First, start the procedure of examining the necessity of detention.
Article 93 of the revised Criminal Procedure Law stipulates that the main body of examining the necessity of detention is the procuratorial organ, but the revised Criminal Procedure Law does not stipulate who will start this procedure. The author thinks:
(1) As a legal supervision organ, the procuratorial organ can take the initiative to review according to its functions and powers.
1. Review the necessity of detention at the stage of investigation and detention. The supervision of investigation activities is an important duty of the investigation and supervision section of procuratorial organs, so the investigation and supervision section should review the necessity of detention in the investigation and detention stage. At present, procuratorial organs, especially the investigation and supervision departments of some grass-roots procuratorial organs, have many cases and few contradictions, so it is not realistic to review the necessity of detention for all cases that have made decisions on arrest. However, in the investigation and detention stage after arrest, for specific cases, such as (1) cases with high sensitivity and high social concern, or crimes committed by minors and students, the arrest decision must be made for specific reasons in the examination and arrest stage; (2) Minor injuries, traffic accidents and other negligent criminal cases that have room for criminal reconciliation, when the arrest is examined, the victim and his relatives are too excited to reach a criminal reconciliation, and they must make an arrest decision. For the above-mentioned two types of cases, after the procuratorial organ makes the arrest decision, the investigation and supervision department should follow up and supervise the necessity of the criminal suspect's detention at any time. Once the situation affecting the detention is found, it should immediately start the review procedure of the necessity of detention to further protect the rights of the criminal suspect.
2. Review the necessity of detention in the prosecution stage. The prosecution department of the procuratorial organ shall review the necessity of detention as a part of the case review. When informing the defendant of his rights and obligations, he should be informed of his right to request the procuratorial organ to start the review procedure of the necessity of detention. In the process of reviewing the case, the case undertaker needs to review whether the defendant applies compulsory measures correctly and appropriately. If it is found that it is not appropriate to continue detention, the review procedure for the necessity of detention shall be started in time.
3. Review on the necessity of detention at the trial stage
Both the current criminal procedure law and the revised criminal procedure law stipulate that the people's court may decide to arrest a criminal suspect or defendant. In judicial practice, criminal cases enter the trial stage, and the people's courts directly decide to arrest and resettle defendants who have not been detained. For example, there are quite a few cases that have been released on bail and are living in prison. In this regard, the procuratorial organs should also review the necessity of detention after arrest. The public prosecution department of the procuratorial organ shall supervise the trial activities of criminal cases ex officio. The people's court decided to arrest the defendant as part of the trial. The proposed revised Rules of Criminal Procedure of the People's Procuratorate stipulates that when the people's court decides to arrest the defendant, it shall notify the public prosecution department of the people's procuratorate. After receiving the notice, the public prosecution department shall immediately start the examination of the necessity of detention. If it is found that the defendant has not violated the relevant provisions on bail pending trial and residential surveillance, it shall request the people's court to change the compulsory measures or release him.
4. Review of the necessity of custody by the supervision department of procuratorial organs. Prison procuratorial department is an important part of criminal procedure supervision, and its task is to supervise punishment execution and supervision activities according to law. Therefore, in the whole process of criminal proceedings, if the prison procuratorial department finds that the arrested criminal suspect or defendant suffers from serious diseases that affect his continued detention, can't take care of himself, and has outstanding performance and obvious repentance during the supervision period, which is no longer socially dangerous, the prison procuratorial department should start the review procedure for the necessity of detention.
(2) Criminal suspects, defendants and their legal representatives, close relatives and defenders may apply for passive review.
Article 95 of the revised Criminal Procedure Law stipulates that criminal suspects, defendants and their legal representatives, close relatives and defenders have the right to apply for changing compulsory measures. In order to implement the provisions of this article, the case-handling organ shall, after entering their respective litigation stages, promptly inform the criminal suspect and defendant of this right and the matters of proof. After the arrest is announced, the criminal suspect, defendant and defender have the right to apply for a review of the necessity of detention at any time according to the criminal suspect's attitude of pleading guilty, actively returning stolen goods or actively compensating for losses and repenting. At the same time, in order to avoid being sent to trial at will, criminal suspects and defendants should also provide relevant factual materials that are unnecessary for their continued detention. The legal representatives and close relatives of criminal suspects and defendants may also apply for a review of the necessity of detention according to their family life. For example, the legal representatives of juvenile criminal suspects and defendants can apply for lifting the detention of juvenile criminal suspects and defendants according to the conditions of strengthening supervision; Due to the death or other accidents of the close relatives of criminal suspects and defendants in custody, the detained criminal suspects and defendants become the only caregivers of people who can't take care of themselves.
