SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS 37 produce evidence against oneself) is the broader right, which encompasses the right to silence (= roughly speaking, the right not to answer questions). The present judgment makes it less certain that the Court really makes a distinction. I will come back to that aspect of the present judgment later on (see paragraph 12 below). Here it suffices to note that in my opinion two separate, but related, rights are involved, of which the privilege against selfincrimination, as I have just indicated, is the broader one. 5. In paragraph 45 of the John Murray judgment the Court further noted that these rights are not specifically mentioned in Article 6 (art. 6). Of course it was, moreover, aware of the fact that the Universal Declaration ignores both rights and that the International Covenant on Civil and Political Rights only contains "the right not to be compelled to testify against himself or to confess guilt" (Article 14 para. 3 (g)). It nevertheless felt entitled to hold as indicated in paragraph 4 above on the ground that these two immunities "are generally recognised international standards". Thus it furnished, albeit subsequently, both some motivation for and clarification of a similar finding in paragraph 44 of the above-mentioned Funke judgment, a finding which has been widely criticised as being unmotivated and unclear. 6. In paragraph 45 of the John Murray judgment the Court even ventured to go into the difficult and highly controversial question of the rationale of these two immunities. It said that: "By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (art. 6)." -C7. In the John Murray case I belonged to the majority. As the Court noted, what was at stake in that case was whether these two immunities were absolute. I was - and I still am - convinced that this question was rightly answered in the negative. Consequently, I found it neither necessary nor opportune to express my disagreement in respect of the Court’s observation that these two immunities "lie at the heart of the notion of fair procedure". I now do: I feel that this high-strung qualification - which is repeated in paragraph 68 of the present judgment - is somewhat exaggerating the weight of both rights, more particularly that of the privilege against self-incrimination. 8. I think that, historically, both rights must be seen as the very negation of the old, inquisitorial notion that a confession is an indispensable condition for conviction and therefore must, if need be, be extorted. These immunities thus served the purpose of preventing suspects from being