Right to Silence [ECHR]

Table of Contents

Article 6.2

2 Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.

3.Everyone charged with a criminal offence has the following minimum rights:

to be informed promptly, in a language which he/she understands and in detail, of the nature and cause of the accusation against him/her;
to have adequate time and the facilities for the preparation of his/her defence;
to defend himself in person or through legal assistance of his/her own choosing or, if he/she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
to examine or have examined witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf under the same conditions as witnesses against him/her;
to have the free assistance of an interpreter if he/she cannot understand or speak the language used in court.

Entrapment

In Teixeira de Castro v Portugal, the applicant had been paid by undercover police to supply them with heroin. The applicant had no history of criminality but knew others who might supply him with drugs. The European Court held the actions to breach the guarantee of a fair trial as they had incited the crime. In contrast, investigating criminality undercover that was already afoot, would not generally constitute a breach.

In Khan v UK a listening device was placed prior to there being legislation to govern the practice, to obtain incriminating material. The court held there was a breach of Article 6.1 due to the absence of a legal basis for the recording. The abuse of procedure would have to be fundamental or make evidence patently unreliable before the procedural guarantee would be breached. It is a matter for the domestic courts primarily to determine the admissibility of evidence. The article would be breached if there was a fundamental unfairness in the proceedings.

Covert Police Recording

In Allan v UK police used an informant cellmate to obtain a confession of crime over a period. An informant had been coached and had directed conversations into discussions of the alleged murder. The court held that this was in breach of the guarantee because it was equivalent to formal questioning without the presence of lawyers and a caution regarding self-incrimination.

While the rights against self-incrimination are primarily designed to restrain improper compulsion by the authorities and the obtaining of evidence through methods of coercion or oppression in defiance of the will of the accused, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused had been directly overborne in some way. The right which the court has previously observed is at the heart of the notion of fair procedures and serves in principle to protect the freedom of suspected persons to choose whether to speak or remain silent when questioned by the police. Such freedom of choice is effectively undermined in a case in which the suspect having elected to remain silent during questioning the authorities use subterfuge, to elicit from the suspect confessions or other statements of incriminating nature which they were unable to obtain during such questioning and where confessions or statements thereby obtained are produced in evidence at trial.

Nature of Right

The Right to silence and the privilege against self-incrimination are integral parts of the presumption of innocence. There are recognised as elements of a fair criminal process. The elements of the rights embraced include.

general immunity from being compelled under pain of punishment to answer questions in particular those which may incriminate the person.
immunity while being interviewed by the police and persons in authority from being compelled to answer questions of any kind.
immunity for persons at trial from being compelled to give evidence or answer questions put to them.
immunity for persons charged with an offence from having questions material to the offence addressed to them by persons in authority.
immunity from having adverse comments made on the failure to answer questions or give evidence at trial.

In Saunders v UK questions were posed under threat of criminal sanction by government-appointed investigators into alleged illegal share dealing. The transcript of replies was used in later criminal proceedings. The European court did not find a breach in the compulsory powers employed by the inspectors but held that the use of the materials in a criminal trial breached article 6.1. It was equivalent to evidence gathered by compulsory powers such as fingerprints, blood testing DNA testing which does not breach Article 6.1.

In Jalloh v Germany force and drugs were used to retrieve a bag of cocaine seen to be swallowed by a suspect. In order to determine whether the applicant’s right not to incriminate himself, regard is had to following factors.

the nature and degree of compulsion used to obtain the evidence.
the weight of the public interest in the investigation and punishment of the offence at issue
the existence of any relevant safeguards in the procedure and
the use to which any material so obtained is put.

By a majority, the European court found Article 6 had been breached.

Notification of Charges

He accused must know the case against him in order to be able to prepare his defence. This must be given in a language which he understands and in sufficient detail. A person who does not understand must be given free interpretation from a language of the court to a language he understands.

