Source: Times Law, No.2, 20 14.
Writing time: 20 14.
China's revised Criminal Procedure Law, which came into effect on 20 13, officially stipulates that "no one shall be forced to prove his guilt". However, from the perspective of judicial practice, the real realization of this provision still needs to be accurately understood and grasped. Therefore, it is necessary to elaborate and define the connotation and extension of this provision.
Chinese keywords must not force anyone to prove his guilt; Legislative background; Connotation; Extension; compare
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Although Article 50 of China's Criminal Procedure Law has realized from scratch that "no one shall be forced to prove his guilt" and "the life of the law lies in its implementation". The real implementation of this provision still needs a correct understanding of the background, connotation and extension of the provision that "no one shall be forced to prove his guilt". The author tries to make the following discussion on related issues around this.
First, the establishment background and litigation value of "no one can be forced to prove his guilt"
The understanding of the legal provision that "no one shall be forced to prove his guilt" cannot be separated from the understanding of the value of this provision and its establishment background in China. "No one shall be forced to prove his guilt" has experienced a development process in China from being excluded in 1950s to being accepted in this century. Here, briefly explain the background of different manifestations of this problem in the formulation of the criminal procedure law and the subsequent two revisions.
From 65438 to 0979, when the Criminal Procedure Law was formulated, influenced by the specific historical background and social conditions, the state "paid more attention to cracking down on protection" and the society "paid more attention to the state than individuals", taking "cracking down on crime" as the primary task, and the concept of human rights was relatively indifferent. Not to mention criminal defendants, even ordinary citizens, the protection of individual rights is often ignored by the law. "No one can be forced to prove his guilt" naturally cannot appear in the law because of the lack of soil. On the contrary, Article 64 of the Criminal Procedure Law stipulates that "when an investigator interrogates a defendant, he should first ask the defendant whether he has committed a crime, let him state the plot of guilt or the plea of innocence, and then ask him questions. The defendant shall truthfully answer the questions of the investigators. " Refusing or not answering truthfully will be regarded as a discretionary "resistance" plot and will be severely punished.
Before the first revision of 1996 Criminal Procedure Law, although there were endless calls for establishing the principles of "right to silence" and "no self-incrimination", for many years, the investigation organs formed a confession-centered mode of solving crimes and relied heavily on confessions, so the above ideas were first greatly resisted by the investigation organs. The legislature is also worried that the mandatory provision of "the right to silence" or "no forced self-incrimination" is not conducive to cracking down on crimes and affecting social security. Therefore, "the right to silence" and "not forcing self-incrimination" did not appear in this legislation.
20 12 the criminal procedure law was revised again. Based on the following requirements of strengthening human rights protection in various countries in the world and the general trend of the development of the rule of law in China, it is clear that "no one shall be forced to prove his guilt".
First of all, after hundreds of years of practice and confirmation, "no forced self-incrimination" has been generally affirmed by foreign laws. Since 164 1, the British Parliament has established "no self-incrimination", which has gradually changed from the state's attitude choice of punishing crimes and safeguarding the value of human rights litigation to the judgment standard of human rights status and civilization in a country's criminal proceedings, and has guided the criminal litigation legislation of various countries as a basic principle. 179 1 Section III of the Fifth Amendment to the US Federal Constitution stipulates: "In any criminal case, no one shall be forced to prove his crime" {3}. The U.S. Supreme Court interprets the meaning of the Fifth Amendment to the Constitution as follows: (1) This principle is limited to criminal cases, but it not only refers to statements that lead to self-incrimination, but also includes all other evidence that may lead to self-incrimination; (2) This principle can be advocated not only by criminal suspects and defendants, but also by witnesses; (3) This principle can be advocated not only in the investigation procedure, but also in the trial procedure; (4) This principle can only be advocated for my own benefit, not for others; (5) This principle only applies to natural persons, not to legal persons. Even in civil law countries, this principle has been confirmed in the constitution or criminal procedure law. Article 64 of the Italian Criminal Procedure Law stipulates: "Before interrogation, in addition to the provisions of Article 66, paragraph 1, the person being interrogated shall also be informed of the right not to answer questions". Article 136 of the German Criminal Procedure Law stipulates: "When interrogating the defendant for the first time ... tell him that he has the right to reply to the complaint or not to reply". Article 146 of Japan's Criminal Procedure Law stipulates that "anyone can refuse to provide testimony that may lead to criminal prosecution or guilty verdict". Article 3 1 1 stipulates: "The defendant may keep silent all the time or refuse to confess to various questions". Article 1 14 of the French Code of Criminal Procedure stipulates that when the defendant appears in court for the first time, the investigating judge shall "inform him of his freedom not to make statements". Although these provisions are slightly different in expression, the original intention of "self-incrimination shall not be forced" is beyond doubt.
