Report and Recommendations - Scottish Government

3.0.15 The right of silence and the privilege against self incrimination have been saidby the European Court to be 11 :“generally recognised international standards which lie at the heart ofthe notion of a fair procedure under article 6. Their rationale lies, interalia, in the protection of the accused against improper compulsion bythe authorities thereby contributing to the avoidance of miscarriages ofjustice and to the fulfilment of the aims of article 6… The right not toincriminate oneself, in particular, presupposes that the prosecution in acriminal case seek to prove their case against the accused withoutresort to evidence obtained through methods of coercion or oppressionin defiance of the will of the accused”.It is interesting to note, therefore, that the Court sees, or at least saw 12 , theissue in terms of preventing miscarriages of justice, presumably because of therisk of false confessions brought about by coercion or oppression.3.0.16 There has been some consideration of whether these subsidiary or impliedrights are absolute or can be modified accordingly to the circumstances of theindividual case. It is made explicit in Salduz that the right of access to alawyer is not absolute 13 , but the Court has been less clear on this subject inrespect of the right to silence. In looking at whether the use of statementsobtained from a suspect violated Article 6, the Court has said that 14 :“This question must be examined by the Court in the light of all thecircumstances of the case. In particular, it must be determinedwhether the applicant has been subject to compulsion to give evidenceand whether the use made of the resulting testimony at his trial11 Saunders v United Kingdom (1996) 23 EHRR 313, para 68, see also Murray v United Kingdom(1996) 26 EHRR 2912 see now Dayanan v Turkey, 13 October 2009 (no 7377/03)13 Salduz at para 51 et seq14 Saunders at para 6956