Specific measures of investigation science

First of all, China should strengthen the external control of investigation. Compared with the investigation procedures in western countries, the investigation activities in China have not been brought into the track of judicial review. In the case investigated by the public security organ, except for the arrest approved by the procuratorial organ, all special investigation activities and compulsory measures are decided by the chief executive of the investigation organ; However, the special investigation activities and compulsory measures taken by the procuratorial organs in investigating cases are completely decided by the heads of the organs and are not subject to any external control. This mode of operation of administrative activities not only lacks the prior restriction on investigation activities, which makes the legality of investigation activities not guaranteed, but also lacks effective relief when the rights of criminal suspects are violated because there is no neutral judge and no after-the-fact review of investigation activities. The author believes that if the right to review the compulsory investigation behavior of the investigation organ is exercised by the procuratorial organ, it is not only well-founded in law, but also does not conflict with the requirements of the principle of timeliness in investigation. Of course, we should also see that in our country, although the procuratorial organ belongs to the national legal supervision organ, it is actually mainly responsible for examining and prosecuting, prosecuting and investigating some cases, so it plays the role of procuratorial organ to a great extent, and sometimes it is difficult to ensure the legitimacy of investigation activities from an objective and fair standpoint. The author believes that in order to effectively protect and remedy the rights of criminal suspects, the law can stipulate that when a criminal suspect thinks that the procuratorial organ is not in an objective and fair position and the issuance of a writ is wrong or illegal, he can appeal to the court and request to enter the hearing procedure, and the people's court will examine the issuance of a writ by the procuratorial organ. This not only avoids the situation that the court has to review every compulsory investigation, thus consuming a lot of judicial resources, but also embodies the role of justice as the last barrier to maintain social justice.

Secondly, our country should give criminal suspects and defendants the right of silence and establish the rule of excluding illegal evidence. The right of criminal silence is a basic right enjoyed by criminal suspects and defendants in criminal proceedings in modern countries ruled by law. It is an important part of the criminal justice system and an important guarantee of due process of criminal justice. Establishing the right to silence in China is the dual need to promote the democratization of domestic criminal procedure system and fulfill the obligations of international law. First of all, the establishment of the right to silence is conducive to strengthening the procedural protection of the basic human rights of criminal suspects and defendants and promoting the further democratization of China's criminal procedure system. There is no right to silence, which means that as long as a person is investigated for a suspected crime, he has the obligation to assist the investigation organ to find out his own crime in the process of litigation, and the responsibility of the investigation organ to collect evidence and prove the facts of the crime will be transferred to the investigated person to a certain extent. In this way, as long as the powerful government or the decision-making officials in charge of investigation and prosecution organs want to investigate a person's criminal responsibility, this person can't escape the guilt anyway, no matter whether he is actually guilty or not. This criminal procedure must be barbaric and arbitrary, but it cannot be democratic and ruled by law. Secondly, the establishment of the right to silence is the need for China to fulfill its obligations under international law. The right to silence is one of the internationally recognized basic rights that criminal suspects and defendants should enjoy as human beings. Item 3 of Article 14 of the International Covenant on Civil and Political Rights, signed by our government, stipulates that anyone accused of a criminal offence has the right to "not be forced to testify against himself or admit his crime", which means that no matter before the judge or the investigating and prosecuting officials, the person under investigation for a criminal offence has no obligation to admit his crime, but enjoys the freedom to decide whether to admit it or not.

Then, in our country, whether to determine the complete or absolute right to silence or the relative right to silence should be a rational choice in legislation-we should consider protecting human rights, but we should not ignore the need to crack down on crime and improve litigation efficiency. In view of China's actual situation and public safety, the author believes that while establishing the right to silence in principle, it is necessary to restrict the following situations to a certain extent:

(1) Found criminal evidence on the criminal suspect's body and residence;

(2) There is evidence that the criminal suspect is at the scene of the crime;

(3) In gang and organized crime, there is evidence to prove that important members know the relevant criminal facts of other members.

Under the above circumstances, the criminal suspect cannot remain silent and must state the relevant criminal facts or the relevant facts of other members. Of course, the silence of the criminal suspect alone cannot be used as evidence that the defendant is guilty. The conviction and sentencing of the defendant should be combined with other evidence, and the conviction standard should still be "the facts of the crime are clear and the evidence is indeed sufficient".

