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SAUNDERS v. the UNITED KINGDOMCONCURRING OPINION OF MR. LOUCAIDES

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Document date: May 10, 1994

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SAUNDERS v. the UNITED KINGDOMCONCURRING OPINION OF MR. LOUCAIDES

Doc ref: • ECHR ID:

Document date: May 10, 1994

Cited paragraphs only

CONCURRING OPINION OF MR. LOUCAIDES

I agree with the conclusion of the majority that in this case

there has been a violation of Article 6 para. 1 of the Convention for

the reasons set out in para. 76 of the Report, but I would like to add

the following:

In my view this case concerns more directly the right to remain

silent and not to be compelled to incriminate oneself (nemo tenetur

prodere or nemo tenetur scipsum accusare) which, I believe, is a

corollary of the principle of presumption of innocence protected in the

second paragraph of Article 6 of the Convention. This principle has

developed though the centuries in order to protect individuals from

oppressive inquisitorial methods and unfounded prosecutions, and it was

rightly interpreted to mean that:

"It is the business of the Crown (the prosecution) to prove [an

accused person] guilty and he need not do anything but stand by

and see what case has been made out against him ... He is

entitled to rely on the defence that the evidence as it stands

is inconclusive, and that the Crown is bound to make it

conclusive without any help from him" (Ex parte Reynolds, 20 Ch.

D. 294).

The presumption of innocence would in fact be a meaningless

protection if an accused person was compelled to give evidence against

himself. Therefore the privilege against self-incrimination must be

recognised as a sine qua non for the effectiveness of the protection

in question. In my view the privilege in question and the presumption

of innocence are the two sides of the same coin.

Although the historical reasons which led to the adoption of the

right against self-incrimination, namely inquisitorial practices, are

substantially nonexistent today, the need to exclude their reactivation

still survives. As rightly observed by the U.S.A. Supreme Court in

relation to the corresponding right safeguarded by the U.S.

Constitution -

"Having had much experience with a tendency in human nature to

abuse power the Founders [of the Constitution] sought to close

the doors against like future abuses by law-enforcing agencies"

(U.S. v. Bryan 1950 339 U.S. 323).

The same court has aptly explained the rationality of the

principle in question as being the "protection of the innocent, though

a shelter to the guilty, and a safeguard against heedless, unfounded,

or tyrannical prosecutions "(Twining v. New Jersey (1908) 211 U.S.,

78).

The rule against self-incrimination being part and parcel of the

presumption of innocence which is protected in Article 6 para. 2 of the

Convention in absolute terms, there can be no justification for its

breach.

Therefore, inasmuch as the applicant was compelled to give

incriminating evidence which was later on used against him in his

trial, I find that there has been in this case a direct violation of

Article 6 para,. 2 of the Convention. Such violation is an autonomous

violation independent of the question of whether there has also been

a breach, in this case, of the principle of "fair hearing" under

para. 1 of Article 6.

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