Second, the way to review the necessity of detention
In order to find out the facts of the necessity of detention comprehensively and accurately, reduce the color of administrative examination and approval of detention, and highlight procedural justice, procuratorial organs should not only conduct necessary investigations according to their own duties, but also listen to the opinions of criminal suspects, defendants and their defenders, and also listen to the opinions of victims, especially the cases submitted by criminal suspects and defendants for passive review. Procuratorial organs can even consider starting a hearing procedure, and all parties can fully express their opinions on the necessity of detention. Because the review of the necessity of detention must consider the needs of investigation and trial work, only the investigation organ and the people's court have a full understanding of the progress of litigation, the personal and social dangers of criminal suspects and defendants, and the procuratorial organ should also fully listen to the opinions of the investigation organ and the people's court when reviewing the necessity of detention.
Three. Criteria for examining the necessity of detention
The review of the necessity of detention is actually a continuation of the review of the necessity of arrest. At the same time, we can refer to the applicable conditions of arrest, combine the factual evidence of the case and the changes in the application of legal policies, the fixed evidence of the case and the progress of the lawsuit, the criminal nature, criminal circumstances, subjective malignancy, repentance and guardianship of the suspect, and comprehensively evaluate the necessity of continuing to detain the suspect and the defendant. On the premise that the facts of the crime are clear, the evidence is sufficient, the criminal suspect and defendant truthfully confess the facts of the crime and take measures such as bail pending trial and residential surveillance to avoid social danger, it can be regarded as unnecessary to continue detention. For example, a person may be sentenced to fixed-term imprisonment of not more than three years according to law, and the detention period is basically the same as the possible fixed-term imprisonment period; Cases of juvenile crimes and crimes committed by students at school that did not have supervision conditions at the time of arrest but are now available; In the case of traffic accidents and minor injuries, no criminal settlement was reached at the time of arrest, and now the settlement has been made and the actual performance has been completed; Wait a minute.
Fourth, the review results of the necessity of detention.
Article 93 of the revised Criminal Procedure Law stipulates: "The relevant authorities shall notify the people's procuratorate of the handling within 10 days". It can be seen that in the process of examining the necessity of detention, the procuratorial organ can not directly decide to remove or change the compulsory measures, but can only suggest that the arresting organ decide to remove or change the compulsory measures, and supervise the removal or change of the compulsory measures, so as to reflect the separation of litigation function and litigation supervision function, which is conducive to the case-handling department to make corresponding decisions according to the specific circumstances of the case. However, this article does not stipulate the specific obligations of the object of supervision, that is, the relevant organs, and the legal consequences that should be borne when they fail to perform their obligations, which makes the supervision of procuratorial organs lack the rigid guarantee of law. The author suggests that relevant judicial interpretations should be issued as soon as possible to clarify specific operational issues.
Five, the relief of the results of the review of the necessity of detention
Any kind of legal right is useless without relief. Detention measures directly restrict or deprive the personal freedom of criminal suspects and defendants, and make a legally innocent citizen lose or basically lose the necessary conditions for engaging in normal social activities. Although the review system of detention necessity refers to the long-standing problems of prolonged detention and unnecessary detention in judicial practice, its purpose is to review the legality of arrest and the necessity of detention, and its fundamental purpose is to protect citizens' basic rights and freedoms and prevent public power from infringing their rights. In order to realize the task of "respecting and protecting human rights" in the new criminal procedure law, the author thinks that the system of demonstrating the necessity of detention should be established. Whether you continue to detain or release, you should explain the reasons and basis to both parties, especially the protection of the rights and interests of the victims, and enhance the credibility of the procuratorial organs' law enforcement actions. A reasoning system should also be established between procuratorial organs and relevant organs. If, after examination, the procuratorial organ considers that the criminal suspect or defendant in custody does not need to be kept in custody, it shall attach a written explanation when suggesting the relevant authorities to lift or change the compulsory measures; If the relevant authorities do not agree with the procuratorial organ's proposal, they shall also explain the reasons in writing to the procuratorial organ. If the procuratorial organ considers that the reason is established after examination, the procuratorial organ will inform the criminal suspect, defendant and their legal representatives, close relatives and defenders to apply for examination. If the procuratorial organ fails to establish the reasons after examination, it may notify the relevant authorities to release the criminal suspects and defendants who are not necessary to continue to be detained, or change the compulsory measures, and the relevant authorities shall implement them. Criminal suspects, defendants, victims and their legal representatives, close relatives, defenders and agents ad litem have the right to apply to the people's procuratorate at the same level for reconsideration or appeal to the people's procuratorate at the next higher level. Jiang Yongyue, Deputy Procurator-General of mingguang city Procuratorate.