In Cuscani v UK a sentencing hearing in circumstances where there was no interpreter present, but the applicant’s lawyer indicated his brother was present and that they would proceed accordingly. The court found Article 6.1 was breached and the judge should not have proceeded.

In Kamasinki v Austria the court indicated that the Article did not require full notification of all details of the charges in translated form. It was sufficient that oral examination explanations were given of the substance of the matter.

Affirmation and Sphere of Application

Anyone accused of a criminal offence has the right to remain silent and not to contribute to incriminating himself (O’Halloran and Francis v. the United Kingdom [GC], 2007, § 45; Funke v. France, 1993, § 44). 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 [GC], 1996, § 45; Bykov v. Russia [GC], 2009, § 92).

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 [GC] 1996, § 74).

The right to remain silent applies from the point at which the suspect is questioned by the police (John Murray v. the United Kingdom [GC], 1996, § 45). A person “charged with a criminal offence” for the purposes of Article 6 has the right to be notified of his or her privilege against self-incrimination (Ibrahim and Others v. the United Kingdom [GC], 2016, § 272).

Scope

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 [GC], 1996, § 68; Bykov v. Russia [GC], 2009, § 92).

The privilege against self‑incrimination does not protect against the making of an incriminating statement per se but against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected. For this reason, the Court must first consider the nature and degree of compulsion used to obtain the evidence (Ibrahim and Others v. the United Kingdom [GC], 2016, § 267).

Through its case-law, the Court has identified at least three kinds of situations which give rise to concerns as to improper compulsion in breach of Article 6. The first is where a suspect is obliged to testify under threat of sanctions and either testifies as a result (Saunders v. the United Kingdom [GC], 1996, Brusco v. France, 2010) or is sanctioned for refusing to testify (Heaney and McGuinness v. Ireland, 2000; Weh v. Austria, 2004). The second is where physical or psychological pressure, often in the form of treatment which breaches Article 3 of the Convention, is applied to obtain real evidence or statements (Jalloh v. Germany [GC], 2006; Gäfgen v. Germany [GC], 2010). The third is where the authorities use subterfuge to elicit information that they were unable to obtain during questioning (Allan v. the United Kingdom, 2002; contrast with Bykov v. Russia [GC], 2009, §§ 101-102).

Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature, such as exculpatory remarks or mere information on questions of fact, may be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial, or to otherwise undermine his credibility. The privilege against self‑incrimination cannot therefore reasonably be confined to statements which are directly incriminating (Ibrahim and Others v. the United Kingdom [GC], 2016,§ 268).

Use of Compulsory Powers

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 [GC], 1996, § 69; O’Halloran and Francis v. the United Kingdom [GC], 2007, § 47; see, however, Bajić v. North Macedonia, 2021, §§ 69-70, concerning the alleged breach of the privilege against self-incrimination with regard to the use in the proceedings of documentary evidence obtained from the applicant during his questioning as a witness). Moreover, the Court held that confronting the accused in criminal proceedings with their statements made during asylum proceedings could not be considered as the use of statements extracted under compulsion in breach of Article 6 § 1 (H. and J. v. the Netherlands (dec.), 2014).

In De Legé v. the Netherlands, 2022, the Court clarified the nature and scope of the privilege against self-incrimination concerning, in particular, coercion used to obtain documents for tax proceedings in which fines were imposed on an applicant:

