n African Human Rights Law Journal - The right to pre-trial silence as part of the right to a free and fair trial : an overview
|Article Title||The right to pre-trial silence as part of the right to a free and fair trial : an overview|
|© Publisher:||Pretoria University Law Press (PULP)|
|Journal||African Human Rights Law Journal|
|Author||Tharien Van der Walt and Stephen De la Harpe|
|Publication Date||Jan 2005|
|Pages||70 - 88|
The right to pre-trial silence as part of the right to a free and fair trial is included in many international human rights treaties, albeit not expressly. The exact content of this right is, however, not clearly defined and the scope thereof differs in various jurisdictions. In this contribution, the provisions of the African Charter, decisions of the European Court of Human Rights and the position in South Africa are discussed. As a general rule, it can be stated that it is accepted that during the pre-trial stage the right to remain silent serves as a safeguard against the abuse of powers. There is, however, a difference of opinion as to what extent negative inferences can be drawn from pre-trial silence. We conclude that it ought to be impermissible to draw an adverse inference as to the guilt or the credibility of the accused from his pre-trial silence alone.
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