CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I have voted with the majority not without strong hesitations and I am not persuaded by the approach adopted in the reasoning of the judgment.

2. I note that criminal procedure varies considerably in Europe from one State to another. It is especially difficult to compare the continental criminal procedure with common law systems. In this context, defining Europe-wide standards of fair criminal trial is a very difficult challenge and the judicial application of the existing Convention standards has to duly take into account the diversity of national legal systems. This diversity is an important argument for the self-restraint of the international judge. In particular, it is difficult to apply to common law countries the fundamental standards of a fair criminal trial established in continental legal systems. Furthermore, the specific rights of the accused cannot be considered in isolation from one another but have always to be looked at as elements of a broader syst em of fair trial guarantees.

3. The right of the accused to silence is an essential element of a fair criminal trial. It means the accused may freely choose not to give any explanations and if he chooses to remain silen t , his choice cannot entail adverse legal consequences for him. The right to silence means , in particular , that adverse inferences should not be drawn from the silence of the accused.

The International Covenant on Civi l and Political Rights guarantees to everyone , “ in the determination of any criminal charge against him” , inter alia , the right “ not to be compelled to testify against himself or to confess guilt ” (Article 14 § 3 (g)).

The right of the accused to remain silent has been mentioned in a more explicit and precise way in other international documents, including the statutes of international criminal tribunals. The wording of the Rome Statute of the International Criminal Court seems particularly clear in this respect as it unequivocally guarantees to the accused the right “ [n] ot to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence ” ( A rticle 67 § 1 (g) ).

It is important to note that the right in question is intrinsically linked with the presumption of innocence and the repartition of the burden of proof between the parties to the proce edings . A restriction on the right to silence affects the way in which the presumption of innocence operates in practice and entails a de facto reallocation of the burden of proof , even if such reallocation is not explicitly recognised in the legal system.

I am aware of the scholarly discussions about the relevance and scope of the right to silence, but I am more persuaded by the views of those who stress its paramount importance for the accused. I agree nonetheless that the right in question is not absolute and may exceptionally be restricted. Some types of restrictions already exist in the legal systems of the High Contracting Parties. They may be applicable, for instance, in procedures for confiscati on of the proceeds of crime. At the same time, in my view, the right to silence should always be seen as the general rule , whereas any restriction to it should be viewed as an exception which requires particularly strong justification. Restrictions are permissible if at least two main conditions are fulfilled. Firstly, the different guarantees available to the accused under the domestic criminal procedure should be sufficient and ensure the equality of arms of the different parties. In other words, any limitation should be counterbalanced by other rights of the accused. Secondly, any restrictions imposed on the right to remain silent have to be compatible with the principle of proportionality. Only a value of particular weight may justify sacrificing the values u nderlying the right to silence.

4. Northern Ireland legislation which enables the jury to draw adverse inferences from the silence of the accused imposes a limitation on the right to remain silent. Although there is no direct coercion on the accused, he faces the prospect that his silence will be interpreted against him and this situation may be characterised as indirect pressure.

I take note here that the United Nations Human Rights Committee , in its comments on the fourth periodic report of the United Kingdom submitted under article 40 of the International Covenant on Civil and Political Rights , stated the following :

“The committee notes with concern that the provisions of the Criminal Justice and Public Order Act 1994 which extended the legislation originally applicable in Northern Ireland whereby inferences may be drawn from the silence of the persons of accused of crimes violates various provisions in article 14 of the Covenant, despite the range of safeguards built into the legislation and the rules enacted thereunder” (CCPR/C/79/Ad d 55, July 27, 1995, par. 17).

5. In my opinion, it is very difficult to justify the necessity of the limitation imposed on the accused ’ s right to silence in the instant case. Given th at the applicant had difficulties in understand ing the proceedings and the situation and in express ing himself, the value of his personal testimony would , in any event , have been extremely limited. The other evidence gathered was sufficient for the conviction. Furthermore, I note that the limitation in question was coupled with another important restriction on the guarantees of a fair criminal trial , as the verdict of the jury in Northern Ireland is not reasoned. In this context, it is very difficult to reconstruct the way the facts were established in the present case at first instance and in particular to assess the weight attributed to the silence of the accused. It was not explained by the jury, either to the applicant or to his lawyers , to what extent his decision to remain silent had impacted the outcome of the case before the domestic court.

On the other hand, I agree that , given the very specific circumstances of the instant case and in particular the strong evidence against the accused, the limitation imposed on the right of the accused does not seem to have had an impact on the final outcome of the case. I may also accept that in the instant case the limitation imposed was counterbalanced by a set of fair trial guarantees existing in the legal system in Northern Ireland. This is a very important element for the assessment of the case.

6. In criminal procedure, striking the proper balance between the different colliding values, and especially reconciling the rights of the accused with the effectiveness of the criminal procedure, is not an easy task. The approach adopted by the Court in respect of the right to silence entails certain difficulties and paradoxes. According to the established case-law of the Court, adverse inferences may be drawn from the silence of the accused if the situation clearly calls for an explanation from him. On the other hand, under this case-law the accused ’ s silence cannot be the sole or d ecisive basis for a conviction.

According to the reasoning in the instant case, there was a situation which clearly called for an explanation from the applicant , given the strong evidence produced against him ( see paragraph 54 in fine ). At the same time, the applicant ’ s conviction could not have been based solely or mainly o n a refusal to testify ( ibid. ). This statement unequivocally suggests that the decision to remain silent should not have been the factor which tipp ed the balance against the applicant.

I am not able to understand this approach. The explanations of the accused are simultaneously seen as necessary , as the situation calls for an explanation , and unnecessary , as there is other strong evidence on which to base his conviction. If in a specific case there is sufficient evidence to decide a case without drawing any inferences from the accused ’ s silence, then there is no need to resort to any adverse inferences from his silence in decid ing the case. From the viewpoint of the protection of various public interests , limitations on the right to silence might only have an added value if there are difficulties with establishing the facts, especially if the evidence produced is insufficient for the guilt of the accused to be ascertained whereas there is a serious risk that an offen c e may go unpunished. In other words, inferences from the silence of the accused may appear necessary only if, in some types of cases, they may tip the balance in the process of establishing the facts. I agree, however, that drawing inferences from the silence of the accused in order to tip the balance against him is very problematic from the viewpoint of fair trial standards .

In the instant case, the situation called for an explanation from the applicant from the perspective of an efficient defence and of the objective necessity to rebut the evidence produced by the prosecution. However, the accused and his lawyers were free to choose the appropriate defence strategy. The situation clearly did not call for an explanation from the perspective of the court ’ s obligation to establish the facts and decide the case. The case could have been decided without recourse to any inferences f rom the silence of the accused.

In my view, the instant case shows clearly that the criteria established by the Court for the assessment as to whether Convention standards in respect of the right to silence were observed should be revisited.