Extorting confessions by torture refers to a very bad interrogation method in which judicial personnel use corporal punishment or disguised corporal punishment to torture the body or spirit of the interrogated person in order to obtain the confession of the interrogated person. Although China's laws explicitly prohibit extorting confessions by torture, it still exists to a considerable extent in judicial practice. Extorting confessions by torture is not only the direct cause of unjust, false and wrong cases, but also damages the image and authority of public security and judicial organs in people's minds. In view of this, it is of great practical significance to explore the causes and containment methods of extorting confessions by torture.
Extorting confessions by torture refers to a very bad interrogation method in which judicial personnel use corporal punishment or disguised corporal punishment to torture the body or spirit of the interrogated person in order to obtain the confession of the interrogated person. Article 43 of China's Criminal Procedure Law, Article 6 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC), and Article 140 of the Criminal Procedure Rules of the People's Procuratorate all explicitly prohibit extorting confessions by torture, but in judicial practice, extorting confessions by torture is still widespread. This is contrary to the goal of building a socialist society ruled by law.
There are three main reasons for the repeated prohibition of extorting confessions by torture:
1. Influenced by feudal autocracy, the idea that officials value the people and despise the people and the power standard is still deeply rooted in people's minds, affecting people's moral standards.
1. Extorting confessions by torture has existed in China since ancient times. China is the country with the longest feudal society in the world. The feudal society adopted the inquisitorial litigation structure, which stipulated that the confession of the criminal suspect was the king of evidence, and sometimes even stipulated that the criminal suspect could not be convicted or closed without confession. When a series of evidence has proved that the suspect is guilty, it is natural to extort a confession by torture (unless he voluntarily admits it). Therefore, extorting confessions by torture was openly written into the law at that time.
2. The influence of feudal power standard thought. In feudal society, the emperor was the owner of the highest power of the country, and all activities of the country were aimed at maintaining the absolute dominance of the emperor. Therefore, the only purpose of criminal proceedings at that time was to punish crimes, and there was no power over criminal suspects at all. The current criminal procedure system in China is mostly based on German authoritarianism, and the purpose of criminal procedure is to punish crimes and protect human rights. Therefore, under the influence of the two, the purpose of criminal proceedings in China is more inclined to punish crimes. Under the premise that human rights are not fully guaranteed, it is inevitable to extort confessions by torture.
3. Influence of presumption of guilt. In inquisitorial litigation, the functions of accusation and trial are integrated with the judge, and the principle of non-prosecution and disregard is not implemented. The beginning and progress of criminal proceedings do not depend on the victim or the defendant. In this process, the judge is the promoter of positive action. This litigation system determines the inevitability of presumption of guilt. Because it is impossible for the same judge to hold two completely different attitudes at different stages of the same case, that is, to support the complaint and to deny it at the trial. At present, although China has implemented the litigation system of separating prosecution from trial, some judicial staff still hold the psychological attitude that "the person being interrogated is the criminal" when interrogating criminal suspects. When the trial is not smooth, they torture with hatred for the criminal suspect and the mentality that the criminal will not resist or confess.
2. China's current legal system is imperfect and some legal systems are missing.
1. The principle of presumption of innocence has not been established in China's criminal proceedings. Although article 12 of China's criminal procedure law stipulates that "no one shall be found guilty without being tried by a people's court according to law", it can only be said that China's criminal procedure law has absorbed the principle of presumption of innocence. In addition, the consistent position of the China legislature is "opposing both the presumption of guilt and the presumption of innocence". According to their point of view, the principle of handling criminal cases in China is "based on facts and seeking truth from facts; Taking the law as the criterion, crimes will be punished. " Therefore, in judicial practice, the presumption of innocence is still not accepted by most judicial staff.
2. There is no perfect exclusionary rule of illegal evidence. Although Article 6 1 of the Supreme Court's Interpretation on Several Issues of the Criminal Procedure Law stipulates that "it is strictly forbidden to collect evidence by illegal means, any witness testimony, victim's statement or defendant's statement obtained by extorting a confession by torture or by threats, enticements or deception can not be used as the basis for finalizing the case." However, this only shows that illegally collected verbal evidence is not acceptable in China. In fact, in judicial practice, the proof function of material evidence and documentary evidence obtained through illegal evidence collection is also affirmed, which is the so-called poison tree theory. Of course, the author is not in favor of completely denying the effectiveness of this indirect evidence, but it should be decided according to the specific situation, which will be discussed in detail in the following countermeasures.
