SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS 41 self-incrimination the Court retains the power to control national legislation and practice (see paragraph 10 above), which it has forfeited under its present doctrine. The second point is that it is - to put it mildly - open to grave doubt whether the distinction made between the licence to use in criminal proceedings material which has "an existence independent from the will of the suspect" and the prohibition of such use of material which has been obtained "in defiance of his will" is a sound one. Why should a suspect be free from coercion to make incriminating statements but not free from coercion to cooperate to furnish incriminating data? The Court’s newly adopted rationale does not justify the distinction since in both cases the will of the suspect is not respected in that he is forced to bring about his own conviction. Moreover, the yardstick proposed is not without problems: can it really be said that the results of a breathalyser test to which a person suspected of driving under the influence has been compelled have an existence independent of the will of the suspect? And what about a PIN code or a password into a cryptographic system which are hidden in the suspect’s memory? In sum: I cannot accept the new doctrine. I stick to the notion of the privilege against self-incrimination and the right to remain silent being two separate, albeit related, immunities which allow for limitations. II - FURTHER DELINEATING THE ISSUE -A13. It is high time, after these introductory remarks of a general nature, that I turn to the case at hand. In doing so a first point to make is that it is of the utmost importance to keep in mind that in this case two stages should be clearly and carefully distinguished: at a first stage Mr Saunders had to appear before the inspectors of the Department of Trade and Industry (DTI) and only at a second stage did he have to face trial. 14. It is important to carefully distinguish both stages since Article 6 (art. 6) applies to the second stage only. The reason is that during the first stage Mr Saunders was not yet "`charged with a criminal offence’, within the autonomous meaning of this expression in Article 6 (art. 6)"10. Although, strictly speaking, paragraph 67 of the Court’s judgment only reminds us that neither Mr Saunders nor the Commission have alleged otherwise, its wording and especially the reference to the Deweer 10 See the above-mentioned Funke judgment, p. 22, para. 44.