First, on the whole, since the implementation of the Regulations for more than a year, the situation of lawyers meeting with criminal suspects and defendants in custody has been greatly improved, which has solved the problem of lawyers' "difficulty in meeting" and has been widely welcomed by lawyers. Because the lawyer's right to meet is the premise and foundation for lawyers to realize other litigation rights in criminal proceedings, it is often difficult to realize the lawyer's right to meet in judicial practice because of imperfect legislation and problems in law enforcement. However, Article 5 of the Regulations makes it clear that the case-handling organ shall guarantee lawyers' practice activities in accordance with the law, and guarantee lawyers' rights to meet criminal suspects and defendants in custody during the investigation stage, prosecution stage and trial stage. Most case-handling agencies can provide adequate protection for lawyers to meet in accordance with regulations. Especially in the stage of examination, prosecution and trial, lawyers can generally meet with criminal suspects and defendants in custody according to law, exercise their defense rights and perform their defense duties. However, perhaps due to special considerations in the investigation stage, in judicial practice, the investigation organ is more or less lacking in enthusiasm for ensuring lawyers to meet, and even hinders lawyers from meeting criminal suspects and defendants in custody. Although this is only a minority, it also prevents lawyers from meeting with criminal suspects and defendants in custody and infringes on the legitimate rights and interests of criminal suspects and defendants. Therefore, in practice, there are many problems when lawyers ask to meet with criminal suspects and defendants in custody at the investigation stage, and the specific performance will be described below. Judging from the whole litigation process, it is more important for lawyers to protect the legitimate rights and interests of criminal suspects and defendants and perform their defense duties during the investigation stage, so it is necessary to further improve them.
Second, on the exercise of lawyers' right to meet.
Article 6 of the Regulations clearly stipulates the scope and rights of practicing activities that lawyers can engage in when meeting with criminal suspects and defendants in custody, but it is often difficult to implement them in practice. Among them, there are mainly the following problems:
(1) When lawyers meet with criminal suspects and defendants in custody, it is easier for them to get information about the case. However, when they meet in the investigation stage, they are often interfered by the personnel present in the investigation organ, and even lawyers are not allowed to talk about the case, and lawyers are prohibited from knowing the case from the criminal suspect and defendant. This does not conform to the spirit of Articles 6 and 7 of the Regulations, and also violates Article 96 of the Criminal Procedure Law. Because according to the Criminal Procedure Law and relevant laws and regulations, when lawyers meet with criminal suspects in the investigation stage of criminal proceedings, they can learn about the case, including the charges accused by the investigation organ, the main facts and circumstances of the case, the defense of the suspect's innocence and light crime, etc. It can be seen that lawyers have the right to know the case from the criminal suspect according to law, and the case-handling organ should not interfere, let alone prevent lawyers from knowing the case from the criminal suspect on the grounds that the case is still under investigation.
(2) The right to appeal and accuse on behalf of others is difficult to guarantee. During the meeting, lawyers can know whether the legal procedures of criminal suspects and defendants in custody are complete, whether the procedures are legal, and whether their personal rights and litigation rights have been violated after taking compulsory measures, and they can appeal and accuse the relevant organs and departments on their behalf. However, under normal circumstances, even if the rights and interests of criminal suspects and defendants in custody are damaged in the investigation stage, it is difficult for lawyers to obtain corresponding evidence through interviews, and acting as agents for complaints and accusations will not play a corresponding role.
(3) It is difficult to apply for bail pending trial. Although the "Regulations" clarify that lawyers can apply for bail pending trial for criminal suspects and defendants during the meeting, it is quite difficult to apply for bail pending trial in practice, especially in the investigation stage, and it is even more difficult to get the approval of the case-handling organ. In judicial practice, only a few cases can be released on bail pending trial at the stage of review, prosecution or trial. This may be the choice made by the case-handling organ considering the efficiency of handling cases and the means of investigation, but it is extremely unfavorable to the exercise of lawyers' practice rights and the protection of the legitimate rights and interests of criminal suspects and defendants, and it is also unfavorable to the realization of judicial justice.
Third, about the approval of the lawyers' meeting.
