imposition of financial sanctions for non-compliance, did violate the privilege.[15] In other words, the Court acknowledged that the acquisition of bank statements in the Funke case was an interference with the privilege against self-incrimination. Then, why did the Court make a distinguishable assessment in the De Lege case? Which prerequisites should be followed during the application of the privilege against self-incrimination? And finally, how reasonably did the Strasbourg Court analyse the notion of “independent from the will of the accused”?
Regarding the complete details of the data collection methodology, this paper sourced the material from the official precedent portals, including the HUDOC, as well as the new emerging Knowledge Sharing platform of the ECtHR, wherein the data was originally produced. Nevertheless, the research data is not limited to the mentioned sources but refers to the considerable knowledge gained by reviewing the literature, think-pieces, surveys, and experiments of academics, which draft otherwise stated by the European perspective. The preferred data range criteria are the best methodology to touch the most recent case laws, standards, and gaps in the practice.
Chapter A formulates the general background regarding the privilege against self-incrimination, its application, utilised standards, and limitations by the European practice. It touches on a couple of Strasbourg judgements concerning the applicable standards for the accused to enjoy his entitlement to remain silent. Chapter B operates in-depth and addresses the key research question of that paper by analysing the Court’s determination on the privilege and applied exceptions. It starts with the main facts of the case and the findings of the Court and ends with the author’s comments on Strasbourg’s perspective.
A. The Privilege: Inseparable Part of the Fair Criminal Proceedings.
The purpose of this section is to clarify the privilege against self-incrimination by providing several examples of its application and analysing some of what has been said by courts in their attempts to rationalise the rule that arises from these situations. Where to start? Perhaps the most divisive aspect of this privilege is how it is used. Nearly all nations now recognise some sort of privilege against self-incrimination. This comes after similar guarantees were included in a number of human rights agreements and treaties. The rights of an accused person to a fair trial are enumerated in various international documents, such as the International Covenant on Civil and Political Rights[16], the European Convention on Human Rights[17], the Rome Statute of the International Criminal Court[18], and the African Charter on Human and People’s Rights (Maputo Protocol)[19]. This right grew out of the historical context of others, such as the right to remain silent and the presumption of innocence. Additionally, the European Court of Human Rights held that the privilege against self-incrimination is indispensable to the presumption of innocence.[20] The former ideas have reached their full potential in accusatorial states, whereas the latter’s justification for use is still lacking detail.[21]
The fundamental purpose of the right against self-incrimination is to prevent unfair prosecution. This additionally protects against the practice of torture, which was once common among law enforcement agencies in many countries.[22] This benefit has been called “one of the major benchmarks in man’s attempt to make himself civilised” by Professor Erwin Griswold.[23] And the right prevents accused people from being coerced in any way. Coercion is defined as the use of force or threat of force on a suspect in order to obtain information from them. It is important to remember that coercion can also be used when a suspect is required by law to reveal potentially incriminating information.[24]
At the trial phase, the privilege also shields defendants against coercion. For a confession to be accepted in a court of law, it must first be completely free from any pressure (my emphasis) on the part of the individual confessing. Importantly, this protection honours the accused person’s desire and self-respect to remain silent during the proceedings against them. A degrading experience is one in which a person is coerced into acting against his interests, since this, according to Stefan Trechsel, is a form of shame.[25] Ultimately, the right to remain silent and the presumption of innocence are bolstered by the right not to incriminate oneself.
As stated above, the Strasbourg Court began to clarify and recognise the privilege against self-incrimination in its Funke v. France judgment.[26] The court’s reasoning was elaborated upon in further detail in Saunders v. United Kingdom.[27] Inspectors under the Companies Act of 1985 requested the applicant present specific documents and answer questions. The applicant’s refusal to cooperate could result in contempt of court, and the court could use his own records and responses against them.[28] The ECtHR explained that the rationale for the privilege lies in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ECHR.[29] The right not to incriminate oneself presupposes that the prosecution in a criminal case seeks to prove their case against the accused without resort to evidence obtained through methods of coercion.[30] In this regard, this privilege is closely connected to the presumption of innocence, protected under Article 6.2 of the Convention.[31] The Court then applied its exception to that privilege by underlining that the primary purpose of the right to remain silent is to honour the wishes of the accused. Therefore, the privilege against self-incrimination does not extend to the acquisition of evidence, which has an existence independent of the will of the suspect, including documents obtained pursuant to a warrant, breath, blood, and urine samples, and bodily tissue for the purpose of DNA testing.[32]
The abovementioned determination was analogously made in the most recent De Lege judgment by the Strasbourg Court, which is the core discussion point of this research. The applicant, who was subject to the ‘coercion of submitting bank statements’, stated that pre-existing documents did not qualify as evidence that ‘existed independently of the will of the suspect’ within the meaning of Saunders v. the UK.[33]
B. Exception to the Privilege Against Self-Incrimination: Case of De Lege v. the Netherlands, ECtHR.
(i) Main Facts of the Case.
A foreign bank account held by the applicant at X Bank in Luxembourg was investigated by the Dutch Tax and Customs Administration. The Tax Inspector asked the applicant in 2007 to disclose any overseas bank accounts opened after December 31, 1994, and to provide copies of all relevant bank statements for the years 1995-2000. The applicant relied upon the privilege against self-incrimination, arguing that the Tax and Customs Administration had been unable to obtain the desired information without his inclusion and cooperation and that it had not been proven that the information even existed.[34]
Later, the Tax and Customs Administration issued tax corrections and issued penalties.[35] The applicant’s appeals and objections were denied. During civil summary injunction procedures, the judge ruled that the applicant must fill out a certain form and disclose whether or not he has kept foreign bank accounts after December 31, 1995, or face financial penalties.[36] If this is the case, the applicant will need to respond to some questions and submit some paperwork, such as copies of all bank statements for the accounts in question from January 1, 1996, through December 31, 2000. The applicant provided a summary of his Luxembourg bank account as well as bank statements. The applicant’s tax penalties were reduced based on the evidence presented in these documents.[37]
Hence, the applicant claimed that his right against self-incrimination had been violated because the documents had been seized from them under duress and would be used against them in tax procedures in which he would be required to pay fines. The applicant used prior Strasbourg Court rulings to argue that pre-existing records do not constitute evidence that “exists independently of the will of the suspect” under Saunders v. UK.[38] That is, if the authorities could not have taken cognizance of such documents without coercing the suspect, then the privilege against self-incrimination would apply to the compelled acquisition and their subsequent use.[39]
(ii) The Merits of the Grand Chamber’s Judgment.
The Court commenced with some overarching thoughts on the right to a fair trial under Article 6.1, noting that cases involving tax surcharges or tax fines differ from the ‘hard core of criminal law’ for purposes of the Convention.[40] Thus, the guarantees of Article 6 under its criminal head will not necessarily apply with its full rigour.[41] This is why the Court distinguished between its “generic approach” to the protection against self-incrimination and its consequences in the specific “context of financial law matters.”[42] The Court reiterated that under Article 6, the core of the idea of a fair procedure is the right to stay silent and the privilege against self-incrimination, both of which are internationally recognised principles.[43] Their justification rests on the premise that shielding the accused from unlawful coercion by the state is essential to preventing injustice and achieving the goals set forth in Article 6.[44]
A problem from the standpoint of the privilege against self-incrimination only arises if the individual being investigated is subjected to some kind of compulsion or coercion.[45] Incriminating information obtained under duress must also be used in a subsequent criminal prosecution, or the person must be the subject of actual or threatened criminal proceedings.[46] The protection against self-incrimination only kicks in under these two conditions.[47]
The Court further noted that in cases where these conditions are met, it is important to decide whether it is appropriate to exclude from the scope of the privilege the use of evidence gained through coercion or compulsion.[48] Protecting the right of an accused individual to keep silent is at the heart of the privilege against self-incrimination. The Court underlined that, however, this does not include the introduction into a criminal trial of evidence collected from an accused person independently of his wills, such as documents obtained by a warrant, breath, blood, and urine samples for DNA testing, or human tissue.[49] The privilege will nevertheless apply even if the evidence in question was obtained using methods that run counter to Article 3.[50]
If the authorities can show that the compulsion is aimed at obtaining specific pre-existing documents that are relevant for the investigation in question and of whose existence the authorities are aware, then the use of such evidence goes beyond the scope of the privilege in the context of financial law matters.[51] The term “pre-existing papers” refers to evidence that has already been gathered and is not the product of any coercion specific to the criminal proceedings. That’s different from when law enforcement is trying to get someone to hand over documents they’re quite sure must exist as proof of wrongdoing, but they aren’t 100% sure (See J.B. v. Switzerland § 69; Funke France, § 44 cited above)[52]. The latter is referred to as “fishing expeditions” by the Court.[53] One could draw parallels between this type of evidence and testimonial evidence, in which a witness reveals previously unknown details to the authorities by making an incriminating remark. Since it is the burden of the prosecution in a criminal case to prove their case without resorting to evidence collected by coercion or compulsion, the privilege against self-incrimination becomes an issue in situations where the making of that statement is the product of such tactics.[54]
Ultimately, the Court concluded that if the privilege is applicable, it must be determined whether or not the method undermined the “very substance” of the privilege, i.e., how the proceedings were impacted in terms of overall fairness.[55] According to the Court’s comprehensive evaluation, consideration must be given to three factors[56], which are:
- the type and extent of the compulsion,
- the existence of appropriate safeguards in the procedure,
- the intended use of the information gathered.
