Strategic Litigation

Fair Trials intervenes at the ECHR in Lamin MINTEH v France

Published: (Last updated: )

Fair Trials has intervened in the case of Lamin MINTEH v France (No. 23624/20), which will be heard at the European Court of Human Rights (ECHR) in Strasbourg.

In this case, the applicant was charged and sentenced pursuant to Article 434-15-2 of the French Criminal Code for refusing to communicate the access code to his mobile telephone to police officers while in police custody.  Fair Trials believe that coercing people to give access to mobile devices may infringe their right to remain silent and right not to contribute to their own incrimination as guaranteed by Article 6 of the European Convention on Human Rights.

Fair Trials has been monitoring practices across Europe related ‘decryption orders’, where suspects or accused people are asked to unlock their mobile devices either by providing passcode or biometric (facial recognition or fingerprints) access under threat of a criminal sanction or execution of the order by force. To date, national legal frameworks and case law vary as to the compatibility of such practices with the privilege against self-incrimination and right to remain silent.

Fair Trials’ intervention summarises existing practices in relation to decryption orders we have observed in France, Belgium, the Netherlands, and England and Wales. It outlines why decryption orders do not fall within the acceptable exceptions to the privilege against self-incrimination and the right to silence under Article 6(1) (Part 2). There are also shortcomings in the practical application of safeguards both prior (ex ante) and after (ex post) the issuing and execution of a decryption order and subsequent searches of mobile devices.

In view of the risks involved in sanctioning such practices, particularly in light of the highly private nature of the information that is likely to be contained in mobile phones, we urge the Court to take a principled approach aimed at preserving a robust standard of the privilege against self-incrimination, to prevent incentives to rely on coercive investigative methods in cases where traditional methods of investigation present additional difficulties.