-the case of horse obstruction to testify and its influence
On August 22nd, 2003, Ma, a lawyer of Song Yuan Law Firm in Inner Mongolia, was arrested, and Ningcheng County Procuratorate in Inner Mongolia found him suspected of obstructing witnesses to testify. This case has aroused strong repercussions among lawyers in Inner Mongolia, especially in Chifeng. After receiving the news that the case was publicly heard on March, 2004 10, nearly 100 lawyers from Chifeng gathered in Ningcheng. The reporter attended the audit together with the leaders of relevant lawyer management departments and criminal case experts.
The witness who caused the disaster changed his proof.
Before attending the audit, the reporter first listened to the "case introduction" of the relevant departments. The cause of the case is this: On June 30th, 2002, 65438+February 30th, Ma accepted the entrustment of Xu Shaodong, a villager from Sujiawopu Village, Sanzuodian Township, Ningcheng County, as the defender of his father's alleged rape case. Xu Shaodong brought seven pieces of evidence to prove his father's innocence. Some witnesses did not write the date and asked Ma to investigate and collect evidence. The head of the law firm refused to take evidence. Ma replied that during the trial, Xu Shaodong would let witnesses testify in court.
On April 23, 2003, Ma found the witness, and after obtaining the consent of the witness to appear in court, he drafted the witness appearance list. On May 18, Ningcheng County Court informed Ma that the case would be heard on May 22, and informed witnesses to appear in court. Before the trial, the Jockey Club met the witness who was about to appear in court, explained some matters needing attention in court, and asked the witness Gao "how long after coming out of Zhao's house, I heard a fight with Zhao (the victim's husband)". Gao said, "Only one pack of cigarettes", Ma said, "What's the concept of a pack of cigarettes", Gao said, "Only three or four packs.
During the trial of Xu Wensheng case, witnesses testified in court respectively, and both the prosecution and the defense questioned the witnesses respectively. Some witnesses changed the original ten minutes to three or four minutes after listening to the words of senior three or four minutes. During the trial, Xu Wensheng asked the court to identify whether he had sexual ability. Ma questioned the victim's qualification as a sign language interpreter (the victim was deaf and dumb) and asked the victim to appear in court. Ma drafted an application for appraisal in court and handed it over to the judge. The Chief Justice announced an adjournment.
The next day, prosecutors and public security organs took the witness Gao to Ningcheng County Detention Center, and then five witnesses, including Xu Shaolin, were taken to Ningcheng County Detention Center for custody. A "violent" trial was conducted on the witnesses, and all seven witnesses "confessed" to perjury at Ma's instigation. Two witnesses were released within 24 hours after detention and two witnesses were released within 36 hours. Witnesses Xu Shaolin and Gao have not yet been released, and they have been criminally detained for harboring crimes. Thirty days later, Xu Shaolin and Gao were released on bail pending trial.
At the beginning of June, Ningcheng County Procuratorate found out that Ma had instructed the witness to change his testimony and proved that he had no time to commit a crime to escape legal sanctions, so he was arrested for obstructing testimony.
On June 19, Ningcheng County Court reopened the trial of Xu Wensheng's rape case. Ma did not appear in court. The court sentenced Xu Wensheng to five years' imprisonment for rape. Xu Wensheng refused to accept the verdict and appealed, and the Chifeng Intermediate People's Court ruled that he should be sent back for retrial. 65438+ 10 65438+July, Xu Wensheng's rape case was retried, and Xu Wensheng entrusted two lawyers from Sheng Yuan Law Firm in Inner Mongolia to defend it. In this trial, the content of witnesses' testimony in court is the same as that on May 22nd. Before the trial was over, Ningcheng County Procuratorate and Ningcheng County Public Security Bureau arrested the witness again.
In the process of arresting and releasing witnesses many times, once the witness is arrested, it is said that Ma instructed him to change his testimony and change it back once he went to court.
On June 5438+February 3, 20031day, Ningcheng County Procuratorate found out that Ma "instructed his brother Xu Wenshan, sister-in-law, cousin Gao and cousin to testify illegally in court in order to escape legal sanctions" and filed a public prosecution with Ningcheng County Court.
Since his arrest in August 2003, Ma has repeatedly applied for bail pending trial and has not been approved.
Is it legal or compulsory to testify?
