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The Right to Silence in the Age of Smartphones: What Minteh v. France Means for the Privilege Against Self-Incrimination
The European Court of Human Rights has recently ruled on compelled disclosure of mobile phone passcodes. In Minteh v France, the Court held inadmissible a complaint that such a requirement, backed by criminal sanctions, violated the privilege against self-incrimination under Article 6.
This blog argues that Minteh leaves important questions unanswered. As our lives become increasingly digital, criminal investigations are becoming (even) more dependent on suspects’ cooperation, challenging traditional understandings of the privilege against self-incrimination, privacy and other procedural safeguards required by the Convention.
Smartphones are not ordinary objects
For decades, the European Court of Human Rights has distinguished between evidence that exists independently of a suspect’s will—such as fingerprints or DNA—and evidence obtained through compelled communication, which is protected by the privilege against self-incrimination. Yet smartphones complicate this framework. They are unlike ordinary physical objects. They contain years of communications, photographs, financial records, health information and location data, making access to a device qualitatively different from obtaining a single piece of physical evidence.
In its third-party intervention, Fair Trials argued that a memorised passcode exists only in the suspect’s mind and therefore should be protected by the privilege against self-incrimination. The Court disagreed. Rather than treating disclosure of the passcode as determinative, it focused on the data investigators ultimately sought to obtain – which in the Court’s view existed independently of the suspect’s will – and concluded that, viewed as a whole, the proceedings remained fair.
The digital home
While Minteh focuses on whether compelling disclosure of a passcode is compatible with the privilege against self-incrimination, it says little about the intrusion that follows once access to a smartphone is obtained. The Court declared inadmissible the applicant’s complaint under Article 8 for failure to exhaust domestic remedies. This is unfortunate, because when it comes to digital investigations, Articles 6 and 8 are closely intertwined. While Article 6 governs the privilege against self-incrimination, Article 8 provides the framework for assessing the lawfulness, necessity and proportionality of intrusive digital searches.
The Convention has long recognised that searches for a person’s home require particularly strong justification under Article 8. Smartphones fulfil a comparable—arguably even more significant—function, containing vast quantities of personal data, much of it beyond their user’s awareness or control. This understanding was also reflected in domestic litigation, including before the Dutch Supreme Court, where lawyers successfully argued that performing extended searches in smartphones requires enhanced safeguards because of the breadth and sensitivity of the information they contain.
A broader European landscape
Minteh also forms part of a broader European debate. National courts have adopted different approaches to compelled access to smartphones, reflecting differences in constitutional traditions and procedural law. For example, the Dutch Supreme Court has distinguished between compelling the use of a fingerprint to unlock a device and requiring disclosure of a memorised passcode, treating only the latter as protected by the privilege against self-incrimination. Minteh does not reject this distinction, but shifts the focus from whether a passcode is inherently testimonial to whether the proceedings, viewed as a whole, remain fair. While this approach offers flexibility, it provides limited guidance for future cases involving increasingly sophisticated forms of encryption and digital security.
In its third-party intervention, Fair Trials argued that a memorised passcode exists only in the suspect’s mind and therefore should be protected by the privilege against self-incrimination. The Court disagreed.
Effective remedies in the digital age
The Court places considerable weight on the availability of judicial review. Yet digital investigations expose an important limitation of this approach: once investigators have accessed a smartphone, the interference is largely irreversible. Even if the search is later found unlawful, the authorities have already obtained investigative leads.
This raises broader questions about what constitutes an effective remedy under the Convention. Remedies that operate only after access has been obtained offer limited practical protection. As smartphones become central to criminal investigations, procedural safeguards should operate before, rather than only after, access is granted.
In this respect, Convention protection could draw inspiration from the CJEU’s recent case law, which emphasises prior review by a court or independent authority, necessity and proportionality, and effective safeguards governing access to data stored on mobile phones.
Beyond privacy
Although much of the debate surrounding smartphones has focused on privacy under Article 8, Minteh demonstrates that they also raise fundamental questions under Article 6. As digital investigations often depend on compelling individuals to unlock encrypted devices, the privilege against self-incrimination is no longer simply a rule governing admissibility of evidence. It also protects individual autonomy and the principle that the prosecution must prove its case without compelling the accused to assist.
As I have previously argued, the privilege should also protect a person’s authority over the expression and interpretation of the contents of their own mind. The decisive question is therefore not simply whether the evidence exists independently of the suspect’s will, but whether the suspect is compelled to perform a cognitive and volitional act to enable authorities to obtain otherwise inaccessible evidence. This concern underpins Fair Trials’ third-party intervention and is developed further by Javier Escobar Veas, who contends that Minteh places too much emphasis on the nature of the evidence sought, and too little on the suspect’s compelled participation in constructing the evidentiary case.
This matters because smartphones do not simply contain evidence; they contain digital traces that require interpretation. Yet such evidence often carries a powerful aura of objectivity, leading prosecutors and courts to attribute it greater reliability than for instance witness statements.
Compelling a suspect to unlock a smartphone therefore does more than facilitate access to ‘objectively existing’ evidence. It enables the authorities to construct an authoritative—but necessarily selective—narrative from a person’s digital traces, potentially making alternative explanations offered ex ante by the suspect appear less credible.
If the Convention affords heightened protection to the physical home, should access to a person’s digital home not be subject to equally robust safeguards?
Practical enforcement: unanswered questions
Finally, Minteh leaves important questions unanswered about the practical enforcement of offences such as refusing to disclose a decryption key. Holding that a suspect may be required to reveal a passcode is one thing; proving an unlawful refusal is quite another. A suspect may claim to have forgotten the password or deny knowledge or control of the device, raising difficult questions about where the burden of proof lies.
These issues go to the heart of the privilege against self-incrimination and the presumption of innocence. Where knowledge of the passcode is itself disputed, compelling disclosure risks shifting the burden of proof onto the defence. Minteh offers little guidance on how domestic courts should resolve these evidential difficulties consistently with Article 6.
Looking ahead
Minteh v France is unlikely to be the Court’s final word on compelled access to digital devices. As digital technologies continue to evolve, the judgment illustrates that the privilege against self-incrimination can no longer be understood solely through the traditional distinction between physical and testimonial evidence. Future case law will need to determine whether the Convention’s procedural safeguards are capable of addressing the unprecedented intrusiveness of digital investigations.
Blog written by Dr. Anna Pivaty, Assistant Professor at the Faculty of Law, Radboud University, Netherlands.