3. The existing investigation and supervision system itself is not strict, which leads to the abuse of investigation power and makes the criminal suspect lack the necessary reasonable checks and balances on the state public power. China's law clearly stipulates that "the people's procuratorate shall supervise the legality of the investigation activities of public security organs according to law". In this investigation and supervision, Article 383 of the Criminal Procedure Rules of the People's Procuratorate stipulates that "the People's Procuratorate may send personnel to participate in the discussion of major cases and other investigation activities of public security organs according to needs, and if there is any illegal act, it shall immediately notify them to correct it". It can be seen that the people's procuratorate has the obligation to send personnel to the scene to supervise only in major cases detected by public security organs, and the supervision of most cases only depends on the complaints of litigation participants or the findings of the people's procuratorate when hearing the case materials submitted by public security organs. However, it is in this "vast majority of cases" that confessions are extracted by torture. It is unrealistic to rely on the accusations of the participants in the proceedings or the people's procuratorate's discovery when hearing the case materials submitted by the public security organs. Because these belong to post supervision, there is a problem of proof. In China's current judicial practice, the principle of "whoever advocates gives evidence" is still adopted, so it is difficult to give evidence. The above is the discussion about the public security organ filing a case for investigation, so who should supervise the procuratorial organ filing a case for investigation? China's laws have not been clearly defined.
4. Extorting confessions by torture is difficult to verify, the punishment is light, and sometimes there is even departmental protectionism. The current law of our country still adopts the principle of "whoever advocates and gives evidence" in cases of extorting confessions by torture. That is, the burden of proof is borne by the accused "tortured person". When a person who is extorted by torture complains to the judicial organs about being extorted by torture, he will be asked to provide evidence of being extorted by torture. However, extorting confessions by torture is generally carried out under the condition that the personal freedom of the tortured person is restricted, unless torture leaves obvious scars, disabilities and even death on them. In other general cases, because they can't fix all kinds of evidence such as scars left on their bodies in time, it becomes a difficult process to prove when they sue the procuratorate after restoring their personal freedom. Secondly, the identification of acts of extorting confessions by torture in judicial practice, such as naming names, luring confessions, cheating confessions, and adopting obvious and slight methods of extorting confessions by torture, cannot be regarded as the crime of extorting confessions by torture. Protectionism in some departments has opened the door for the legalization of extorting confessions by torture.
3. At present, the overall productivity level in China is low, which is reflected in the outdated equipment in investigation activities.
1. The economy is backward, the judicial input is low, the equipment is outdated, and the technology content is low. With the rapid development of science and technology, crime is becoming more and more intelligent and hidden. Although China has used high-tech means to solve crimes many times, the speed of equipment renewal is far from meeting the needs of solving crimes. On the one hand, outdated equipment reduces the detection rate and discourages investigators' enthusiasm for handling cases, on the other hand, it also increases investigators' dependence on confessions.
2. The low quality of some investigators is also the reason for extorting confessions by torture. Some investigators will be beaten by bad guys in the process of investigation, and it is dishonest not to fight; Let the criminal suspect suffer, as long as it doesn't hurt people, keep killing people or kill people, it doesn't matter, abusing the right of investigation. In their view, "pain is the touchstone of truth, and there is a measure of empirical truth in the body of the unfortunate." However, when the truth cannot be perceived from a calm person's tone, posture and eyes, once the painful spasm changes his facial expression, it is even more difficult to reveal the truth. However, at this time, those investigators may retort: "But from our experience in handling cases, most interrogators are the criminals we are looking for. Since misjudged cases are inevitable, it should be said that at this stage, extorting confessions by torture is still an effective way to solve crimes. " Admittedly, I have to admit that extorting confessions by torture is an effective way to solve crimes, but have you thought about the purpose of punishment? It is crime prevention! That is to prevent others from committing crimes and criminals from committing crimes again. This prevention is achieved through the deterrent of punishment. At the same time, this deterrence is achieved by not letting any uncovered crime go unpunished, rather than revealing who committed the unknown crime. When the consequences have become irreversible, political society can punish others only because they have no illusion of impunity. Please note that a person who is not sure whether he is guilty or not will be punished once there is new evidence to prove that he did commit a crime, as long as it is within the statute of limitations.
The existence of extorting confessions by torture blurs the external difference between criminals and non-criminals, violates the procedural justice of criminal proceedings, leads to the confession of criminal suspects in court, leads to repeated investigation and evidence collection, and wastes a lot of judicial resources; The existence of extorting confessions by torture has led to a large number of unjust, false and misjudged cases, which has damaged the image and authority of judicial organs; The existence of extorting confessions by torture makes the situation of innocent people worse than that of criminals.
In view of the many disadvantages of extorting confessions by torture, it has become an urgent task to curb extorting confessions by torture in building a society ruled by law. The author believes that based on the above reasons, the following measures can be taken to curb extorting confessions by torture.
1. completely abandon the feudal right-based thought and replace it with the positive constitutional thought of equality before the law.
Strive to improve personal legal awareness. On the one hand, investigators with investigation power are required to correctly grasp the principle of taking facts as the basis when handling cases, and adhere to the principle of never suspecting a crime and giving a lighter punishment to criminal suspects; On the other hand, I also hope that criminal suspects can protect their legitimate rights and interests to the maximum extent within the scope permitted by law. Including hiring a lawyer as soon as possible and paying more attention to relevant laws and regulations.