In the case of Ma's alleged obstruction of testimony, the focus of debate between the prosecution and the defense is: whether the process of obtaining evidence by the public prosecution is legal, and if the public prosecution forces the witness to change the testimony of the original witness during the process of obtaining evidence, the evidence it provides lacks objective authenticity; On the other hand, Ma is suspected of "instructing witnesses to change their testimony" accused by the public prosecution agency.
During the trial, the prosecutors thought they didn't force the witness. They took the witness away, because the testimony of the witness in court was inconsistent with the testimony they obtained, and they were suspected of perjury. As long as there are illegal acts, compulsory measures can be taken. Article 97 of the Criminal Procedure Law stipulates that the public security organ and the inspection organ may notify the witness to go to the public security organ or the inspection organ, but it cannot be said that the witness was arrested when he went to the public security organ or the inspection organ. The prosecutor also pointed out that some witnesses said they extorted confessions by torture. Where is the evidence? It is unfounded to say that the pressure on witnesses caused by measures taken in criminal proceedings is confession.
As the defender of Ma, lawyer and lawyer Liu hold diametrically opposite views. They defended that the witness's self-report produced by the public prosecution agency was illegally obtained under coercive measures and the witness was questioned. When looking for witnesses, the public prosecution agency did not have a summons certificate or a release certificate. On May 23rd, Gao was arrested, and other witnesses were arrested on May 24th. Except for Gao and Xu Shaolin, who were detained for 30 days and released on bail pending trial, all the other witnesses were illegally detained on May 26th. Both the Criminal Procedure Law and the Rules of Criminal Procedure of the People's Procuratorate clearly stipulate that witnesses shall not be extorted by torture, threatened, lured or deceived, and testimony shall be obtained in three specific places: the witness's residence, the work unit and the office of the case-handling organ, and no other places shall be designated for the witness. The witness testimony cited by the prosecutor violated these regulations. The result of illegal evidence collection will inevitably make witness testimony lose its objective authenticity. On the contrary, the witness's testimony in court twice was made by the witness in a solemn court in a free state, and the content was consistent. This testimony is legal and objective. In particular, the trial was held on 5438+00 June 2003. At this time, Ma has been detained for nearly three months, and the witness was informed by the court to appear in court. The witness's statement in court was objective and true. In the procedure of Ma's obstruction to testify, the defender also pointed out that it is a serious violation of the law to file a case for investigation, approve arrest and review prosecution, initiate public prosecution, and appear in court to support public prosecution before trial. The participation of Ningcheng County Procuratorate and specific staff in various litigation stages before the trial is a serious violation of the Constitution, the Criminal Procedure Law and the Organization Law of the People's Procuratorate.
After trial, it was decided by the Judicial Committee of Ningcheng County Court. The court finally acquitted Ma.
Inspection institutions should improve the supervision mechanism.
Although the case has come to an end, it has left deep repercussions and thoughts in the legal profession and even the legal profession. What worries me most is that the evidence collection behavior of the procuratorate has caused psychological fear to lawyers. During the trial, the reporter interviewed some lawyers who were in attendance. They all said that after hearing this case, they all wondered whether there would be any mistakes in the process of handling the case in the future and whether they would be caught by the procuratorate. Will they be next? Even Ma's defense lawyer Liu's defense in Ningcheng has attracted much attention. Most lawyers said, "If the horse is not guilty and lawyers feel insecure, we would rather not handle criminal cases." Some lawyers are emotional and want to contact all lawyers in Chifeng to defend the criminal case in Ningcheng County.
In recent years, "criminal defense" lawyers have been arrested nationwide, which has brought great negative impact on lawyers' criminal defense business, and many lawyers who do "criminal defense" are treading on thin ice. The Criminal Procedure Law has been implemented for eight years, and some prosecutors still handle cases according to their own "reasoning". In order to convict lawyers, some procuratorial organs have resorted to extorting confessions by torture and illegally obtaining evidence, and their actions have been suspected of committing crimes.
The arrest of lawyers without charge may affect the whole lawyer's practice environment and the legal system construction in China. Many experts who know the case called on the procuratorial organs to improve the supervision mechanism and strengthen supervision, including the internal supervision mechanism of the procuratorial organs and relevant laws and regulations, so as to make supervision more operable. In the same case, it is impossible for the procuratorial organ to be both an "athlete" and a "referee", let alone a few prosecutors to handle the case in a "one-stop" manner. Procuratorial organs and lawyers have the same goal and should form a benign division of labor and cooperation.