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. ***** 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. ***** 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. 240 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers