Arrest is the most severe compulsory measure stipulated in the Criminal Procedure Law. As a pretrial detention system, the only reasonable purpose designed by legislators is to ensure the effective conduct of litigation activities, that is, to limit the personal freedom of criminal suspects, so as to prevent them from evading investigation and trial, and to prevent them from colluding with each other, destroying evidence and forging evidence. If it is not necessary, an alternative measure to arrest should be taken.
However, the actual function of arrest far exceeds the function of litigation guarantee, which is reflected in:
1. Deterrence to criminal suspects. Based on the reality that people who are arrested are rarely sentenced to non-custodial sentences, the decision to arrest will have a powerful deterrent effect on the psychology of people suspected of committing crimes.
2. Deprivation of personal freedom will inevitably lead to reputation damage, mental pain, family breakdown and property loss. As an enterprise executive, it will also lead to stagnation or even bankruptcy of enterprises and unemployment of workers.
The arrest is so severe, but the risk of catching the wrong one is also high. The reason is that the evidence condition of arrest is only "there is evidence to prove that there is a criminal fact", and it does not require clear facts and sufficient evidence, which is far lower than the evidence standard of subsequent prosecution and trial; The case is still in the preliminary investigation stage, and it is impossible to grasp its basic trend and overall picture. The investigation organ and the arresting department can only make empirical judgments based on the existing facts and evidence.
Therefore, in view of this coercive measure that seriously affects the trend of the case and the personal error rate of the criminal suspect, the defender should strengthen his defense and safeguard the legitimate rights and interests of the parties and judicial justice.
Second, the existing laws and regulations provide legal weapons for lawyers to defend in the process of arrest.
(1) in the new criminal procedure law, from the point of view of time, lawyers' participation in the arrest procedure is comprehensive:
1. Before arrest: article 36. During the investigation, the defense lawyer may apply for changing the compulsory measures against the criminal suspect;
2. When arresting (examining arrest): Article 86 When examining and approving an arrest, the people's procuratorate may ask witnesses and other participants in the proceedings and listen to the opinions of defense lawyers; If a defense lawyer makes a request, he shall listen to the opinions of the defense lawyer.
3. After arrest: Article 93 After a criminal suspect or defendant is arrested, the people's procuratorate shall still examine the necessity of detention.
Article 95 A defender has the right to apply for changing compulsory measures. The people's courts, people's procuratorates and public security organs shall make a decision within three days after receiving the application; If it disagrees with the change of compulsory measures, it shall inform the applicant and explain the reasons for disagreement.
Article 97 When the statutory time limit for the people's court, the people's procuratorate or the public security organ to take compulsory measures expires, the defender has the right to demand the cancellation of compulsory measures.
Article 159 If a defense lawyer makes a request before the investigation of a case is completed, the investigation organ shall listen to the opinions of the defense lawyer and record them. If a defense lawyer puts forward a written opinion, it shall attach a volume.
20 16 16 "Measures of the People's Procuratorate on the Examination of the Necessity of Detention (Trial)" makes specific provisions on the examination of the necessity of detention after arrest, among which Article 13 stipulates that the People's Procuratorate may conduct the examination of the necessity of detention in the following ways: (2) Listen to the opinions of criminal suspects, defendants, their legal representatives and defenders. Article 9 of the Guiding Opinions of the People's Procuratorate on Examining Cases of Necessity of Detention (for Trial Implementation) If a criminal suspect, defendant, his legal representative, close relative or defender applies for examining the necessity of detention, he shall explain the reasons why he does not need to continue to be detained. Relevant supporting materials, if any, shall be provided.
(2) The amendments to the Criminal Procedure Law and the relevant interpretations of the three organs refine the conditions for arrest and non-arrest, and stipulate a number of specific situations for arrest and arrest, which provides operability for lawyers to participate in arresting criminal suspects and safeguard their legitimate rights and interests.
Three. Whether the defense meets the conditions for arrest.
(1) The circumstances of arrest stipulated in the third paragraph of Article 79 of the Criminal Procedure Law shall be strictly compared. If it is found that it does not match, it is necessary to immediately put forward the opinion of not approving the arrest.
First, the key to the review of Article 79 1 of the Criminal Procedure Law is whether there is social danger.
Social danger is the possibility that criminal suspects hinder normal criminal proceedings and continue to endanger society. Although social danger is only a possibility, it must be operable, that is, it must be externally expressive and provable, which is a necessary condition for the application of arrest measures in the current criminal procedure law. This article stipulates five situations that should be arrested, which are divided into 24 situations according to the the Supreme People's Procuratorate No.2015 Interpretation and the Ministry of Public Security's Provisions on Several Issues Concerning the Conditions of Arresting Social Harmfulness (for Trial Implementation).
The first item: it is possible to commit new crimes;
(1) Planning, organizing or preparing to commit a new crime before or after committing a crime;
(2) Threatening to commit new crimes;
(3) committing crimes repeatedly, continuously or on the run;
(4) Being subject to administrative punishment for intentionally committing similar illegal acts within one year;
(5) Taking the proceeds of crime as the main source of livelihood;
(6) Having bad habits such as taking drugs and gambling;
(seven) other circumstances that may commit new crimes.
(See Article 5 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Conditions of Arresting Social Harmfulness (Trial) 20 15, 10).
Item 2: There is a real danger of endangering national security, public safety or social order;
(1) Being actively planning, organizing or preparing to commit a major illegal and criminal act that endangers national security, public safety or social order before or after committing a crime;
(2) Having received criminal punishment or administrative punishment for endangering national security, public safety or social order;
(3) Organizing, planning, directing or playing an active role in endangering national security, evil forces, terrorist activities and drug crimes;
(4) Other circumstances endangering national security, public safety or social order.
