Scope and conditions of application of electronic monitoring
1. Scope of the case
According to the principle of felony, all countries limit electronic monitoring to a certain scope of application, and there are three main ways to regulate it: one is the enumeration of Germany and Japan. According to Article 100a of German Criminal Procedure Law, the crimes that can be subject to surveillance include: treason, crimes endangering national interests, crimes committed by various terrorist organizations, homicide, kidnapping, robbery, extortion, arson, serious theft and receiving stolen goods, and serious drugs. Japan's interception law also stipulates that interception is only applicable to four kinds of crimes: drug crimes, gun-related crimes, organized killings and illegal cross-border crimes by groups. The second is the generalization of France. According to article 100 of the French criminal procedure law, anyone who may be sentenced to two years or more in prison can be placed under residential surveillance. To some extent, this has led to the widespread use of monitoring, which is not conducive to the protection of individual rights. As Thomas Wigent, a German scholar, said, "The temptation to convict the suspect in his own words seems so strong that it exceeds the concern for the more important right to privacy" [4]. Third, Italy outlined. Article 266 of Italy's Criminal Procedure Law limits electronic monitoring to non-negligent crimes and crimes against public administration, and lists four serious crimes: crimes involving narcotic drugs and psychotropic substances, crimes involving weapons and explosives, smuggling crimes, and crimes of insulting, threatening, harassing or interfering with others by telephone.
On the one hand, generalization plus enumeration avoids the shortcoming that enumeration may omit serious crimes or new crimes that need to be monitored, on the other hand, it overcomes the shortcoming of excessive generalization. China's electronic monitoring legislation should adopt this model, stipulating that electronic monitoring should be applied to non-negligent crimes that may be sentenced to more than three years' imprisonment and intentional crimes involving serious violent crimes, underworld crimes, terrorist crimes, drug crimes, corruption and bribery crimes and crimes endangering national security. Three years is the dividing line between minor criminals and serious criminals, which is easier to operate and conforms to the legislative cases of most countries.
2. Object scope
Article 15 of Japan's Monitoring Law stipulates: "When communication with doctors, dentists, midwives, nurses, lawyers (including foreign lawyers), agents, notaries and religious figures is considered to be entrusted by others, it is not allowed to monitor their business." The monitoring targets stipulated by Germany are mainly criminal suspects. However, in order to prevent criminal suspects from using others to commit criminal activities, the monitoring object can be extended to those who may send, transmit, receive and store information for criminal suspects, but it is forbidden to monitor defenders. But in France, the targets of monitoring include suspects, third parties and civil society, and even lawyers and members and senators of the National Assembly. It is only required to inform the chairman of the Bar Association of the monitoring of lawyers and the chairman of the Parliament of the monitoring of parliamentarians.
The author believes that the object of electronic monitoring should be strictly limited to criminal suspects, but because criminal suspects may use or collude with others to commit criminal acts or conceal criminal evidence, people who send, transmit, receive and store information for criminal suspects should also be included in the monitoring scope. As for the communication between suspects and their lawyers, psychologists, clergy, spouses, etc. Monitoring should be prohibited unless there is enough evidence to show that they are in collusion with the suspect. Because criminal suspects have established good social relations based on mutual trust or affection with their lawyers, psychologists, clergy and spouses, the public order and good customs of the whole society can be maintained. When discovering the truth of the case conflicts with maintaining the above-mentioned social relations, priority should be given to protecting the latter, otherwise members of society will be in mutual suspicion and constant fear, and the whole society will have no sense of security and trust.
3. Applicable conditions
Japan's monitoring law stipulates that the implementation of electronic monitoring must meet the following conditions: First, there are one of the following circumstances: (1) There are sufficient reasons to suspect that a specific crime has been committed and there are sufficient reasons to suspect that the crime was committed by several people; (2) There are sufficient reasons to suspect that the same or similar specific crimes are further committed in the same way or based on a series of criminal plans after the specific crimes are committed, and there are sufficient circumstances to suspect that these crimes were committed by several people; (3) There are sufficient reasons to suspect that necessary preparations have been made for the implementation of a specific crime, that major crimes inseparable from the specific crime have been committed, and that specific crimes will be further committed, and there are sufficient circumstances to suspect that these crimes were committed by several people; Second, there are enough circumstances to suspect that plans, instructions or other communications will be made to commit specific crimes or conceal evidence; Third, according to the telephone number or other methods, it is suspected that the communication facilities will be used by the perpetrator for a specific crime; Fourth, it is obviously difficult to identify the perpetrators and find out the truth of the case by other methods [5]. According to Japanese law, prior monitoring (that is, monitoring of possible crimes in the future) is prohibited [6]. In France, the conditions for adopting electronic monitoring measures are quite relaxed: "The examining magistrate may decide to intercept, register and transcribe communications for investigation purposes, and this measure is authorized and supervised by him".
