A/71/298
CCPR/C/IRL/CO/3). The Rome Statute and the Guidelines on the Conditions of
Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines)
expressly prohibit adverse inferences being drawn at trial from a suspect ’s exercise
of the right to remain silent, finding that anything to the contrary may improperly
imply that a suspect’s silence amounts to an admission of guilt and compromise the
presumption of innocence.
78. The right to remain silent should equally apply, as a matter of law or policy, to
prisoners of war, criminal detention relating to an armed conflict, detention of
individuals considered to be civilian internees under international humanitarian law
and administrative detention outside of armed conflict. With regard to interviews of
witnesses and victims in the criminal justice system, courts alone may compel
witness testimony. As a preventive measure against coercion and a matter of good
practice, witnesses and victims should not be obliged to answer individual questions
by which they could incriminate themselves during interviews. 19
4.
Additional safeguards for vulnerable persons
79. Given that particular groups are more vulnerable during questioning, the
protocol should contain specific provisions for, among others, children, women and
girls, persons with disabilities, persons belonging to minorities or indigenous groups
and non-nationals, including migrants (regardless of migration status), refugees,
asylum seekers and stateless persons. The vulnerability of persons should be
promptly identified for special consideration of their needs to be reflected in the
conduct of interviews and implementation of additional safeguards.
80. With regard to the need to inform persons of their rights during questioning,
additional safeguards are required for certain persons, with thorough explanations of
the rights of children and persons with intellectual or psychosocial disabilities being
provided directly to, among others, their parents, families, guardians or legal
representatives (see general comment No. 35; and Inter-American Court of Human
Rights, Tibi v. Ecuador).
81. A complementary safeguard is the presence of a support person during
questioning, in addition to counsel. A child must never be subjected to questioning
or requested to make any statement or to sign any document without the presence of
a lawyer and, in principle, his or her caregiver or another appropriate adult (whose
presence is encouraged to help to prevent coercion, reassure the child and limit
potential traumatization), at all stages of the investigation and proceedings (see the
United Nations Principles and Guidelines on Access to Legal Aid in Criminal
Justice Systems; and Committee on the Rights of the Child, general comment
No. 10 (2007) on children’s rights in juvenile justice). Persons who appear to suffer
from psychosocial or intellectual disabilities should be assisted by an independent
support person, whether a relative, legal guardian, mental health professional or
social worker with relevant experience and training, during questioning.
82. Witnesses, victims, suspects and persons deprived of liberty who do not
adequately speak or understand the language of questioning should be entitled to
receive the free assistance of an independent, qualified and effective interpreter
__________________
19
20/25
See Vivienne O’Connor and Colette Rausch, eds. Model Codes for Post-Conflict Criminal
Justice, vol. II, Model Code of Criminal Procedure (Washington, D.C., USIP Press, 2008),
art. 110 (1).
16-13568
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