Testimony by the defendant
|Appeal Judgement - 20.02.2001||
DELALIĆ et al. (Čelebići)
783. Neither the Statute nor the Rules of this Tribunal expressly provide that an inference can be drawn from the failure of an accused to give evidence. At the same time, neither do they state that silence should not “be a consideration in the determination of guilt or innocence”. Should it have been intended that such adverse consequences could result, the Appeals Chamber concludes that an express provision and warning would have been required under the Statute, setting out the appropriate safeguards. Therefore, it finds that an absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules, reflecting what is now expressly stated in the Rome Statute. Similarly, this absolute prohibition must extend to an inference being drawn in the determination of sentence. The Trial Chamber would have committed an error should it be shown that it relied on Mucić’s failure to give oral testimony as an aggravating factor in determining his sentence.
See also paragraphs 781-782.
 Article 67(1)(g) of the ICC Statute.
 See Carolina v Pearce 395 US 711, where it was found that due process is violated where the sentencing court punishes’ a convicted person for his exercise of a procedural right in the criminal justice process. However a defendant must be able to show that by reference to the sentencing record, the judge in fact sentenced vindictively seeking to punish for the exercise of a procedural right.