De Legé v. the Netherlands: The ECtHR adopts a line of reasoning similar to that of the United States Supreme Court on compelled production of real or physical evidence
| Published date | 01 October 2023 |
| DOI | http://doi.org/10.1177/1023263X231220897 |
| Author | Javier Escobar Veas |
| Date | 01 October 2023 |
De Legé v. the Netherlands: The
ECtHR adopts a line of reasoning
similar to that of the United
States Supreme Court on
compelled production of real or
physical evidence
Javier Escobar Veas
*
Abstract
In de Legé v. the Netherlands, a decision characterized as a key case, the ECtHR addressed once
again the problematic relationship between the right against self-incrimination and the compelled
production of real or physical evidence. In its judgment, the Court held that the use of the
evidence submitted by the defendant to the authorities does not fall within the scope of the
right against self-incrimination when the evidence in question concerns pre-existing documents
of whose existence the authorities were already aware. By developing this argument, the
European Court has adopted a line of reasoning similar to the ‘foregone conclusion’doctrine
of the United States Supreme Court. This article aims to critically analyse the decision of the
ECtHR. It will be argued that the ECtHR does not sufficiently support its reasoning. Moreover,
it does not take into account the rationale of the right against self-incrimination, which, as will
be stated, can be considered opposed to the ‘foregone conclusion’doctrine, at least in the
European context.
Keywords
Incriminating evidence, right against self-incrimination, right to remain silent, testimonial and real
evidence
*
Austral University of Chile, Valdivia, Chile
Corresponding author:
Javier Escobar Veas, Faculty of Law, Austral University of Chile, Isla Teja, Valdivia, 5090000, Chile.
Email: javier.escobar@mail.udp.cl
Case Note
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(5) 653–668
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231220897
maastrichtjournal.sagepub.com
1. Introduction
The right against self-incrimination can be understood, in a broad sense, as the right to remain silent
and not to contribute to incriminating oneself.
1
The importance of the right against self-incrimination has been universally recognized. The
European Court of Human Rights (hereinafter ECtHR) has ruled that the right in question is a gen-
erally accepted international standard that lies at the heart of the notion of a fair proceeding.
2
Similarly, the United States Supreme Court has stated that the right against self-incrimination ‘reg-
isters an important advance in the development of our liberty-one of the great landmarks in man’s
struggle to make himself civilized’.
3
Despite its fundamental relevance and the apparent simplicity of its definition, the right against
self-incrimination has been characterized as one of the most complex guarantees in the entire body
of fundamental rights applicable in the context of criminal proceedings.
4
Similarly, some authors
have affirmed that the self-incrimination clause of the Fifth Amendment to the United States
Constitution ‘is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill
of Rights’.
5
One of the main discussions regarding the application of this right is the question of whether this
right prohibits compelling a person to produce real or physical evidence. Since Saunders v. the
United Kingdom, where the ECtHR ruled that the right against self-incrimination does not
extend to evidence ‘which may be obtained from the accused through the use of compulsory
powers but which has an existence independent of the will of the suspect such as, inter alia, docu-
ments acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the
purpose of DNA testing’,
6
both legal scholars and courts have struggled to understand and apply
this exception.
Besides the inherent difficulty in the Saunders exception, the development of new technologies
has given rise to further complex scenarios. Can a defendant be compelled to disclose the password
of her smartphone? Can a defendant be compelled to decrypt her smartphone by putting her finger
on it?
7
Can a defendant be compelled to sign a document authorizing the prosecution to ask national
and international banks for her bank financial records?
8
Can a defendant be compelled to sit still
while the prosecution performs a brain fingerprinting test on her, trying to detect the presence of
information related to the crime under investigation?
9
All these are questions without a clear
answer.
1. ECtHR, O’Halloran and Francis v. the United Kingdom, Judgment of 29 June 2007, Application Nos. 15809/02 and
25624/02, para. 45 (2007); J. Escobar Veas, ‘A Comparative Analysis of the Case Law of the European Court of
Human Rights on the Right against Self-Incrimination’,8Revista Brasileira de Direito Processual Penal (2022), p. 870.
2. ECtHR, John Murray v. the United Kingdom, Judgment of 8 February 1996, Application No. 18731/91, para. 45 (1996).
4. S. Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2005), p. 341. Similarly, G. Higgins,
‘Business Records and the Fifth Amendment Right against Self-Incrimination’,38Ohio State Law Journal (1977), p. 351.
5. A. Amar and R. Lettow, ‘Fifth Amendment, First Principles: The Self-Incrimination Clause’,93Michigan Law Review
(1995), p. 857.
6. ECtHR, Saunders v. the United Kingdom, Judgment of 17 December 1996, Application No. 19187/91, para. 69.
7. On this topic, see O. Kerr, ‘Compelled Decryption and the Privilege Against Self-incrimination’,97Texas Law Review
(2019).
8. This was the question resolved by the United States Supreme Court in Doe v. United States, 487 U.S. 201 (1988).
9. Regarding this question, see D. Fox, ‘The Right to Silence as Protecting Mental Control’,42Akron Law Review (2009);
N. Farahany, ‘Incriminating Thoughts’,64Stanford Law Review (2012),
654 Maastricht Journal of European and Comparative Law 30(5)
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