How to improve the technical investigation system of the procuratorial organs under the new Criminal Procedure LawThe new "Criminal Procedure Law" stipulates that "after the People's Procuratorate fil

How to improve the technical investigation system of the procuratorial organs under the new Criminal Procedure LawThe new "Criminal Procedure Law" stipulates that "after the People's Procuratorate files a case, it shall go through strict approval procedures based on the needs of investigating crimes. Technical investigation measures can be taken for major corruption and bribery crimes and serious criminal cases that seriously infringe on citizens’ personal rights. “This provision gives the procuratorial organs the relevant rights for technical investigation and provides strong legal support for strengthening the procuratorial organs’ ability to investigate official crimes. Based on work practice, the author talks about how to improve the implementation of the technical investigation system of the procuratorate in the new Criminal Procedure Law. 1. Define and determine the scope of application. The new amendments to the Criminal Procedure Law stipulate that technical investigation is applicable to "major corruption and bribery crimes and major criminal cases in which the use of authority seriously infringes on citizens' personal rights." Among them, in the practice of handling cases, the "major" standard determined by the procuratorate is that the amount of corruption and bribery and other official crimes is more than 50,000 yuan. There is no clear judicial interpretation of the specific aspects of "serious criminal cases in which citizens' personal rights are seriously infringed upon by taking advantage of their official powers." The author believes that "serious" should be understood from the following two aspects. The first is for specific criminal acts, including: illegal detention, illegal search, torture to extract confessions, violent evidence collection, prisoner abuse, revenge and frame-up. As long as the facts show that the above behavior should be considered a serious violation of citizens' personal rights. The second is cases involving multiple people, cross-department, cross-industry, cross-region, cross-province, cross-border cases, as well as criminal cases related to crimes such as smuggling and malfeasance. Technical investigation methods can be used for cases that meet these two conditions. . At the same time, it is stipulated that technical investigation measures can be taken to pursue fugitive criminal suspects and defendants who are wanted or whose arrest has been approved or decided. In this case, the crime of corruption and bribery is not required. The procuratorate can only take technical investigative measures after filing a case. This means that technical investigation measures shall not be applied to cases that do not meet the conditions for filing, to prevent investigators from abusing technical investigation measures to infringe on the privacy rights of others under the pretext of handling cases. Second, strictly control the applicable objects. The new Criminal Procedure Law only stipulates the types of cases that can be investigated using technology, but does not stipulate specific applicable objects. Some scholars have suggested that the nature of the case and statutory penalties should be specified in detail. This understanding remains open to question. One reason is that the law has already stipulated the nature of the case, and the other reason is that the case develops rapidly during the investigation stage, and it is not feasible to apply technical investigation based on statutory penalties. However, the principle of relevance of applicable objects of technical investigation must be observed, that is, it can only target criminal suspects and relevant specific persons (including important witnesses), and the content of the investigation is closely related to the detection of the case. Technical investigation of content unrelated to the case shall not be carried out to prevent the abuse of technical investigation from infringing on the privacy rights of others. In specific operations, the investigative agency must explain in the application for approval that there are reasonable reasons and evidence to confirm that the object and content of the technical investigation are indeed related to the case, otherwise the application of technical investigation measures should be excluded. Third, improve the applicable procedures. Procedure is a guarantee of fairness. In order to ensure that the application of technical investigation meets judicial requirements, it is necessary to standardize its specific application procedures. Not all investigation activities of major occupational crime cases require the use of technical investigation measures, and whether to use technical investigation measures must also be approved. The new Criminal Procedure Law Amendment does not clearly define the subjects, procedures and standards for approval. It should be analyzed from the following aspects: 1. When applying for approval to use technical investigative measures, the actual circumstances of the case should be considered. First, when general investigation measures are difficult to achieve the purpose of investigation, technical investigation can be used; second, the situation is urgent and if technical investigation measures are not taken, important evidence will be delayed; third, important witnesses or evidence can be found quickly and effectively through technical investigation methods Materials play an important role in promoting the detection of cases. 2. Application procedures for occupational crime investigation. The applicant is the occupational crime investigation department of the procuratorial organs at all levels. The application for technical investigation should be in writing, indicating the requester, the requested person, the reason, scope, object and type of the technical investigation, the specific implementer or organization of the technical investigation, the investigators who will guide the implementation, the place and start time of the measures to be taken wait. , with a description of the relevant evidence of the suspected crime committed by the occupational criminal suspect and the necessity of applying technical investigation. The above content should be complete to facilitate the review and supervision of the application approval authority. 3. Approval process. The use of technical investigation methods requires strict approval procedures, but the "strict approval procedures" in the provisions of the new Criminal Procedure Law are not specific. Relevant documents are required to clarify the approval authority and approval form of technical investigation. The author believes that it is reasonable for higher-level procuratorial organs to review and approve applications from lower-level hospitals that plan to implement technical investigation measures. At the same time, in order to ensure the efficiency of investigation, higher-level procuratorial organs should in principle make decisions within a short period of time. There are three reasons: First, the decision-making power of approving arrests for duty-related crime cases has been transferred to the higher-level procuratorate. At the same time, the return of the power to approve technical investigation measures is conducive to the formation of an integrated investigation mechanism and provides more comprehensive and timely case information for the decision-making of higher-level courts. Second, since the use of technical investigation measures is still in the preliminary exploration stage, raising the approval authority to a higher level will be more conducive to the supervision and management of the use of technical measures and prevent our hospital from abusing technical measures to infringe on the rights of criminal suspects and other witnesses. Strengthen the constraints of procuratorial organs on their own law enforcement activities. Third, the current use of technical measures by procuratorial organs is still in the exploratory stage. There are common problems in grassroots hospitals such as the lack of technical equipment and equipment and the lack of professionals who are proficient in technical investigations. Professional skills and talents are mostly concentrated in higher-level hospitals, and there are more comprehensive considerations when choosing whether technical investigation measures can be effectively carried out. Fourth, the execution mechanism. 