The Privilege against Self-Incrimination
| Author | Stijn Lamberigts |
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| DOI | http://doi.org/10.1177/203228441600700404 |
418 Intersentia
ARTICLES
THE PRIVILEGE AGAINST
SELF-INCRIMINATION
A Chameleon of Criminal Procedure
S L*
ABSTRACT
is articl e revisits the di erent justi cations of the pr ivilege against self-incrimination
and examines two topical issues, the relation between the privilege and documentary
evidence and the applicability of the privilege to corporations, in light of these
justi cations . Although the Presumption of Innocence Directive has recently addressed
these two issues, se veral lingering uncertainties remain.
Keywords: corporations; docu mentary evidence; privilege a gainst self-incrimination;
right to silence
1. INTRODUCTION
e Presumption of Innocenc e Directive1 provides for an explicit basis in EU law for
the privilege against self-incrimination.2 is is as such innovative in the European
legal orders, as neither the Charter of Fundamental Rights of the European Union
(CFR) nor the European Convention on Human Rights (ECHR) expressly prov ide for
*PhD candidate at t he University of Luxembourg and ju nior a li ated researcher at the Instit ute of
Crimina l Law at the KU Leuven. e topic of his PhD thesis i s the right to silence and t he privilege
against self-incrimination of corporations.
1 Directive (EU) 2016/343 of t he European Parliament and of the Cou ncil of 9March 2016 on the
strengthen ing of certain aspec ts of the presumption of innocenc e and of the right to be present at
trial in criminal proceedings [2016] OJ L65/1 ( e Presumption of Innocence Directive). e
implementation dead line of the Directi ve is 1April 2018.
2 roughout this article the ‘privilege against self-incrimination’ will cover both the right not to
incriminate oneself and the overlapping right to silence. In a strict sense the right to silence is
essential ly concerned with oral st atements and with adverse infe rences from refusal to mak e such
statement s, whereas s elf-incrim inating re al eviden ce, such as do cuments, is rather to be a ssessed in
light of the priv ilege against sel f-incrimination.
e Privilege a gainst Self-Incri mination
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 4, 2016 419
the privilege against self-incrimination.3 Nevertheless, the European Court of
Human Rights (ECtHR) has repeatedly stressed that the privilege against self-
incrimination goes to the core of the notion of a fair procedure under Article6
ECHR.4 at ECtHR case law is in tu rn particularly relevant for the i nterpretation of
Articles47 and 48 of the Charter of Fundamental Rights of the European Union
(CFR).5
e incorporation of the privilege into a speci c legal instrument expresses the
value that the EU Member States acc ord to it. However, there is much less agreement
between the Member States when it comes to determining the scope of t he privilege
and the possibilit ies to restrict its application.6 ese issues primar ily depend on the
rationale of the privilege. A c loser look at the origin and history of t he privilege against
self-incrimination reveals that there is no general agreement on either its historical
origin or its rationale. In fact, European civil law and common law jurisdictions, as
well as other jurisd ictions such as the US, have struggled wit h the justi cation of the
privilege.7
erefore, a rst object ive of this article is to examine a v ariety of rationales that
have been proposed for the privilege again st self-incrimination, in the case law of the
ECtHR, the Court of Justice of the European Union (CJEU) and the US Supreme
Court.8 Secondly, it seeks to examine t wo topical issues in light of the justi cation(s)
for the privilege against self-incrimination, namely the applicability of the privilege
to documentary evidence and to corporations. ese two issues acquired particular
importance, as t he new Presumption of Innocence Directive excluded legal persons
from its scope and adopted an ambiguous position in relation to self-incriminating
documents.9 e restrictive approach that the Directive at times adopts may be
questioned in light of the case law of the ECtHR. Moreover, legal orders in and
outside Europe have adopted a wide variety of approaches in relation to these two
3 Admittedly, Art 3 of Directive 2012/13/EU on the right to information in criminal proceedings
already foresaw a n obligation to provide information on t he right to remain silent. Yet, it did not
address the content s of that right. In the contex t of OLAF investigations, A rt 9 of Regulation (EU,
Euratom) 883/2013, explicitl y provides a right to avoid self-incr imination.
4 ECtHR, 9 February 2016, Shlychkov v Rus sia (Appl. no. 40852/05), para 81; ECtHR, 17December
1996, Sa unders v UK (Appl. no. 19187/91) para 68.
5 See Article 52(3) CFR. See al so: P. Aalto, H.C.H Hofma nn, L. Holopainen, E. Paunio, L . Pech, D.
Sayers, D. Shelton and A. Ward, ‘R ight to an E ective Remedy and to a Fair Trial’ in S. Peers, T.
Hervey, J. Kenner and A. Ward, e EU Char ter of Fundamental Rig hts: A Commentary (Har t 2014)
1262.
6 See similarly: M. Redmayne, ‘Rethinking the Privilege Against Self-Incrimination’ (2006) 27
O.J.L.S. 209, 210; P. Roberts and A. Zuckerman,Criminal Evidence (2nd edn, Oxford University
Press 2010) 568.
7 D. Dolinko, ‘Is there a r ationale for the privile ge against self-incrim ination?’ (1986) UCLA L. Rev.
1063; J. Jackson, ‘Re-conce ptualizing t he right of silence as a n e ec tive fair tri al standard ’ (2009) 58
ICLQ 835, 841–849.
8 In light of the numer ous rationales that have be en proposed, this an alysis cannot be ex haustive.
9 See on the former iss ue Art 2 and Recital 14 of the D irective, and Ar t 7 and Recitals 25 and 29.
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