Last the year, the Supreme Court of The Netherlands gave an judicial opinion as part of a procedure known as cassation in the interest of the law (“casssatie in belang der wet”).

The question posed to the Supreme Court was if the forcible use of a suspect’s fingerprint to unlock a smartphone being used by him for the purpose of gathering evidence constitute a breach of, amongst others, the “nemo tenetur” principle contained in Article 6 of the ECHR? This principle concerns the right of a defendant not to be compelled (actively) to assist in his own conviction.

The court had established that a smartphone was seized from the accused and that in order to unlock this smartphone biometrically, the accused was handcuffed against his will and his thumb was placed on the fingerprint scanner. In this way, the fingerprint of the accused was used to secure the data that had already been recorded in the smartphone at that time for the evidence of the offence of which he was suspected. In essence, the court ruled that applying a very small degree of physical coercion in this manner with the aim of biometrically unlocking the smartphone by means of the fingerprint of the accused does not constitute a violation of the “nemo tenetur” principle guaranteed by Article 6 of the ECHR. It is also implied that undergoing this physical coercion only constituted a minor infringement of the physical integrity of the accused.

The Supreme Court of The Netherlands found this does not testify to an incorrect interpretation of the law by the court and is not incomprehensible.

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