In general, since the "Regulations" were implemented for more than a year, the situation of lawyers meeting with criminal suspects and defendants in custody has been greatly improved, and the "difficulties in meeting" with lawyers have been better solved. question has been widely welcomed by lawyers. Because the lawyer's right to visit is the premise and basis for lawyers to realize other litigation rights in criminal litigation activities, however, due to imperfect legislation and law enforcement issues, lawyers' right to visit is often difficult to realize in judicial practice. However, Article 5 of the "Regulations" clearly states that the case-handling agency shall protect lawyers' rights to practice activities during the investigation, prosecution, and trial stages and to meet with criminal suspects and defendants in custody in accordance with the law. Most case-handling agencies are able to provide relatively adequate protection for lawyers' interviews in accordance with the "Regulations". Especially during the review and prosecution stage and the trial stage, lawyers are generally able to meet with criminal suspects and defendants in custody in accordance with the law, exercise their defense rights, and perform their defense obligations. However, perhaps due to special considerations in the investigation stage, in judicial practice, investigative agencies are more or less less active in ensuring that lawyers can meet with them, and even hinder lawyers from meeting with criminal suspects and defendants in custody. Although this is only a minority, it is also To a great extent, it has hindered the practice of lawyers meeting with criminal suspects and defendants in custody, and infringed upon the legitimate rights and interests of criminal suspects and defendants. Therefore, in practice, there are relatively many problems when lawyers request to meet with criminal suspects and defendants in custody during the investigation stage. The specific manifestations will be explained below. From the perspective of the entire litigation process, lawyer interviews during the investigation phase are more important for protecting the legitimate rights and interests of criminal suspects and defendants and performing defense duties, and need to be further improved.
II. Regarding the exercise of the right to meet with lawyers
Article 6 of the "Regulations" clearly stipulates the practical activities and scope of rights that lawyers can engage in when meeting with criminal suspects and defendants in custody. However, In practice, it is often difficult to implement. Among them, the following problems mainly exist:
(1) Although it is easier to obtain protection in most cases when lawyers meet with criminal suspects or defendants in custody to learn about the case, Interviews during the investigation phase are often interfered with by personnel present at the investigative agency. Lawyers are not even allowed to discuss the case, and lawyers are prohibited from learning about the case from criminal suspects and defendants. This is neither in line with the spirit of Articles 6 and 7 of the Provisions, nor in violation of Article 96 of the Criminal Procedure Law. Because, according to the "Criminal Procedure Law" and relevant laws and regulations, lawyers meet with criminal suspects during the investigation stage of criminal proceedings and can learn from the criminal suspects about the case, including the crimes charged by the criminal suspects by the investigative agency, and the main facts and circumstances of the case. , as well as the criminal suspect’s innocence defense or lenient punishment circumstances, etc. It can be seen that it is the legal right of lawyers to learn the facts of the case from the criminal suspect, and the case handling agency should not interfere, let alone prevent the lawyer from learning the facts of the case from the criminal suspect on the grounds that the case is still under investigation.
(2) The right to lodge complaints and accusations on behalf of others is difficult to be protected.
During the meeting, the lawyer understands whether the legal procedures for the detained criminal suspects and defendants against whom compulsory measures are taken are complete, whether the procedures are legal, whether their personal rights and litigation rights have been violated after the compulsory measures are taken, and they can report to the relevant authorities and The department can act as an agent to appeal, but under normal circumstances, even if the rights and interests of detained criminal suspects and defendants are protected during the investigation stage, it is difficult for lawyers to obtain corresponding evidence through interviews, and the agent's appeals and accusations will not play a corresponding role. , whose rights are difficult to protect.
