Undoubtedly, the regulations and measures currently formulated or strengthened to restrict and restrict leading cadres and staff of judicial organs from interfering in the administration of justice and asking questions about cases, the methods of investigating the responsibility of misjudged cases and excluding illegal evidence are of great significance for preventing and reducing unjust, false and misjudged cases. Let people realize that the country is emphasizing the rule of law, and all acts that violate the rule of law and the system should be put an end to. However, if we don't look for the reasons from the criminal procedure system, these measures are difficult to fundamentally solve the problem.
Among many factors that affect the fairness and justice of criminal procedure, the criminal procedure system is the first. If the system is perfect and scientific, it will make the relevant organs or individuals have no power in any link of criminal proceedings, and it is impossible to create or form unjust, false and wrong cases.
Next, I will talk about the problems existing in all aspects of criminal proceedings and the ideas for improvement.
First, the problems and countermeasures in the investigation
In the whole criminal procedure, the first process of investigation is very important, because all guilty and serious evidence is formed at this stage, including illegal evidence. Once illegal evidence is formed, it is difficult to be excluded because there are some problems in the following procedures. It also formed a false and wrong case.
1. Illegal evidence collection is the main way to form illegal evidence in investigation, including extorting confessions by torture and obtaining witness testimony and related material evidence by violence and threats. In addition to their awareness of the rule of law and law enforcement, the main reason why investigators can obtain evidence by illegal means is that they can interrogate criminal suspects in the so-called office outside the detention place, and it is at this time that most acts of extorting confessions by torture occur.
In order to eliminate or minimize this illegal evidence collection, we should strictly stipulate the legal interrogation place as the detention place from the beginning. The criminal suspect records obtained in other places are invalid. If a person arrested in a different place needs to return to the local area within a certain period of time on the way, the time limit for interrogation within 24 hours shall be counted from the time he arrives at the local detention place.
2. The place of detention has insufficient restrictions on the investigation organs, and to some extent, criminal suspects are taken to the place of detention for external trial or even illegal evidence collection. The fundamental reason for this weak restriction is that the detention center is different from the public security organ, which is the investigation organ of most criminal cases.
Therefore, if the detention center is separated from the management of the investigation organ, it can make the detention center conduct a physical examination of the criminal suspect, put an end to illegal interrogation and external trial, and make the investigators have no chance to extort a confession by torture.
3. Synchronous audio and video recording has not really played a role in preventing extorting confessions by torture. In reality, there are cases where you don't record when you play, don't play when you record, and record when you play. The reason for this phenomenon is that the provisions of the Criminal Procedure Law on synchronous audio and video recording are not comprehensive and mandatory, and there is a lack of reasonable and detailed provisions on synchronous audio and video recording.
In my opinion, in order to really prevent extorting confessions by torture through synchronous audio and video recording, the following provisions should be made:
(1) All interrogations in all criminal cases should be recorded and recorded simultaneously.
(2) Each interrogation room of the detention center is equipped with audio and video recording equipment, which is responsible for recording and video recording each interrogation, so that the interrogation must be recorded, and then copied to the investigation organ. This avoids selecting an investigator meeting or selecting the current process.
(3) The detention center shall keep every audio and video recording according to the storage period of criminal case files. At any stage of criminal proceedings, if the criminal suspect, the defendant and their defenders question any audio and video recording, they can adopt the method of comparison.
4. The "especially serious bribery crime" has a huge negative impact by restricting the interview of defense lawyers during the investigation.
With this provision, almost all cases of bribery have been raised to the rank of "particularly serious", and some even have legal reasons to prevent defense lawyers from meeting during the investigation, and add a suspected "particularly serious" bribe to other crimes suspected by state staff, and then check whether they are absent before the expiration of the investigation period.
In my opinion, this practice of restricting defense lawyers from meeting criminal suspects during investigation is not only of no positive significance to the investigation of corruption cases, but also will bring many negative effects. For example:
(1) Because the criminal suspect did not get legal help from the defender during the investigation, he may make statements against himself due to the lack or misunderstanding of legal common sense.
(2) The participation of defense lawyers in the case during the investigation stage is blocked, which increases the possibility of illegal evidence collection in this link.
The above two points are the most direct negative effects, which may increase the probability of unjust, false and wrong cases.
(3) The biggest negative impact of this provision is that it seriously violates the positioning of the defense system and the role of lawyers in China and our laws.