The provisions on the applicable conditions of electronic monitoring should not be too harsh and difficult to apply, and the applicable scope of electronic monitoring should not be expanded at will. The author believes that the application of electronic monitoring in China should meet the following conditions: first, there is sufficient evidence to prove that the designated person will commit, is committing or has committed a specific crime; Second, there is sufficient evidence to show that the monitored places or facilities will be used for specific crimes; Third, it is necessary to take monitoring measures, that is, traditional investigation methods have been tried, but it is impossible or difficult to find out the facts of the case or there are other major dangers.
(2) Time limit for electronic monitoring
Japanese judges can only authorize the interception of 10 days at a time, which can be extended at the request of prosecutors or bailiffs, but the cumulative period cannot exceed 30 days, which is the shortest among the national regulations. The maximum period stipulated by Germany is three months. If the monitoring conditions still exist, it can be extended for no more than 3 months. France stipulates that the maximum time limit can be up to 4 months, which can be extended and unlimited times. The United States stipulates that the duration of monitoring can only be the time necessary to achieve the monitoring purpose, and it cannot exceed 30 days from the date of monitoring or from 10 days after the monitoring order is issued. According to this law, the monitoring period cannot be extended, and only a new application can be made [7].
On the one hand, electronic monitoring legislation should facilitate the investigation activities of investigation organs, on the other hand, it should limit the investigation power and protect human rights. In China, the duration of electronic monitoring should be limited to monitoring purposes, and the longest period should not exceed two months. After the expiration of electronic monitoring, if the investigation organ considers it necessary to continue monitoring, it shall re-apply for an electronic monitoring writ.
(3) The issuance of electronic surveillance writ and its exceptions.
Electronic surveillance in Japan must have an electronic surveillance order issued by a judge, which strictly excludes the surveillance without orders by prosecutors and judicial police. Germany also places special emphasis on the principle of writ. Even if one party to the communication agrees, the investigation organ shall not conduct electronic monitoring without a writ. American law does not strictly require that electronic monitoring can only be started with a warrant, and stipulates that investigators have the right to monitor without a warrant in an emergency. However, there are two conditions for unlicensed residential surveillance: first, there is one of the following emergencies: ① there is an imminent danger of causing death or serious physical injury to others. (2) Conspiracy that threatens the national security interests. (3) Conspiracy of organized crime; Second, there are many reasons to believe that according to the provisions of this law, there will be a warrant for surveillance [8]. Of course, surveillance without a search warrant is only effective if it is approved by a qualified judge. This provision is more flexible and practical than Japan's strict exclusion of unlicensed monitoring.
China's electronic monitoring legislation should adhere to the principle of judicial writ, and the investigation organ should submit a reasonable electronic monitoring application in written form if it wants to take electronic monitoring measures. After strict examination, the court shall issue a writ of residential surveillance to the person who decides to apply residential surveillance, and specify: the name and identity of the residential surveillance; Suspected crime of the monitored person; Location and time limit of monitoring; The monitoring equipment or implementation method adopted; Names of decision-making organs and executive organs. At the same time, considering the increasingly severe social security situation in China, if the approval procedure of electronic monitoring is strictly required indiscriminately, it will inevitably delay the investigation opportunity in some special emergencies, and even cause serious consequences that endanger national security or personal life and health. Therefore, it is necessary to give the investigation organ the right to monitor without a license in an emergency. Of course, electronic monitoring without warrant must be approved by the decision-making organ within a specific period (such as 72 hours), and electronic monitoring without approval is invalid.