(3) Apply for release on bail pending trial. Although it is stipulated that lawyers can apply for bail pending trial for criminal suspects and defendants during interviews, in practice it is quite difficult to apply for bail pending trial, especially during the investigation stage, it is more difficult to obtain approval from the case-handling agency. In judicial practice, only a very small number of cases can be released on bail pending trial when they reach the stage of review for prosecution or trial. This may be a choice made by case handlers based on case handling efficiency and investigation methods, but it is very detrimental to criminal suspects and defendants exercising their rights to practice law and protecting legitimate rights and interests, and is not conducive to the realization of judicial justice.
3. Issues regarding the approval of lawyers’ interviews
Article 96 of my country’s Criminal Procedure Law stipulates: “When state secrets are involved, lawyers’ interviews with criminal suspects in custody must be approved by the investigative agency. approve". Article 9 of the "Regulations on Certain Issues in the Implementation of the Criminal Procedure Law" of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice, and the Legal Affairs Commission of the Standing Committee of the National People's Congress (hereinafter referred to as the "Six Regulations") It is clearly stipulated: "As stipulated in Article 96 of the Criminal Procedure Law." Article 9 of the "Regulations of the Six Agencies on Several Issues in the Implementation of the Criminal Procedure Law" (hereinafter referred to as the "Regulations of the Six Agencies") also clearly stipulates: "The 'cases involving state secrets' stipulated in Article 96 of the Criminal Procedure Law refer to Cases involving state secrets in the facts or nature of the case, and cases involving state secrets, will not be treated as cases involving state secrets because the relevant materials and handling opinions of the criminal case need to be kept confidential during the investigation process." In addition, Article 11 of the Six Department Regulations also stipulates: "For cases that do not involve state secrets, lawyers do not need approval to meet criminal suspects. For cases involving state secrets, approval shall not be denied on the grounds that the investigation process needs to be kept confidential." It can be seen that the implementation of the licensing system for lawyers to meet criminal suspects itself should be subject to three restrictions at the same time, namely, the nature of the case is limited to state secrets, the time is limited to the investigation stage, and the licensing authority is limited to the investigation authority. However, because some investigative agencies are conceptually resistant to the intervention of lawyers and cannot correctly define the scope of "state secrets" in strict accordance with relevant regulations, they often prevent lawyers from meeting criminal suspects in custody on the pretext that the case "involves state secrets." (The case "involves state secrets" is often used as an excuse to prevent lawyers from meeting criminal suspects in custody. Even if the meeting is allowed, it is delayed, often resulting in lawyers being unable to perform their defense duties. Although Article 24 of the "Regulations" clearly clarifies the authorization Lawyers meet with criminal suspects, but in judicial practice the phenomenon of illegal authorization cannot be avoided, resulting in the violation of the legal procedural rights of criminal suspects and lawyers. At the same time, in accordance with the provisions of Article 96 of the Criminal Procedure Law, it involves. In cases of state secrets, the criminal suspect's appointment of a lawyer must be approved by the investigation agency; even if the investigation agency allows the criminal suspect to hire a lawyer, the hired lawyer's request to meet the criminal suspect in custody must be approved by the investigation agency again. This is the so-called "double Approval". This is the so-called "double approval". The "double approval" provision not only has major legislative flaws, but also creates major obstacles for criminal suspects to seek lawyer help in confidential cases, resulting in the specific rights of lawyers to meet with detained criminal suspects. The operation has become a dead letter. Therefore, it is necessary to cancel the "dual authorization" to ensure that confidential cases can hire lawyers to meet with criminal suspects in a timely manner.
However, due to the special nature of cases involving state secrets, the provision that "in cases involving state secrets, criminal suspects hiring lawyers must be approved by the investigative agency" should be retained in the legislation. However, whether or not to approve the case should be based on the degree of confidentiality of the state secrets involved in the case. It was decided that if a confidential case involves state secrets and the level of confidentiality is not high, hiring a lawyer by the criminal suspect will not endanger state secrets. If a criminal suspect hires a lawyer, there is no danger of endangering national security. In principle, the criminal suspect should be allowed to hire a lawyer. Once the investigation agency allows the criminal suspect to hire a lawyer, according to normal logic, it means that the lawyer is allowed to meet with the criminal suspect to understand the case. Otherwise, the lawyer will not be able to provide legal help to the criminal suspect, and the lawyer hired by the criminal suspect will lose its meaning. . Therefore, it is recommended that the "double approval" provision be abolished. After lawyers are approved by criminal proceedings in confidential cases, they will naturally have the right to meet with criminal suspects without the need for approval by the investigation agency, so that lawyers' intervention in confidential cases can be truly Be timely and effective.
