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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents