Shall Not Be Forced To Incriminate Oneself

　No compulsion against self-incrimination in its historical development , has been widely recognized by many countries and developed into a criminal justice principle. This is not only the implementation of the principle of presumption of innocence, but also the implementation of the “state respects and protects human rights” provisions of the Constitution, and has gradually become a measure of a country’s modern One of the important standards for judicial civilization.

Self-incrimination without compulsion mainly includes the following three meanings: Aspects: First, in criminal proceedings, it emphasizes an equal and confrontational litigation relationship, limits the power of public security and judicial organs, protects the litigation rights of criminal suspects, defendants and witnesses, and opposes involuntary confessions to demonstrate the spirit of the criminal rule of law; Criminal suspects, defendants and witnesses have the right to remain silent, have the right to refuse to answer incriminating questions, are not forced to make confessions and have no obligation to make confessions, and the obligation to prove their guilt rests with the public security and judicial organs; third, criminal suspects The defendant has the right to make statements on the facts of the case and the statements should be made voluntarily. Involuntary statements should be excluded as illegal evidence and cannot be used as the basis for finalizing the case.

The origin of the principle of not being forced to incriminate oneself is controversial. There are two main views: First, the traditional Western view is that the principle of not being forced to incriminate oneself originated from British common law. The main representatives are John Henry Wigmore and Leonard W. Levy; secondly, scholars such as R.H. Helmholtz, John H. Lamben, and Gray believe that it should be traced back to European common law. He also used a large amount of evidence to prove that the principle of not being forced to incriminate himself could not have originated from English common law in the seventeenth century.

Regarding the two views on the origin of the principle of not being forced to incriminate yourself, judging from domestic treatises, the view originating from British common law has been widely recognized, such as Xie Youping and Zheng Jin in ” “On the Principle of Refusing Forced Self-Incrimination” states that “the principle of rejecting forced self-incrimination originated from a political struggle in England in the sixteenth century.” However, whether this principle originated from English common law or European common law, its origin in continental Europe is irrefutable and has a strong Western legal tradition.

In the origin and historical development of the principle of not being forced to incriminate oneself, the John Learburn case is a landmark, and some scholars regard it as a symbol of the establishment of the principle. It is generally believed that the John Lilburn printing case of seditious publications in 1639 forced Britain to take the lead in establishing this principle in law in 1641. In this case, John H. John H. Lilburne refused to testify under oath in court and stated: “No one shall swear to torture his conscience to answer questions that will expose him to criminal prosecution, even in pretense.”

After the principle of not being forced to incriminate oneself was established and initially developed in the United Kingdom, the Fifth Amendment to the United States Constitution absorbed this principle and made it rich and concrete through a series of cases. affect other countries and regions. In addition to the United Kingdom and the United States, other common law countries have also developed this principle in legislation and practice, and the laws of civil law countries such as Germany and France that implement the doctrine of authority also have provisions against being forced to incriminate themselves. . Subsequently, some international treaties, such as the Covenant on Civil and Political Rights, the Standard Minimum Rules for Juvenile Justice, and the Resolution on Human Rights in Criminal Procedure, all stipulated this principle and developed it into a international standards of criminal justice.

　Protecting human rights

The British thinker Hobbes believed: Natural rights are the freedom of each person to use his or her own power in the way he or she wishes to preserve his nature—that is, to preserve his own life. This inherent law of spiritual relationships that precedes the existence of law manifests itself as human natural rights. Therefore, the ultimate rationale for a legal norm is that it conforms to natural rights. This natural right penetrates into criminal proceedings, giving criminal defendants corresponding litigation rights and giving them an independent litigation status. The right reflected in the principle of refusing to force self-incrimination is the most fundamental right to protect oneself among the litigation rights enjoyed by the defendant as the subject of litigation.

It can be seen that the human basis of the principle of not being forced to incriminate oneself lies in protecting one’s own rights. Montesquieu pointed out that in a legal society, freedom is simply that a person can do what he should do without being forced to do what he should not do. “Not being forced” is a reflection of this concept of freedom, that is, in criminal proceedings, the party being prosecuted has the right to choose, and can choose to confess or resist prosecution, emphasizing a kind of voluntariness, which is a manifestation of freedom of will.

Procedural justice

According to Rawls’s point of view, create a legal procedure so that its application to everyone will produce legitimate and reasonable results, regardless of who actually operates the procedure. We can call it due legal process, and what it achieves is procedural justice. In criminal proceedings, the public security and judicial organs play a leading role and control the operation of the entire proceedings, while criminal suspects, defendants and relevant witnesses participate in it, making it difficult to truly play their main role and remaining in a passive position. Therefore, due criminal legal procedures are particularly important in the entire criminal proceedings and are indispensable for modern criminal justice.

The principle of not being forced to incriminate oneself is an indispensable part of due criminal legal procedures. It regulates the litigation behavior of public security and judicial organs and protects the rights of criminal suspects, defendants and relevant witnesses. Subject status, the realization of procedural justice has a positive role in promoting. However, to achieve substantive justice by any means and forcing self-incrimination is rejected by modern judicial civilization.

First of all, the order of emergence of the two is different. Although there are still varying degrees of debate in academic circles about the specific time when the prohibition of self-incrimination and the right to silence came into being. However, scholars tend to agree on the temporal sequence of the two. From the oath of office procedure and interrogation procedure, the “right not to accuse oneself” is derived according to Christian doctrines and doctrines, and from this comes the “not forced to incriminate oneself”, and then a specific system of the right to silence is developed. The prohibition of forced self-incrimination comes first, and the right to silence comes later. This has gradually become a consensus among academic circles.

