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10 Right to Silence

From: The Right to a Fair Trial in International Law

Amal Clooney, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 September 2021

Right to silence — Human rights remedies — Reservations and exceptions — Waiver — Remedies — Remedies and costs

This chapter discusses the right of anyone accused of a criminal offence not to be compelled to ‘testify against himself or confess guilt’. This right helps to protect the defendant from torture and other forms of ill-treatment by prohibiting the use of evidence obtained through those methods. It aims to reduce the risk that unreliable evidence will be produced, and seeks to ensure the equality of arms between the prosecution and defence. The right not to be compelled to testify against himself or confess guilt provides defendants with two distinct but overlapping rights: the right to silence and the right not to incriminate oneself. The right not to incriminate oneself is narrower than the right to silence in that it only allows a defendant to refuse to provide answers that may be incriminating, whereas the right to silence means he may refuse to answer any question at all. On the other hand, whereas the right to silence only protects oral statements, the right not to provide incriminating evidence also applies to documents and other material. Although the right not to be compelled to testify against himself or confess guilt is recognised in many domestic jurisdictions, many aspects of the right are either undefined or inconsistently defined at the international level by human rights bodies and criminal courts.

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