Secondly, "no forced self-incrimination", as the internationally recognized minimum protection for defendants, has become a litigation norm and trend recognized by international conventions such as international human rights. Among them, there are two representative conventions: one is the first international human rights convention-the European Convention on Human Rights, which was formulated in response to the Universal Declaration of Human Rights in 1948. Article 6 of the Convention stipulates: "Everyone has the right to a fair and public trial by an independent and neutral court established according to law within a reasonable time to determine his civil rights and obligations or to bring criminal charges against him ... Anyone accused of a crime shall be considered innocent until proven guilty according to law. 1996 the European court of human rights, in its judgment in the case of "Moeller v United King", held that although article 6 of the European convention on human rights is not explicitly stipulated, there is no doubt that the privilege of the police to remain silent and not be forced to testify against themselves during interrogation is a universally recognized international standard, which is the core of the concept of fair procedure in article 6. The other is 1998 10, which was signed and acceded to by our government on 5 October. Paragraph 3 of Article 14 of the Convention stipulates: "In the trial of any criminal charges against him, everyone is completely equal and entitled to the following minimum guarantees: ... (g). {4} In addition, some regional conventions also reflect this point. For example, article 8, paragraph 2, item 7 of the American Convention on Human Rights 1969 stipulates that "you shall not be forced to testify against yourself or be forced to confess guilt". The Statute of the International Criminal Court (1998) gives the defendant the right not to testify against himself. Correspondingly, the United Nations Convention on the Rights of the Child (1989), which was signed by our government and came into effect in March, 1992, stipulates: "All children accused or accused of criminal law shall at least ensure that: (4) they will not be forced to confess or plead guilty"; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed by China on 1982 and entered into force on 1 1 June; The Universal Declaration of Human Rights and so on. As a signatory, the provisions of the above-mentioned conventions are naturally legally binding on China. Especially with the promotion of market economy in China, the increase of diplomatic and international affairs, and China's accession to the WTO, we are required to abide by a series of relevant conventions for the protection of human rights.
Thirdly, the rule of law in China and the principle of human rights protection in the Constitution require that the provisions of the Criminal Procedure Law on the protection of human rights of litigants should be specific. At the end of last century, with the proposal and implementation of the general plan of building a socialist country ruled by law in China, the legal awareness of human rights protection in the whole society has been continuously enhanced. In order to meet this requirement, in March 2004, "respecting and safeguarding human rights" was written into the Constitution. "No one can be forced to prove his guilt", as a basic clause to protect the human rights of defendants in litigation, naturally jumped into the criminal procedure law revised by 20 12.
Finally, the defects of China's previous criminal procedure system and the strengthening of investigation measures by the current criminal procedure law need to be supplemented and balanced by "no one can be forced to prove his guilt". On the one hand, for a long time, it has been regarded as an important and effective means to obtain confessions by using the asymmetry of information to interrogate criminal suspects and break through their psychological defense lines. The dependence on confession not only provides soil for extorting confessions by torture, but also ignores the collection of other evidence. Coupled with the lack of effective litigation human rights protection measures, the phenomenon of "extorting confessions by torture" has been repeatedly banned, leading to a series of unjust, false and wrong cases, which has aroused great concern in society. The stipulation that "no one can be forced to prove his guilt" can curb the above-mentioned illegal acts. On the other hand, when the Criminal Procedure Law was revised in 20 12, special investigation methods such as technology and confidentiality were added to some crimes, and the law retained the provisions requiring criminal suspects to truthfully answer investigators' questions. In this regard, it is necessary to make the two tend to match and maintain balance from the perspective of correspondence and checks and balances through the stipulation that "no one shall be forced to prove his guilt".
The value of "no one can be forced to prove his guilt" can be understood in many ways. As far as litigation is concerned, it is at least reflected in:
First, strengthen the equality of litigation status and litigation rights between defendants and prosecutors. As the main body of criminal proceedings, the state not only has rich financial, human and institutional resources, but also enjoys many litigation rights endowed by laws, which makes the prosecuted party look very thin in front of the powerful state machine. In order to prevent the disparity between the prosecution and the defense from affecting the procedural justice, on the one hand, it is necessary to legally restrict and standardize the authority and behavior of the state investigation and accusation organs in litigation, on the other hand, it is necessary to improve the litigation status of criminal suspects and defendants and give them corresponding litigation rights that match the litigation authority of the procuratorial organs, so as to achieve the purpose of checks and balances. "No one can be forced to prove his guilt" is essentially that the prosecution bears the burden of proof to prove the defendant's guilt, thus increasing the defendant's bargaining chip against the prosecution.
