Keywords compulsory measures; Exclude illegal evidence; right to defense
main body
In recent years, with the gradual acceleration of the pace of building a socialist country ruled by law, especially the CPC Central Committee attaches great importance to the crime of dereliction of duty and the growing voice of the broad masses of the people to investigate and deal with the crime of dereliction of duty, the anti-dereliction work is facing great opportunities and challenges. The revision of the criminal procedure law puts forward higher requirements for anti-dereliction and infringement work. How to adapt to the needs of the revised criminal procedure law and how to strengthen the anti-dereliction and infringement work according to the revised criminal procedure law, the author thinks that it mainly needs to be done and improved from the following three aspects.
First, improve the means of investigation and rationally use coercive measures.
First, as far as the investigation stage of anti-blasphemy cases is concerned, the revised Criminal Procedure Law has been extensively revised. First, the revised Criminal Procedure Law endows the procuratorial organs with technical investigation means in the process of investigation, which is a great breakthrough for self-investigation cases and a great challenge for our case handlers. Although no higher authorities have decided whether to use technical investigation means for the time being, some scholars believe that at least the provincial people's procuratorate should decide whether to use it. However, the addition of this means has got rid of the dilemma of long-term lack of effective investigation means to investigate cases by itself, and more effective investigation measures can be taken against criminal suspects according to law. The obtained material evidence, documentary evidence, audio-visual materials and so on are mostly first-hand materials, which have stronger probative force. The emergence of technical investigation provides an extremely effective means for the staff of the anti-blasphemy department. However, the author believes that technical investigation means should be used with caution and decision-making organs should promote it. This is only the ultimate means of investigation, not the main means. It should be regarded as a measure similar to the bottom. Only when the criminal suspect is unaware and the major cases in the peripheral investigation are in trouble can they be adopted and the best social and legal effects can be achieved. Otherwise, too much power will inevitably lead to a situation of "everyone is in danger" and can't work with peace of mind. Second, some provisions of the revised Criminal Procedure Law provide a broader space for self-investigation. For example, Article 117 of the revised Criminal Procedure Law stipulates that "the duration of summons and compulsory summons shall not exceed 12 hours; If the case is particularly serious and complicated and detention or arrest measures are needed, the time limit for summoning or compulsory summoning shall not exceed 24 hours. This article stipulates that the time of summons and compulsory summons will be increased from 12 hours to 24 hours, which increases the time and intensity of interrogation and is more conducive to breaking the psychological defense of criminal suspects and obtaining valuable confessions. Because the first interrogation plays a great role in the whole self-investigation case, it is the first confrontation between the criminal suspect and the self-investigation case handler. The result of confrontation determines whether the case can progress smoothly in the future, whether more powerful information and evidence can be obtained to decide whether to take compulsory measures and other follow-up means, and whether the most basic criminal facts can be firmly and effectively fixed with evidence. Therefore, extending 12 hours provides a strong guarantee for the detection of self-investigation cases. For example, the illegal detention case of Dong Moumou, the director of a town's family planning office, investigated and dealt with by our hospital this year, if the interrogation time reaches 24 hours, it will inevitably increase the intensity of the first interrogation, so that the case handlers can have more time to conduct a reasonable interrogation of the case and make timely and effective responses according to the answers and excuses of the suspects. After consolidating and fixing the evidence about illegal detention during the first interrogation, it will be more conducive to further digging the economic problems of the case and may obtain more favorable information and evidence.
Secondly, the revised criminal procedure law has more clear provisions on the application of compulsory measures in anti-blasphemy cases. As we know, in the choice of compulsory measures for anti-blasphemy cases, bail pending trial accounts for more than 90%. The revised Criminal Procedure Law further clarifies the difference between bail pending trial and residential surveillance, separates the two kinds of compulsory measures from one article, and makes detailed provisions on how to apply these two kinds of compulsory measures, instead of the general provisions in Article 5 1 of the old law, which points out the direction for investigators in self-investigation cases to choose which compulsory measures in the future.