We have established a defense system to allow lawyers to participate in criminal proceedings. The main purpose is to maximize the fairness and justice of the law in criminal proceedings. The law has confirmed that lawyers are an indispensable and important force in a society ruled by law.
However, restricting the meeting of defense lawyers in such cases will mislead people into thinking that lawyers are involved, which will hinder the investigation of the case and violate the original intention of the above legislation. If legislators don't want to, they should cancel this restrictive clause.
Second, there are problems in the nature and powers of procuratorial organs, which is the most important factor in the formation of unjust, false and wrong cases.
1. The procuratorate has decided to approve the arrest. Once it decides to approve the arrest, it must be prosecuted in order to prove that it has not been wrongly arrested. This problem is really difficult to solve. Foreign countries are not suitable for being arrested by the court in our country. Even if the courts in these countries decide to approve the arrest, they have no right to decide whether they are guilty or not. This is the power of the jury. In China, if the court approves the arrest, anyone who approves the arrest will be convicted. Therefore, the problems of this system can easily lead to unjust, false and wrong cases. At present, it can only be contained to the maximum extent through other systems and means.
2. The power status of procuratorial organs is higher than that of people's courts and public security organs, which makes mutual restriction one-way.
Article 8 of the Criminal Procedure Law stipulates: "People's procuratorates shall exercise legal supervision over criminal proceedings according to law." This provision makes the provision in Article 7 that "the people's courts, people's procuratorates and public security organs are responsible for division of labor, cooperate with each other and restrict each other" meaningless. Although the law stipulates that the people's courts exercise judicial power independently, their judicial power is also supervised by the procuratorial organs. Because of the supervisory power of the procuratorial organs, and more importantly, the two self-investigation powers of the procuratorial organs, it is difficult for them to make a judgment on the indictment.
The special status of procuratorial organs in criminal proceedings makes the status of prosecution, defense and trial in criminal proceedings unequal and the rights unbalanced. Of course, it is difficult to have an objective and fair game result. I am always used to comparing criminal proceedings to a competition. The prosecution is one of the contestants, claiming that the defendant is guilty and guilty, while the defense of the other contestant claims that the defendant is innocent or guilty, with the court as the referee. In competitive competition, one player's right status is higher than the other player's. More importantly, the player can also supervise the referee's behavior and even exercise the right of investigation. So, how can the referee not blow the black whistle?
In order to truly realize the provisions of Article 7 of the Criminal Procedure Law in criminal proceedings, it is necessary to make the power and status of the three organs equal. I think it should be solved from the following two aspects:
(1) cancel the legal supervision power of the people's procuratorate. After bringing a lawsuit against a case, only the right to protest against the judgment of the people's court is enjoyed, which is equivalent to the right of appeal of the defendant and his defender.
The legal supervision power of procuratorial organs has been abolished and replaced by strengthening the supervision of people's congresses, public opinion and the masses.
(2) Stripping the procuratorial organs' power to investigate crimes of corruption, bribery and dereliction of duty, so that the three organs have equal status, which is really only three links in criminal proceedings, each performing its own duties.
Three, the people's court in the trial process, but also one of the factors that form unjust, false and wrong cases.
Even if there are problems or mistakes in the process of investigation, examination and prosecution of criminal proceedings, if the people's court can conduct the trial in strict accordance with the conviction and sentencing standards stipulated by law, unjust, false and misjudged cases will certainly not happen.
The factors that cause the people's court to fail to properly prevent the formation of unjust, false and misjudged cases include but are not limited to the following aspects:
1. The people's courts dare not disobey the intervention and orders of the party and government organs and leading cadres.
At present, this problem has been bound and restricted by relevant systems, and I believe it will be contained.
2. The people's procuratorate exercises "supervision power" over the people's court, and even accuses the prosecutor and the "pillar seat" judicial committee in charge of the procurator-general. This column seat is quoted because the column seat has the right to speak until a decision is made. This is equal to the integration of prosecution and trial, and the plaintiff has finalized the case. It is impossible for the people's court to decide the outcome of the case according to its own will.
Therefore, it is imperative to reform the judicial system centered on trial. If the legal supervision function of the people's procuratorate mentioned above is abolished, this problem can be completely solved.
3. The negative effect of the judicial committee system is the internal reason for the formation of unjust, false and wrong cases in the trial.
Looking at these major unjust, false and misjudged cases disclosed in recent years, which one was not discussed and decided by the judicial Committee? When legislating, it is determined that "difficult, complicated and major cases" should be submitted to the judicial committee for decision, in order to strictly and seriously check and decide such cases and ensure the objectivity and fairness of the case results to the greatest extent. This original intention is of course good and beyond reproach. However, in practice, why did this original intention not come true?
