PARTLY CONCURRING and PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I agree with the finding of the majority that there has been a breach of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c). However, I disagree with the conclusion that there has been no violation of Article 6 §§ 1 and 2 of the Convention arising out of the drawing of adverse inferences from the applicant's silence.

I had the opportunity both in the case of Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and in the case of John Murray v. the United Kingdom (judgment of 8 February 1996, Reports 1996-I) to express the view that the drawing of adverse inferences against an accused person, because of his silence during police interrogation, is incompatible with the right to remain silent and not to be compelled to incriminate oneself. As I have already explained, this right is safeguarded by Article 6 § 2 of the Convention as a corollary of the presumption of innocence. This is a safeguard against abuses of power by law enforcement agencies. It is for this reason that I believe that this protection should be applicable during pre-trial police detention. I continue to be of the same view and I strongly support the proposition that under no circumstances should a person in police custody be compelled in any way to incriminate himself.

Contrary to the opinion of the majority, I believe that the right to remain silent, if it is to be meaningful, must be absolute. Should the right be made subject to any qualification or depend on the circumstances of a case, the door would be open to possible abuses.

As I already pointed out in the Saunders case, it is true that the above approach, although it protects the innocent, may at the same time provide shelter to the guilty. However, the aim of bringing the guilty to punishment, praiseworthy as it is, should not be aided by the sacrifice of those great principles, established by mankind's years of endeavour in order to secure effective protection of individuals against oppression and abuse of power.

While accepting that “the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6” (see paragraph 45 of this judgment), the majority, nevertheless, find that the right “should not prevent the accused's silence, in situations which clearly call for an explanation from him, from being taken into account when assessing the persuasiveness of the evidence adduced by the prosecution” (ibid.). However, this approach overlooks the basic philosophy or the raison d'être of the right to silence which is the protection of individuals, especially the weak and vulnerable, from oppressive methods. I have stressed this in the John Murray case where I stated the following in this connection: “... an accused person, when faced with the law-enforcing agencies before trial, alone and without the legal guidance of a counsel, lacks the necessary safeguards for an effective presentation of his version in an inherently coercive setting in which the prosecutorial forces have the upper hand. Although he may not be guilty he may not be in a position to establish effectively his innocence.”

In the light of the above, I hold that there has been a violation of Article 6 §§ 1 and 2 of the Convention. For these reasons, I would be prepared to make an award for non-pecuniary damage to the applicant, taking into account this violation as well as the above-mentioned violation found by the majority and with which I agree.

[1] 1. Note by the Registry . The Court’s decision is obtainable from the Registry.