First, in the revised Article 65 of the Criminal Procedure Law, in addition to the provisions in the first paragraph that "additional punishment can be imposed on public surveillance, criminal detention or independent application" and the second paragraph that "penalties of fixed-term imprisonment or above can be imposed without social danger", two new provisions on bail pending trial have been added. "(3) Women who are seriously ill, unable to take care of themselves, pregnant or breast-feeding their babies should be released on bail pending trial." (4) The detention period expires, the case has not yet been settled, and it is necessary to get a bail pending trial ". The author believes that the provisions of the first and second paragraphs of this article are only stipulated in the criminal law and are relatively general. Public surveillance, criminal detention, fixed-term imprisonment, and independent use of supplementary punishment cover penalties other than death penalty and life imprisonment, which cannot meet the requirements of today's harmonious society and the need of the revised Criminal Procedure Law to "protect human rights". The revised Criminal Procedure Law is applicable to special groups such as seriously ill and lactating women, and the scope and conditions of bail pending trial are further flexible, which provides a wider scope and space for case handlers to choose and use compulsory measures and provides an effective legal basis.
Second, the revised Criminal Procedure Law makes a more detailed comparison and revision of the situation of residential surveillance than that of obtaining bail pending trial. Article 72 of the revised Criminal Procedure Law stipulates that under the conditions of residential surveillance, residential surveillance should be adopted on the premise of having the conditions of arrest, and specifically stipulates five related situations: (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. The provisions of this clause, based on whether there are conditions for arrest, clearly distinguish between residential surveillance and bail pending trial, and explain the situation in detail, which provides a strong basis for the investigators to correctly use these two types of compulsory measures in the future. The author believes that in the process of studying the revised criminal procedure law, we should not only distinguish between bail pending trial and residential surveillance in a superficial sense, but also understand the meaning and essence of the revised criminal procedure law "protecting human rights", fully consider and understand the effect and significance of compulsory measures, and consider the shock and influence brought by compulsory measures to relevant specific subjects. Consider whether women and caregivers who should be arrested and take residential surveillance measures can get more valuable information through "moving with emotion and understanding with reason" At the same time, other measures such as detention and arrest have also been greatly modified and explained in the revised Criminal Procedure Law, so I will not repeat them here.
However, we should also be soberly aware that the revised Criminal Procedure Law puts forward higher requirements for the investigators in the investigation stage of the procuratorial organs in China on the premise of providing strong protection and convenience for the investigators in our country, and effectively supervises and restricts the investigation stage. For example, Article 83 of the revised Criminal Procedure Law stipulates that "after detention, the detained person shall be immediately sent to the detention center for custody, and no later than 24 hours", and Article 9 1 stipulates that "after arrest, the arrested person shall be immediately sent to the detention center for custody" and so on. All the exceptions except those with obstacles or without notice have been deleted, requiring that criminal suspects should be sent to detention centers in time regardless of external conditions, and making detailed provisions on the safety and time of handling cases. Another example is to improve the rules for interrogating criminal suspects and defendants in investigation procedures and strengthen supervision over investigation activities. All these put forward higher requirements for our self-investigation case handlers. It is necessary to understand and learn in time and effectively, and apply it to our case in time.
Second, clarify the burden of proof and refine the exclusion of illegal evidence.
The importance of evidence for investigation activities is self-evident, and the facts of the case are also proved by relevant evidence. The revised Criminal Procedure Law has made many new provisions on evidence. For example, the eight basic types of evidence we commonly use have added "transcripts of investigation experiments" and "electronic data". In the process of investigating specific cases, our case handlers should fully realize the legitimacy, relevance and objectivity of evidence, enhance their awareness of the legitimacy of evidence and procedure, and establish a work style of handling cases according to law, civilization and standardization.
First, the revised Criminal Procedure Law clarifies the burden of proof for public prosecution cases by procuratorial organs. Article 49 of the Criminal Procedure Law stipulates that "the burden of proof of the defendant's guilt in a public prosecution case shall be borne by the people's procuratorate, and the burden of proof of the defendant's guilt in a private prosecution case shall be borne by the private prosecutor. Based on the principle of "whoever advocates gives evidence", the revised Criminal Procedure Law clarifies the burden of proof in the form of legal provisions, avoiding the possible inversion of the burden of proof in some public prosecution cases, such as illegal detention, ill-treatment of detainees and extorting confessions by torture, and effectively protecting some powerful subjects from disturbing the burden of proof.