Article 96 of China's Criminal Procedure Law stipulates: "A lawyer shall obtain permission from the investigation organ when meeting a criminal suspect in custody." . Article 9 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 Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC) (hereinafter referred to as "the provisions of the six organs") clearly stipulates that "cases involving state secrets" as stipulated in Article 96 of the Criminal Procedure Law refers to cases or cases involving state secrets in nature, and cannot be identified as cases involving state secrets because the relevant materials and handling opinions in criminal case investigation need to be kept confidential. "In addition, article 1 1 of the Six Organs Regulations also stipulates that" for cases that do not involve state secrets, lawyers do not need to be approved to meet criminal suspects. Cases involving state secrets cannot be rejected because the investigation process needs to be kept confidential. "It can be seen that the implementation of the examination and approval system for lawyers to meet criminal suspects should also be subject to three restrictions at the same time, that is, the nature is limited to state secret cases, the time is limited to the investigation stage, and the examination and approval authority is limited to the investigation organ. However, because some investigation organs are conceptually resistant to lawyers' intervention, they cannot correctly define the scope of "state secrets" in strict accordance with relevant regulations, and often use the case "involving state secrets" as an excuse to prevent lawyers from meeting with criminal suspects in custody. Even if the interview is allowed, it will be delayed again and again, which often leads to lawyers being unable to perform their defense duties. Although Article 24 of the Regulations stipulates the examination and approval procedures for lawyers to meet, it still cannot avoid the phenomenon of illegal examination and approval in judicial practice, which leads to the violation of the litigation rights enjoyed by criminal suspects and lawyers according to law. At the same time, according to the provisions of Article 96 of the Criminal Procedure Law, in cases involving state secrets, the criminal suspect's employment of a lawyer should be approved by the investigation organ; Even if the investigation organ allows the criminal suspect to hire a lawyer, and the hired lawyer requests to meet the criminal suspect in custody, it must be approved again by the investigation organ, which is called "double approval". The regulation of "double batch" not only has major legislative defects, but also sets a great obstacle for criminal suspects in secret-related cases to seek the help of lawyers, resulting in the right of lawyers to meet criminal suspects in custody becoming a dead letter in concrete operation. Therefore, it is necessary to cancel the "double examination and approval" and ensure that the hired lawyers can meet the suspects in secret-related cases in time. However, due to the particularity of cases involving state secrets, the provision that "a case involving state secrets should be approved by the investigation organ" should be retained in legislation, but whether or not to approve it should be decided according to the degree of state secrets involved in the case. If the state secrets involved in the case are not high, in principle, the criminal suspect should be allowed to hire a lawyer. Once the investigation organ allows the criminal suspect in custody to hire a lawyer for secret cases, according to normal logic, it means that the hired lawyer is allowed to meet the criminal suspect in custody and understand the case. Otherwise, lawyers can't provide legal help for criminal suspects, and it becomes meaningless for criminal suspects to hire lawyers. Therefore, it is suggested to cancel the provision of "double approval". Lawyers in secret-related cases naturally enjoy the right to meet after being approved to intervene in criminal proceedings, and meeting with criminal suspects does not need the approval of the investigation organ, so that lawyers can intervene in secret-related cases in a timely and effective manner.
Fourth, about arranging the time of the meeting.
