Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
An accused person has the right to be present at his or her trial. Trials in
absentia may be acceptable in special circumstances but must preserve the
rights of an effective defence. Once an accused who has not wilfully tried to
avoid justice is aware of the proceedings, he or she should be entitled to a
new determination of the merits of the charge.
3.7 The right not to be compelled to testify
against oneself or to confess guilt
The prohibition on self-incrimination was dealt with in subsection 6.5 of
Chapter 6 in view of its specific importance during criminal investigations. However,
the right not to be compelled to testify against oneself does of course remain equally
valid throughout the judicial proceedings. It is recalled that article 14(3)(g) of the
International Covenant provides that “in the determination of any criminal charge
against him”, every person has the right “not to be compelled to testify against himself
or to confess guilt”. According to article 8(2)(g) of the American Convention, everyone
has “the right not to be compelled to be a witness against himself or to plead guilty”,
and article 8(3) further specifies that “a confession of guilt by the accused shall be valid
only if it is made without coercion of any kind”. While the African Charter and the
European Convention contain no similar provision, both article 55(1)(a) of the Statute
of the International Criminal Court and articles 20(4)(g) and 21(4)(g) of the respective
Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia
contain protection against self-incrimination.
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In its General Comment No. 13 on article 14 of the International Covenant,
the Human Rights Committee stated that, in considering this safeguard contained in
subparagraph (3)(g), articles 7 and 10(1) of the Covenant “should be borne in mind”,141
these articles respectively outlawing torture and other cruel, inhuman or degrading
treatment and stipulating that “all persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person”. As
emphasized by the Committee, “in order to compel the accused to confess or to testify
against himself, frequently methods which violate these provisions are used. The law
should”, however, “require that evidence provided by means of such methods or any
other form of compulsion is wholly unacceptable”.142 Moreover, “judges should have
authority to consider any allegations made of violations of the rights of the accused
during any stage of the prosecution”.143 It is recalled in this respect that Guideline 16 of
the Guidelines on the Role of Prosecutors also provides that prosecutors shall refuse
evidence that has been obtained by recourse to unlawful methods.144
141 United Nations Compilation of General Comments, p. 125, para. 14.
142 Ibid., loc. cit.
143 Ibid., para. 15.
144 See Principle 16 quoted in extenso in Chapter 6 above, subsection 6.2.
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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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