The revision of the criminal procedure law has brought new opportunities to the self-investigation work of procuratorial organs.
First of all, we should adhere to a firm and positive attitude, make full use of the provisions in the revised Criminal Procedure Law that are conducive to handling cases, such as summoning and technical investigation, gradually improve the investigation measures, improve the interrogation level, implement a synchronous audio-visual recording system, protect the rights of criminal suspects and lawyers, and pay equal attention to punishing crimes and protecting human rights. Secondly, the criminal suspect can entrust a lawyer as a defender, provide legal help and represent the complaint during the investigation stage; Thirdly, improve the illegal evidence exclusion system, and put forward new requirements for the investigation and evidence collection work of the self-investigation department.
Specifically speaking from the legal provisions: First, Article 96 of the Criminal Procedure Law before the amendment stipulates that a criminal suspect may hire a lawyer to provide legal advice and represent complaints and accusations after the first interrogation by the investigation organ or from the date when compulsory measures are taken. If a criminal suspect is arrested, the lawyer hired may apply for bail pending trial. In cases involving state secrets, the criminal suspect's employment of a lawyer shall be approved by the procuratorial organ.
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. When interrogating a criminal suspect for the first time or taking compulsory measures against him, the investigation organ shall inform him that he has the right to entrust a defender. The people's procuratorate shall, within three days from the date of receiving the case materials transferred for examination and prosecution, inform the criminal suspect that he has the right to entrust a defender. The people's court shall, within three days from the date of accepting the case, inform the defendant of the right to entrust a defender. If a criminal suspect or defendant requests to entrust a defender while in custody, the people's court, the people's procuratorate and the public security organ shall promptly convey it. Article 36 stipulates that defense lawyers may provide legal aid to criminal suspects during investigation; Acting as an agent for complaints and accusations; Apply for changing compulsory measures; Ask the investigation organ about the crimes and cases suspected by the criminal suspect, and put forward opinions.
Second, Article 43 of the Criminal Procedure Law before the amendment stipulates that judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods. We must ensure that all citizens who are related to or know the case have objective and sufficient conditions to provide evidence, and they can be recruited to assist in the investigation except in special circumstances.
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. Evidence that should be excluded during 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 relevant provisions of the revised Criminal Procedure Law have brought new challenges to the self-investigation work of procuratorial organs.
1, the investigation difficulty coefficient increases. 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, and defense lawyers can provide legal assistance to criminal suspects during the investigation; Acting as an agent for complaints and accusations; Apply for changing compulsory measures; Ask the investigation organ about the crimes and cases suspected by the criminal suspect, and put forward opinions. The investigation work of the self-investigation department should not only face the criminal suspect, but also face the lawyer directly. Moreover, lawyers provide legal advice to criminal suspects as defenders in the investigation stage, and represent complaints and accusations. In this way, the procedure for lawyers to participate in litigation and understand the situation of criminal suspects has been greatly promoted. Admittedly, most lawyers can abide by professional ethics and safeguard the fairness and justice of the law, but it does not rule out that a few lawyers can make suggestions for criminal suspects, cope with investigations and escape guilt. Lawyers, as defenders in the investigation stage, can provide legal advice and help to criminal suspects from the aspects of charges, constitution of crimes, provisions of penalties and punishments, and the use of the right to silence, point out unfavorable confessions and excuses in the transcripts, put forward opinions on how to confess and defend, and even instigate criminal suspects to retract their confessions, which brings great resistance to investigation and evidence collection.
2. Put forward new requirements for the investigation and evidence collection work of the self-investigation department of the procuratorate. The 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 should 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. Evidence that should be excluded during 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 regulation of synchronous audio and video recording in the whole interrogation of duty crime requires the staff of the self-investigation department to inform the suspect of his rights and obligations in strict accordance with the relevant provisions of the Criminal Procedure Law. The audio and video recording in the whole interrogation process requires investigators to strictly interrogate the way and wording. It is impossible to collect confessions and witness testimony by illegal means such as extorting confessions by torture, which undoubtedly puts forward higher requirements for the investigation and evidence collection work of the self-investigation department and the professional quality of the police officers in the self-investigation department.