(iii) Comments.
The Court has reached the conclusion that the privilege does not apply in this particular circumstance. The applicant was already known to have held a bank account in Luxembourg at the relevant time because the statements and portfolio summaries related to records that already existed and were known to the authorities.[57] This eliminates the possibility of a ‘fishing expedition’ to compel the applicant to produce records related to the account in question. This meant that there was no violation of Article 6 ECHR.[58]
The privilege is not applicable to evidence that exists against the suspect’s will, as per that exception. Although the Saunders formula has been widely used, its precise applicability remains debatable. The Court hints in Saunders that the privilege does not apply to the forceful acquisition of papers pursuant to a warrant since such materials exist apart from the suspect’s will. The privilege was violated, however, when J.B. and Funke required the production of a wide variety of pre-existing papers and bank statements, followed by the threat of monetary fines for non-compliance.
When the Court explained why the privilege existed, one of the reasons—protecting the suspect’s autonomy—was often lost in the shuffle.[59] Assuming that the prosecution in a criminal case attempt to prove their case without resorting to evidence gathered through techniques of coercion, this underlying rationale seems to be consistent with the Court’s position that the privilege is principally concerned with respecting the will of the accused. Given that the suspect’s liberty is sometimes violated in the forcible collecting of such evidence, it is difficult to establish why the privilege against self-incrimination does not apply to pre-existing material, such as documents, urine, and breath.
Conclusion
To conclude, the Court’s decision in De Legé v. the Netherlands was intended to offer national jurisdictions advice on how to apply and interpret the privilege against self-incrimination. While the judgement may provide some clarity on how the privilege should be applied to documents in the context of financial law concerns, it also raises a number of important theoretical problems about the privilege’s future development as a body of law. This includes:
- whether the privilege should be understood from a means- or material-based perspective;[60]
- the precise justification of the Saunders exception in relation to a well-defined rationale of the privilege;
- whether the unqualified right to a fair trial should serve as the legal basis for the privilege against self-incrimination.
Citation
[2] ECtHR, Funke v. France, App. No. 10828/84, 25 February 1993, § 44. See also ECtHR, O’Halloran, and Francis v. the United Kingdom [GC], App. nos. 15809/02 25624/02, 29 June 2007, § 45; ECtHR, Saunders v. United Kingdom, App. no. 19187/91, 17 December 1996, § 60.
[3] ECtHR, De Lege v. the Netherlands, App. no. 58342/15, 4 October 2022.
[4] Mike Redmayne, Rethinking the Privilege Against Self-Incrimination, 27 Oxford Journal of Legal Studies 2007, 209 (209).
[5] The ‘right to silence’ is a legal right only to the extent provided by Article 14(3)(g) of the International Covenant on Civil and Political Rights (‘ICCPR’), which provides a right to an accused ‘not to be compelled to testify against himself or to confess guilt’. See generally, David Dixon and Nicholas Cowdery, Silence Rights, 17 Australian Indigenous Law Review 2013, p. 23-37.
[6] Supra note, 2.
[7] ECtHR, Funke v. France, App. No. 10828/84, 25 February 1993.
[8] Ibid, § 12.
[9] Ibid, § 13.
[10] Ibid, § 44.
