First of all, we should be familiar with the legal provisions on lawyers' litigation rights.
In the face of the criticism of individual case handlers, lawyers are speechless, not because they "respect" judicial personnel but because they are unfamiliar with the law and difficult to deal with. It can be seen that to skillfully use the law, we must first be familiar with the law. With the implementation of the Criminal Procedure Law, relevant state departments have successively issued relevant judicial interpretations and regulations. As a lawyer, to provide services for criminal suspects in the investigation stage, the judicial documents that should be mastered mainly include: the Criminal Procedure Law formulated by six ministries and commissions of the state.
Provisions on some issues in the implementation of the law, the Criminal Procedure Rules of the People's Procuratorate formulated by the Supreme People's Procuratorate, the Procedural Provisions for Handling Criminal Cases by Public Security Organs formulated by the Ministry of Public Security, and the Code for Lawyers Handling Criminal Cases formulated by the Ministry of Justice. In the above-mentioned judicial documents, two provisions should be understood:
First, lawyers can exercise four litigation rights after accepting the entrustment of the criminal suspect himself or his relatives.
1. Ask the investigators of the investigation organ about the charges charged by the criminal suspect;
2, put forward the "application for meeting with the criminal suspect in custody", according to the arrangement of the investigation organ (the case-handling organ shall decide within 48 hours, major and complex cases within 5 days), meet with the criminal suspect in custody. When a lawyer meets a criminal suspect, he has the right to know the case. This right is clearly stipulated in Article 96, paragraph 2, of the Criminal Procedure Law and Article 28 of the Code for Lawyers Handling Criminal Cases. In addition, lawyers can also learn about the criminal suspect's compulsory measures and the exercise of litigation rights;
3, solicit the opinions of the criminal suspect, decide whether to put forward the complaint opinions and complaint materials to the relevant authorities on his behalf;
4. When a qualified criminal suspect applies to the investigation organ for bail pending trial, or when the criminal suspect is subjected to compulsory measures beyond the statutory time limit, the relevant authorities shall give a reply within seven days.
Second, the eight litigation rights enjoyed by the criminal suspect in the investigation stage should also be memorized, because lawyers should inform the criminal suspect of these rights and explain them. These eight litigation rights are:
1, have the right to hire one or two lawyers;
2. Have the right to refuse to answer questions irrelevant to this case;
3. Have the right to view interrogation records. Supplement or correct records with omissions or errors;
4. Have the right to ask for a confession, and the case-handling personnel shall allow it;
5. Have the right to plead not guilty or lodge a complaint with the relevant authorities;
6. Have the right to report the case to a lawyer;
7. Have the right to lodge a complaint against the illegal acts of the investigation organ;
8. When compulsory measures exceed the statutory time limit, they have the right to request the investigation organ to lift the compulsory measures. These rights are stipulated in Articles 75, 93, 95 and 96 of the Criminal Procedure Law.
Two, should actively exercise the corresponding litigation rights.
Lawyers often encounter some obstacles in exercising their rights and must make more efforts. In business practice, I always adhere to the principles of patient persuasion, active defense and reasonable restraint, and actively and comprehensively exercise lawyers' litigation rights.
First, for individual uncooperative investigators, I take the method of knowing the law and breaking the law and patiently persuading. Faced with the warning that "I'll stop your interview if I talk about the case again", I took out the Law on Litigation Rights of Entrusted Lawyers in Criminal Procedure (Investigation Stage) prepared in advance and explained to investigators that "if you don't intervene in the case, lawyers can't help the suspects to appeal, can't provide legal services, and allow lawyers to understand the case, which is clearly stipulated in the law and judicial interpretation". So I finally met the suspect smoothly.
Secondly, if individual case handlers who are biased against lawyers do not act in accordance with the law, I will take measures to actively defend and argue. For example, if the case is complicated and refuses to arrange a meeting, or some investigators think that "the suspect needs to ask for instructions before answering", I will promptly submit written opinions to the leaders in charge of the case-handling organ, explaining the harm of depriving the suspect of his litigation rights and the significance of lawyers cooperating with the investigation and safeguarding the rights of the suspect. Once there is no reply, I will apply again until I get permission.
In addition, lawyers should not only dare to exercise litigation rights, but also be good at exercising litigation rights and exercise reasonable restraint.
Third, the exercise of litigation rights should strictly abide by the law.
People in the industry generally believe that criminal business is risky and will fall into a trap if it is not careful, so lawyers involved in the investigation stage should be more vigilant. Long-term business practice has made me realize that lawyers who serve criminal suspects in the investigation stage should keep in mind the word "law-abiding" when exercising their litigation rights. Only in this way can they eliminate risks. Specific performance in:
One can't go beyond the scope of rights. Some lawyers "take the initiative" to intervene in the investigation, carry out the investigation at the same time with the investigation organ, and even collect evidence at the same time, mistakenly thinking that they want to compete with the investigators for time. I don't know that lawyers are not "defenders" at this time, and the litigation rights and "defense rights" in the investigation stage are different. This kind of investigation and evidence collection behavior that interferes with judicial investigation activities is not allowed by law.
Second, we must not violate the meeting discipline. In order to show "thoughtful service", some lawyers violate prison management regulations and meeting discipline, exchange case information between criminal suspects and their relatives, or pass illegal items, or induce criminal suspects to make false statements. This is a serious illegal act, even a crime, and must be prohibited.
Three can't reveal the secret. Lawyers should consciously keep state secrets, case secrets and the privacy of the parties they know in the process of handling cases, and must not disclose them to anyone in any way or for any reason.