Second, it is conducive to ensuring the authenticity and legitimacy of verbal evidence. Only when verbal evidence is true and voluntary can it be valuable for the detection and identification of cases, and legitimacy is the premise and guarantee of evidence. Because verbal evidence lacks effective and objective physical evidence carrier and is subjective, its content is easily influenced by the way of obtaining evidence and the will of confession, so it requires higher legitimacy. If the judicial personnel illegally obtain the defendant's verbal evidence, the reliability and legitimacy of the evidence will be greatly reduced or even lost because it violates the defendant's will and the procedure is illegal. "No one can be forced to prove his guilt" will greatly enhance the authenticity and legitimacy of evidence because of the voluntary nature of words. Moreover, according to the exclusionary rule of illegal evidence in the Criminal Procedure Law, verbal evidence obtained by forcing the defendant to confess or violating legal procedures, even if the content is true, will be excluded, making the result of forced self-incrimination invalid.
Third, standardize the way of obtaining evidence and improve judicial integrity. In traditional investigation activities, confession is considered as an important source of obtaining criminal clues and evidence. Over-reliance on confessions leads to police abuse of power and the proliferation of confessions by torture, which not only seriously violates the human rights of defendants, reduces the credibility of confessions, leads to unjust, false and wrong cases, but also seriously damages the image of judicial personnel and the credibility of the judiciary. "No one can be forced to testify against himself" not only requires judicial personnel to bid farewell to primitive and barbaric illegal methods of obtaining evidence, but also adheres to the principle of "emphasizing evidence and not trusting confessions" and realizes the transformation from "confession-centered" to "evidence-centered". It also means that judicial personnel, fearing that forcing self-incrimination may put themselves at a disadvantage, get rid of excessive dependence on confessions at the beginning of interrogation and take the initiative to turn to other evidence. The situation that the judicial organs are passive and the legal authority is damaged will be improved, and the judicial integrity will be improved.
Second, the connotation of "no one shall be forced to prove his guilt"
The responsible subject of "no one shall be forced to prove his guilt".
Article 50 of China's Criminal Procedure Law defines "no one shall be forced to prove his guilt" as "judges, prosecutors and investigators". The author thinks that the main body of responsibility here refers to the "judges, prosecutors and investigators" who are directly engaged in case handling, but the following situations need to be paid attention to: first, the direct case handlers instigate and condone those who assist in case handling in violation of the provisions of this law; The other category includes "judges, prosecutors and investigators" who instigate and condone specific case handlers to force criminal suspects and defendants to testify against themselves. The author also believes that the description of the responsible subjects "judges, prosecutors and investigators" in Article 50 of the Criminal Procedure Law should be arranged in the order of "investigators, prosecutors and judges", because the crime of forced self-incrimination mainly occurs in the investigation stage, and investigation, prosecution and trial are also in line with the handling procedures of criminal proceedings in China. At present, the expression of "judge, prosecutor and investigator" is mainly based on the fact that "no forced self-incrimination" was first applied in foreign court trials, and then extended to the stage of investigation and prosecution, and the interrogated person should not be forced to answer questions about his guilt or confess guilt, while the development of "no forced self-incrimination" and the actual situation of criminal proceedings in China were not considered enough.
(two) the object of "no one shall be forced to prove his guilt"
Article 50 of the Criminal Procedure Law clearly stipulates that the object of "no one shall be forced to prove his guilt" is "anyone", because although anyone has the obligation to assist the state in investigating crimes, the state shall not force any individual to assist in prosecuting his own crimes. Moreover, judging from the history of Christianity and common law in continental Europe, the idea of "not forcing self-incrimination" was originally aimed at anyone. Christianity in medieval Europe advocated that people should confess their sins to God, but they should not be forced to tell others about their sins, and the Bible did not advocate swearing. In addition, "self-incrimination shall not be forced" originally originated from the old English saying that "no one has the obligation to sue himself" {5}, which also emphasizes a privilege applicable to all those who provide oral evidence. The "Lear case", which first triggered the legislation of "self-incrimination is not allowed" in Britain, was also aimed at anyone.
The key point of the principle of "no forced self-incrimination" is to emphasize that all those who provide oral evidence have no obligation to provide prosecutors with any statements or other evidence that may put them at a disadvantage. However, from the implementation of this principle in foreign countries for hundreds of years, in fact, this provision is usually mainly applicable to defendants and witnesses in criminal proceedings. That is, in criminal proceedings, criminal suspects and defendants have the right to refuse to state issues that may lead to their guilt; A witness has the right to refuse to testify if his testimony may be at a disadvantage. Judging from the general spirit of Article 50 of the Criminal Procedure Law of our country and the actual judicial situation in our country, the application object of "no one shall be forced to prove his guilt" should mainly be criminal suspects and defendants. However, the author thinks that witnesses should be strictly restricted from being at a disadvantage, that is, only when they testify can they face criminal investigation at the same time, that is, when witnesses may turn into criminal suspects or defendants at this time, they should be allowed to refuse to testify, and they should not be forced to testify against themselves. It is not appropriate to expand the explanation of the unfavorable situation that may fall into, so as to maintain the consistency and enforcement with Article 60 of the Criminal Procedure Law, which states that "the person who knows the case has the obligation to testify".