In order for an issue to arise from the perspective of the privilege against self-incrimination, there must: (a) be some form of coercion or compulsion exerted on the person concerned; and (b) the person must be subject to existing or anticipated criminal proceedings – that is to say, a “criminal charge” within the autonomous meaning of Article 6 § 1 –, or incriminating information compulsorily obtained outside the context of criminal proceedings must be used in a subsequent criminal prosecution. These are the two prerequisites for the applicability of the privilege against self-incrimination;
Where these prerequisites are met, it is necessary to determine whether the use of evidence obtained by coercion/compulsion should nevertheless be considered as falling outside the scope of protection of the privilege against self-incrimination. When methods of coercion are used with the aim of having an accused person answer questions or make testimonial statements, either orally or in writing, the privilege against self-incrimination applies. As noted, above, the privilege does not, however, extend to the use in criminal proceedings of materials obtained from an accused, through methods of coercion, when these materials have an existence independent of his or her will (the “Saunders exception);
In this connection, where the use of documentary evidence obtained under threat of penalties is concerned, such use does not fall within the scope of protection of the privilege against self-incrimination where the authorities are able to show that the compulsion is aimed at obtaining specific pre-existing documents – thus, documents that have not been created as a result of the very compulsion for the purpose of the criminal proceedings – which documents are relevant for the investigation in question and of whose existence those authorities are aware. This excludes “fishing expeditions” by the authorities;
However, regardless of whether or not the authorities are aware of the existence of documentary or other material evidence, if this has been obtained by methods in breach of Article 3 of the Convention, its use will always fall within the scope of the privilege against self-incrimination;
If the prerequisites for the applicability of the privilege against self-incrimination are met, and the use of evidence obtained through coercion or compulsion falls within the scope of protection of that privilege, it is necessary to examine whether the procedure did not extinguish the “very essence” of the privilege, that is to say, to determine the manner in which the overall fairness of the proceedings was affected. For this purpose, it will be necessary to have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put.

Furthermore, 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], 2008, §§ 54-55; Ibrahim and Others v. the United Kingdom [GC], 2016, § 256).

Rights of Persons in Custody

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; that is to say, when there is a “criminal charge” against them (Ibrahim and Others v. the United Kingdom [GC], 2016, § 272). 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, 2010, § 54; Navone and Others v. Monaco, 2013, § 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, 2011, § 54).

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, 2002, § 50).

Conversely, in the case of Bykov v. Russia [GC], 2009 (§§ 102-103), the applicant had not been placed under any pressure or duress and was not in detention but was free to see a police informer and talk to him, or to refuse to do so. Furthermore, at the trial the recording of the conversation had not been treated as a plain confession capable of lying at the core of a finding of guilt; it had played a limited role in a complex body of evidence assessed by the court.

Legislative Presumptions

In Telfner v Austria requiring the accused to give an explanation which would establish efficient proof of a presumptive case, breached Article 6.2. There should be other evidence of a presumptive case.

In Condron v UK, Article 6.2 was breached because the direction to the jury did not draw attention to the particular circumstances of the accused’s silence who are suffering from drug withdrawal at the time.

In O’Halloran & Francis v UK a requirement that the owner of the vehicle give evidence of who was driving was found not to breach the guarantee. Vehicles are subject to detailed regulation in the public interest information.

In Murray v UK an inference of guilt from failure to mention a fact subsequently relied on defence (per the 1984 changes to the traditional role) was not incompatible with the Article provided, that there were safeguards which ensured fairness.

Effect of Presumptions

The right to remain silent is not absolute (John Murray v. the United Kingdom [GC], 1996, § 47; Ibrahim and Others v. the United Kingdom [GC], 2016, § 269).
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], 2006, § 101;

O’Halloran and Francis v. the United Kingdom [GC], 2007, § 55; Bykov v. Russia [GC], 2009,§ 104; Ibrahim and Others v. the United Kingdom [GC], 2016, § 269).

On the one hand, a conviction must not be solely or mainly based on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the right to remain silent cannot prevent the accused’s silence – in situations which clearly call for an explanation from him – from being taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. It cannot therefore be said that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications (John Murray v. the United Kingdom [GC], 1996, § 47).

Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the weight attached to such inferences by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (ibid., § 47). In practice, adequate safeguards must be in place to ensure that any adverse inferences do not go beyond what is permitted under Article 6. In jury trials, the trial judge’s direction to the jury on adverse inferences is of particular relevance to this matter (O’Donnell v. the United Kingdom, 2015, § 51).

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], 2006, § 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, 2000, § 57).