Condensed: International human rights law protects the right of everyone charged with a criminal offence to be (1) silent and (2) not to be (a) directly or indirectly, physically or psychologically pressured (b) by investigating authorities or by way of judicial conditions (c) in order to obtain a confession of guilt or testify against oneself. The authorities may also not make use of deception to obtain a confession or statements made by the accused in other proceedings. Where the accused person challenges his or her statement of confession of guilt the burden of proof lies with the prosecution to prove that the confession was voluntary. Comprehensive: The ICCPR provides in article 14(3)(g): ‘In the determination of any criminal charge against him, everyone shall be entitled … (g) not to be compelled to testify against himself or to confess guilt.’[1] The right not to be compelled to testify against oneself or confess implies a right to remain silent. The ECtHR has held that ‘provided appropriate safeguards were in place, an accused's silence, in situations which clearly call for an explanation, could be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him.’[2] In contrast, the HRC has expressed concern about diminution of the right to silence:[3] Although the Committee appreciates the recent prohibition of drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from silence by accused persons. The State Party should reconsider, with a view to repeal, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant. The right against self-incrimination applies at all stages of criminal proceedings.[4] A person who is questioned because of suspicion of having committed an offence is entitled to protection against self-incrimination even if he or she has not been formally charged.[5] Compulsion 'must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt'.[6] Accordingly, torture in a bid to obtain a confession not only violates the prohibition against *torture* but also the right against self-incrimination.[7] The authorities may also not make use of deception to obtain a confession. In Allan v UK the ECtHR held that the right not to confess was undermined if the suspect has ‘elected to remain silent during questioning [and] the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain during questioning and where the confessions or statements thereby obtained are adduced in evidence at trial.’[8] Where the accused person challenges his or her statement of confession of guilt, the HRC has held that the burden of proof lies with the prosecution to prove that the confession was voluntary.[9] In Singarasa v Sri Lanka, a violation was found as the applicant bore the burden of proof that he was tortured.[10] In Kouidis v Greece, the claimant failed to submit adequate information to bolster his claims of torture before the HRC, yet a violation was found in the failure of the court to pay sufficient consideration to his allegations of duress.[11] The right not to confess guilt also puts restrictions on the use of statements made by the accused in other proceedings. In Saunders v United Kingdom, the ECtHR held that the use in criminal proceedings of statements made by the accused to non-prosecutorial inspectors, which information he was compelled by corporate legislation to provide, violated the right against self-incrimination.[12]
[1] See also ACHR art 8(2)(g) & 8(3); ICC Statute art 55(1)(a); ICTR Statute art 20(4)(g); ICTY Statute art 21(4)(g); Both the ACHPR and ECHR are silent on this right. Despite the absence of a similar provision in the ECHR, the ECtHR has held ‘there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under article 6'. Murray v United Kingdom application 18731/91 (ECtHR (GC) 1996) para 45.Note also CAT art 15 which provides that states ‘shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’
[2]Condron v UK application 35718/97 (ECtHR 2000) para 61.
[3] HRC Concluding Observations: Great Britain and Northern Ireland, CCPR/CO/73/UK CCPR/CO/73/UKOT (2001) para 17.
[4]Saunders v UK application 19187/91 (ECtHR 1996) para 67.
[5]Serves v France application 20225/92 (ECtHR 1997) para 42.
[6] HRC General Comment 32 para 41. See also Kelly v Jamaica communication 253/1987 (HRC 1991) para 5.5.
[7] See Tolipkhuzhaev v Uzbekistan communication 1280/2004 (HRC 2009) para 8.4. See as well Bazarov v Uzbekistan, communication 959/2000 (HRC 2006) para 8.3, where the applicant alleged that their son’s co-defendants were beaten and tortured during the investigation to the point that they gave false testimony incriminating him which served as a basis for his conviction. The HRC found a violation of article 14(1) of ICCPR.
[8]Allan v UK application 48539/99 (ECtHR 2002) para 50.
[9]Deolall v Guyana communication 912/2000 (HRC 2004); Kurbonov v Tajikistan communication 1208/2003 (HRC 2006) para 6.3; Idieva v Tajikstan communication 1276/2004 (HRC 2009) para 9.3.
[10]Singarasa v Sri Lanka communication 1033/2001 (HRC 2004) para 7.4. It is important to note that in this case the violation was found due to burden of proof issue, rather than on the basis that the applicant proved that he was tortured. See also Tibi v Ecuador (IACtHR 2004) para 198.
[11]Kouidis v Greece communication 1070/02 (HRC 2006) para 7.5.
[12]Saunders v UK para 75. See also Sanchez Lopez v Spain, communication 777/1997 (HRC 1999) para 6.4., where the applicant claimed that his right against self-incrimination was breached, since he had to identify the owner of the vehicle reported for committing a traffic offence. The HRC found that ‘the author was punished for non-cooperation with the authorities and not for the traffic offence’. It held that there was no violation.
[13]Saunders v UK para 69. See also O’Halloran and Francis v UK applications 15809/02, 25624/02 (ECtHR 2007).
[14]Jalloh v Germany application 54810 (ECtHR 2006).