(3) the way of "no one shall be forced to prove his guilt"
Whether in common law system or civil law system, how to ensure the voluntariness and arbitrariness of statements and testimonies is regarded as a crucial evidence rule of "no self-incrimination". Accordingly, the law of "no one shall be forced to prove his guilt" in our country prohibits not "self-incrimination" but "coercion" to prove his guilt. In fact, the burden of proof for the crime of "huge property of unknown origin" and the crime of "possession" in China's criminal law requires the accused party to bear the burden of proof, which is called inversion of the burden of proof in theory to solve the problem that the public prosecution organ cannot provide evidence. Therefore, whether the interrogation method is mandatory is the key here. If the defendant or witness voluntarily gives up his privilege and makes a statement or testimony against himself in a "knowing, wise and rational" situation, as long as it meets the evidentiary conditions, it is not excluded to use it as evidence. There is no specific legal interpretation of "coercion" in China's current laws. However, according to the prohibition method in Article 50 of the Criminal Procedure Law, it is forbidden to extort confessions by torture and collect evidence by threats, enticements, deception and other illegal methods. Any method that goes against the will of the interrogated person and is enough to make him suffer inhuman treatment psychologically and physically or damage his personal dignity can be regarded as "coercion", including corporal punishment, extended detention, anesthesia, restriction of rest and diet and other means.
It is worth noting that "coercion" here covers all kinds of methods other than involuntary methods, so it seems redundant to stipulate in Article 50 of the Criminal Procedure Law that it is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements and deception. In this regard, the United Nations Human Rights Committee also pointed out that it is not necessary to list the prohibited acts one by one. The prohibition of torture not only refers to the prohibition of acts that may cause physical pain, but also includes the prohibition of acts that cause mental pain to victims {7}. The problem is that China's stipulation that "no one should be forced to prove his guilt" is the result of learning from the western legal stipulation that "no one should be forced to prove his guilt", and its implementation effect is still unknown. Moreover, the provision of "no one shall be forced to prove his guilt" aims at "prohibiting extorting confessions by torture and collecting evidence by threats, enticements and deception" {8}, but it will take time to test whether this provision can really achieve the above objectives. Therefore, for a period of time, it is necessary to stipulate that "no one shall be forced to prove his guilt" and "it is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements and deception". When conditions are ripe in the future, only the former will be retained and the latter will be deleted.
(4) No one shall be forced to prove his guilt.
Article 50 of China's Criminal Procedure Law stipulates: "Judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of crimes in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception, etc., and no one may be forced to prove his guilt. " It can be seen that the main purpose of this clause is to prevent extorting confessions by torture. Although Article 43 of China's Criminal Procedure Law previously stipulated that "it is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception and other illegal methods", it is difficult to implement the provisions of Article 43 of the Criminal Procedure Law because the criminal law does not stipulate the criminal responsibility and corresponding remedial measures for obtaining evidence by illegal methods other than extorting confessions by torture. Although Article 6 1 of the Supreme Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) clearly stipulates: "It is strictly forbidden to collect evidence by illegal means. The witness testimony, the victim's statement and the defendant's statement obtained by extorting a confession by torture or by threatening, luring or cheating, which are verified, cannot be used as the basis for finalizing the case. "However, because the judicial interpretation is less effective than the criminal procedure legislation, and the judicial interpretation made by the Supreme Court is not legally binding on other departments outside the court, in judicial reality, especially in the case investigation stage, the phenomenon of extorting confessions by torture and collecting evidence by threats, enticements, deception and other illegal methods has been repeatedly prohibited.
Needless to say, the practice of illegally collecting verbal evidence such as extorting confessions by torture has a long history and is very common in China's judicial practice. To solve this problem, in addition to punishing violators legally, it is more important to have corresponding preventive measures as a prerequisite. "No one can be forced to prove his guilt" is set to meet the needs of this kind of law. Of course, in order to prevent interrogators from being forced to make guilty statements and ensure the implementation of this provision, China's criminal procedure law has also stipulated a series of supporting measures in due course, mainly including: (1) Article 33 advances the time for defense lawyers to participate in criminal proceedings to the investigation stage; (2) Paragraph 2 of Article 1 16 restricts the interrogation place, that is, the criminal suspect detained in the detention center can only be interrogated in the detention center; (3) The article 12 1 adds the provision of audio and video recording of interrogation; (4) Paragraph 2 of Article 187 stipulates the obligation of police to testify in court; (5) Articles 54 to 58 stipulate the exclusionary rules of illegal evidence. Lawmakers tried to build a complete system to prohibit extorting confessions by torture.