1. As for the question of who will implement the technical investigation measures taken by the procuratorial organs, the first draft of the amendment to the Criminal Procedure Law stipulated that it be implemented by the public security organs. The second draft until its adoption was changed to "hand over to the relevant agencies for execution", so the procuratorial Controversy over whether agencies can carry out technical investigative measures themselves has resurfaced. From the perspective of the new Criminal Procedure Law, the power configuration of "leaving it to relevant agencies for execution" still positions the procuratorate as the supervisory agency of national laws, with only the power to decide on technical investigation measures and no execution power. However, the author believes that since the self-investigation department of the procuratorate is the case handler and has a relatively good understanding of the specific information of the case, case information should be reduced as much as possible when the case is unsolved. The self-investigation department of the procuratorial organ shall assign two staff members to assist the public security department or the national security department in the use of technical investigation measures throughout the process. At the same time, due to the high confidentiality and standardization of technical measures, the two prosecutors can also supervise the process of technical investigation and all matters on site. Analysis, circulation and use of obtained evidence. These two assistants can be case investigators or judicial police officers. In addition, the procuratorial organs should be given the coercive power to request assistance, and departments or personnel with legal obligations to assist must not arbitrarily refuse. If there are special circumstances, a written reply should be given explaining the reasons. 2. Storage and circulation of data. Due to the secrecy of technical investigation, there is a natural tension between it and the protection of human rights. Therefore, it is necessary to make clear provisions on the preservation and circulation of information obtained by technical investigation. The new Criminal Procedure Law stipulates: “Investigators shall keep confidential the state secrets, business secrets and personal privacy that they learn during the process of taking technical investigation measures; and shall promptly destroy information and factual materials obtained through technical investigation methods that are irrelevant to the case. "In addition, it should also be clearly stipulated that investigators should keep detailed records of the implementation of each technical investigation, indicate the time, type and personnel of the technical investigation, and have it signed and confirmed by those present, and synchronized audio and video recordings can be made if necessary. Data obtained through technical investigations should be sealed immediately and made into read-only electronic data to prevent tampering or alteration. The originals should be made in duplicate, with one copy archived by the technical investigation department and the other processed by the prosecutorial agency. When the procuratorial organ uses the information, it should also make two copies, one for archiving and one for circulation with the case according to the work process. Investigators, prosecutors, judges and defenders who have nothing to do with this case are strictly prohibited from accessing it. To destroy information and factual materials that are irrelevant to the case obtained through technical investigation, destruction records should also be prepared. 5. Remedial Measures The amendment to the new Criminal Procedure Law does not stipulate citizens’ rights to relief in technical investigations, but only stipulates the relevant obligations of investigators. "Investigators shall keep confidential the state secrets, business secrets and personal privacy they learn during the process of taking technical investigation measures; and shall promptly destroy information and factual materials obtained through technical investigation measures that are irrelevant to the case." Powers and responsibilities are corresponding. Yes, unfettered power will inevitably lead to abuse. Under the principle of respecting and protecting human rights, no agency should have the power to arbitrarily infringe on citizens' privacy. When designing technical investigation procedures, corresponding citizen relief measures should also be provided. First of all, the subject of the investigation must be given the right to know, which is the prerequisite for the relief measures to work. After taking technical investigation measures to conduct an investigation, the parties concerned shall be informed of the relevant circumstances of the technical investigation measures so that they can understand the relevant situation. The agency conducting the technical investigation shall inform the counterparty of the situation and results of the technical investigation within the statutory period after the completion of the technical investigation, and fully protect the counterparty's right to know and the right to defend. Second, during the public prosecution stage, the parties concerned have the right to raise objections to the evidence produced by the technical investigation, which can only be used as the basis for finalizing the case after cross-examination in court. Thirdly, "exclusion of illegal evidence" has become an important evidence principle in the new Criminal Procedure Law, and evidence materials obtained by investigators through illegal technical investigation methods should also be excluded. Specifically, arrest approval and public prosecution departments should take the initiative to review the legality of evidence collection, and criminal suspects and defense lawyers have the right to put forward reasons and suggestions for exclusion. Fourth, if there is a fault during the application of technology for investigation, the infringed party has the right to apply for compensation from the investigating agency and the approval agency. For specific operating procedures, please refer to the National Compensation Law. Fifth, if investigators coerce parties to satisfy their illegal demands by obtaining personal information, which constitutes a job-related crime, they should be transferred to the People's Procuratorate of other regions for investigation and criminal liability will be pursued in accordance with the law.