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State compensation evidence is insufficient not to prosecute.
Abstract: Citizens who have been infringed by state organs have the right to receive state compensation according to law, which is the embodiment of the state's respect and protection of human rights. The State Compensation Law does not clearly stipulate whether the defendant (arrested person) who does not prosecute due to insufficient evidence has the right to receive state compensation. Therefore, the attitude of the procuratorate and the court in dealing with the above problems is slightly different: the procuratorate first confirms and then compensates; The court directly entered the compensation procedure. The author thinks that the court's practice is more legal and reasonable, which is more conducive to protecting the legitimate rights and interests of victims.
Keywords: insufficient evidence, non-prosecution of illegal infringement, state compensation
Citizens who have been infringed by state organs have the right to state compensation according to law, which is the embodiment of the state's respect and protection of human rights. The State Compensation Law does not clearly stipulate whether the defendant (arrested person) who does not prosecute due to insufficient evidence has the right to receive state compensation. There is a simple reason. The State Compensation Law was promulgated in 1994. When it was formulated, there was no system of non-prosecution due to insufficient evidence (the newly revised 1996 Criminal Procedure Law stipulated non-prosecution due to insufficient evidence). In practice, the procuratorate and the court have slightly different attitudes towards whether the defendant (arrested person) does not prosecute due to insufficient evidence: the procuratorate's attitude is to confirm first and then compensate, that is, to apply for state compensation on the grounds of not prosecuting due to insufficient evidence, and it is necessary to confirm whether there is illegal infringement before entering the compensation procedure. Those who meet certain conditions may not be confirmed, let alone enter the compensation procedure; The attitude of the court is to go directly to the procedure, and it is considered that the decision not to prosecute is a confirmation of the illegal infringement, and it can go directly to the compensation procedure. The author agrees with the current attitude and practice of the court.
First, the procuratorate: first confirm and then compensate.
According to the second paragraph of Article 7 of the Provisions on Criminal Compensation of the People's Procuratorate, "However, if the People's Procuratorate decides to dismiss the case, decide not to prosecute or make a legally effective criminal judgment or ruling by the people's court due to insufficient evidence to apply for compensation, it shall confirm whether the people's procuratorate's arrest and detention decisions infringe on personal rights according to law." If you apply for state compensation for not prosecuting because of insufficient evidence, you must confirm whether the decision of arrest and detention violates personal rights according to law, and you cannot directly enter the compensation procedure. The procedure of confirmation before compensation was adopted.
According to Article 7 of the Provisions of the People's Procuratorate on Criminal Compensation, the people's procuratorate shall confirm whether the decision of arrest and detention made by the procuratorial organ violates personal rights according to law under the following circumstances; (1) Confirming the wrongful detention of a person who cannot prove the facts of a crime or who is suspected of a major crime; (two) the wrong arrest of a person who can not prove the facts of the crime shall be confirmed; (3) Detention or arrest of a person who has evidence to prove that there are some criminal facts, or detention of a person who has evidence to prove that there is a major criminal suspect, shall not be confirmed. " This article lists unconfirmed cases. According to the opposite interpretation method, except for the above cases, they are all illegal and infringing cases, and the procuratorial organs should confirm them. Two points deserve special attention: 1. Detention includes "people who can't prove a criminal fact or are seriously suspected of committing a crime", and arrest only includes "people who can't prove a criminal fact", which includes different situations; 2. To judge whether the arrest is illegal or infringing, it is not based on whether it meets the conditions of arrest in the Criminal Procedure Law, but on whether the criminal facts can be proved in the end, and the results are adopted to better protect the interests of the non-prosecutor.
After the infringement is confirmed, the case may enter the state compensation procedure. There is no situation that the state compensation law does not compensate, and the claimant will enjoy the right of state compensation according to law.
Second, the court: directly enter the compensation procedure.
According to the "Interim Provisions of the Supreme People's Court on the Procedures for the Compensation Committee of the People's Court to Trial Compensation Cases", the first item of Article 3, paragraph 1, "Legal documents under the circumstances stipulated in Articles 15 and 16 of the Compensation Law are confirmed according to law, including: criminal judgments, which have been declared innocent by the people's court at first instance and have taken legal effect; Criminal judgment, the second instance was acquitted by the people's court; The criminal judgment is acquitted after retrial by the people's court in accordance with the procedure of trial supervision; The people's procuratorate does not prosecute the decision or the release certificate of the public security organ. " If the procuratorate does not write a decision, it is a confirmation of illegal infringement. After applying to the court, the compensation claimant can directly enter the compensation procedure, without the so-called confirmation procedure and the review of whether the illegal infringement is correctly confirmed. In the absence of the State Compensation Law, the compensation claimant will receive state compensation according to law.
The author thinks that direct compensation is more legal and reasonable. From the point of view of legality, whether a non-prosecutor has criminal facts should be judged by "whether there is enough evidence to prove it", which is a feasible operation method. Non-prosecution due to insufficient evidence is a legal confirmation of the innocence of the person who is not prosecuted, and non-prosecution due to insufficient evidence should be a confirmation that the arrest of the person who is not prosecuted before is illegal and infringing. If a person without criminal facts is wrongly arrested, the victim may have the right to compensation according to Article 15, Paragraph 1 (2) of the State Compensation Law. Considering the rationality, the procuratorate is the organ liable for compensation. The so-called re-appraisal by the procuratorate easily provides a greater possibility for the procuratorate to evade the liability for compensation, and the interests of the victims cannot be guaranteed. In procedural operation, if the procuratorate does not confirm, the victim can appeal to the higher procuratorate. Even if the higher procuratorate maintains the decision not to confirm, the victim can still apply to the court. In the court processing stage, the relevant judicial interpretation of the decision not to prosecute is the confirmation of illegal infringement. The refusal of the procuratorate to confirm before does not affect the court's handling of the case. As long as there is no state that refuses to pay compensation, the court thinks that the victim has the right to receive compensation, and the confirmation procedure of the procuratorate actually increases the complaint of the victim. In my practice, every time I deal with a case that I don't sue for state compensation because of insufficient evidence, I deeply feel that there are some unnecessary procedures that lead to a long time for handling the case and a high cost for the victims to defend their rights. It is hoped that these problems will be solved with the revision of the State Compensation Law.
The above article first appeared on Deng Lawyer Network.