Secondly, the revised Criminal Procedure Law also explains in detail the determination of the subject of evidence and the probative force. Paragraph 2 of the newly added Article 52 stipulates that "the evidence materials such as material evidence, documentary evidence, audio-visual materials and electronic data collected by administrative organs in the process of administrative law enforcement and case investigation can be used as evidence in criminal proceedings." This provision provides the fourth legal subject, namely the administrative organ, for the three departments of public security law to obtain evidence from the relevant units. That is to say, in the process of administrative law enforcement, the legality and probative force of legal material evidence, documentary evidence, court trial materials, electronic data and other evidence materials have been effectively determined by law, thus providing a broader space for obtaining more effective evidence in the investigation process and effectively connecting evidence through evidence chain.
Thirdly, it makes detailed provisions on how to find the defendant guilty and impose penalties. Article 53 of the revised Criminal Procedure Law stipulates that if the defendant has no confession and the evidence is true and sufficient, the defendant may be found guilty and punished. At the same time, the evidence does fully explain in detail: "(1) the facts of conviction and sentencing are proved by evidence; (2) The evidence on which the final decision is based has been verified by legal procedures; (3) According to the evidence of the whole case, the ascertained facts have been beyond reasonable doubt. " This provision further conforms to the purpose of "emphasizing evidence over confession" in the Criminal Procedure Law. If only the defendant states that he is guilty and there is no relevant evidence to prove it, it is impossible to determine his guilt and sentence. If there is no guilty statement of the defendant, but it meets the three requirements of sufficient evidence, it is possible to find the defendant guilty and make relevant sentencing instructions, which points out the direction for the self-investigation department to conduct preliminary investigation and evidence collection in the future and avoids the concept and practice of emphasizing confession in the past.
Fourth, the principle of excluding illegal evidence has been more clearly reflected. The exclusion of illegal evidence plays an important role in self-investigation cases, which determines whether the evidence is accepted or not and whether the public prosecution agency can provide evidence to prove the defendant's guilt. The author mainly explains and discusses from Article 54 of the Criminal Procedure Law. The first paragraph of Article 54 of the revised Criminal Procedure Law stipulates that confessions of criminal suspects and defendants collected by illegal methods such as extorting confessions by torture, witness testimony and victim statements collected by illegal methods such as violence and threats shall be excluded. If the collection of material evidence and documentary evidence does not conform to legal procedures and may seriously affect judicial justice, it shall be corrected or a reasonable explanation shall be made; If it cannot be corrected or a reasonable explanation cannot be given, the evidence shall be excluded. We can see that the first part of this clause explains that illegal verbal evidence obtained by illegal means should be excluded, while illegally obtained physical evidence and documentary evidence must be reasonably explained or corrected first if it seriously affects judicial justice, otherwise it needs to be excluded. Therefore, the revised Criminal Procedure Law excludes illegal evidence and makes a reasonable and effective distinction between verbal evidence and physical evidence, which requires our case handlers to keep in mind and pay attention to it at all times in the process of obtaining evidence. Because verbal evidence is more variable than physical evidence, it is more susceptible to illegal means, thus causing injustice in the case. In the evidence collection project of self-investigation cases in the future, we should pay attention to distinguish the two, and pay attention to the legality of the subject and procedure of evidence collection.
Paragraph 2 of Article 54 stipulates that "evidence that should be excluded in the process of investigation, examination, prosecution and trial shall be excluded according to law and shall not be used as the basis for prosecution opinions, prosecution decisions and judgments. The revised Criminal Procedure Law gives procuratorial organs the right to investigate and verify illegal evidence, and bears the burden of proof to prove the legality of evidence collection in pre-trial review. Among them, in order to protect the rights of criminal suspects and implement the core concept of protecting human rights in the new criminal procedure law, the revised criminal procedure law emphasizes that criminal suspects cannot be forced to prove their guilt, that is, the evidence obtained by forcing criminal suspects to prove their guilt is illegal and should be excluded. Of course, this does not deny that the criminal suspect has taken the initiative to prove that he is guilty, because his punishment can be mitigated by identifying circumstances such as surrender and meritorious service. The author thinks that he can't be forced to testify against himself, which brings great difficulties and challenges to the investigators of dereliction of duty in real life. Criminal suspects can face the interrogation of investigators in a silent way and answer the investigation of investigators with "I don't know", which makes it more difficult to handle cases. In view of the above phenomenon, the author believes that the dereliction of duty case-handling personnel should break the inherent thinking of handling cases, and at the same time, they can use their brains appropriately and use the mode of "empathy" to understand his bottom line and needs from the perspective of criminal suspects and prescribe the right medicine. Sometimes, we investigators should pay attention to record a look or modal particle of the suspect in time and extract effective information.
