We often see such pictures when we watch police films in Hong Kong and Europe and America. When the police come forward to arrest the suspect, they will say, "You have the right to remain silent, but everything you say will be used as evidence in court." This is our initial and most intuitive understanding of the right to silence system. This set of stories is the famous "Miranda warning", which is an important embodiment of the right to silence in the judicial practice of western countries. This paper attempts to analyze the connotation of the right to silence, demonstrate the importance and necessity of the right to silence in criminal proceedings, and discuss the establishment of the right to silence in China.
First of all, the meaning of the right to silence
The right to silence has three meanings: 1, and you are not forced to testify against yourself; 2. Have the right to refuse to make statements; 3. Don't make legal presumption against yourself by refusing to state. Specifically, the relevant officials cannot impose any coercion (including mental and physical coercion) on criminal suspects and defendants to force them to confess and admit their crimes; Criminal suspects and defendants can also remain silent or refuse to answer questions from relevant officials in accordance with the law, and will not be investigated for this. Judicial organs cannot take silence or refusal to answer questions as evidence of their guilt, thus aggravating the crimes of criminal suspects and defendants; Before asking questions, the relevant officials have the obligation to inform the suspects and defendants that they have the right to remain silent; All violations of these regulations and materials obtained cannot be used as evidence of guilt.
Second, the significance of establishing the right to silence in China's judicial practice
In China, the right to silence has not been established. Of course, this is inseparable from the actual situation in our country. In the long-term judicial practice, the confession of the parties has always been placed in a very important position. On the one hand, because the investigation technology in China is not advanced enough, it needs the guidance of the client's confession; On the other hand, paying attention to the confession of the parties can really improve the efficiency of handling cases and better crack down on crimes. However, in China, where the right to silence is ignored, some problems have been exposed since the development of civilization. For example, torture, which is more and more frequent in newspapers, extorts confessions. Although China's criminal law clearly stipulates the crime of extorting a confession by torture, the phenomenon of extorting a confession by torture, especially the act of collecting evidence by threats, temptations, deception and other illegal means, has been repeatedly prohibited in the investigation, prosecution and even trial activities of judicial organs; Arbitrary summoning, forced summoning, detention and even long-term detention of citizens, as well as inhuman treatment of citizens whose freedom is restricted, are also common. There are many reasons for extorting confessions by torture, the most important of which is the presumption of guilt and the influence of confessionalism that relies heavily on confessions. However, the law stipulates that "the answer should be true", which often supports the case-handling personnel to exert various pressures and even torture on criminal suspects in terms of moral concepts. In fact, to effectively stop this phenomenon, we should start from many aspects, such as establishing an effective supervision mechanism, and taking fundamental veto measures against these acts of extorting confessions by torture in the judiciary. Therefore, it is of great significance to establish the right to silence system in China.
First of all, establishing the right to silence is the need to protect civil rights. Experience shows that in criminal proceedings, the rights of defendants are most easily and often violated. Compared with prosecutors with special powers and special technical means, people who are criminally prosecuted are at a disadvantage. If prosecutors are given the power to force them to make statements, the other rights of defendants will not be protected, and it is easy to encourage prosecutors to commit torture, threats and other illegal acts. Giving him the right to silence is actually a means to strengthen his competition with the prosecution in criminal proceedings, so as to safeguard the legitimate rights of the defendant and curb the abuse of the right to sue. Any citizen (including innocent people) may be investigated for suspected crimes. Therefore, protecting the defendant's right to silence is actually protecting the rights of every citizen and an important part of human rights protection. Today, with the growing voice of human rights, the protection of citizens' rights should be effectively protected in all aspects to avoid being violated by the state. With the progress of society and the development of democracy, China began to pay more and more attention to the protection of the rights of the parties. Therefore, it is an inevitable trend to put the litigant's position in criminal proceedings on an equal footing with the procuratorial organ.
Secondly, establishing the right to silence can effectively prevent unjust imprisonment. Because the defendant enjoys the right to silence, which increases the obstacles for prosecutors to obtain evidence, prosecutors have to give up obtaining guilty evidence by extorting confessions, and he must fully collect other evidence, which provides a guarantee for finding out the truth of the case and preventing unjust, false and misjudged cases. This is of great positive significance for maintaining long-term social stability. Because there are too many unjust prisons, it is difficult for society to be stable for a long time.
