Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement Judges and prosecutors must be attentive to any sign of unlawful compulsion related to confessions and are not allowed to invoke such confessions against the accused. The use of evidence and confessions obtained by torture is unlawful and should be expressly prohibited by national law. 3.8 The right to call, examine, or have examined, witnesses Article 14(3)(e) of the International Covenant provides that, in the determination of any criminal charge against him, everyone shall be entitled to “examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. Article 6(3)(d) of the European Convention on Human Rights contains an identically worded provision, while article 8(2)(f) of the American Convention on Human Rights contains the “right of the defence to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts”. Article 20(4)(e) and article 21(4)(e) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia both also have wording similar to the International Covenant in this respect. ***** According to the Human Rights Committee, article 14(3)(e) “does not provide an unlimited right to obtain the attendance of witnesses requested by the accused or his counsel”, and where there is no evidence that the court’s refusal to call a certain witness does not violate the principle of equality of arms – for instance, if the evidence is not part of the case under consideration – there has been no violation of article 14(3)(e).151 As to the question whether the State party can be held responsible for a defence lawyer’s failure to call witnesses, the Committee has held that it “cannot be held accountable for alleged errors made by [the lawyer] unless it was or should have been manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice”.152 In a case where it was “uncontested that no effort was made to have three potential alibi witnesses testify on the author’s behalf during the trial”, the Committee noted that it was “not apparent from the material before [it] and the trial transcript that counsel’s decision not to call witnesses was not made in the exercise of his professional judgement”. In these circumstances, the failure to examine witnesses on the author’s 151 Communication No. 237/1987, D. Gordon v. Jamaica (Views adopted on 5 November 1992), in doc. GAOR, A/48/40 (vol. II), p. 10, para. 6.3. 152 Communication No. 610/1995, Henry v. Jamaica (Views adopted on 20 October 1998), in UN doc. GAOR, A/54/40 (vol. II), p. 50, para. 7.4; emphasis added. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 285