December 13, 2022
By Dr. Sjors Ligthart
De Legé v. the Netherlands revolved around the privilege against self-incrimination. Regardless of the disadvantage suffered by the applicant, the Court considered it necessary to examine the application out of respect for human rights within the meaning of Article 35(3)(b) of the European Convention on Human Rights (the Convention). In declaring the applicant’s complaint admissible, the European Court of Human Rights (the Court) observed that the case at hand concerns the interpretation of the Strasbourg case law on the privilege. Thus, a ruling of the Court on this issue would provide national jurisdictions with guidance as to the applicability and scope of the right not to incriminate oneself. However, from a conceptual perspective, it is doubtful whether and, if so, to what extent this ruling would indeed clarify the complex, highly casuistic and sometimes paradoxical case law of the Court on this matter.
The Dutch Tax and Customs Administration obtained information concerning a foreign bank account held by the applicant with X Bank in Luxembourg. In 2007, the applicant was requested by the Tax Inspector to declare any foreign bank accounts held after 31 December 1994 and to submit copies of all relevant bank statements covering the period between 1 January 1995 and 31 December 2000. The applicant invoked the privilege against self‑incrimination, stressing that the requested information was such that the Tax and Customs Administration could not obtain it without his cooperation, and noting that it was not at all established that the requested information even existed.
The Tax and Customs Administration subsequently issued tax adjustments and imposed tax fines. The applicant’s objections were dismissed, as were his appeals. In the meantime, in intervening civil summary injunction proceedings, the provisional measures judge ordered the applicant, on pain of penalty payments, to fill in a specific form and state whether he (had) held bank accounts abroad after 31 December 1995. If this were the case, the applicant should provide information about those accounts by answering a set of questions and provide the requested documents, including copies of all bank statements of the account(s) concerned covering the period between 1 January 1996 and 31 December 2000. The applicant submitted bank statements and portfolio summaries relating to his bank account in Luxembourg. These documents were subsequently used for re-setting (and lowering) the tax fines imposed on the applicant.
The applicant complained that the documents had been coercively obtained from him for use in tax proceedings in which tax fines were imposed, disrespecting the privilege against self-incrimination. Referring to the Court’s case law, including, J.B. v. Switzerland and Chambaz v. Switzerland, the applicant stressed that pre-existing documents do not qualify as evidence that ‘exists independently of the will of the suspect’ within the meaning of Saunders v. the UK. That is, if the authorities would not have been able to take cognisance of such documents without coercing the suspect, then the privilege against self-incrimination would apply to the coerced acquisition and their subsequent use.
The Court first provides some general considerations about the right to a fair trial under Article 6(1), highlighting that cases concerning tax surcharges or tax fines differ from the ‘hard core of criminal law’ for the purposes of the Convention, and that, consequently, the guarantees of Article 6 under its criminal head will not necessarily apply with their full stringency. In line with this consideration, the Court draws a distinction between its ‘general approach’ to the privilege against self-incrimination and the implications of the privilege in the specific ‘context of financial law matters’. In short, this comes down to the following.
The right to remain silent and the privilege against self-incrimination are generally recognised international standards that lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, 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.
For an issue to arise from the perspective of the privilege against self-incrimination, there must be some form of coercion or compulsion exerted on the person concerned. It is furthermore required that the person is subject to existing or anticipated criminal proceedings (a so-called criminal charge) or that the incriminating information that has been obtained by coercion is 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 means of coercion or compulsion should nevertheless be considered as falling outside the scope of the privilege. The privilege against self-incrimination is primarily concerned with respecting the will of an accused person to remain silent. It 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, such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing. However, where such evidence has been obtained by a measure in breach of Article 3, the privilege will nonetheless apply.
Where the use of documentary evidence obtained under threat of penalties in the context of financial law matters is concerned, such use exceeds the scope of the privilege when the authorities are able to 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. In that sense, pre-existing documents are documents that have not been created as a result of the very compulsion for the purpose of the criminal proceedings. That situation is to be distinguished from the situation where the authorities attempt to compel an individual to provide the evidence of offences she allegedly has committed, by forcing her to supply documents that they believe must exist, although they are not certain thereof (J.B. v. Switzerland, Funke v.France). The Court describes the latter situation as ‘fishing expeditions’. In that context, a parallel could be drawn with testimonial evidence: when a person makes a statement that incriminates her, she is similarly providing the authorities with information of whose existence those authorities were not yet aware. Where the making of that statement is a result of coercion or compulsion, an issue arises under the privilege against self-incrimination, since it is incumbent on the prosecution in a criminal case to prove their case without resort to evidence obtained through such methods.
