SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS 39 second and still more telling argument is the stress laid, both in the last sentence of paragraph 68 and in paragraph 69, on the will of the accused: the Court now underlines that the privilege against self-incrimination is primarily concerned "with respecting the will of an accused person". That comes very near to the rationale outlined above which allies both immunities to respect due to human dignity and autonomy. 10. I do not, of course, deny that there is an element of truth in this view, but I am inclined to think that its weight should not be exaggerated. "Human dignity and autonomy" have an absolute ring, but in our modern societies it must remain possible to protect the community against forms of crime, the effective combating of which makes it imperious to compel (specific categories of) suspects to cooperate in bringing about their own conviction. I believe that especially the broader privilege against selfincrimination may be restricted by law in order to protect legitimate interests of the community. In my opinion it is, in principle, open to the national law to compel (specific categories of) suspects by threat of punishment to contribute passively or actively to the creation of evidence, even decisive evidence, against themselves. Suspects may be compelled to allow or even to cooperate in the taking of fingerprints, in the taking of blood for alcohol tests, in the taking of bodily samples for DNA tests or to blow in a breathalyser in order to ascertain whether they are drunken drivers. In all such and similar cases national legislatures are, in my opinion, in principle free to decide that the general interest in bringing about the truth and in bringing culprits to justice shall take precedence over the privilege against self-incrimination5. 11. I fear that the impugned qualification of both immunities (as lying "at the heart of the notion of fair procedure") as well as the newly advanced rationale tying them to respecting "human dignity" imply that, in the Court’s opinion, the privilege against self-incrimination is far more absolute than it is in my view. But for paragraph 69 of the present judgment - to be discussed in paragraph 12 below - I would have added that this difference of appreciation might also be illustrated by the above-mentioned Funke judgment. What was at stake in that case was not so much the right to remain silent as the privilege against self-incrimination, for Funke refused to hand over (possibly) incriminating documents. The Commission had, in my opinion rightly, concluded that the legitimate interests of the community overrode the privilege6, but the Court curtly refused to follow, which strongly suggests that in its opinion there was no room for a balancing exercise at all. It is worth while noting that the reasoning subsequently given in the John 5 It remains, of course, for the European Court of Human Rights to control whether the restrictions of the privilege are in accordance with the law, pursue a legitimate aim and are proportionate to that aim - see paragraph 2 above. 6 Loc. cit., pp. 33 et seq., paras. 63-65.