In the trial of duty crime cases, defense lawyers found that the court of first instance seriously violated legal procedures and put forward defense opinions in the second instance of the case according to law. Attachment: Defense opinion that the first-instance judgment seriously violated legal procedures.
(Wang Anzhi defended the case of corruption, bribery and bribery in the second instance)
Dear presiding judge:
Dear all members of the collegial panel,
Entrusted by the relatives of the law firm, the lawyer was appointed as the second-instance defender of Wang Anzhi's alleged corruption, bribery and bribery case. According to the case materials and legal provisions, we hereby express the following opinions:
Defenders believe that the first-instance judgment seriously violates legal procedures; If the facts are found to be wrong and the legal provisions are seriously violated, the legal error shall apply. Wang Anzhi does not constitute the crime of corruption, bribery or bribery. The court of second instance shall acquit Wang Anzhi according to law. The reason for this is the following：
The first-instance judgment seriously violated legal procedures.
First, the Anzhou court has no jurisdiction. It tried the case illegally and made a judgment, which seriously violated the legal procedures and the provisions of the Criminal Procedure Law.
(1) The Anzhou court has no jurisdiction over this case, and it should be returned to the procuratorial organ of Anzhou City according to law, but it has not returned to the trial to make a first-instance judgment, which violates the provisions of the Criminal Procedure Law.
According to the criminal procedure law and judicial interpretation, combined with the guiding case of the Supreme People's Court, there are three cases to determine the designated jurisdiction: 1, and the jurisdiction is unclear; 2. The jurisdiction of the two courts is disputed; 3. Courts with jurisdiction shall not exercise jurisdiction. In these three cases, the people's court at a higher level shall determine the designated jurisdiction of the case in a designated way.
(2) In the first instance of this case, Guangxian People's Court made a judgment of first instance, appealed to Zhongyang Intermediate People's Court and decided to send it back for retrial. The subsequent change of jurisdiction was tried by the Anzhou Municipal Court, which violated the principle that the jurisdiction remained unchanged after the criminal case entered the proceedings. Moreover, the Anzhou People's Court has no jurisdiction over this case at all.
According to Article 25 of the Criminal Procedure Law of People's Republic of China (PRC), "a criminal case shall be under the jurisdiction of the people's court of the place where the crime was committed. If it is more appropriate to be tried by the people's court of the defendant's domicile, it may be under the jurisdiction of the people's court of the defendant's domicile. "
Article 26 stipulates: "Several cases over which the people's courts at the same level have jurisdiction shall be tried by the people's court that accepted them first. When necessary, it may be transferred to the people's court of the place where the main crime is committed. "
Anzhou City is neither the crime place of this case nor the defendant's residence. The jurisdiction and trial of this case by Anzhou City Court is completely wrong and seriously violates the law.
(3) The Anzhou court has no jurisdiction, and it is a serious violation of the law to directly make a judgment without returning it to the procuratorate according to law.
According to article 18 1 of the Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law of People's Republic of China (PRC): "After examining the case of public prosecution, the people's court shall handle it according to the following circumstances: (1) The case that was handled after being informed shall be returned to the people's procuratorate, and the victim shall be informed of the right to initiate private prosecution; (2) If it is not under the jurisdiction of this court or the defendant is not within the scope of filing, it shall be returned to the People's Procuratorate ".
According to the law, the case should be returned to the Anzhou City Procuratorate. Anzhou court not only failed to return it to the public prosecution, but also tried it illegally and made a judgment with the same unclear facts as the original judgment. The court of second instance shall revoke the judgment according to law and correct the illegal acts of the court of first instance.
Second, during the trial procedure, Wang Anzhi was arrested twice and placed under residential surveillance, which seriously violated legal procedures. Seriously violated Wang Anzhi's litigation rights.
The court of first instance refused to correct Wang Anzhi's legitimate rights and interests and adopted the wrong suggestion of the public prosecution to postpone the trial, which had no factual and legal basis.
Article 74 of the Criminal Procedure Law of People's Republic of China (PRC): "People's courts, people's procuratorates and public security organs may monitor the residence of criminal suspects and defendants who meet the conditions for arrest and have one of the following circumstances: (1) People who are seriously ill and cannot take care of themselves; (2) Women who are pregnant or nursing babies; (3) Being the sole supporter of a person who cannot take care of himself; (four) because of the special circumstances of the case or the need to handle a case, it is more appropriate to take residential surveillance measures; (five) the detention period expires, the case has not yet been settled, and it is necessary to take residential surveillance measures.
