Europe forfeits the right against self-incrimination

Posted by Marc Hodak on July 19, 2007 under Collectivist instinct | 2 Comments to Read

Every now and then, I figure that maybe Europe is at a stage where it might begin keeping America honest. They may look over here at our freedoms, and decide they don’t want to be collectivist also-rans anymore, that they’re ready to step up to the challenge of being the place where the world wants to live, and reduce taxes, and reduce regulations, and spread those human rights like warm Nutella on a baguette.

Then they pull sh*t like this.

The European Court of HUMAN RIGHTS decided that some human rights aren’t really all that important, at least when it comes to traffic violations.

Those awesome cameras all over England, you know, for fighting terrorists, are apparently being utilized in non-terrorist hours to, among other things, issue citations for traffic violations. Those citations come with a demand to identify the driver of the automobile at the time of the picture, and this kind reminder:

I must warn you that if you fail to comply with this demand within 28 days you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself — a fine of ‘1,000 and 3-6 penalty points.

So, you effectively begin with a presumption of guilt, and if you don’t admit your guilt, we will simply penalize you as if you had confessed.

The European Court of HUMAN RIGHTS voted 15-2 to uphold this form of coercion. The court did it’s best to couch their decision in terms of upholding the basic right against self-incrimination and the presumption of innocence, but their logic tortuously twisted back to upholding the conviction. One judge on this HUMAN RIGHTS court objected to the intellectual gymnastics. Judge Borrego Borrego (I couldn’t make that up), in his concurring opinion, didn’t see any reason to maintain the sham:

To my mind, the path chosen by the Court in the present judgment follows the individualist, sacrosanct approach which views human rights as abstract rights which are set in stone. According to this school of thought, human rights are not intended to enable the individual to live in society, but to place society at the service of the individual.

I do not share this view. Where human rights are concerned, we cannot and must not forget that, as far back as the French Revolution, the phrase used was “rights of man and the citizen”. Humans are individuals but, as members of society, they become human citizens.

This obvious fact would have been a good reason for making the judgment shorter and clearer. It would have been sufficient to say, in line with the approach adopted by the Privy Council (paragraph 31) and others, that by owning and driving a motor car, the human citizen accepts the existence of the motor vehicle regulations and undertakes to comply with them in order to be able to live as a member of society. These regulations clearly entail certain responsibilities, which form the subject of the applications we have examined today. End of story.

Hmm, the French Revolution. Wasn’t that the party where shortly after articulating this arguably collectivist version of ‘rights’, the state unleashed an indiscriminate bloodbath against its own citizens? Good precedent Borrego-squared.

It was left to a Moldovan* judge to point out what the English themselves failed to accept.

The emergence of the privilege against compulsory self-incrimination in English common law can be traced back to the thirteenth century, when ecclesiastical courts began to administer what was called the “oath ex officio” to suspected heretics. By the seventeenth and eighteenth centuries in England the oath ex officio was employed even by the Court of Star Chamber to detect those who dared to criticise the king. Opposition to the oath became so widespread that there gradually emerged the common-law doctrine whereby a man had a privilege to refuse to testify against himself, not simply in respect of the special kind of procedure referred to above but, through evolution of the common law, as a principle to be upheld in ordinary criminal trials also (see the concurring opinion of Judge Walsh in Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI).

If I were a Brit on that panel, I would feel like a spanked ass.

* Author normally reserves right to rag on Moldova as well as France, since his French dad’s family originated in Moldavia. Here, however, we see that Moldova can produce something other than untreated sewage, torture victims, and the occasional fleeing Jews. Kudos to Judge Pavlovschi.