4. Arrangement of meeting time
Generally speaking, when a lawyer requests to meet with a criminal suspect or defendant in custody, the case handling agency should arrange it in a timely manner. In order to ensure that lawyers realize the right to visit as soon as possible, the six departments stipulated that in accordance with the internationally accepted minimum standards of criminal justice (Principle 7 of the United Nations Basic Principles on the Role of Lawyers): "Governments should also ensure that all arrested persons have the right to visit: Governments should also ensure that all persons arrested or detained, whether or not charged with a criminal offence, have prompt access to a lawyer and that in no case should such contact be delayed until after arrest or detention more than 48 hours from the time of arrest), the authorities of the six countries should arrange the meeting as soon as possible. Based on the principle of "within 48 hours from the time of arrest or detention", it is stipulated that "if a lawyer requests to meet with a criminal suspect, the meeting should be arranged within 48 hours." Meetings, involving major and complex criminal cases involving two or more people, such as organizing, leading, and participating in gang crimes of three or more people, shall be arranged within 48 hours to meet, organize, lead, and participate in organized crime of a mafia nature, organizing, leading, and participating in terrorist activities For major and complex criminal cases such as crimes, smuggling crimes, drug crimes, corruption and bribery crimes, lawyers are required to meet with the criminal suspect within 50 minutes. If you meet with a criminal suspect, you should arrange the meeting within five days." However, the relevant departments cannot correctly understand and implement it. Instead, they have adopted some flexible implementation practices based on the interests of the department, such as the "People's Procuratorate Criminal Procedure Law" issued by the Supreme People's Procuratorate. Article 151 of the "Procedural Rules" changes the "arrange an interview within 48 hours" and "arrange an interview within 5 days" stipulated by the six agencies in the "Regulations" to "arrange an interview with the criminal suspect within 5 days" to "within 48 days." "Meeting should be arranged within 5 days" and "Meeting should be arranged within 5 days"; "Meeting should be arranged within 5 days" is changed to "Meeting should be arranged within 5 days" to "Meeting can be arranged within 5 days", which is objectively a lawyer Setting up obstacles to meet criminal suspects has become one of the excuses used by case-handling agencies to prevent lawyers from meeting criminal suspects. In response to this situation, Article 23 of the "Regulations" clearly requires that "the case-handling agency shall issue an official letter to the lawyer regarding the meeting and arrange the meeting with the lawyer within 48 hours of the lawyer's request for a meeting (within five days in special circumstances)". In practice, when handling cases, When agencies arrange for lawyers to meet with criminal suspects and defendants in custody, most of them generally comply with the above time limits. time limit. However, since the "Regulations" only require the case-handling agency to issue an official letter regarding the meeting to the lawyer and arrange the meeting within 48 hours (within five days under special circumstances) of the lawyer's request for a meeting, the specific time of the meeting is within the scope of the case-handling agency's discretion. , which leaves room for some case-handling agencies to delay or even hinder lawyer meetings. Therefore, it is recommended that the specific time limit for the case-handling agency to arrange a meeting with the lawyer should be clearly defined, that is, the case-handling agency is required to arrange for the lawyer to meet with the defendant within 48 hours after the lawyer requests the meeting (within five days under special circumstances, and an appropriate time limit may also be considered). Criminal suspects and defendants in custody.
