The privilege against self-incrimination is one of the fundamental rights of criminal procedure. It grants the accused the status of the subject and an equal position with the state as the stronger opponent. It serves as protection against state coercion as well as the accused’s potential ignorance. For this reason, it is imperative that the principle be honoured and the instances when it may be denied strictly prescribed. That being said, the existence of the privilege does not in itself prevent self-incrimination as it depends on the exclusion of evidence obtained through the privilege’s violation. Only if the conviction is based on such a claim, can a coerced statement become self-incriminatory. However, if the evidence obtained through coerced self-incrimination is excluded, the privilege remains in effect.
This thesis examines the practice of the European Court of Human Rights (ECHR), specifically, the following cases: Jalloh v. Germany, Gäfgen v. Germany, and Ibrahim and Others v. the United Kingdom. All of these in their own way deal with the violation of the privilege against self-incrimination and the exclusion of evidence obtained in the process. What the cases share is the acknowledgment of the growing importance of the public interest regarding prosecution wherein the severity of the criminal offence is inversely proportionate to the privilege. Jalloh thus sees the public interest as a new part of the criteria that establishes whether the privilege has been violated. The Gäfgen and Ibrahim cases shed further light on the issue of the restriction of rights. In the case of the former, the view is expressed implicitly in the overall verdict, while the latter explicitly follows the criteria of the public interest.
Based on the examination of the established practice it is safe to conclude that the privilege no longer enjoys the protection it once did. Due to the public’s primary interest in prosecution and material truth the privilege is being pushed to the side-lines. As a result, it is slipping further away from the notion of the rule of law on which it is based.