Case- J.B./ Switzerland, application 31827/ 96
Has there been a violation of Article 6 paragraph 1 of the Convention?
Regarding the applicability of Article 6, paragraph 1 of the Convention, the Court's assessment is, as follows (read my summary):
5.
The Court
reiterates that the concept of “criminal charge” within the meaning of Article
6 is an autonomous one. Three criteria are to be taken into account. These are
the classification of the offence under national law (1); the nature of the
offence (2) and the nature and degree of severity of the penalty (3).
13
Applicant contented that the right to remain silent in criminal proceedings was
breached.
24
Rather, the Court is called upon to examine whether or not the imposition of a
fine on the applicant for having failed to provide certain information,
complied with the requirements under the Convention.
25
The right to remain silent and the privilege not to incriminate oneself lie at
the heart of the notion of a fair procedure under article 6 paragraph 1 of the
Convention. The right not to incriminate oneself presupposes that the
authorities seek to prove their case without resort to evidence obtained
through methods of coercion or oppression in defiance of the will of the person
“charged”.
29
In the Court’s opinion, the present case differs from such material, which, as
the Court found in the Saunders case, had an existence independent of the
person concerned and was not, therefore, obtained by means of coercion and in
defiance of the will of that person.
30
The Government have submitted that the applicant had not been obliged to
incriminate oneself since the
authorities were already aware of the information concerned and he had admitted
the amounts concerned. The Court remains unconvinced by this argument, in view
of the persistence with which the domestic tax authorities attempted to achieve
their aim (reference to paragraph 26).
Saunders/ UK, application 43/1994/490/572
67
The Court’s sole concern is with the use made of the relevant statements at the
applicant’s trial.
68
The Court recalls that, although not specifically mentioned in Article 6 of the
Convention, the right to silence and the right not to incriminate oneself, are
generally recognised international standards which lie at the heart of the
notion of a fair procedure under Article 6. Their rationale lies, inter alia,
in the protection of the accused against improper compulsion by the authorities
thereby contributing to the avoidance of miscarriages of justice and to
fulfillment of the aims of Art. 6.
69.
The right not to incriminate oneself is primarily concerned, however, with
respecting the will of the accused to remain silent. It does not extend to the
use in criminal proceedings of material 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, documents acquired pursuant to
warrant, breath, blood, DNA [..]
71
The Court does not accept the Government’s premise [..] since some of the
applicant’s answers were in fact of an incriminating nature in the sense that
they contained admissions to knowledge of information which intented to
incriminate him. It follows that what is of essence in this context, is the use
to which evidence obtained under compulsion is made in the course of the
criminal trial.
74
The fact that statements were made by the applicant prior to his being charged,
does not prevent their later use in criminal proceedings from constitutinf an
infringement of the right.
81
In conclusion the applicant was deprived of a fair hearing in violation of Art.
6 paragraph 1 of the Convention.
