A Comparative Analysis of the Case Law of the European Court of Human Rights on the Right against Self-Incrimination

Abstract

The right against self-incrimination can be understood as the right of all persons to remain silent and not to be forced to collaborate with an investigation against them. Despite of its fundamental importance, the right against self-incrimination raises several theoretical and practical discussions. Can defendants refuse to produce documentary evidence? Does this right apply to administrative and civil proceedings? What degree of coercion is necessary to trigger the application of this right? This article aims to analyse the evolution and current state of the case law of the European Court of Human Rights in order to elucidate how the European court has resolved the questions posed above.

De Legé v. the Netherlands: The ECtHR adopts a line of reasoning similar to that of the United States Supreme Court on compelled production of real or physical evidence

“…On the contrary, when the government orders a person to hand over documentary evidence in his possession, threatening her with the imposition of sanctions if she refuses to comply, the government is demanding active cooperation from the defendant with the investigation, which is contrary to the right against self-incrimination. 43 The reading of Funke and Saunders proposed above, in the sense that the right against selfincrimination prohibits compelling a person to actively cooperate with an investigation against herself, facilitates understating of the judgments of the ECtHR in J.B. v. Switzerland and Chambaz v. Switzerland, 44 two post-Saunders cases in which the Court found a violation of the right against self-incrimination. In both cases, the authorities compelled the applicant to submit documents regarding some businesses and bank accounts.…”

“…55 After Schmerber, the Supreme Court decided a series of cases allowing a defendant to be compelled to stand in a line-up, to give handwriting exemplars, to give voiceprints and to take sobriety tests measuring mental acuity and physical coordination. 56 Regarding the specific case of compelled production of documents, the current approach of the Supreme Court was set out in Fisher v. United States, decided in 1976, the same case in which the Court developed the 'foregone conclusion' doctrine. In this case, three people running three separate businesses were each interviewed by the tax authority concerning possible civil or criminal income tax liability.…”