De Legé v. the Netherlands: The ECtHR adopts a line of reasoning similar to that of the United States Supreme Court on compelled production of real or physical evidence

Abstract

In de Legé v. the Netherlands, a decision characterized as a key case, the ECtHR addressed once again the problematic relationship between the right against self-incrimination and the compelled production of real or physical evidence. In its judgment, the Court held that the use of the evidence submitted by the defendant to the authorities does not fall within the scope of the right against self-incrimination when the evidence in question concerns pre-existing documents of whose existence the authorities were already aware. By developing this argument, the European Court has adopted a line of reasoning similar to the ‘foregone conclusion’ doctrine of the United States Supreme Court. This article aims to critically analyse the decision of the ECtHR. It will be argued that the ECtHR does not sufficiently support its reasoning. Moreover, it does not take into account the rationale of the right against self-incrimination, which, as will be stated, can be considered opposed to the ‘foregone conclusion’ doctrine, at least in the European context.