SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS 47 nevertheless go unpunished which - as I am prepared to accept24 - in practice would be the effect in a good many of these complicated fraud cases. I find it rather difficult to accept that once the result of the investigation is that such frauds are exposed, the right to silence and the privilege against self-incrimination should, nevertheless, make it to all practical purposes impossible that those whose responsibility is to a certain extent already disclosed are brought to justice and punished. This would lead to undermining the deterrent function of the criminal law in an area where it is particularly needed (see paragraph 17 above) and, furthermore, seriously offend the public’s sense of justice. 23. There is one further argument against the admissibility of legislation of the present type that must be discussed separately since it apparently impressed the Commission and, accordingly, has been - successfully25 urged by counsel for the applicant in his pleadings before the Court. 24. I recall that we are discussing a two-tier type legislation, characterised by (1) establishing investigation proceedings in which those under investigation are obliged to cooperate with the investigators and to answer their questions without enjoying the two immunities under discussion (the first tier) and (2) making it, moreover, possible that answers obtained in those investigation proceedings be used in evidence at a subsequent trial against someone who has been under investigation (the second tier). The overall justification of this type of legislation is to protect the public against serious forms of fraud. That public interest justifies, firstly, setting aside the immunities under discussion in the first tier (the investigation stage) and, secondly, using the answers in the second tier (the trial stage) in order to make sure that, where the first tier has disclosed a perpetrator, that perpetrator gets his punishment in the second tier. Seen from the latter’s viewpoint, however, the whole process nullifies the right to silence and the privilege against self-incrimination. The argument to be discussed claims that if a two-tier process, which amounts to nullifying these immunities for the sake of protecting the public against serious forms of fraud, is to be condoned, such a two-tier process must also be accepted if on similar arguments – that is: on the argument that public interest in being protected against robbery, violence, murder, etc., outweighs these very same immunities - it is established in respect of ordinary crimes. Which would, obviously, be the end of the two immunities under discussion. 25. The argument is flawed in that it disregards a difference between the various forms of serious fraud and such ordinary crimes as robbery, violence and murder which in the present context is essential: in ordinary 24 I recall that Mr Saunders submitted that the prosecution case against him would have been in serious difficulties but for the use of the interview transcripts (see paragraph 83 of the Court's judgment). 25 See the second sub-paragraph of paragraph 74 of the Court's judgment.