European Court of Human Rights’ Approach to the Right Not to Incriminate Oneself: In Quest for Clarity and Consistency

• In Event: Sentencing Policy, Legal Doctrine and the Sentencing Process

Abstract

The right not to incriminate oneself is commonly perceived as a cornerstone of modern criminal justice system. The ECtHR claims that it is a generally recognized international standard which lie at the heart of the notion of a fair procedure. In the legal doctrine however the emphasis on the significance of the right not to incriminate oneself is accompanied with commonly expressed doubts about the origins, purpose, scope and rationale of this right. The aim of the presentation is therefore to critically evaluate the case law of the ECtHR in order to verify if it offers a clear and consistent idea of what the right not to incriminate oneself is and when and how it should be applied. The focus in the presentation is on the ECtHR case law, which establishes a minimum standard regarding the discussed right in Europe and serves as a natural foundation for the interpretations developed in domestic legal systems. The authors claim that the ECtHR fails to provide a clear guidance of how the right not to incriminate oneself should be understood and applied. While in its case law the Court often refers to the ‘very essence’ of the discussed right no clear indication of what constitutes this essence is given. Moreover the applicability and scope of the nemo tenetur principle are also not clear, similarly as the criteria allowing to differentiate between permissible and impermissible interference with the discussed right. As a consequence the case law of the ECtHR is of little help in clarifying what a prohibition to legally oblige or compel a person to provide incriminating information really means and providing guidance for domestic legal systems on how to regulate and apply it.

Authors

• Wojciech Jasiński, University of Wrocław

• Dorota Czerwińska, University of Wrocław