International human rights law protects the right of everyone charged with a criminal offence to be (1) silent and (2) not to be (a) directly or indirectly, physically or psychologically pressured (b) by investigating authorities or by way of judicial conditions (c) in order to obtain a confession of guilt or testify against oneself. The authorities may also not make use of deception to obtain a confession or statements made by the accused in other proceedings.
Where the accused person challenges his or her statement of confession of guilt the burden of proof lies with the prosecution to prove that the confession was voluntary.
Comprehensive:
The ICCPR provides in article 14(3)(g): ‘In the determination of any criminal charge against him, everyone shall be entitled … (g) not to be compelled to testify against himself or to confess guilt.’[1]
The right not to be compelled to testify against oneself or confess implies a right to remain silent. The ECtHR has held that ‘provided appropriate safeguards were in place, an accused's silence, in situations which clearly call for an explanation, could be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him.’[2] In contrast, the HRC has expressed concern about diminution of the right to silence: [3]
Although the Committee appreciates the recent prohibition of drawing negative inferences from a suspect’s silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from silence by accused persons. The State Party should reconsider, with a view to repeal, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.
The right against self-incrimination applies at all stages of criminal proceedings.[4] A person who is questioned because of suspicion of having committed an offence is entitled to protection against self-incrimination even if he or she has not been formally charged.[5]
Compulsion 'must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt'.[6] Accordingly, torture in a bid to obtain a confession not only violates the prohibition against *torture* but also the right against self-incrimination.[7]
The authorities may also not make use of deception to obtain a confession. In Allan v UK the ECtHR held that the right not to confess was undermined if the suspect has ‘elected to remain silent during questioning [and] the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain during questioning and where the confessions or statements thereby obtained are adduced in evidence at trial.’[8]
Where the accused person challenges his or her statement of confession of guilt, the HRC has held that the burden of proof lies with the prosecution to prove that the confession was voluntary.[9] In Singarasa v Sri Lanka, a violation was found as the applicant bore the burden of proof that he was tortured.[10] In Kouidis v Greece, the claimant failed to submit adequate information to bolster his claims of torture before the HRC, yet a violation was found in the failure of the court to pay sufficient consideration to his allegations of duress.[11]
The right not to confess guilt also puts restrictions on the use of statements made by the accused in other proceedings. In Saunders v United Kingdom, the ECtHR held that the use in criminal proceedings of statements made by the accused to non-prosecutorial inspectors, which information he was compelled by corporate legislation to provide, violated the right against self-incrimination.[12]
[1] See also ACHR art 8(2)(g) & 8(3); ICC Statute art 55(1)(a); ICTR Statute art 20(4)(g); ICTY Statute art 21(4)(g); Both the ACHPR and ECHR are silent on this right. Despite the absence of a similar provision in the ECHR, the ECtHR has held ‘there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under article 6'. Murray v United Kingdom application 18731/91 (ECtHR (GC) 1996) para 45.Note also CAT art 15 which provides that states ‘shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’
[2] Condron v UK application 35718/97 (ECtHR 2000) para 61.
[3] HRC Concluding Observations: Great Britain and Northern Ireland, CCPR/CO/73/UK CCPR/CO/73/UKOT (2001) para 17.
[4] Saunders v UK application 19187/91 (ECtHR 1996) para 67.
[5] Serves v France application 20225/92 (ECtHR 1997) para 42.
[6] HRC General Comment 32 para 41. See also Kelly v Jamaica communication 253/1987 (HRC 1991) para 5.5.
[7] See Tolipkhuzhaev v Uzbekistan communication 1280/2004 (HRC 2009) para 8.4. See as well Bazarov v Uzbekistan, communication 959/2000 (HRC 2006) para 8.3, where the applicant alleged that their son’s co-defendants were beaten and tortured during the investigation to the point that they gave false testimony incriminating him which served as a basis for his conviction. The HRC found a violation of article 14(1) of ICCPR.
[8] Allan v UK application 48539/99 (ECtHR 2002) para 50.
[9] Deolall v Guyana communication 912/2000 (HRC 2004); Kurbonov v Tajikistan communication 1208/2003 (HRC 2006) para 6.3; Idieva v Tajikstan communication 1276/2004 (HRC 2009) para 9.3.
[10] Singarasa v Sri Lanka communication 1033/2001 (HRC 2004) para 7.4. It is important to note that in this case the violation was found due to burden of proof issue, rather than on the basis that the applicant proved that he was tortured.
See also Tibi v Ecuador (IACtHR 2004) para 198.
[11] Kouidis v Greece communication 1070/02 (HRC 2006) para 7.5.
[12] Saunders v UK para 75. See also Sanchez Lopez v Spain, communication 777/1997 (HRC 1999) para 6.4., where the applicant claimed that his right against self-incrimination was breached, since he had to identify the owner of the vehicle reported for committing a traffic offence. The HRC found that ‘the author was punished for non-cooperation with the authorities and not for the traffic offence’. It held that there was no violation.
[13] Saunders v UK para 69. See also O’Halloran and Francis v UK applications 15809/02, 25624/02 (ECtHR 2007).
[14] Jalloh v Germany application 54810 (ECtHR 2006).