3. Right to remain silent and not to incriminate oneself
a. Affirmation and sphere of application
119. Anyone accused of a criminal offence has the right to remain silent and not to contribute to incriminating himself (Funke v. France, § 44; O'Halloran and Francis v. the United Kingdom [GC], § 45; Saunders v. the United Kingdom, § 60). Although not specifically mentioned in Article 6, the right to remain silent and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (John Murray v. the United Kingdom, § 45).
120. The right not to incriminate oneself applies to criminal proceedings in respect of all types of criminal offences, from the most simple to the most complex (Saunders v. the United Kingdom, § 74).
121. The right to remain silent applies from the point at which the suspect is questioned by the police (John Murray v. the United Kingdom, § 45). {The ECHR defines who is a "suspect" based upon the actual situation, not merely by any legal formality.}
b. Scope
122. The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without recourse to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (Saunders v. the United Kingdom, § 68; Bykov v. Russia [GC], § 92).
123. However, the privilege against self-incrimination does not extend to the use in criminal proceedings of material which may be obtained from the accused through recourse to compulsory powers but which has an existence independent of the will of the suspect, such as documents acquired pursuant to a warrant, breath, blood and urine samples, and bodily tissue for the purpose of DNA testing (Saunders v. the United Kingdom, § 69; O'Halloran and Francis v. the United Kingdom [GC], § 47).
124. Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination. In order for the right to a fair trial under Article 6 § 1 to remain sufficiently “practical and effective”, access to a lawyer should, as a rule, be provided from the first time a suspect is questioned by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (Salduz v. Turkey [GC], §§ 54-55).
125. Persons in police custody enjoy both the right not to incriminate themselves and to remain silent and the right to be assisted by a lawyer whenever they are questioned. These rights are quite distinct: a waiver of one of them does not entail a waiver of the other. Nevertheless, these rights are complementary, since persons in police custody must a fortiori be granted the assistance of a lawyer when they have not previously been informed by the authorities of their right to remain silent (Brusco v. France, § 54; Navone and Others v. Monaco, § 74). The importance of informing a suspect
of the right to remain silent is such that, even where a person willingly agrees to give statements to the police after being informed that his words may be used in evidence against him, this cannot be regarded as a fully informed choice if he has not been expressly notified of his right to remain silent and if his decision has been taken without the assistance of counsel (ibid.; Stojkovic v. France and Belgium, § 54).
126. The right to remain silent and the privilege against self-incrimination serve in principle to protect the freedom of a suspect to choose whether to speak or to remain silent when questioned by the police. Such freedom of choice is effectively undermined in a case in which the suspect has elected to remain silent during questioning and the authorities use subterfuge to elicit confessions or other statements of an incriminatory nature from the suspect which they were unable to obtain during such questioning (in this particular case, a confession made to a police informer sharing the applicant’s cell), and where the confessions or statements thereby obtained are adduced in evidence
at trial (Allan v. the United Kingdom, § 50).
c. A relative right
128. The right to remain silent is not absolute (John Murray v. the United Kingdom, § 47).
129. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court will have regard, in particular, to the following elements:
- the nature and degree of compulsion
- the existence of any relevant safeguards in the procedure;
- the use to which any material so obtained is put (Jalloh v. Germany [GC], § 101; O'Halloran and Francis v. the United Kingdom [GC], § 55; Bykov v. Russia [GC], § 104).
132. Furthermore, the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration and weighed against the individual’s interest in having the evidence against him gathered lawfully. However, public-interest concerns cannot justify measures which extinguish the very essence of an applicant’s defence rights, including the privilege against self-incrimination (Jalloh v. Germany [GC], § 97). The public interest cannot be relied on to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings (Heaney and McGuinness v. Ireland, § 57).
135. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is
no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (Bykov v. Russia [GC], § 89; Jalloh v. Germany [GC], § 96). In this connection, the Court also attaches weight to whether the evidence in question was or was not decisive for the outcome of the criminal proceedings (Gäfgen v. Germany [GC]).
136. As to the examination of the nature of the Convention violation found, the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, and in particular to the question of respect for the applicant’s defence rights and the quality and importance of the evidence in question (ibid., § 165).
137. However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (Jalloh v. Germany [GC], §§ 99 and 105; Harutyunyan v. Armenia, § 63).
138. Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 (El Haski v. Belgium; Gäfgen v. Germany [GC], § 166). This also holds true for the use of real evidence obtained as a direct result of acts of torture (ibid., § 167; Jalloh v. Germany [GC], § 105). The admission of such evidence obtained as a result of an act classified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that
the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that
is, had an impact on his or her conviction or sentence (El Haski v. Belgium, § 85; Gäfgen v. Germany [GC], § 178).
139. These principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned (El Haski v. Belgium, § 85). In particular, the Court has found that the use in a trial of evidence obtained by torture would amount to a flagrant denial of justice even where the person from whom the evidence had thus been extracted was a third party (Othman (Abu Qatada) v. the United Kingdom, §§ 263 and 267).
