17. As already indicated in paragraph 2 above this is an important issue.
Our modern societies are „information societies”, also in the sense that all of us, government agencies as well as citizens, to a large extent depend on various kinds of information, notably on information provided by (other) citizens. This applies in particular to government agencies: countless administrative decisions – whether imposing a duty or granting a favour – are based on such information. Information which simply cannot always be verified beforehand. One must, therefore, be able to rely on the veracity of such information. However, the old virtue of truthfulness has largely disappeared from modern morals. We have become „calculating citizens”, putting our own interests above those of the community. No wonder that fraud in multiple forms is the bane of our societies: fraud in the field of taxes and social security, fraud in the field of governmental subventions, fraud in the environmental sphere (illegal disposal of dangerous waste), fraud in the sphere of the arms trade and drugs (money laundering), fraud in the corporate sphere which may imply any species of the other frauds just mentioned. Frauds that are all the more tempting since our computerised world with its manifold cryptographic devices makes it much easier to effectively hide them.
It is generally accepted, therefore, that the mere threat of penal and other sanctions does not suffice, but that regular random as well as special proactive audits, inspections and investigations by highly specialised agencies are indispensable for effectively combating such frauds. The auditors not only need expert knowledge, they also cannot do without „appropriate special powers”. That normally includes not only the right to inspect correspondence and files, to verify books and accounts, but also to require a certain degree of active cooperation by those under investigation, to be informed of passwords and other secret information, to secure the handing over of documents and replies to questions. Normally, such rights are enforceable by threat of punishment.
Hence – and because, obviously, such audits may imperceptibly evolve into a criminal investigation – there is an inherent conflict with the right to silence and the privilege against self-incrimination.
18. This conflict may be solved in various ways and I think that we should realise that, even in a given legal system, different solutions may coexist. (s.n. – M. M.-B.)
Judecătorii CEDO Martens și Kuris
(Opinia disidentă în cauza Saunders împotriva Marii Britanii, CE:ECHR:1996:1217JUD001918791, 1996)