Comment Re:This is clearly against E.U. Human Rights (Score 1) 374
This goes directly against prior decisions by the European Court of Human Rights. There is very clear and unambiguous legal precedent, that a person under criminal investigation need not bear witness against himself.
As usual, the truth is more complicated, and the legal situation isn't clear and unambiguous.
This law has been in force for over a decade, and there have been a few convictions using this law, and a couple of appeals. The quote from Marttinen v Finland is lifted almost straight from Saunders v UK , where there was similarly a breach of Article 6 through the use of self-incrimination. However, as the Court notes in paragraph 69 of Marttinen, "not all coercive measures give rise to the conclusion of an unjustified interference with the right not to incriminate oneself," again referring back to Saunders.
The issue of whether this law is an unjustified interference with the privilege against self-incrimination (either under English common law, or Article 6 of the ECHR) was discussed by the English Court of Appeal in R v S & Anor back in 2008. The Court found that this law didn't necessarily engage the privilege against self-incrimination (applying both UK law and Saunders), arguing that the passwords existed independent of the defendants' wills; "The actual answers [given by the defendants; i.e. the passwords], that is to say the product of the appellants' minds could not, of themselves, be incriminating. The keys themselves simply open the locked drawer, revealing its contents."
The Court's position seems to be that the passwords themselves aren't incriminating, it is the material on the computers that is. Therefore divulging the password isn't necessarily self-incrimination. However, the Court did note that it could be that the defendant's knowledge of the passwords could be incriminating (e.g. if the prosecution needed to use it to prove that the defendant had created etc. the encrypted files) - in such a case then the defendant's knowledge of the password wouldn't be admissible as evidence, protecting the privilege against self-incrimination. Similarly, if there was an issue with disclosing the password being incriminating for another reason, other evidence could be declared inadmissible. The privilege against self-incrimination doesn't mean you can't be made to tell the police stuff, but that self-incriminating stuff coerced out of you can't (always) be used against you in a criminal trial.
The Court then went on to discuss whether, even if the privilege was engaged, the law was a "proportionate and permissible" interference with it - and they found that it was, due to the limits on it, what it achieved and the various procedural safeguards in place.
I'm not sure I'm entirely convinced by the argument, or the analogy with the key to a locked draw, or a blood sample to show blood alcohol levels, but I think it is far from clear that this law breaks Article 6. It would, however, be useful to get clarification from the ECtHR either way.