In fact, two years ago, the Litigation Law Research Center of China University of Political Science and Law undertook a project funded by the United Nations, and conducted a pilot project of lawyers' presence supervision during the interrogation of investigators in Haidian Branch of Beijing Public Security Bureau, requiring some police officers to inform lawyers of their presence when interrogating suspects for the first time. The first phase (6 months) of the pilot project has been completed, which has achieved good social effects and been recognized by most police officers.
It should be said that investigators have the right to be present when interrogating criminal suspects, which is the basic requirement of criminal proceedings in western countries ruled by law, but it is slightly different in Britain, America and civil law countries. For example, in the United States, according to the Miranda rule, "as long as a person is detained or deprived of freedom, the right to get the help of a lawyer will be natural, unless a person voluntarily, knowingly and rationally gives up this right." In Britain, as long as a suspect asks to see a lawyer, the trial should be suspended until his lawyer is present. In Italy, defenders have the right to be present not only during police interrogations, but also during police searches, emergency checks and seizures. In France, the defense lawyer has no right to be present when the police interrogate the criminal suspect, but Article 70 of the Criminal Procedure Law stipulates: "If the investigating judge has not accepted the current felony case, the prosecutor in People's Republic of China (PRC) may issue a summons to any criminal suspect. The prosecutor in People's Republic of China (PRC) shall immediately question the person so summoned. If the summoned person comes automatically accompanied by the defender, he can only be interrogated in the presence of the defender. " In Germany, defenders have no right to participate in police interrogation, but they can participate in the interrogation of defendants by procuratorates. The procuratorate must inform the date of interrogation in advance. If the notification will affect the investigation, it may not be notified. It can be seen that the common law countries have made comprehensive provisions on the right of lawyers to be present during the interrogation of investigators, while the civil law countries, although not directly stipulated, protect the rights of criminal suspects by other means.
On the other hand, in China, at present, police, prosecutors and other investigators have no right to be present when interrogating criminal suspects. The criminal suspect not only has no right to claim "I have the right to remain silent", but also has no right to claim that a lawyer is present during interrogation. On the contrary, we stipulate that when lawyers go to the detention center to meet criminal suspects in the investigation stage, the investigation organ can "send personnel to be present when necessary", which actually reflects the distrust of lawyers and the restriction on the rights of criminal suspects. If this amendment to the Criminal Procedure Law can formally establish the lawyer's right to be present during the interrogation of investigators, to a certain extent, it will be a great progress in the criminal rule of law in China.
Lawyers have the right to be present during the interrogation of investigators, which is generally considered to be helpful to protect the legitimate rights of criminal suspects, especially to prevent confessions by torture and interrogation by threats, deception and inducements. Because the police and other investigators can be supervised by lawyers when interrogating criminal suspects, investigators will standardize their interrogation activities and dare not beat criminal suspects again. Even when confessions are extracted by torture, lawyers can provide evidence for criminal suspects or accuse them on their behalf.
But we can't expect the lawyer's right to be present to completely solve the problem of extorting confessions by torture in criminal proceedings in China. Because the detention center, as the detention place of criminal suspects, belongs to the public security organs and has no restriction mechanism, many scholars now call for separating the detention center and handing it over to the judicial administrative organs for management, and at the same time clearly limiting the time, manner and place for investigators to interrogate criminal suspects, which really helps to prevent extorting confessions by torture and illegal interrogation.
In this discussion on the revision of the criminal procedure law, the biggest obstacle to the establishment of lawyers' right to be present is the investigation organ. Because they believe that the investigation of many cases now begins with the confession of the criminal suspect, if the lawyer's right to be present is established, the lawyer must be informed of his presence during the police interrogation, which will reduce efficiency, hinder the investigation, lead to most cases not being solved, and lead to indulgence in crime.
The author thinks that the lawyer's intervention in the interrogation of investigators will affect the investigation effect to a certain extent, which is also the reason why some civil law countries have not fully established the right of lawyer's presence, but we should see the great significance of lawyer's presence in protecting the rights and interests of criminal suspects as a whole. At the same time, in the investigation mode, we should abandon the long-standing "confession centralism" and shift the focus of investigation to scientific and technological evidence such as physical evidence.
On the surface, the lawyer's right to be present in the interrogation process of investigators does increase the lawyer's litigation rights to a certain extent, which not only advances the time for lawyers to intervene in criminal proceedings, but also gives lawyers greater rights in the investigation stage, which is helpful to create an equal litigation pattern between prosecution and defense and strengthen the restriction on procuratorial organs.
But in essence, the author believes that the presence of lawyers during the interrogation of investigators is not only the right of lawyers, but also the human rights of criminal suspects, because criminal suspects are in a weak position to be investigated for criminal responsibility in criminal proceedings. If they are allowed to hire a lawyer to be present at the interrogation, it will really help to safeguard the rights of criminal suspects. In fact, it will make the constitutional right of "the defendant has the right to defend" concrete.
Of course, we should also realize that the defense rate of lawyers in China is not very high at present. Only about 20% of suspects have hired lawyers, and most criminal cases are not attended by lawyers. This may be because, on the one hand, many criminal suspects have financial difficulties and cannot afford lawyers, while legal aid in China is underdeveloped; On the other hand, the number of lawyers in China is also very limited. There are only about 65,438+200,000 lawyers in China. If the criminal procedure law is amended to increase the right of lawyers to be present during the interrogation of investigators, how can so many lawyers participate? This is what we have to think about.