Lastly, if the privilege applies, it is necessary to examine whether the procedure did not extinguish the ‘very essence’ of the privilege, that is: to determine the manner in which the overall fairness of the proceedings was affected. For this purpose, it will be necessary to have regard to (1) the nature and degree of the compulsion; (2) the existence of any relevant safeguards in the procedure; and (3) the use to which any material so obtained is put.
The Court concludes by finding that the privilege does not apply to the applicant’s case. As the statements and portfolio summaries concerned pre-existing documents of whose existence the authorities were aware, it had already been established that the applicant had held a bank account in Luxembourg at the relevant time. Therefore, it cannot be said that the authorities were engaging in a ‘fishing expedition’ when they instituted summary injunction proceedings to order the applicant to submit certain documents in relation to that account. The order issued by the provisional measures judge, moreover, specifically indicated what documents the applicant had to supply. There had thus been no violation of Article 6(1).
The core of this judgment – and focus of this comment – concerns the Court’s effort to provide clarification about the applicability and scope of the privilege against self-incrimination. The Court attempts to clarify an issue of interpretation that has preoccupied legal scholars for over twenty-five years: how to understand the exception on the applicability of the privilege as formulated in Saunders v. the UK?
According to that exception, the privilege does not apply to evidence that exists independently of the will of the suspect. The precise scope of the Saunders-formula is, however, open to debate. The unclarity originates from the way in which the cases of Saunders v. the UK, J.B. v. Switzerland, and Funke v. France relate to each other (Redmayne 2007, Lamberigts 2016). In Saunders,the Court suggests that the coercive acquisition of documents pursuant to a warrant exceeds the scope of the privilege, because such documents exist independently of the will of the suspect. However, the obligations in J.B. and 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.
According to the dominant view in the literature, these judgments could best be understood and reconciled within a so-called ‘means-based’ approach to the privilege against self-incrimination (Ligthart 2022). As Redmayne put it: ‘The privilege, it might be said, is means, not material based. It 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.’ Likewise, Jackson and Summers write that the privilege can best be equated with the immunity from wilfully participating in one’s own conviction, which seems to align with the view of Judges Martens and Kuris in their dissenting option in Saunders, that the privilege entails the right not to be obliged to produce evidence against oneself. 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.
This means-based understanding of the privilege also seems to align with the Court’s considerations in Van Weerelt v. the Netherlands,where the applicant had been obliged to provide tax information through either an oral or a written statement. He was also required to provide all documented information regarding his relation to a particular financial entity. Without cooperation of the applicant, the tax authorities would have been unable to obtain the requested information. According to the Court, the applicant had been compelled ‘to give information that could not be obtained from any other source than the applicant himself’, to which the privilege normally applies. By contrast, in the case of Bajić v. North Macedonia, the Court emphasised that two inspection reports about a sunken ship ‘could have been obtained by the competent authorities from sources other than the applicant, even if by means of a compulsory court order.’
A means-based understanding of the Saunders-exception is also the dominant approach in Dutch legal scholarship, which is clearly reflected in the applicant’s complaint in the case of De Legé v. the Netherlands, stressing that pre-existing documents do not qualify as evidence that ‘exists independently of the will of the suspect’ within the meaning of Saunders, if the authorities are unable to take cognisance of the documents without coercing the suspect. However, the Court in this case rather seems to prefer a material-based approach, sticking to the literal wordings of the Saunders-exception: the privilege does not extend to materials that have an existence independent of the suspect’s will (par. 75). However, in the following paragraph, the Court introduces an exception to the Saunders-exception: as far as the use of documents in the context of financial law matters is concerned, the privilege will be applicable anyway when the individual was forced to supply documents that the authorities believe must exist, although they are not certain of it. The Court qualifies such situations as ‘fishing expeditions’, which it considers to be comparable with testimonial evidence: in both situations, the person provides information of whose existence the authorities were not yet aware.