Secondly, the scope of rights of the two is not the same. The right to silence is premised on negating all obligations to state. It means that criminal suspects and defendants have the right to refuse to answer all questions, and they can also decide not to testify or defend themselves without giving reasons; they cannot be forced to testify themselves. The right to commit a crime is premised on the obligation to make partial statements or testify. (For example, Article 342 of the Portuguese Criminal Procedure Code stipulates: Regarding questions about the suspect’s personal identity and criminal record, the suspect must answer truthfully, otherwise May be subject to criminal prosecution. Most civil law countries also stipulate that the defendant cannot remain silent about his name and address. He only has the right to refuse to answer questions that may subject him to criminal prosecution, so he must assert his rights on specific issues. , and the reasons must be explained.

Thirdly, the objects of action and the original intention of legislation are also different. The prohibition of self-incrimination focuses on prohibiting government “coercion”, emphasizing resisting and eliminating judicial tyranny, curbing forced evidence-gathering techniques such as torture and extorting confessions, and standardizing the legalization and rationality of evidence-gathering methods. This not only reflects the state’s commitment to the freedom of the person being prosecuted Respect for rights and interests is a manifestation of the idea of ​​controlling power; and the right of silence is based on the perspective of the person being interrogated, pointing out that he or she refuses to answer questions when facing the prosecution agency. The right to remain silent tends to add an adversarial dimension to proceedings by empowering individuals.

“The right not to incriminate oneself” cannot simply be equated with the “right to silence”. Our country has always discouraged criminal suspects from denying their crimes, but encouraged criminal suspects to plead guilty and obey the law. Many countries use measures to encourage a person to incriminate himself, such as the British sentence reduction measures and the American plea bargaining.

In 2012, the National People’s Congress revised the Article 50 of the Decision of the Criminal Procedure Law of the Republic: “Judges, prosecutors, and investigators must collect various evidence that can prove the guilt or innocence of criminal suspects and defendants, and the seriousness of the crime in accordance with legal procedures. It is strictly prohibited No one may be forced to prove his or her guilt through torture, coercion, or other illegal means. It must be ensured that all citizens who are involved in the case or have knowledge of the case have the conditions to objectively and fully provide evidence, except under special circumstances. , they can be recruited to assist in the investigation.”

In 2010, five departments including the Supreme People’s Court and the Supreme People’s Procuratorate promulgated the “Regulations on Several Issues Concerning the Exclusion of Illegal Evidence in the Handling of Criminal Cases”, which clearly stipulates that “criminal suspects and defendants obtained through illegal means such as torture and extortion of confessions” Confessions, witness statements, and victim statements obtained by illegal means such as violence or threats are illegal verbal evidence. “Illegal verbal evidence that has been confirmed in accordance with the law should be excluded and cannot be used as the basis for finalizing a case.”

The Fifth Amendment to the United States Constitution: No person shall be tried for a crime of capital or other dishonorable crime, except upon a report or indictment of a grand jury, except where such crime shall have occurred in the land or navy, or in This does not apply to cases involving members of the militia on active duty during wartime or when public danger occurs. No one shall suffer danger to life or body twice for the same criminal act; no person shall be forced to incriminate himself in any criminal case; no person shall be deprived of life, liberty or property without due process of law. Private property may not be used for public use without just compensation.

The jurisprudence of the Supreme Court of Canada states that “perhaps the single most important organizing principle in criminal proceedings is that the person being prosecuted shall not be compelled to assist the charges against him or her.”

Articles 114, 116, 128 and 133 of the French Code of Criminal Procedure (amended in 1993) stipulate the relevant rules for not being forced to incriminate yourself.

Article 136, paragraph 1, of the German Code of Criminal Procedure (revised and effective in 1994) specifically stipulates the rule of not being forced to incriminate oneself: “At the beginning of the initial interrogation, the accused must be told The person shall be informed of the conduct with which he is accused and the penalties that may apply. He shall then be informed of his right under the law to make a statement in relation to the charges or not to make a statement in the case and at any time, including before interrogation, at his option. In addition, he should be informed that he can apply to collect some evidence that is favorable to him. In appropriate cases, he should also be informed that written statements can be made.

Article 29 of the Dutch Criminal Procedure Code stipulates that criminal suspects and defendants are not obliged to answer questions from the police, prosecutors and judges. When the police have reasonable grounds to suspect that a person is guilty, they may He must be informed beforehand that he is “under no obligation to answer questions”; if the suspect’s rights are compromised because of the police’s failure to warn, or if the suspect is subject to any undue pressure from the police station, then the confession thus obtained cannot be used as evidence.

Article 64 of Italy’s new Criminal Procedure Code stipulates: Before starting an interrogation, in addition to the provisions of Article 66, paragraph 1, the person being interrogated should also be informed that he has the right not to answer questions.

Article 61 of the Portuguese Criminal Procedure Code also stipulates that at any stage of the criminal proceedings, the person being prosecuted has the right not to answer questions about the criminal facts charged against him or the content of the statements about these facts. Regarding questions about the facts of the alleged crime, the suspect may refuse to answer or give false answers, and no adverse inferences may be drawn from his silence, nor may he be held criminally responsible for making false statements.

Article 38 of Japan’s Constitution stipulates that no one may be forced to make a statement that is detrimental to him or her. Confessions obtained by force, torture or threat, or after unlawful long-term detention or detention, shall not be admitted as evidence. No one shall be convicted or sentenced if the only evidence against him is his own confession. According to Article 311 of the Criminal Procedure Law, during the court trial, the defendant may remain silent or refuse to confess to each question.

In addition, the criminal procedure laws of Bulgaria, Poland, and Yugoslavia all have provisions regarding the rules against being forced to incriminate oneself.