2. Strengthen the construction of relevant legal systems.
First of all, we should establish the principle of presumption of innocence. To truly ensure that a person can't be called a criminal before the judge decides, he should be treated like other ordinary people. Correspondingly, the principle of opposing the forced self-incrimination of criminal suspects and defendants has been adopted by most countries in the world. Paragraph 3 of Article 14 of the United Nations International Convention on Civil and Political Rights, signed by China in June 1998, stipulates that "a person under criminal prosecution shall not be forced to testify against himself or to confess his crime." At the same time, however, Article 93 of China's Criminal Procedure Law stipulates that "a criminal suspect shall truthfully answer the inquiries of investigators. However, I have the right to refuse to answer questions irrelevant to this case. " Article 98, paragraph 1, also stipulates that "when interrogating a witness, he shall be informed of the legal responsibilities he shall bear for truthfully providing evidence and testimony and intentionally perjury or concealing criminal evidence." This shows that China's criminal procedure law does not give criminal suspects, defendants and witnesses the right to remain silent. It is suggested that the law of our country clearly affirms the principle of presumption of innocence, and at the same time gives criminal suspects and defendants the privilege of opposing forced self-incrimination.
Secondly, improve the legal rank of the exclusionary rule of illegal evidence, make it clear in the criminal procedure law, and clarify the effectiveness of different illegal evidence. Specifically, it includes unconditionally excluding illegally obtained verbal evidence and judging the legal effect of illegally obtained physical evidence and documentary evidence. The main criterion is a subjective fault of investigators in obtaining evidence. B. the influence of subjective faults of investigators in obtaining evidence on the validity of evidence. The compensatory power of illegal evidence. D. The importance of the evidence to this case, and whether there is the possibility of repeated collection. The specific evaluation criteria need to be judged by the judge, that is, the judge should be given some discretion, but the judge should be strictly restricted to take the initiative to obtain evidence according to his authority to prevent the relationship between prosecution and trial from approaching.
Giving lawyers the right to be present when interrogating defendants and witnesses is the best way to make up for the loopholes in the investigation and supervision system. The "due process revolution" in the United States in the 1960s set a precedent: lawyers have the right to personally come to the police station to interrogate suspects. If the police deprive them of this right, the suspect's confession alone will lose its probative power. Article 1 18 of the French Criminal Procedure Law stipulates that "when interrogating or confronting the defendant or the civil party, his defender shall be present or summoned, except that the defendant or the civil party clearly expresses that he does not want the defender to be present." For those who violate the above provisions, Article 170 1 of the Criminal Procedure Law stipulates that "the act itself and subsequent proceedings shall not have legal effect." Article 157 1 of Japan's criminal procedure law stipulates that "the prosecutor, defendant or defender may be present when questioning witnesses." At the same time, in the amendment of Japan's Criminal Procedure Law in 2004, in order to further protect the legitimate rights and interests of criminal suspects, it was also stipulated that "for criminal suspects who may be sentenced to life imprisonment, if they did not entrust a lawyer during the investigation stage, the public security organs should appoint lawyers with legal aid obligations."
Necessary restrictions on the interrogation activities of investigators are also a reasonable way to prevent the abuse of investigation power and curb extorting confessions by torture. Specific measures include defining interrogation conditions, separating investigation from detention, separating investigation from interrogation, restricting interrogation, prohibiting interrogation at night, and recording and recording the whole interrogation. Now I only explain the separation of investigation and trial, which is difficult to understand.
The separation of investigation and detention refers to the separation of the detention center where criminal suspects are detained from the public security organs. In order not to destroy the existing tripartite pattern of investigation, prosecution and trial, the detention center can be placed under the jurisdiction of the court. Its duty is only to temporarily guard the criminal suspect, and it has the obligation to protect the criminal suspect from extorting confessions by torture and to safeguard other legitimate rights and interests of the criminal suspect.
The separation of investigation and trial means that the place where criminal suspects are interrogated is removed from the public security organs without changing the existing judicial structure. Now it is more feasible to concentrate the interrogation in the detention center, artificially set up barriers, and separate the interrogation subject from the criminal suspect.
Finally, the burden of proof in cases of extorting confessions by torture should be reversed. The disadvantages of the current method of giving evidence in torture cases in China have been made clear in the Reasons, so I won't go into details here, just talk about the feasibility of the defendant giving evidence. Obtaining evidence in strict accordance with the law is a requirement for judicial staff. When accused of illegal acts, they have the obligation to provide evidence, which is also conducive to the judicial staff to carry out audio and video recording during interrogation. The burden of proof in cases of extorting a confession by torture is reversed, that is, the defendant provides corresponding evidence to prove that he did not extort a confession by torture. If they can't provide enough evidence to convince the procuratorate or the court that they didn't extort a confession by torture, they will bear the corresponding legal consequences, that is, they will be presumed to extort a confession by torture. Only in this way can we curb the emergence of extorting confessions by torture and safeguard the legitimate rights and interests of criminal suspects.
3. Increase judicial input and strive to improve the quality of case handlers. In order to better solve the contradiction between punishing crimes and protecting human rights, it is the only feasible way to increase judicial input and reduce dependence on confessions with the help of science and technology. At the same time of scientific and technological progress, we should also pay attention to training a group of investigators who are proficient in science and technology, so that the investigation organs can always be in an invincible position in the process of fighting criminals, on the premise of ensuring entity legality and procedural justice.