Generally speaking, lawyers request to meet with criminal suspects and defendants in custody, and the case-handling organ shall arrange the meeting in time. In order to ensure that lawyers can realize their right to meet as soon as possible, the six organs stipulate that, on the basis of referring to the internationally recognized minimum standards of criminal justice (Article 7 of the United Nations Basic Principles on the Role of Lawyers stipulates that governments should also ensure that all people who are arrested or detained, regardless of whether they are charged with a criminal offence, should have the opportunity to contact a lawyer promptly, and in any case no later than 48 hours from the time of arrest or detention). It is stipulated that "if a lawyer requests to meet with a criminal suspect, he shall arrange a meeting within 48 hours. If a lawyer requests to meet with a criminal suspect, he should arrange a meeting with two or more people for major and complex crimes such as organizing, leading, participating in terrorist activities, smuggling, drug crimes, corruption and bribery. " However, the relevant authorities can not correctly understand and implement it, but take some flexible implementation practices from the interests of the department. For example, in Article 15 1 of the Rules of Criminal Procedure of People's Procuratorate issued by the Supreme People's Procuratorate, the "meeting within 48 hours" and "meeting within five days" stipulated by the six organs were changed to "meeting within 48 hours" and "meeting within 48 hours". Changing "the meeting should be arranged within 5 days" to "the meeting can be arranged within 5 days" has objectively set obstacles for lawyers to meet with criminal suspects, which has become one of the excuses for the case-handling organs to prevent lawyers from meeting with criminal suspects. In view of this situation, Article 23 of the Regulations clearly requires that "after a lawyer requests a meeting, the case-handling organ shall issue an official letter to the lawyer and arrange a meeting with the lawyer within 48 hours (five days in special circumstances)". In practice, when arranging lawyers to meet with criminal suspects and defendants in custody, the case-handling organs can generally abide by the above time limit. However, because the regulations only require the case-handling organ to issue an official letter to the lawyer and arrange a meeting within 48 hours (5 days in special cases) after the lawyer asks for a meeting, the specific time of the meeting is decided by the case-handling organ itself, which leaves room for some case-handling organs to delay or even hinder the lawyer's meeting. Therefore, it is suggested to stipulate the specific time limit for the case-handling organ to arrange the lawyer to meet, that is, the case-handling organ is required to arrange the lawyer to meet with the criminal suspect and defendant in custody within 48 hours (5 days in special circumstances, and an appropriate time limit can be considered). In addition, because there is no legal consequence that the case-handling organ fails to arrange the lawyer's meeting according to the legal time, the legal obligation of the investigation organ is not stipulated by law, and the lawyer's right to meet is not guaranteed by law. In view of this, it is also suggested that lawyers should be given the right to appeal, accuse and expose, and a sanctions mechanism should be established for the investigation organs not to perform their obligations according to law.
Verb (abbreviation of verb) about the limit of the number and time of meetings.
Under normal circumstances, the time and times for lawyers to meet with criminal suspects and defendants in custody can be guaranteed. However, due to the influence of the investigation mode of authority, some case-handling organs and security departments unreasonably limit the time and frequency of lawyers' appropriate meetings, such as stipulating that a case should not be met more than twice and each meeting should not exceed 30 minutes. In fact, this is the implementation of Article 1 1 of the Regulations, because according to the regulations, as long as lawyers abide by the regulations of the case-handling organs and the security departments on working hours and rest hours, the case-handling organs and the security departments should ensure the appropriate time and frequency for lawyers to meet with criminal suspects and defendants in custody, without unreasonable restrictions. If we limit the appropriate times and time for lawyers to meet with criminal suspects and defendants in custody, it will seriously violate Article 8 of the United Nations Basic Principles on the Role of Lawyers, which China has signed, which stipulates that "all people arrested, detained or imprisoned should have sufficient opportunities, time and facilities to receive visits from lawyers and contact and negotiate with lawyers without delay", so that lawyers can not fully understand the case and better perform their defense duties, thus safeguarding the legitimate rights and interests of criminal suspects.
Vi. Meeting, presence and monitoring.
China's Criminal Procedure Law, Provisions on Six Organs, Several Provisions on Handling Criminal Cases by Public Security Organs, Criminal Procedure Rules of People's Procuratorate and Regulations all stipulate that when a lawyer meets a criminal suspect in custody at the investigation stage, the case-handling organ may decide whether to send personnel to be present according to the case situation and actual needs. However, in judicial practice, almost all cases are in the investigation stage, and when lawyers meet, the case-handling organs will send personnel to the scene, even if it is not necessary to be present. Moreover, some staff of the case-handling organs present even interfered with the lawyer's meeting, which was extremely unfavorable to the protection of the rights and interests of criminal suspects and the development of lawyer's business. Other detention centers use video, audio and other monitoring means, which makes lawyers and criminal suspects highly nervous and unable to conduct normal meetings and conversations. Therefore, when lawyers meet with criminal suspects in custody, they are under the direct control of investigators. Investigators restrict or even obstruct the content of lawyers' questions, and criminal suspects dare not state their true feelings to lawyers, which leads to lawyers' inability to understand the true situation of related cases and ultimately makes lawyers' meetings meaningless.
