To Remain or Not to Remain Silent: The Evolution of The Privilege against Self-incrimination Ten Years After Marttinen v. Finland

Abstract

According to the judgment of the European Court of Human Rights (ECtHR) in Marttinen v. Finland, a debtor has the right to remain silent in a debt enforcement enquiry given that the following conditions are met: first, that the inquiry is held concurrently with a criminal procedure; and second, that the same questions of evidence are investigated in both of the concurrent proceedings. Under these circumstances, the debtor enjoys the privilege against self-incrimination in the enforcement enquiry. The scope of this article is to examine whether the debtor has not only the right to remain silent, but also the right to give false statements. The assessment of this problem is built on the moral grounds of the privilege itself, but also on the law reforms and changes in case law after the judgment in the Marttinen case. As a conclusion of this article, the problem of false statements should not be evaluated by equating silence with false statements, but by considering two basic questions. First, would the right to remain silent suffice to protect the privilege against self-incrimination; and second, whether the motives for providing false statements express the aim to achieve something else than protection against inappropriate use of coercive power.

YASM (Yet Another Surveillance Mechanism)

“…The Right to Remain Silent and Not Incriminate Oneself is not mentioned explicitly in Article 6, but is accepted through case law 2 . The right implies that suspects have the right not to speak and not give information which would incriminate them, and applies outside of criminal law too [28]. The negative limit is to prevent evidence obtained through coercion or oppression 3 from being used.…”

“…If CSS systems ends up causing loss of reputation through the media or through companies/authorities themselves accusing the user, Article 8 can apply. The most important concept in this aspect is whether the loss of reputation was caused by user's foreseeable actions 27 , or if the loss of reputation was caused by a criminal conviction, which the court does not accept 28 .…”