In addition, there are no provisions on the legal consequences of the case-handling agency's failure to arrange meetings with lawyers within the legal time limit, resulting in a lack of legal norms for the statutory obligations of the investigative agencies and a lack of mandatory legal protection for the right to meet with lawyers. In view of this, it is also recommended to give lawyers the corresponding right to appeal, accuse and report, and to establish a sanction mechanism for investigative agencies that fail to perform their obligations in accordance with the law.
5. Limitations on the number and time of interviews
The time and number of meetings between lawyers and criminal suspects and defendants in custody can generally be guaranteed. However, due to the influence of the autocratic investigation model , some case-handling agencies and regulatory authorities unreasonably limit the time and number of legal interviews with lawyers, such as stipulating that a case shall not exceed two interviews, and each interview shall not exceed thirty minutes. This is actually an issue of implementation and implementation of Article 11 of the "Regulations", because according to the "Regulations", as long as lawyers comply with the regulations of the case-handling agencies and supervisory departments on working hours and rest times, the case-handling agencies and supervisory departments should ensure that lawyers can meet with detainees. The appropriate time and frequency for criminal suspects and defendants shall not be restricted without reason. If the number and time of lawyers' meetings with detained criminal suspects and defendants are restricted, it would seriously violate the provisions of Article 8 of the United Nations' Basic Principles on the Role of Lawyers signed by our country: "All persons arrested, detained or imprisoned shall be There should be sufficient opportunity, time and convenience to receive visits from lawyers without delay, and to communicate and negotiate with lawyers. "This provision prevents lawyers from fully understanding the case, thereby better performing their duties as defenders, and thereby safeguarding the defense. the legitimate rights and interests of criminal suspects.
VI. Regarding the Issues of Presence in Interviews and Residential Surveillance
The Sixth Organ of my country’s Criminal Procedure Law, the "Procedure Regulations for Public Security Organs in Handling Criminal Cases", the "Criminal Procedure Rules of the People's Procuratorate" and the "Provisions" " both stipulate that during the investigation stage, when lawyers meet with criminal suspects in custody, the case-handling agency may decide whether to send personnel to be present based on the circumstances of the case and actual needs. However, in judicial practice, in almost all cases, when lawyers meet with lawyers during the investigation stage, the case handling agency will send personnel to be present, even if it is not necessary. The presence of case handlers may even interfere with lawyers' meetings, which is extremely detrimental to protecting the rights and interests of criminal suspects and is not conducive to the development of lawyers' business. Some detention centers use surveillance methods such as cameras and audio recordings, which make lawyers and criminal suspects highly nervous and unable to have normal meetings and conversations. The result of this is that lawyers' meetings with criminal suspects in custody are directly controlled by investigators. Investigators restrict or even obstruct the content of lawyers' questions. Criminal suspects dare not state the truth to lawyers, resulting in lawyers being unable to understand the essence of the case. In the end, the meeting with the lawyer had no substantive meaning.
Of course, when lawyers meet with criminal suspects, in order to prevent the suspect from escaping or having other accidents, "investigators must be present according to the circumstances and needs of the case" to be supervised, but the premise of this supervision should not affect The effective exercise of the right to visit a lawyer is also stipulated in the international conventions signed by our country on the right to visit. (United Nations Basic Principles on the Role of Lawyers). The United Nations Basic Principles on the Role of Lawyers and the Standard Minimum Rules for the Treatment of Prisoners and the Principles for the Protection of All Persons Subject to Any Form of Detention or Imprisonment provide that lawyers and crime Interviews with suspects should be conducted without eavesdropping, without censorship, and with complete confidentiality. Investigators should be allowed to monitor the interview with their own eyes, but only from a distance where they can hear the conversation. Visibly, lawyers. Interviews can only be conducted in a confidential manner to ensure that lawyers can effectively understand the case and exercise the substantive significance of the right to interview. Therefore, in judicial practice, in addition to limiting the presence of investigators to a smaller scope, it is recommended to clearly stipulate " Investigators shall conduct surveillance on interviews within the sight range, but shall not conduct it outside the hearing range, and shall not conduct secret surveillance such as recording or video recording."
