In China, criminal cases can only be transferred to prosecution after investigation, but defenders can provide defense for criminal suspects at the investigation stage.
1. What litigation rights do lawyers and defenders have in the investigation stage?
1. Defend as a defender at the investigation stage.
According to Article 34 of the Criminal Procedure Law, a criminal suspect has the right to entrust a defender from the day when he is interrogated for the first time by the investigation organ or takes compulsory measures. During the investigation, only lawyers can be entrusted as defenders. The defendant has the right to entrust a defender at any time.
2, can understand the case at that time and the main facts have been identified.
(1) According to Article 38 of the Criminal Procedure Law, defense lawyers can provide legal assistance to criminal suspects during investigation; Acting as an agent for complaints and accusations; Apply for changing compulsory measures; Ask the investigation organ about the crimes and cases suspected by the criminal suspect, and put forward opinions.
(2) Article 47 of the Procedures for Handling Criminal Cases by Public Security Organs: If a defense lawyer asks the public security organ about the case, the public security organ shall inform the entrusted or appointed defense lawyer of the alleged crime of the criminal suspect, the main criminal facts ascertained at that time, the adoption, change and lifting of compulsory measures of the criminal suspect, and the extension of the period of investigation and detention. And record it.
3. Except for special cases, the parties to other cases have the right to meet and communicate without the approval of the public security organ.
According to Article 39 of the Criminal Procedure Law, defense lawyers can meet and correspond with criminal suspects and defendants in custody. Other defenders, with the permission of the people's courts and people's procuratorates, may also meet and correspond with criminal suspects and defendants in custody.
4, meet the parties are no longer under surveillance, public security personnel are not accompanied.
According to Article 39 of the Criminal Procedure Law, when a defense lawyer meets with a criminal suspect or defendant in custody, he can understand the case and provide legal advice. From the date when the case is transferred for examination and prosecution, the relevant evidence may be verified with the criminal suspect or defendant. Defense lawyers are not monitored when meeting with criminal suspects and defendants.
5. Have the right to ask and collect evidence on their own, and have the right to apply for witnesses to testify in court.
According to the provisions of Article 41 of the Criminal Procedure Law, defenders have the right to apply to the people's procuratorate and the people's court for the collection of evidence materials to prove the innocence or light crimes of criminal suspects and defendants in the process of investigation, examination and prosecution.
6. Lawyers' rights in the investigation stage have the right to express their opinions on whether they should be arrested.
According to Article 88 of the Criminal Procedure Law, when the people's procuratorate examines and approves an arrest, it may ask witnesses and other participants in the proceedings and listen to the opinions of defense lawyers; If a defense lawyer makes a request, he shall listen to the opinions of the defense lawyer.
7. In the investigation stage, lawyers have the right to ask the public security organs to change or lift compulsory measures.
According to Article 99 of the Criminal Procedure Law, the people's court, the people's procuratorate or the public security organ shall release the criminal suspect or defendant whose compulsory measures have expired, get a guarantor pending trial, place him under residential surveillance or change the compulsory measures according to law. When the statutory time limit for the people's court, the people's procuratorate or the public security organ to take compulsory measures expires, the criminal suspect, the defendant and his legal representative, close relatives or defenders have the right to demand the cancellation of compulsory measures.
8, have the right to put forward written opinions on the investigation work of public security organs.
9. At the end of the investigation, the public security organ has the obligation to notify the lawyer so that the lawyer can follow up the case.
10, apply for the withdrawal of the case-handling personnel and file a reconsideration.
1 1. Providing legal aid, representation and appeal for criminal suspects.
12. As an agent, negotiate and settle with the victims or their families on civil compensation, and strive for the understanding of the victims or their families.
Second, people who can't act as defenders.
According to the provisions of the second paragraph of Article 32 of the Criminal Procedure Law, a person who has been sentenced to punishment according to law or deprived of or restricted personal freedom may not act as a defender. According to Article 35 of the Supreme People's Court's Interpretation of Application and Article 4 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 the National People's Congress Standing Committee (NPCSC) Law Committee's Provisions on Several Issues Concerning the Implementation of the Criminal Procedure Law, the following persons may not act as defenders of criminal proceedings:
1, the person who is executing or is in the probation period of probation or parole;
2. Persons deprived or restricted of personal freedom according to law;
3. Persons without capacity or with limited capacity;
4. People's courts, people's procuratorates, public security organs, state security organs and prison staff;
5. People's jurors;
6. People who have an interest in the trial result of this case;
7. Foreigners or stateless persons.
The people's court may allow the person specified in items 4, 5, 6 and 7 to be a close relative or guardian of the defendant, and the defendant entrusts a defender.
Third, the main obligations of the defender
1. Defenders have the obligation to provide materials and opinions to prove that criminal suspects and defendants are innocent or given a lighter punishment, or to reduce or exempt them from criminal responsibility according to facts and laws, so as to safeguard the legitimate rights and interests of criminal suspects and defendants according to law.
2. When meeting a criminal suspect or defendant in custody, the regulations on places of detention shall be observed.
3. Observe the rules of the court when attending the court trial.
4. Without the permission of the people's procuratorate or the people's court, no materials related to this case may be collected from the victim or the witnesses provided by the victim.
5. Defense lawyers and other defenders shall not help criminal suspects and defendants to collude, conceal, destroy or forge evidence, and shall not threaten or induce witnesses to change their testimony or commit perjury or engage in other acts that hinder judicial procedures. Otherwise, legal responsibility shall be investigated according to law. Article 306 of the Criminal Law stipulates that in criminal proceedings, a defender who destroys or forges evidence, threatens or induces a witness to change his testimony of facts or commit perjury shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 7 years.
6. The defender shall present the material evidence to the court for the identification of the parties, and the transcripts of witness testimony and expert conclusions that have not appeared in court as evidence shall be read out in court.
7. If the evidence collected by the defender shows that the suspect is not at the scene of the crime, has not reached the age of criminal responsibility, and belongs to a mental patient who is not criminally responsible according to law, he shall promptly inform the public security organ and the people's procuratorate.
According to the law, lawyers and defenders can know the case and the main facts ascertained at that time in the investigation stage. Except for special cases, other cases have not been approved by the public security organs, and the parties have the right to meet and correspond.
Legal objectivity:
Article 38 of the Criminal Procedure Law: Defence lawyers may provide legal aid to criminal suspects during investigation; Acting as an agent for complaints and accusations; Apply for changing compulsory measures; Ask the investigation organ about the crimes and cases suspected by the criminal suspect, and put forward opinions. Article 39 A defense lawyer may meet and correspond with a criminal suspect or defendant in custody. Other defenders, with the permission of the people's courts and people's procuratorates, may also meet and correspond with criminal suspects and defendants in custody. Article 40 From the date when the people's procuratorate examines and prosecutes a case, the defense lawyer may consult, extract and copy the case file. Other defenders may also consult, extract and copy the above materials with the permission of the people's court or the people's procuratorate. Article 41 Defenders who believe that the evidence materials collected by public security organs and people's procuratorates to prove the innocence or minor crimes of criminal suspects and defendants have not been submitted have the right to apply to the people's procuratorates and people's courts for retrieval.