(1) The members of the judicial committee are the leaders of the hospital and the heads of each business room. These members are not all familiar with criminal business, and their views and opinions are not necessarily accurate.
(2) members of the judicial committee cannot fully grasp the facts and evidence of the case, and their opinions shall be subject to the introduction of the case by the presiding judge. However, the introduction of the presiding judge is inevitably mixed with its subjective factors. Because the opinions are not based on completely objective facts and evidence, it is difficult to be correct.
(3) The most serious negative consequence of this system is that everyone will not have a strong sense of responsibility, which allows the formation of unjust, false and wrong cases.
If the presiding judge is personally responsible for the outcome of the case, it is to prevent himself from being held accountable, and he will resolutely stick to his opinion. However, this decision after collective discussion has reason to make everyone irresponsible. The presiding judge only needs to make his opinion clear and file it with the judicial Committee. I am not personally responsible for your collective decision. And many members of the judicial Committee, the minority is subordinate to the majority, and no one is responsible for the mistake. This makes it impossible for the judicial committee to play the expected role at the beginning of its establishment, and it is easier for unjust, false and wrong cases to form smoothly.
In this case, I think the judicial committee system should be abolished, so that the responsibility scope of the case can be specific to the individual judge, which is conducive to improving the quality of the case.
Fourth, not paying attention to the lawyer system and ignoring or even rejecting lawyers' opinions are also important reasons why unjust, false and wrong cases can not be stopped.
Five, an important reason why unjust, false and wrong cases are difficult to correct.
We have seen some "dead people" disclosed by the media in recent years, and how difficult it is to correct the unjust, false and wrong cases of the real culprits. Other unjust, false and misjudged cases are even more difficult to correct and almost impossible. Once unjust, false and misjudged cases are formed, it is difficult to correct them for many reasons.
Here, I want to talk about what I think is the most important factor, that is, the "misjudged case investigation system" has seriously hindered the correction of unjust, false and misjudged cases.
The original intention of establishing this system is, in short, to take disciplinary measures to enhance the sense of responsibility of judicial personnel, improve the quality of cases and prevent unjust, false and wrong cases. However, in the case that other criminal procedure systems can not effectively prevent unjust, false and misjudged cases, this system has become a huge obstacle and resistance to correct unjust, false and misjudged cases.
A well-intentioned system will produce an effect contrary to its original intention, so it should not be discussed and entangled from the preservation or abolition of the system, but should be improved from the unscientific and imperfect places of the system itself on the premise of affirming the system, so that the effect of the system can meet the original intention to the greatest extent.
If all misjudged cases, regardless of circumstances and categories, should be investigated for the responsibility of the relevant case-handling organs and case-handling personnel, this will inevitably make all relevant case-handling organs and case-handling personnel form a strong interest connection without any subjective connection, and unanimously resist the correction of unjust, false and misjudged cases until they have no choice.
In order to eliminate the negative effects of the investigation system of misjudged cases, it is necessary to distinguish whether the relevant case-handling organs and case-handling personnel should bear the responsibility for unjust, false and misjudged cases. For the unjust, false and misjudged cases caused by the intentional or gross negligence of the case-handling personnel, the responsibility shall be investigated in strict accordance with the law until criminal responsibility is investigated.
In any of the following circumstances, but not limited to this, it is not appropriate to investigate the responsibility of any organ or individual after correcting the mistake:
(1) There are no illegal acts such as illegal evidence collection and violation of procedures, but the case was misjudged due to cognitive errors.
(2) Not because of intentionally concealing or destroying the evidence of innocence, but because of negligence that did not reach the level of gross negligence and did not collect evidence comprehensively, leading to a guilty verdict.
(3) The case is corrected due to the intentional or gross negligence of the relevant case-handling personnel.
(4) If the relevant case-handling authorities find and admit the misjudged cases of their relevant case-handling personnel and actively correct them, they will be exempted from responsibility and will not affect the evaluation of the unit and the achievements of the unit leaders.
Although the above suggestions may not be comprehensive, I believe they will also have certain positive significance in promoting the correction of unjust, false and misjudged cases.
in short
If we really want to prevent unjust, false and misjudged cases to the maximum extent and correct the existing unjust, false and misjudged cases, the ultimate means must be to correct the above problems existing in the current criminal procedure system, which is the real radical solution.