3. Criminal suspects usually get away with it. Because lawyers can serve as defenders to provide legal advice to criminal suspects in the investigation stage, they can represent complaints and accusations, and their participation in the defense and agency of related duty crime cases is greatly promoted. On the one hand, this is the need to protect the rights of criminal suspects. On the other hand, the preliminary interrogation of the suspect is the best opportunity for the case-handling organ to break through the case. At this stage, with the help of a lawyer, the suspect is undoubtedly at ease. The intervention of defense lawyers in the investigation stage can greatly enhance the ability of criminal suspects to resist investigation, and the law stipulates that no one can be forced to testify against himself. A criminal suspect can make full use of the right of silence, refuse to answer all questions related to the crime, or avoid the heavy and light, and only explain his lightest or irrelevant questions to avoid legal sanctions. Suggestions on the Self-investigation Department of Procuratorial Organs Adapting to the Relevant Provisions of the New Criminal Procedure Law
1. Completely change the current concept and mode of investigation. Correctly face the revision of the criminal procedure law, firmly establish the awareness of evidence and human rights protection, and handle the relationship between the quality and quantity of handling cases. It is necessary to strengthen the evidence consciousness of investigators in the self-investigation department, firmly establish the concept of "taking evidence as the center and taking trial as the purpose", improve the ability to transform objective facts into legal facts, and learn to speak with evidence. When investigating a case, don't rush for success, get in touch with the criminal suspect, be good at operating clues, collect and master all materials and information related to the case in an all-round way, and prevent the criminal suspect from understanding the intention of handling the case, destroying evidence, colluding with others or forming an offensive and defensive alliance.
2. Effectively study interrogation methods and improve interrogation level. The favorable provision of this amendment to the Criminal Procedure Law is to extend the time for summoning and compulsory summoning. The revised Criminal Procedure Law stipulates: "The time limit for summons and detention shall not exceed 12 hours; If the case is serious and complicated and detention or arrest measures are needed, the time limit for summoning and detention shall not exceed 24 hours. " For major and complicated cases, the time for summoning and arraignment can be extended to 24 hours, so as to gain time for the first interrogation and ease the tension in handling cases before detention. However, even if the time is extended, the level of interrogation should be improved, so as to truly solve the problem of difficult interrogation. Attention should be paid to the preliminary investigation. With the development of society, the complexity and intelligence of criminal offences have become increasingly prominent. In view of the great concealment of the current criminal offence, the preliminary investigation must be conducted in secret. The investigation organ must purposefully collect information related to the case. The evidence of criminal cases is often single in the initial stage. Therefore, once there are physical evidence, documentary evidence and other evidence directly related to the case, we must attach great importance to it and collect and detain it quickly to prevent destruction and transfer.
3. Flexible, prudent and timely application of compulsory measures. The revised Criminal Procedure Law makes detailed provisions on compulsory measures such as residential surveillance and arrest. Interrogating the criminal suspect for the first time after filing a case is not only a legal procedure, but also the key to determining the success or failure of the case. Investigators should neither expect the criminal suspect to plead guilty nor become a mere formality. We should make full use of the collected evidence, dispel the suspect's fluky psychology of evading legal sanctions, find out the suspect's psychology, pay attention to his words and deeds and details, find the right time to break through the suspect's psychological defense line, and then find new clues and evidence collection directions.
4. Make full use of the technical investigation power entrusted to the procuratorial organs by law. Article 148 of the revised Criminal Procedure Law stipulates that after the people's procuratorate files a case, it can take technical investigation measures according to the needs of investigating crimes and go through strict approval procedures, and hand it over to the relevant authorities for execution according to regulations. With the rapid development of science and technology and the popularization of information technology, duty crimes are increasingly technical, highly intelligent and even organized, and the criminal means are more cunning and hidden. Criminals' anti-investigation means are constantly increasing. Many "one-on-one" crimes, such as accepting bribes, are difficult to detect without the help of technical investigation means.
5. Take effective measures to deal with the influence that lawyers' early involvement in investigation may bring to self-investigation. In the process of investigating and handling duty crime cases, procuratorial organs should adopt the investigation strategy of attaching importance to facts and neglecting people. After a careful preliminary investigation of the clues or criminal facts, we should first file a case based on the facts, and then use other investigation measures to further collect and fix the evidence, so as to avoid the lawyer's intervention in advance after the case is filed, and then turn it into a case when the time is ripe, so as to make a rapid breakthrough after the parties arrive at the case. Author: Lv Shufeng, Huaiyin District People's Procuratorate of Huai 'an City.