40 SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS Murray judgment, namely its reliance on generally recognised international standards7, does certainly not justify this decision: both under the Fifth Amendment to the United States Constitution8 and under the case-law of the Court of Justice of the European Communities9 there is a right to remain silent, but in principle not a right to refuse to hand over documents, let alone an absolute right to do so. 12. It is, however, at least open to doubt whether the Court in paragraph 69 of its present judgment has not - implicitly, without saying so openly, let alone without adducing cogent reasons for doing so - overruled Funke and essentially converted to the more restricted doctrine adopted inter alia by the Court of Justice of the European Communities. In this context it is significant that paragraph 69 refers to how the privilege against selfincrimination is understood "in the legal systems of the Contracting States and elsewhere". What is more important is that, whilst the first sentence of paragraph 69 seems to amalgamate the privilege against self-incrimination with the right to remain silent, the second sentence seems to imply that contrary to Funke - the privilege does not comprise the power to refuse to hand over incriminating documents nor that to prevent the use of such documents, obtained under compulsion, in criminal proceedings. I confess that I fail to see any other possible construction of paragraph 69 so that I presume that the above interpretation is correct. On that assumption two points should be made. The first is that the merging of the conceptually broader right not to incriminate oneself with the right to remain silent reduces the scope of protection afforded to suspects. In my understanding of the privilege against 7 See paragraph 5 above. There is only a valid Fifth Amendment claim if, due to the particular facts and circumstances of the case, the "act of producing" is both "testimonial" and "incriminating". To be noted: when a custodian of a collective entity produces the corporate records and documents his act does not constitute testimonial self-incrimination; he is, however, protected from condemning himself by his own oral testimony. In the context of my dissent in the present case it is of interest to note one of the Supreme Court's arguments for this restrictive doctrine: "We note further that recognising a Fifth Amendment privilege on behalf of the records custodians of collective entities would have a detrimental impact on the Government's efforts to prosecute `white-collar crime', one of the most serious problems confronting the law-enforcement authorities. `The greater portion of evidence in wrongdoing by an organisation or its representatives is usually found in the official records and documents of that organisation. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and State laws would be impossible.' ... If custodians could assert a privilege, authorities would be stymied not only in their enforcement efforts against those individuals but also in their prosecutions of organisations." (Braswell v. US 487 US 99 (1988)). 9 See its Orkem/Commission judgment of 18 October 1989 (374/87 [1989] ECR I-3343 et seq.) and its Otto/Postbank judgment of 10 November 1993 (C-60/92 [1993] ECR I-5683 et seq.). 8