Article 14 of the VII. Provisions stipulates that lawyers When meeting with criminal suspects or defendants in custody, the relevant meeting regulations of the case-handling agency and the detention center must be followed.
In addition, Articles 47 and 48 of the "Procedural Regulations for Public Security Organs Handling Criminal Cases" issued by the Ministry of Public Security stipulate that when lawyers meet with criminal suspects in custody, the public security organs shall inform them to comply with the regulations on the meeting place; when lawyers meet with criminal suspects in custody, If a suspect violates the law or the regulations of the interview venue, the police present should stop him and may decide to stop the interview if necessary. Articles 153 and 154 of the "People's Procuratorate Criminal Procedure Rules" of the Supreme People's Procuratorate stipulate that when an entrusted lawyer meets with a criminal suspect in custody, the prosecutors present shall inform him that he must abide by the regulations of the place of detention and the Regulations of relevant agencies on interviews; if a lawyer interrogates a criminal suspect in custody beyond the scope of authorization stipulated in Article 96 of the Criminal Procedure Law, or violates the regulations of the detention place and relevant agencies on interviews, the police present shall stop him. If a lawyer's questioning of a criminal suspect in custody exceeds the scope of authorization stipulated in Article 96 of the Criminal Procedure Law, or violates the detention center or relevant agency interview regulations, the procuratorial staff present have the right to stop the interview. In the above-mentioned regulations, vague terms such as "provisions on interviews by case-handling agencies and detention departments", "provisions on interview venues", "provisions on interviews by detention centers and relevant agencies" are used, which creates ambiguity in the investigation and interrogation of criminal suspects. situation. The use of these vague terms provides investigators with an excuse to prevent lawyers from meeting criminal suspects in custody. This is because various agencies and departments have very different regulations on lawyer meetings. Even the regulations formulated by departments of the same nature in the same region are inconsistent, and it is even more difficult to unify them in practice. This has led to some case-handling agencies and regulatory departments They use their own regulations to restrict lawyers' rights to meet with criminal suspects and defendants in custody. For example, some investigative agencies stipulate that "lawyers must provide an outline of the conversation before meeting, and the conversation must not exceed the scope of the inquiry outline, otherwise the conversation will be stopped promptly" and so on. It is true that in criminal litigation activities, in order to ensure the realization of their own responsibilities, each case-handling agency may need to formulate some internally binding rules or regulations. However, it needs to be clear that these internal regulations or systems must not target non-internal personnel, nor can they be used as an excuse or reason to prevent lawyers from exercising their right to visit, especially when certain provisions in these "internal regulations" conflict with existing legal provisions. hour. Therefore, it is recommended that all relevant departments carefully check the department's "internal regulations" regarding lawyers' interviews, delete any illegal content, clarify the corresponding responsibilities of the department, and do not let "internal regulations" that conflict with the law restrict lawyers' exercise of the right to interview. If possible, this should also be used as an excuse or reason to prevent the lawyer from exercising the right of interview. The exercise of the lawyer's right to interview; if possible, the provisions on the lawyer's right to interview should also be coordinated so that lawyers can legally and effectively interview criminal suspects and defendants in custody and safeguard their legitimate rights and interests.
Although there are certain problems in the content and implementation of the "Regulations", overall, the "Regulations" protect and standardize the practice rights and practices of lawyers' interviews to a large extent, and maintain the The legitimate rights and interests of criminal suspects and defendants. As long as we can continue to sum up experience, improve relevant legal provisions, change the concepts of law enforcement personnel, improve the quality of law enforcement personnel, and strengthen lawyers' own awareness of rights protection, the right to visit with lawyers can be fully realized, and the legal rights of criminal suspects and defendants can be fully realized. Rights and interests can also be better protected.