Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial The Statute of the International Criminal Court: It is noted in this respect that article 55(2)(b) of the Statute of the International Criminal Court provides that a suspect shall be informed prior to questioning that he has a right to “remain silent, without such silence being a consideration in the determination of guilt or conscience” (emphasis added). Whilst the terms of this Statute cannot be considered to be an authoritative interpretation of the human rights treaties examined in this Manual, it constitutes a legal document with considerable juridical weight. This important subject gives rise to the following questions: v Can the European Court’s ruling in the Murray case be considered to be consistent with article 55(2)(b) of the Statute of the International Criminal Court? v Does the reliance on the role played by “common sense implications” provide a sufficient guarantee against possible miscarriages of justice? v Is this notion sufficiently clear to have a place in the evaluation of evidence in criminal proceedings? v What if, for instance, the suspect refused to speak out of fear of reprisals by the co-accused and other persons? A suspect must at no time, and in no circumstances, be compelled to incriminate himself or herself or to confess guilt; a suspect has the right to remain silent at all times. 6.6 The duty to keep records of interrogation It is essential, both in order to prevent and if need be to prove the occurrence of treatment prohibited by international human rights law, and consequently also for the future judicial proceedings, that records of interrogations be kept and that they remain accessible both to prosecuting authorities and to the defence. On this issue, the Human Rights Committee stated in its General Comment No. 20 regarding article 7 of the International Covenant that “the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings”.94 Principle 23 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment deals with the duty to record in the following terms: “1. The duration of any interrogation of a detained or imprisoned person and of the intervals between interrogations as well as the identity of the officials who conducted the interrogations and other persons present shall be recorded and certified in such form as may be prescribed by law. 2. A detained or imprisoned person, or his counsel when provided by law, shall have access to the information described in paragraph 1 of the present principle.” 94 United Nations Compilation of General Comments, p. 140, para. 11. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 243