From a conceptual perspective, it is doubtful whether the approach presented by the Court in this case is persuasive or even able to clarify our understanding of the privilege against self-incrimination pursuant to Article 6. I will focus on three specific points here. First, I doubt whether the parallel between fishing expeditions and testimonial evidence is compelling. The former concerns a means of obtaining evidence, the latter a specific type of material. Testimonial evidence is not always obtained through a fishing expedition, but often by very specific, targeted questions about a well-defined subject matter. Moreover, not every question will lead to information of whose existence the authorities were not yet aware, yet the privilege applies to each and every statement, not only those that incriminate (Ibrahim and others v. the UK).
Second, since Saunders, the Court has never explained why exactly the privilege does not apply to material that exists independently of the will of the suspect. Logically, one would expect to find the justification for an exception to a rule in the rationale of the rule. The rationales of the privilege against self-incrimination are however vague, ambiguous, and heavily contested (Dolinko 1982; Trechsel 2005; Jackson and Summers 2012; Lamberigts 2016). According to the Court, the privilege’s rationale lies, inter alia, 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. The aims of protecting against improper compulsion and contributing to a fair trial have been conceived rather tautological, rhetorical, and vague (Trechsel 2005). Avoiding miscarriages of justice is more precise and may well be able to explain why the privilege not normally applies to pre-existing material, such as DNA, breath, and urine, as the use of compulsion to obtain such material will not normally affect the reliability of such evidence, as opposed to enforcing oral or written statements.
Meanwhile, since the Court invariably uses the words ‘inter alia’ when referring to the rationales of the privilege, another, implicit rationale is often assumed: protecting the autonomy of the suspect (Judges Martens and Kuris in Saunders v. the UK). This implicit rationale seems to align with the Court’s view that the privilege is primarily concerned with respecting the will of the accused and presupposes that the prosecution in a criminal case seeks to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (Ibrahim and others v. the UK). If protecting the suspect’s autonomy would indeed be another justification of the privilege against self-incrimination, then it seems hard to justify why the privilege does not apply to pre-existing material, such as documents, urine, and breath, as the coercive collection of such evidence will often infringe a person’s autonomy in many ways (Jackson and Summers 2012; Ligthart 2022).
Third, as this case clearly illustrates, the privilege could or should work out differently in different contexts and situations, such as in regular cases of ‘hard core’ criminal law and in the particular context of financial law matters. Furthermore, the Court has developed specific case law regarding issues concerning road traffic regulation (O’Halloran and Francis v. the UK) and cases where extreme forms or degrees of force had been used (Jalloh v. Germany). However, as an unqualified right, the right to a fair trial, from which the privilege is derived, offers only little room for developing a fine-grained approach to the privilege that is tailored to different contexts and situations, by including a balancing of private and public interests (Bykov v. Russia, § 93). As an alternative, so it seems, the Court aims to achieve a differentiation in legal protection by modifying the scope of the privilege, formulating casuistic exceptions to its applicability (Saunders v. the UK) and exceptions to those exceptions (De Legé v. the Netherlands; J.B. v. Switzerland; Jalloh v. Germany; O’Halloran and Francis v. the UK). From a conceptual point of view, it questionable whether this approach would lead to a compelling and sustainable understanding of the privilege against self-incrimination as a theoretical legal principle. At least, the apparent need for distinguishing and tailoring the implications of the privilege across different contexts and situations raises the question of whether the privilege could best be grounded in an unqualified right, like the right to a fair trial, or would be better off having its legal basis in a qualified right, like the freedom of expression (Jackson and Summers 2012; Trechsel 2005). It is from the freedom of expression that the European Commission on Human Rights once derived this principle.
With its ruling in De Legé v. the Netherlands, the Court aimed to provide national jurisdictions with guidance as to the applicability and scope of the privilege against self-incrimination. Whereas guidance indeed may be provided regarding the specific issue of applying the privilege to documents in the context of financial law matters, the judgment raises various conceptual questions about how to understand and further develop the privilege as a legal, theoretical principle. These questions relate to (1) the understanding of the privilege from either a means- or material-based approach, (2) the exact justification of the Saunders-exception in relation to a well-defined rationale of the privilege, and (3) the appropriateness of the unqualified right to a fair trial to serve as the legal basis for the privilege against self-incrimination.