Thirdly, establishing the right of silence is helpful to realize procedural justice. In modern countries ruled by law, criminal proceedings pay attention to the legitimacy and civilization of the procedure, and emphasize the respect and protection of the personal dignity and freedom of will of the interrogated person. The right to silence is a manifestation. Theoretically speaking, the right to silence is closely related to the principle of emphasizing the balance of litigation structure, the main position of the parties, the principle of presumption of innocence and the burden of proof. Due to the strong control of the reciprocity between the defense and the defense, the accused cannot be investigated for criminal responsibility to assist the prosecution. Otherwise, there is no fairness. Because the subject status of the accused is recognized, the independence of the accused's will is recognized, and he enjoys the full right of defense. When he doesn't want to reply, he also enjoys the right of silence, and he shall not be forced to make a reply against his will. Otherwise, the accused will become an independent litigation object. Because according to the principle of presumption of innocence, anyone is considered innocent until he is convicted by the court according to law, the party who accuses him of committing a crime must bear the burden of proof to prove his guilt, and he cannot be forced to prove his guilt or innocence. From the evidence theory, the rule of the right to silence is also a denial of the evidence view that emphasizes confession. In the traced criminal proceedings, confession is called "the king of evidence" and "the best evidence". In the application of evidence, it emphasizes "no confession, no record", and the evidence value of confession is exaggerated unilaterally. In order to obtain confession as the best evidence and make the case finalized, it leads to the legalization of extorting confessions by torture and.
The widespread use of extrajudicial torture. The litigation idea of the right to silence is just the opposite. The recognition of the right to silence shows that this procedure itself does not pin the hope of solving the case on obtaining a confession. Based on this, and the pursuit of human rights protection, in the process of confirming the right to silence, all methods of compulsory evidence collection that go against the speaker's will are strictly prohibited and resolutely punished as soon as they appear.
Thirdly, some discussions on transplanting the right to silence in China.
(1) Does China have the right to remain silent at present?
Many countries have established the right to silence, so does China, which is moving towards the rule of law, establish the right to silence or stipulate some contents of the right to silence system? Some people think that the law of our country stipulates the right to silence, on the grounds that Article 93 of the Criminal Procedure Law stipulates that criminal suspects have the right to refuse to answer questions irrelevant to the case raised by investigators. Some people think that although the law of our country does not clearly stipulate the right to silence, the legislative spirit already contains the right to silence. The law gives criminal suspects and defendants the right to defense, and the right to refuse to answer some questions can already be vaguely seen.
However, most scholars believe that the right to silence system has not been established in China, and the above two views are misunderstandings about the right to silence system. I also agree with this view, because the connotation of the right to silence includes: 1, not being forced to testify against yourself; 2. Have the right to refuse to make statements; 3. Don't make legal presumption against yourself by refusing to state. Let's take a look at China's legislative provisions. Article 43 of China's Criminal Procedure Law stipulates that it is strictly forbidden to extort confessions by torture and collect evidence by threats, temptations, deception and other illegal methods; Article 93 of the Criminal Procedure Law stipulates that criminal suspects have the right to refuse to answer questions irrelevant to the case; At the same time, however, Article 93 of the Criminal Procedure Law also stipulates that criminal suspects should truthfully answer investigators' questions, which is contrary to the second meaning of the right to silence "the right to refuse to state".
It can be seen that China's legislation has not established the right to silence. On the contrary, China implements a criminal policy of "being lenient in confession and resisting being strict". In judicial practice, the same is true. If a criminal suspect truthfully confesses the problem during the trial, he may be given a lighter punishment. On the contrary, if the suspect refuses to explain the problem during the trial, ignores the interrogators' questions or recants, then when the public prosecutor brings a public prosecution, these will inevitably be explained to the judge as a heavier punishment, and the judge will also make a judgment according to the criminal policy of "strike hard", which is very likely to increase the punishment for the suspect. This violates the third meaning of the right to silence, that is, it cannot be presumed to be unfavorable to oneself because it refuses to state. To sum up, although China has acceded to the International Covenant on Civil and Political Rights, the existing laws also give suspects and defendants a wide range of rights, such as the right to defense, the right to refuse to answer questions irrelevant to the case, the right to allow suspects and defendants to be innocent, and the right to plead lightly. These provisions conform to the first meaning of the right to silence, but they are still related to the system of the right to silence. It should be said that although China has not established the right to silence system, we can vaguely see some figures of the right to silence system.
(2) Is it necessary for China to establish the right to silence?
