Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial
Upon his or her deprivation of liberty, a person has the right of access to
legal counsel without delay and to be able to confer with counsel in
private. To have prompt access to a lawyer at an early stage of police
investigations may be essential in order to avoid lasting prejudice with
regard to the rights of the defence.
6.5 The right not to be forced to testify against
oneself/The right to remain silent
Article 14(3)(g) of the International Covenant guarantees the right of
everyone “not to be compelled to testify against himself or to confess guilt”, and article
8(2)(g) of the American Convention provides for the right of everyone “not to be
compelled to be a witness against himself or to plead guilty”, a provision that is
strengthened by article 8(3) according to which “a confession of guilt by the accused
shall be valid only if it is made without coercion of any kind”. The African Charter and
the European Convention contain no similar provision. The effective protection of this
right is of particular importance in the course of the preliminary investigations, when
the temptation may be greatest to exert pressure on the suspected persons in order to
have them confess guilt. It is noteworthy that Guideline 16 of the Guidelines on the
Role of Prosecutors also provides that prosecutors shall refuse evidence that has been
obtained through recourse to unlawful methods.84
The right not to be compelled to incriminate oneself and to confess guilt is
also contained in article 55(1)(a) of the Statute of the International Criminal Court and
in articles 20(4)(g) and 21(4)(g) of the respective Statutes of the International Criminal
Tribunals for Rwanda and the former Yugoslavia.
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Article 14(3)(g) of the Covenant has been violated on several occasions, such
as where the author had been “forced by means of torture to confess guilt”. He had in
fact been held incommunicado for three months, a period during which he was “subjected
to extreme ill-treatment and forced to sign a confession”.85 While grave situations of
this kind are clearly incompatible with the prohibition on forced self-incrimination,
there are, as will be seen below, other circumstances when it might be more difficult to
assess the lawfulness of the compulsion to which an accused person has been subjected.
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From the right not to be compelled to testify against oneself flows the right to
remain silent, although the four human rights treaties examined in this Manual do not
expressly provide for this right either during police questioning or during trial
84 See Principle 16 quoted in extenso, section 6.2 above.
85 Communication No. 139/1983, H. Conteris (Views adopted on 17 July 1985), UN doc. GAOR, A/40/40, p. 202, para. 10 read
in conjunction with p. 201, para. 9.2. For another case of forced self-incrimination, see Communication No. 159/1983, R. Cariboni v.
Uruguay (Views adopted on 27 October 1987), UN doc. GAOR, A/43/40, para. 10 at p. 190.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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