(d) restrictive measures to implement electronic monitoring
In the process of monitoring, Japan ensures the legitimacy of monitoring by "monitoring witnesses". The "monitoring witness" requires that "the manager or the manager's representative of the monitored communication facility should be present, and if the above-mentioned personnel cannot be present, the staff of the local public organization should be present", and the witness present can also state his opinions on the implementation of monitoring to the prosecutor and the judicial police. 9。 The United States has stipulated the "minimum requirement", that is, the communication unrelated to investigation should be monitored to the minimum during the monitoring process [10]. When you are not sure whether the conversation is related to investigation, you should turn it on every few minutes; In addition, a binary recording system can be used. In case of ambiguous conversation, one of the recording systems will be turned on every few minutes, and the other recording system will record everything. Once some contents of the first recording system are not recorded, they can be found in the records of the second system under the premise of authorization.
In the process of implementing electronic surveillance in China, the following restrictive measures should be taken: first, the implementation of electronic surveillance should generally be based on surveillance writ, and the investigation organ must conduct surveillance within the time limit and place recorded in the surveillance writ, and shall not illegally monitor beyond the surveillance writ; Secondly, in the process of implementation, the communication content unrelated to a specific crime should be monitored on the principle of minimizing damage; Thirdly, the records of monitoring should not be limited to the records of electronic or other similar equipment, but should be recorded in writing as far as possible and signed by the implementer; In addition, the implementer should be required to report to the decision-making organ on the progress of monitoring and whether monitoring is still necessary.
(five) the preservation and use of electronic monitoring data
With regard to the preservation of monitoring data, both Japan and the United States stipulate that the records made in the monitoring process must be immediately sent to the judge who issued the writ, and the judge will seal them up and save them at a designated place to prevent the information obtained in the monitoring from being leaked or tampered with. In France and Germany, it is stipulated that the information obtained by monitoring shall be kept by the procuratorial organ as the public prosecutor. The author thinks that the regulations of Japan and the United States reflect the restrictions on the implementers of monitoring, which is of reference significance to China.
Germany has set many restrictions on the use of monitoring materials, stipulating that recorded materials that cannot be obtained by the government cannot be used as evidence; If the monitoring data is used to criticize the monitored person and obtain his statement, his statement shall not be used as evidence; It is illegal to play or read legally obtained monitoring materials only in fragments or abstracts; The intercepted information of outsiders shall be destroyed under the supervision of the prosecutor; Information that is no longer required to be monitored when prosecuting a crime should be destroyed under the supervision of a prosecutor [1 1].
China's legislation should clearly stipulate that electronic monitoring data can be used as evidence, and whether the personal information of the monitored person can be used as evidence in other criminal proceedings depends on whether the criminal accused crime belongs to the scope of monitoring cases, and it can be used, otherwise it should be destroyed. In the case that the investigation organ decides to dismiss the case, the procuratorial organ decides not to prosecute, and the court makes an acquittal, the information obtained through monitoring shall be destroyed in time.
(6) protect the rights of the monitored person
Japan's monitoring law stipulates that prosecutors or judicial police should inform the monitored party in writing of the monitoring records that have been made; The person who receives the notice can listen to, read or copy the relevant parts of the monitoring record, or declare that he is not satisfied with the communication monitoring writ and request to cancel or change the writ; Prosecutors or judicial police shall not let others know or use the monitored communication content. The United States stipulates that eavesdroppers have the right to request the exclusion of the content of the monitored communication or the evidence obtained from it, for the following reasons: ① the communication is illegally intercepted; (2) The monitoring order as the basis of monitoring is insufficient in form; (3) failing to implement supervision in accordance with the provisions of the supervision order; In addition, if the communication is illegally monitored, leaked or used, the monitored person has the right to file a civil lawsuit against the perpetrator of the illegal act.
In the legislation of electronic monitoring in China, the following rights of the monitored person should be guaranteed: ① the right to know and the right to review objections; (2) the right of confidentiality; (3) Exclusion right, the monitored person has the right to request the exclusion of evidence of illegal acquisition of electronic monitoring data; (4) the right to use, for the information beneficial to the monitored person, the monitored person and his defender have the right to use the information to defend innocence or misdemeanor; (5) The right to compensation for damages. If the communication is illegally monitored, the monitored person can file a civil tort lawsuit, and list the investigation organ and the decision-making organ as * * * joint infringers to protect their legitimate rights and interests.