[11] ECtHR, Saunders v. United Kingdom, App. no. 19187/91, 17 December 1996, § 68-69.
[12] Ibid, § 69.
[13] Ibid. See also, ECtHR, De Lege v. the Netherlands, App. no. 58342/15, 4 October 2022, § 67.
[14] Ibid.
[15] Supra note, 10.
[16] Article 14 (3) (g).
[17] According to European Court Interpretations of Article 6’s Right to a Fair Trial in cases such as Funke v France, Saunders v United Kingdom, and Brown v Stott.
[18] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 8.
[19] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June
1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 7.
[20] Stefan Trechsel and Sarah J Summers, Human Rights in Criminal Proceedings, Oxford University Press/2009, p. 348.
[21] Mike Redmayne, Rethinking The Privilege Against Self-Incrimination, 27 Oxford Journal of Legal Studies 2005, 2 (210).
[22] John Taylor, The Right to Counsel and Privilege Against Self-Incrimination, ABC-CLIO/2004, p. 16.
[23] Erwin N Griswold, The 5th Amendment Today, Harvard University Press/1955, p. 7.
[24] Mike Redmayne, Supra note 21.
[25] Stefan Trechsel and Sarah J Summers, Supra note, 20.
[26] Funke v. France, Supra note, 10.
[27] Saunders v. United Kingdom, Supra note, 11.
[28] Ibid, § 49. See also, Section 436 of the Companies Act 1985.
[29] Ibid, § 68.
[30] Ibid.
[31] Ibid.
[32] Ibid, § 69.
[33] De Lege v. the Netherlands, Supra note 3, § 9.
[34] Ibid.
[35] Ibid, § 12.
[36] Ibid, § 38.
[37] Ibid, § 52.
[38] Ibid, § 9.
[39] Ibid, § 56.
[40] Ibid, § 62.
[41] Ibid.
[42] In principle, the privilege against self-incrimination can also apply in situations of coercion to supply documents. In developing its case-law in financial law matters falling under the criminal head of Article 6 § 1 of the Convention, the Court has however made distinctions, in particular as to the pre-existence of such materials and as to whether the authorities were aware of their existence.
[43] De Lege v. the Netherlands, Supra note 3, § 63. See also, ECtHR, Ibrahim, and Others v. the United Kingdom, Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016, §266.
[44] Ibid.
[45] De Lege v. the Netherlands, Supra note 3, § 74.
[46] Ibid.
[47] Ibid. See also, ECtHR, Eklund v. Finland, App. no. 56936/13, 8 December 2015, § 51.
[48] Ibid, § 75.
[49] Ibid, § 67. See also Saunders, cited above, § 69; ECtHR, Kalnėnienė v. Belgium, App. no. 40233/07, 31 January 2017, § 52; ECtHR, Sršen v. Croatia, App. no. 30305/13, 22 January 2019, § 44; ECtHR, El Khalloufi v. the Netherlands, App. no. 37164/17, 26 November 2019, § 38-40.
[50] Ibid. See also, ECtHR, Jalloh v. Germany, App. no. 54810/00, 11 July 2006, $ 105, 108, 115-16.
[51] Ibid, § 76.
[52] Ibid.
[53] Ibid.
[54] Ibid.
[55] Ibid, § 78.
[56] Ibid, § 68. See also, ECtHR, Allan v. the United Kingdom, App. no. 48539/99, 5 November 2002, § 44; Jalloh v. Germany, cited above, § 101; and Ibrahim and Others v. United Kingdom, cited above, § 269.
[57] Ibid, § 86.
[58] Ibid, § 88.
[59] See also the dissenting opinions of Judges Martens and Judge Kuris regarding the case of Saunders v. United Kingdom.
[60] The Funke, Saunders and J.B judgments could be understood and reconciled within a so-called ‘means-based’ approach to the privilege against self-incrimination. Redmayne states that the privilege applies to a certain means of obtaining information, a means that requires cooperation, and not to a particular type of information—answers to questions as opposed to physical material. According to a means-based approach, the Saunders exception implies that the privilege does not apply when the evidence can be obtained independently of the will of the suspect – that is, when obtaining evidence does not require any active cooperation from the accused. As Trechsel puts it, the privilege only covers assistance from the suspect, which could not be substituted by employing direct force.
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