Part I
Boštjan M. ZUPANČIČ, Professor, Ph.D. in Law, The privilege against self incrimination as a human right
This is an attempt at a synthetic presentation of the logical reciprocity between the rule of law and the privilege against self-incrimination.
For the purposes of this paper the privilege against self-incrimination is defined (1) broadly as a bar to any forcible violation of the defendant's concentric spheres of privacy (mind, body, home, car etc.), or (2) narrowly as protecting only defendant's testimonial evidence.
The preservation of the privilege against self-incrimination - through consistent application of the exclusionary rule - is the central axis of modern criminal procedure. Because it subverts the power of logic (i.e. justice) with the 'logic' (i.e. arbitrariness) of power -, forced self-incrimination corrupts the rule of law at its roots.
Moreover, forced self-incrimination often establishes a self-referential spiral of state-sponsored violence in which the arbitrary use of executive power legitimises the arbitrary use of legislative power. Such 'justice' amounts to a true Kafkaesque absurd. Logically consistent jurisprudential foundation for the privilege against self-incrimination, on the other hand, requires a logical deconstruction of the whole inquisitorial doctrine of criminal procedure. In terms of procedural policy even the remaining inquisitorial elements in the so-called mixed (Continental) procedure, as clearly illustrated by recent judgment of the European Court of Human Rights (Selmouni v. France, July 1999), critically predispose the criminal justice system towards torture and inhuman or degrading treatment. Both in terms of logical consistency (justice) and in terms of policy (general prevention) strict exclusion of tainted evidence is the only available - but highly effective - remedy (procedural sanction).
Persisting, however, even in modern criminal procedures, there are many inquisitorial elements and attitudes; under the pretext of efficacious 'truth-finding', they obstruct the introduction or the application of the exclusionary rule.
The procedural right not to be required to testify against one's own interest goes back to Roman Law: Nemo contra se prodere tenetur. As presumption of innocence (i.e. the right to silence) or in American positive law (Vth Amendment of the U.S. Constitution) the privilege has always been recognised. Inquisitorial criminal procedure, however, represented its complete negation. In the second half of the 20th Century constitutional courts, international courts and monitoring bodies (U.N. Convention against Torture, Saunders v. U.K. judgment (1996) of the European Court of Human Rights) increasingly recognise the privilege (and its alter ego the exclusionary rule) as a constitutional principle and as a human right of every criminal suspect. Strong inquisitorial elements (incommunicado custodial interrogation, inquisitorial powers of investigating judges, no jury, lax exclusion of tainted evidence etc.) persist in modern criminal procedures.
Because it leads to Hobbes's war of everyone against everyone (bellum omnium contra omnes), the first act of any State must be to outlaw anarchy, i.e. forbid the use of force as a means of conflict-resolution. The second act of a nascent State must be, thereafter, to require people that they resort to peaceful conflict resolution, i.e. to adjudication by the courts. This means that the arbitrary and anarchical 'logic' of force in society is replaced by the force of logic in legal process (justice, rule of law, orderly legal procedures in which conflicts are resolved). Thus, the relapse into the use of force to obtain confessions within otherwise seemingly legal procedures causes an absurd internal conflict in the very bedrock of rule of law - and hence in its fundamental legitimacy. This lack of legitimacy contributes, because of the great symbolic value of the rule of law in general and especially of criminal process, to the rise of anomie (political instability, rising crime rates, disorganisation etc.) in society.
Since the police themselves do not legally convict anybody, the privilege is preserved if the evidence tainted with forced self-incrimination is excluded, i.e. if the judge or the jury never learn of it and of its evidentiary by-products. Because preventative, the exclusionary rule is one of the few totally effective remedies.
However, the exclusion of relevant, but tainted, evidence collides with the truth-finding function of criminal procedure. ('The constable blunders and the criminal goes free!') This 'truth' (sheer concordance between major and minor premise) to be established in criminal process, however, is not a description of objective reality but of State's power legally to create crimes. Crimes on the books (whether socially functional or not) are major premises of State's power to make certain conduct punishable. Especially if these major premises are arbitrary, the so-called 'truth' (tû-tû) of criminal convictions may be merely a selective interpretation of 'facts' fitting these invented premises. In non-democratic conditions the use power (force) - in order to obtain a conviction concerning arbitrary crimes - may, therefore, establish a self-referential spiral in which power as torture ratifies State's power to punish: an existentialist absurd described by Kafka in his Process. To some extent, this absurdity is part of every inquisitorial procedure. It goes back to the medieval trials of 'witches'. Today this self-referential spiral is especially apparent in the progressive dwindling of personal privacy -, but also in prosecutions of political dissidents for imaginary crimes, in stigmatising abuse of psychiatry, in massive-repressive use of punishment in the United States etc.
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