The third is to intervene in the right of defense in advance, which makes it more difficult to handle cases and collect evidence.
Article 33 of the revised Criminal Procedure Law stipulates that "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. " This article stipulates that from the date when a case is put on file for investigation, the criminal suspect can get legal help from a lawyer, and the lawyer can meet the criminal suspect at any time without any restrictions. Therefore, in the process of investigation, our investigators should not only face the criminal suspect, but also face the lawyer. Of course, we should not be afraid to face lawyers, and we also believe that most lawyers can stick to their professional ethics. However, since a criminal suspect can ask a lawyer to meet and make suggestions at any time, we do not rule out that a very small number of lawyers provide help and evidence for the criminal suspect to evade legal responsibility, or hint at how the criminal suspect answers and defends the investigation organ, point out the disadvantages in the investigation or interrogation record, and ask him to retract his confession or pay attention to it. Therefore, the premature intervention of the right of defense has brought unprecedented difficulties to self-investigation cases. Faced with this difficulty, the author believes that our anti-blasphemy department should make timely adjustments in order to successfully complete the transition and gradually adapt to the challenges brought about by the revision of the Criminal Procedure Law.
First, strengthen the initial investigation and improve the evidence chain system. Compared with the current situation that the initial investigation of a case mainly relies on oral evidence such as oral confession, we should intensify the initial investigation and improve the details of testimony, such as on-the-spot investigation of the main criminal plots described by witnesses and criminal suspects, whether it is possible to use information technology for on-the-spot simulation, and whether the details revealed by oral confession can be fixed by physical evidence. Change the situation of relying solely on testimony to prove the facts of the case. Especially in the "one-on-one" mode, it is necessary to retrieve and fix the confession through physical evidence, documentary evidence and other relatively difficult evidence, so as to improve the evidence chain system of the case. Even if the lawyer intervenes in advance and sees the case file and the evidence obtained by the procuratorate, we can use hard evidence to explain and defend.
Second, pay attention to the legitimacy of their own procedures and use compulsory measures reasonably. As the saying goes, "a straight body is not afraid of a crooked shadow." In the process of investigation, our investigators should always pay attention to whether their actions are legal, whether the investigation procedure is in line with the provisions of the Criminal Procedure Law, whether the subject and procedure of obtaining evidence are legal, and whether the procedures of investigating witnesses and interrogating criminal suspects are in line with the law. We should handle cases in strict accordance with legal procedures to ensure the quality of cases. At the same time, according to the evidence information obtained from investigation and the provisions of the newly revised Criminal Procedure Law, compulsory measures should be used reasonably to further strengthen the effective investigation and handling of cases. We should use it carefully, but we should dare to use it more. If we want to use compulsory arrest measures, we should improve the evidence, standardize the arrest process, avoid the past "arrest first and then fill the materials" or "write the main materials first and then fill the secondary materials", and use our own "reasonable and legal" to counter the lawyer's "early intervention".
The third is to use synchronous audio and video recording to fully fix the evidence. The variability of verbal evidence is its unique attribute, and criminal suspects are likely to retract their confessions in court or even in the process of prosecution, and the early intervention of lawyers' right of defense adds more variables to this variability. In the process of handling a case, the case-handling personnel shall make full use of synchronous audio and video recordings to prove the evidence obtained in time. At the same time, they should improve the related synchronous recording and recording facilities and the examination and approval system process, and monitor the whole process of the case to avoid the court's rejection due to the security, ambiguity and procedures of the video.
In short, the revision and implementation of the Criminal Procedure Law is both an opportunity and a challenge for our anti-dereliction and infringement department. At present, China is in the period of social transformation, social contradictions are becoming increasingly prominent, the types and means of crimes have changed, and the number of cases of dereliction of duty and its consequences to society have further intensified, which have posed severe challenges to China's social management. Our anti-blasphemy department should strengthen the understanding and comprehension of the revised criminal procedure law, find out the changes of the old and new criminal procedure law by comparison, and fully implement the requirements of the revised criminal procedure law in handling cases of dereliction of duty and infringement in combination with its own handling experience, so as to further improve the level and ability of law enforcement. (Author: Liu Guangshui, inspector Du of the Anti-Dereliction and Infringement Bureau of Yiyuan County People's Procuratorate, Shandong Province)