20. The presumption of innocence will be violated if a statement of a public official
concerning a person charged with a criminal offence reflects an opinion that
he is guilty before he has been proved so according to law. The presumption
of innocence may be infringed not only by a judge or court but also by others
representing public authorities, such as the police, prosecutors or other
government officials. Public officials in their statements must therefore take
care with the choice of words before a person has been tried and found guilty
of an offence. Whether a statement of a public official is in breach of the
presumption of innocence must be determined in the context of the particular
circumstances in which the statement is made.540
The freedom from self-incrimination and the right to silence
21. The right not to incriminate oneself is an essential guarantee to ensure that the
prosecution in a criminal case seeks to prove their case against the defendant
without resort to evidence obtained through methods of coercion or
oppression in defiance of the will of the accused.541
22. Protection from self-incrimination applies to all criminal proceedings and it is
not confined to statements of admission of wrongdoing nor to remarks that are
directly incriminating.542
23. An accused cannot therefore be compelled to testify against himself in court.
24. It is still permissible to require the production of other evidence including blood
and bodily samples and, in some limited circumstances, to compel an
individual to answer questions. If the law requires an individual to answer
questions, a failure to do so may result in the offence of non-cooperation with
the authorities.543
25. The right to silence means that an individual cannot be convicted solely on the
basis of the accused remaining silent or refusing to answer questions.
26. This also means that the accused cannot be compelled, through direct or
indirect physical or psychological means, to confess.544
E. Access to court
27. The right of access to court has been read into the notion of a fair trial. The
Human Rights Committee has seen this as a ‘key element’ of human rights 545
540
European Court, Butkevicius v. Lithuania, 26 June 2002.
Article 14(3)(g) ICCPR. Human Rights Committee General Comment No.13, HRI/GEN/1/Rev.6 at
135 (2003) para 14; Communication 253/1987, Kelly v Jamaica, 8 April 1991,Saunders v UK, European
Court.
542
Heaney & McGuiness v Ireland, European Court, 21 March 2001
543
Human Rights Committee Communication 777/1997, Lopez v Spain, 25 November 1999, para 6.4.
544
Human Rights Committee General Comment No.32, CCPR/C/GC/32 (2007), para 41. Human Rights
Committee Communication 912/2000, Deolall v Guyana, 1 November 2004, para 5.1.
545
Human Rights Committee, General Comment No.32, CCPR/C/GC/32 (2007), para 2. See also
Communication 1015/2001, Perterer v Austria, 20 July 2004, para 9.2.
541
102
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