Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial Is the right to remain silent absolute? View of the European Court of Human Rights (cont.d) While it was “self-evident” to the Court “that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself”, it was “equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution”. It followed that, “wherever the line between these two extremes is to be drawn”, the question whether the right to be silent “is absolute must be answered in the negative”.89 It thus also followed that it “cannot be said ... that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him”. Agreeing with the respondent Government, the Court further observed that “established international standards in this area, while providing for the right to silence and the privilege against self-incrimination are silent on this point”.90 This also meant that the question whether “... the drawing of adverse inferences from an accused’s silence infringes article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation”.91 The European Court carefully analysed the powers of the national trial judge and concluded that he could only draw “common-sense inferences which [he] considers proper, in the light of the evidence against the accused”. In addition, the trial judge had “a discretion whether, on the facts of the particular case, an inference should be drawn”, and, finally, the exercise of discretion was “subject to review by the appellate courts”.92 Against the background of this particular case, the European Court eventually denied that “the drawing of reasonable inferences from the applicant’s behaviour had the effect of shifting the burden of proof from the prosecution to the defence so as to infringe the principle of the presumption of innocence”.93 It is, however, too early to know whether the above European interpretation of the right to silence will be shared by the Human Rights Committee and/or the other regional monitoring organs. ***** 89 Ibid., para. 47. 90 Ibid., loc. cit. 91 Ibid., pp. 49-50, para. 47. 92 Ibid., para. 51 at p. 51. 93 Ibid., loc. cit.; emphasis added. 242 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers