The lower court decided that placing handcuffs and forcing the detained suspect to place his finger on his smartphone to unlock it was legal. The court relied on the interpretation of the privilege against self-incrimination given earlier by the Dutch Supreme Court derived from the Saunders v United Kingdom judgment of the ECtHR. This interpretation relies on the distinction between the material existing independently from the will of the accused and material that is ‘will-dependent’. It is considered that material existing independently from the suspect’s will can be obtained under compulsion. A fingerprint, unlike a password or a passcode, exists independently from the suspect’s will and obtaining it does not require active cooperation from the suspect.

The Supreme Court endorsed the reasoning of the lower court. It stated, extensively citing from the Jalloh v Germany judgment, that biometric information such as a fingerprint is not ‘will-dependent’ material. It may therefore be obtained under compulsion, if used in a proportionate manner. Forcefully placing the suspect’s finger on the phone to unlock it required, in the Court’s view, only a very limited use of physical force and constituted only a limited intrusion of bodily integrity. Advocate-General Bleichrodt stated that the contents of the smartphone obtained as the result of the unlocking, likewise, could not be considered ‘will-dependent’, as they exist in the material world outside of the suspect’s mind. 

The judgment illustrates the persistent uncertainties in European and domestic law around the use of compulsion to obtain information or material from suspects, other than oral statements. The ECtHR is not consistent in stating that material which exists externally to the suspect’s mind can be obtained under compulsion. For instance, in the cases of Funke and J.B., the Court seems to extend the scope of the privilege to pre-existing documents, such as suspect’s bank statements.

In our digital era, large amounts of personal information become recorded or otherwise materialised, often without the control of the person concerned. If 50 years ago, intimate information – including in the context of the criminal proceedings - could hardly be obtained from elsewhere than the person herself, nowadays there exist abundant external sources of such information. We argue that this calls for a broader reading of the privilege against self-incrimination, grounded in the rationales of protecting the suspect's 'mental self-determination’ and procedural autonomy. In this reading, the privilege would guard the suspects’ ability to protect intimate information and to retain control over their ‘personal story’ in the context of criminal proceedings.

In the project ‘EmpRiSe - Right to silence and related rights in pre-trial suspects’ interrogations in the EU: legal and empirical study and promoting best practice’ carried out by Maastricht University, Dublin City University, Antwerp University and Leuven University, we examine the issues surrounding the implementation (in law and in practice) of the right to silence and other relevant rights at the investigative stage in four jurisdictions: Belgium, Ireland, Italy and the Netherlands.