For those who meet the conditions of obtaining a guarantor pending trial, but the criminal suspect or defendant cannot provide a guarantor or pay a deposit, they can be placed under residential surveillance. Residential surveillance shall be carried out by public security organs. "This case completely violates the above legal provisions.
According to the third paragraph of Article 238 of the Criminal Procedure Law of People's Republic of China (PRC), if the people's court of second instance finds that the trial of the people's court of first instance violates one of the following legal procedures, it shall make a ruling to revoke the original judgment and send it back to the people's court that originally tried it for retrial:
(3) depriving or restricting the legal litigation rights of the parties, which may affect a fair trial ".
Accordingly, it is suggested that the court of second instance revoke the judgment of first instance and send it back for retrial.
Third, the court of first instance violated the principle of legality and was never suspected of committing a crime. Violation of the Supreme Court's criminal trial system centered on trial.
This case was sent back for retrial by Zhongyang Intermediate People's Court. According to the criminal ruling of Zhongyang Intermediate People's Court (2021) No.05, it was found that "some facts identified in the original judgment were unclear" and sent back to the court of first instance for retrial.
After the case was sent back to Guang County Court, Anzhou City Procuratorate filed a lawsuit in Anzhou Court according to the original facts, without any factual evidence to supplement it, and the facts identified by Anzhou Court did not change from the judgment of Guang County. It not only shows that the Anzhou court did not seriously hear the case, but also ruled that Wang Anzhi was guilty in the case of unclear facts, and there may be a serious irresponsible judgment of bending the law in the first instance. Please ask the court of second instance to supervise and correct.
Anzhou court violated the principle of intermediate trial of people's courts. According to Article 2 of the Rules of Court Investigation of People's Courts in Handling Criminal Cases of First Instance (Trial), "The court shall adhere to the principle of procedural fairness. The people's procuratorate bears the burden of proof that the defendant is guilty according to law, and the defendant does not bear the responsibility of proving his innocence. The court should judge in the middle, strictly implement the legal trial procedures, ensure that both the prosecution and the defense are equal in the court investigation, and realize the substantive justice of the case judgment through the procedural justice of the court trial. "
According to Article 52 of the Rules for the Investigation of Criminal Cases of First Instance by People's Courts (for Trial Implementation): "When the court finds the defendant guilty, it must ensure that the facts of the crime are clear, the evidence is true and sufficient, and combine the evidence of the whole case to eliminate reasonable doubt. In a case with insufficient evidence for conviction, the defendant cannot be found guilty, and a verdict of innocence should be made, because the accused crime cannot be established due to insufficient evidence. If the evidence of conviction is true and sufficient, and the evidence of sentencing is doubtful, it shall be determined in favor of the defendant. "
According to the Criminal Procedure Law, the Rules of the People's Court for Exclusion of Illegal Evidence in Handling Criminal Cases (Trial) and other laws and regulations, Anzhou City Court should find out the facts without finding out, and still make a judgment based on the indictment with unclear facts without supplementing new evidence, which seriously violates the principle of taking trial as the center in the Supreme People's Court, and the court of second instance should revoke the judgment of first instance according to law.
Fourth, the court of first instance did not inform the defendant of the right to exclude illegal evidence according to law.
There are a lot of verbal evidence and other illegal evidence in the trial of the first instance of this case, and some of the evidence is illegal in acquisition, formation and expression. In the trial, the court of first instance not only failed to determine the authenticity, legality and relevance of the evidence according to its authority. Nor did he inform the defendant that Wang Anzhi had the right to apply for the exclusion of illegal evidence.
According to Article 8 of the Rules of the People's Court for the Exclusion of Illegal Evidence in Handling Criminal Cases (Trial): "When the people's court serves a copy of the indictment to the defendant and his defender, it shall inform him that he has the right to apply for the exclusion of illegal evidence before the court session, and at the same time provide relevant clues or materials. The above situation should be recorded. "
In violation of the above-mentioned legal provisions, the court of first instance did not inform Wang Anzhi of matters that should be informed, such as excluding illegal evidence and informing the members of the collegial panel, and deprived Wang Anzhi of his litigation rights. The first-instance judgment seriously violated legal procedures.
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