Of course, when lawyers meet with criminal suspects, in order to prevent the suspects from escaping or having other accidents, "investigators can send personnel to be present according to the case and needs" for supervision, but such supervision should be based on the premise of not affecting lawyers' effective exercise of the right to meet, and in line with the provisions of relevant international conventions signed by China. The United Nations Basic Principles on the Role of Lawyers, the Standard Minimum Rules for the Treatment of Prisoners and the Principles for the Protection of All Persons under Any Form of Detention and Imprisonment all stipulate that interviews between lawyers and criminal suspects should be conducted without eavesdropping, inspection and complete confidentiality, and investigators can stare at them, but not within hearing distance. It can be seen that the lawyer's interview can only be conducted in a confidential situation, so as to ensure that the lawyer can effectively understand the relevant cases, and the right to meet has substantive significance. Therefore, in addition to judicial practice, the investigation organ should limit the presence of investigators to a small range, and it is suggested that it should be clearly stipulated that "the investigators present should monitor the meeting within the sight range but outside the hearing range, and should not secretly monitor the meeting by means of audio and video recording".
7. Article 14 of the Regulations stipulates that when lawyers meet with criminal suspects and defendants in custody, they shall abide by the regulations of the case-handling organ and the guard department on the meeting. In addition, Articles 47 and 48 of the Procedures for Handling Criminal Cases by Public Security Organs issued by the Ministry of Public Security stipulate that when a lawyer meets a criminal suspect in custody, the public security organ shall inform him to abide by the provisions of the meeting place; If a lawyer meets a criminal suspect in custody and violates the law or the meeting place, the on-site police shall stop it and decide to stop the meeting if necessary. Articles 153 and 154 of the Criminal Procedure Rules of the People's Procuratorate of the Supreme People's Procuratorate stipulate that when an entrusted lawyer meets a criminal suspect in custody, the staff of the procuratorial organ present shall inform him to abide by the regulations of the supervision place and relevant authorities on the meeting; If the contents of the lawyer's questioning about the criminal suspect in custody exceed the authorized scope as stipulated in Article 96 of the Criminal Procedure Law, or violate the regulations of the supervision place and relevant authorities on the meeting, the staff of the procuratorial organ present have the right to stop or suspend the meeting. The use of vague terms in the above provisions, such as "regulations on meeting between case-handling organs and guards", "regulations on meeting places" and "regulations on meeting between supervision places and relevant organs", provides an excuse for investigators to prevent lawyers from meeting criminal suspects in custody. At present, the regulations of various organs and departments on meeting with lawyers vary greatly, and even the rules and regulations formulated by departments of the same nature in the same area will be inconsistent, which is even more difficult to unify in practice. This makes some case-handling organs and security departments use their own regulations to restrict lawyers' right to meet criminal suspects and defendants in custody. For example, some investigation agencies stipulate that "lawyers must provide an outline of the conversation before meeting, and the conversation must not exceed the scope of the outline, otherwise the conversation will be stopped in time" and so on. It is true that in criminal proceedings, in order to ensure the realization of their duties, each case-handling organ may need to formulate some internally binding rules or regulations. However, it needs to be clear that these internal rules or systems should never be aimed at non-internal personnel, let alone be an excuse or reason to hinder lawyers from exercising their right to meet, especially some of them are "internal regulations" that contradict the existing legal provisions in China. Therefore, it is suggested that all relevant departments carefully review the "internal regulations" formulated by the department related to lawyers' meetings, delete illegal contents, and clarify the corresponding responsibilities of the department. Do not restrict the exercise of lawyers' right to meet with "internal regulations" that conflict with the law; If possible, we should unify the rules for lawyers to meet, so that lawyers can meet with criminal suspects and defendants in custody legally and effectively, and safeguard their legitimate rights and interests.
Although there are some problems in the content and implementation of the Regulations, on the whole, the Regulations protect and standardize lawyers' right to meet and practice activities to a great extent, and safeguard the legitimate rights and interests of criminal suspects and defendants. As long as we can constantly sum up experience, improve relevant laws and regulations, change the concept of law enforcement personnel, improve the quality of law enforcement personnel, and strengthen lawyers' awareness of rights protection, lawyers' right to meet can be fully realized, and the legitimate rights and interests of criminal suspects and defendants can be better protected.