The right to silence system, which began more than 300 years ago, has been widely recognized by the international community, which is inseparable from the fact that the right to silence system itself meets the needs of human beings to protect human rights. The rationality of the establishment of the right to silence system lies in:
1, which meets the humanitarian requirements. It is against humanity to force a criminal suspect to testify against himself. In feudal society, extorting confessions by torture is legal, and self-incrimination seems to be justified. The capitalist system replaced the feudal system, and its greatest progress was to pay attention to the protection of human rights and put forward "freedom, equality and fraternity?" "The cruel and barbaric methods such as extorting confessions by torture are denied by a reasonable legal system, and the right to silence system is adopted by legislators because of its essential characteristics of protecting human rights.
2. From the point of view of litigation structure, giving criminal suspects and defendants the right to remain silent is actually giving them the right to compete with judicial organs, because in litigation, the defendant himself is in a weak position, and it is difficult for individuals to compete with the whole investigation organ and the whole country. The law endows the investigation organ with powers that many individuals do not have. In order to ensure the relative balance between the prosecution and the defense, and at the same time protect the legitimate rights and interests of the criminal suspect as much as possible, give it to the criminal suspect.
3. From the perspective of preventing and curbing the investigation of illegal acts, giving the criminal suspect the right to silence has a positive preventive effect. Because the confession of the criminal suspect is direct evidence, it is most likely to show the facts of the case truly, comprehensively and concretely, especially in bribery cases. In order to obtain confessions, interrogators are often tortured to extract confessions in the investigation stage, and even torture suspects. If the criminal suspect is given the right to remain silent, he can be exempted from the obligation to answer, and the phenomenon of extorting confessions by torture will be greatly reduced.
4. From the perspective of protecting personal privacy, if the criminal suspect and the defendant are given the right to remain silent, then the questions about personal privacy raised by the judicial personnel can be left unanswered, which can protect the personal privacy of the criminal suspect more favorably. Although the current law in China also stipulates that suspects have the right to refuse to answer questions unrelated to the case, investigators often spy on the personal privacy of suspects on the grounds that the questions are closely related to the case. Therefore, in order to completely protect personal privacy, it is necessary to establish the right to silence.
The right to silence system has the above rationality in theory, and has been widely recognized by the international community, and many countries have established this system. China has acceded to the International Covenant on Civil and Political Rights, and according to the principle that international law is superior to domestic law, it is obliged to stipulate the right to silence in domestic law. At present, the reform of trial mode in China is to establish a debating litigation mode similar to that in Britain and America, which needs to give the defendant the right to silence. Therefore, some scholars suggest that the right to silence should also find its own foothold in China.
Of course, the right to silence inevitably has its own disadvantages. Therefore, in the long-term practice, common law countries have formed a series of restrictions on the right to silence. The United States first stipulated in the criminal law that the defendant who truthfully confessed can be given a lighter punishment; Secondly, the jury's right to compel witnesses to testify and the prosecutor's right to compel searches have caused great psychological pressure on the defendant. The combination of the above two points is the most powerful restriction on the right to silence. Britain also restricted the application of the right to silence in 1994 Criminal Justice and Public Order Act.
Whether to apply the western right to silence system has always been one of the important issues discussed by the academic circles of Chinese law. With the development of society, we can better understand the advantages and disadvantages of this system, and how to give full play to the advantages of the right to silence and effectively restrain its disadvantages has become a problem discussed by jurists. The right to silence is an important symbol of the development of civilization and the protection of human rights, which can better protect the interests of the defendant and safeguard the legitimacy of the procedure in criminal proceedings. But at the same time, it also sets many obstacles for investigators to handle cases and becomes a way for some lawless elements to escape punishment. In short, when we have established the concept of criminal procedure that meets the requirements of a society ruled by law, the important question is how to make this concept objectively run through our real life and judicial practice. In order to fully and effectively protect citizens' legitimate rights in criminal proceedings, it is not enough to confirm some concepts of rule of law. Without some sufficient and effective procedural supervision and restriction mechanisms, even if the law expressly stipulates the right to silence, it is difficult for criminal suspects and criminal defendants to keep their mouths shut. The right to silence, like many other provisions, will only stay in form.
Four. conclusion
It can be said that the establishment of the right to silence is a sign of the progress of the judicial system. As a mature legal system, the right to silence has played an important role in judicial and trial practice. At present, the judicial system in China is improving day by day. Many experts believe that the time is ripe for China to implement this system, because the revised new criminal procedure law not only absorbs the principle of "presumption of innocence" in western laws, but also stipulates that lawyers can intervene in advance in the criminal investigation stage. Perhaps soon, the right to silence, as an important part of evidence legislation, will actively join the criminal proceedings in China.