Third, China should give lawyers the status of defenders in the investigation stage. According to the provisions of Articles 75 and 96 of the Criminal Procedure Law revised by 1996, China's laws allow lawyers to intervene in the investigation stage for the first time, and at the same time give lawyers six litigation functions in the investigation stage. Specifically: providing legal advice to criminal suspects; Acting as an agent for complaints and accusations; Apply for bail pending trial for the arrested criminal suspect; Learn from the investigation organ about the charges charged by the criminal suspect; Meeting with the criminal suspect in custody; If compulsory measures are taken against public security organs beyond the statutory time limit, they have the right to demand the cancellation of compulsory measures. Compared with the criminal procedure legislation of 1979, this reform is undoubtedly a major breakthrough. It should be noted that the first three functions do not belong to the independent litigation function of defense lawyers, but only the legal help provided by lawyers to criminal suspects, while the last three functions are the litigation rights that lawyers have in the investigation stage. The early intervention of lawyers enhanced the defense ability of criminal suspects, which indicated that the reasonable elements of adversary system were gradually absorbed in the investigation stage with the characteristics of ultra-authoritarianism in China, and it changed from purely administrative to litigious, which was of far-reaching significance to the protection of human rights of criminal suspects. However, although the revised criminal procedure law stipulates that lawyers have the right to intervene in the investigation stage, in fact, this intervention is only limited. Among the several litigation rights enjoyed by the above-mentioned lawyers, except the right to meet, other rights actually have no defense function, and even the exercise of the right to meet will be subject to various restrictions, such as difficult opportunities, short meeting time and poor meeting effect. It is precisely because lawyers are often subject to various restrictions by procuratorial organs when providing legal aid to criminal suspects, so lawyers' expanded rights are useless. The key reason for this situation is that China's legislation has not yet clarified the litigation status of defenders in the investigation stage of lawyers. No matter in theory or practice, only by clarifying the litigation status of lawyers as defenders at this stage can we reasonably explain the functional role played by lawyers in the investigation stage. Moreover, from a global perspective, both the parties and the authorities have clearly given lawyers the status of defenders in the investigation stage. In addition, the United Nations Basic Principles on the Role of Lawyers stipulates the minimum standards for lawyers to participate in criminal defense: "All people have the right to ask lawyers of their choice to help safeguard and establish their rights and defend them at all stages of criminal proceedings." Therefore, giving lawyers the status of defenders in the investigation stage is not only in line with the goal of strengthening the defense ability of criminal suspects and defendants in China's criminal procedure reform and realizing the equality between prosecution and defense, but also in line with the development trend of the world's increasing attention to the protection of human rights of criminal suspects and defendants.

Fourthly, China should strengthen the protection of personal freedom of criminal suspects. In China, the detention rate of criminal suspects is high and the actual detention time is long, but non-detention measures such as bail pending trial and residential surveillance have not been fully applied. Most of the personal freedom of criminal suspects is restricted and deprived, which violates the modern principle of presumption of innocence and the concept of human rights protection. In order to ensure the smooth progress of criminal proceedings, pretrial detention is necessary, but the principles of necessity and proportionality should be adhered to to to avoid unnecessary detention from causing undue damage to the parties and wasting the country's manpower and financial resources. Therefore, on the one hand, public security judicial personnel should change their concepts and enhance their awareness of human rights protection; On the other hand, we should gradually improve the illegal detention measures, mainly referring to the bail system, and make full use of non-detention means to protect the personal freedom rights of criminal suspects.

Specifically:

(a) to protect the rights of criminal suspects from illegal arrest and detention. Require investigators to strictly abide by the provisions of the law when implementing compulsory measures, and shall not illegally arrest or detain anyone;

(2) The right of criminal suspects to be informed of the reasons for arrest and detention should be guaranteed. The law should stipulate that the public security and procuratorial organs should inform the arrested person of the reasons, legal and factual basis and their rights within a short time after being arrested according to law;

(3) Guarantee the right of criminal suspects to be transferred to judicial organs in time. After the public security and procuratorial organs arrest the criminal suspect, they shall promptly bring it to the investigation organ to examine whether it is necessary to take him into custody;

(4) Guarantee the criminal suspect's right to temporary release. The purpose of pretrial detention was originally to prevent the criminal suspect from obstructing the lawsuit or committing another crime, so as to ensure the smooth progress of the lawsuit. However, from the perspective of protecting human rights, we should avoid unnecessary detention and use detention as a last resort. Therefore, the system of unconditional release and bail pending trial should be established and improved to ensure that most criminal suspects are not detained pending trial;

5] The criminal suspect's right to object to detention should be guaranteed. Specific provisions should be made to protect this right of detained criminal suspects. For example, detained criminal suspects and their lawyers are allowed to apply to investigators for release or bail pending trial at any time during their detention, and investigators should review and make a decision as soon as possible;

(6) Guarantee the criminal suspect's right to be tried within a reasonable time. China's "Criminal Procedure Law" stipulates the time limit for investigation and detention, and at the same time stipulates that after the detention expires, the detention should be released or changed to bail pending trial and residential surveillance, which is conducive to ensuring the rights of detained criminal suspects to be tried within a reasonable time. Limiting the detention period to a "reasonable time" is a subject to be solved in China's legislation, and the legal detention period must be strictly observed in practice;

(7) Guarantee the criminal suspect's right to compensation for being wrongly detained. Although China's "State Compensation Law" enacted in 1994 and implemented in 10/995 to 1 year has made specific provisions on compensation for criminal suspects who have been wrongly detained or arrested, China should also set up a special compensation fund as the national financial budget, and at the same time, effectively protect the right to rest of detained criminal suspects. International judicial standards,

In modern criminal proceedings, especially in investigation procedures, punishing crimes and protecting human rights are a pair of contradictions that can never be reconciled. Although countless scholars have conducted in-depth theoretical research and practical discussion, it still shows a changing trend. Judging from the general trend of the development of the criminal procedure system in the world, it is an international trend recognized by Chinese and foreign scholars to further respect the legitimate rights and interests of individuals and continuously expand and effectively protect the legitimate rights of litigation participants in the process of punishing crimes. At the expense of minimum violation of human rights, it is the ideal that all countries have been striving for in the development of criminal procedure system, and of course this should also be our goal!