Item 3: it may destroy or falsify evidence, interfere with witness testimony or collusion;
(1) destroying, forging, concealing or transferring evidence;
(2) used or attempted to intimidate, intimidate, seduce or buy off witnesses and interfere with their testimony;
(3) There is a criminal suspect in the same case or a criminal suspect who has a close relationship with him in fact, and important evidence has not been collected;
(four) other circumstances that may destroy or falsify evidence, interfere with witness testimony or collusion.
Item 4: It is possible to take revenge on the victim, prosecutor or accuser;
(1) Threatening or preparing or planning to retaliate against the victim, informer or accuser;
(2) Attacking, coercing or persecuting the victim, prosecutor or accuser;
(3) Interfering with the normal life and work of victims, prosecutors and accusers by other means;
(four) other circumstances that may take revenge on the victim, informant and accuser.
Item 5: Attempt to commit suicide or escape.
(a) Preparing to commit suicide, self-harm or escape;
(2) Suicide, self-mutilation or escape;
(3) Suicide, self-mutilation or escape;
(4) resisting arrest by violence or threat;
(5) Other circumstances of attempted suicide or escape.
Article 79, paragraph 1 * *, stipulates five situations, of which the first two situations are dangers outside litigation, which are the preventive functions generated by arrest, and whether prevention is necessary requires the investigation organ to collect materials to prove it. The latter three situations are directly related to the smooth progress of criminal proceedings and belong to the litigation guarantee function of compulsory measures.
Second, the second paragraph of Article 79 stipulates that arrest should be made in three cases: "10 years, intentional crime, or unknown identity". When a lawyer discovers clues and materials that may be arrested, he shall promptly submit them to the case-handling organ and put forward opinions on not arresting them.
Third, the circumstances that can be arrested as stipulated in the third paragraph of Article 79 are the conditions for the criminal suspect to obtain a guarantor pending trial and monitor his residence in violation of the alternative measures of arrest. Lawyers should strictly compare the provisions of the Criminal Procedure Law with the explanations of the three organs, and analyze whether they violate the above provisions, which provisions they violate, and how much they violate. Since this provision is only discretionary, lawyers should strive to take alternative measures such as re-paying the deposit and providing a guarantor, rather than changing the compulsory measures easily.
(two) found to meet the following laws and regulations on non arrest, it is necessary to promptly put forward opinions on non arrest to the case-handling organ.
First, the provisions on non-arrest: Article 143 The People's Procuratorate shall make a decision not to approve or not to arrest a criminal suspect under any of the following circumstances:
(1) Failing to meet the conditions for arrest stipulated in Articles 139th to 142nd of these Rules;
(2) Under any of the circumstances stipulated in Article 15 of the Criminal Procedure Law.
Second, you can't catch the rules:
1. Article 65 of the Criminal Procedure Law: The people's courts, people's procuratorates and public security organs may obtain bail for a criminal suspect or defendant under any of the following circumstances:
(a) may be sentenced to public surveillance, criminal detention or independent application of supplementary punishment;
(two) may be sentenced to more than fixed-term imprisonment, bail will not cause social danger;
(3) A woman who is seriously ill, unable to take care of herself, pregnant or breast-feeding her baby is released on bail pending trial, which will not cause social danger;
(four) the detention period expires, the case has not yet been settled, and it is necessary to get a bail pending trial.
Bail pending trial shall be executed by the public security organ.
2. Article 72 The people's courts, people's procuratorates and public security organs may monitor the residence of a criminal suspect or defendant who meets the conditions for arrest and is under any of the following circumstances:
(1) Suffering from serious illness and unable to 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.
For those who meet the conditions of obtaining a guarantor pending trial, but the criminal suspect or defendant cannot provide a guarantor or pay a deposit, they can be placed under residential surveillance.
3. Opinions on Implementing the Criminal Justice Policy of Tempering Justice with Leniency in Procuratorial Work issued by the Supreme People's Procuratorate on June 5438+ 10, 2007: Pay attention to correctly understanding and grasping the condition of "necessity of arrest". Specifically, the following factors can be comprehensively considered:
First, whether the subject belongs to minors or school students, the elderly, seriously ill patients, blind deaf-mutes, first offenders, accomplices or pregnant women and lactating women;
Second, whether the statutory punishment is a lighter punishment;
Third, the circumstances of legal lighter, mitigated or exempted punishment, such as suspension, attempted, surrender, meritorious service, etc.;
Fourth, whether there is negligence, deception, coercion, etc.
Fifth, whether there is confession and repentance after committing a crime, whether there is the possibility of endangering society again or colluding, destroying evidence, obstructing testimony and other obstacles to litigation;
Sixth, whether the suspect is a fugitive, whether he has a fixed address and conditions for helping and educating;
Seventh, whether the basic evidence of the case has been collected and fixed, and whether it can be retracted.
The circumstances of the crime are serious, the subjective malignancy is greater, the personal danger is greater, or there may be collusion, destruction of evidence, obstruction of testimony, etc. If the conditions for arrest are met, the arrest shall be approved. If compulsory measures or other compulsory measures are not taken, the arrest shall not be approved. Resolutely don't catch those who can but don't.
4. the Supreme People's Procuratorate Criminal Procedure Law Article 144 If a criminal suspect has minor criminal circumstances and no other major criminal suspects, he may make a decision not to approve the arrest or not to arrest under any of the following circumstances:
(1) preparing a crime, stopping a crime, or excessively defending or evading it;
(2) A first-time offender, an accomplice to the same crime or an accomplice under duress who, after committing a crime, surrenders himself, makes meritorious service or actively returns stolen goods and compensates for losses, and really shows repentance;
(3) A criminal suspect who commits a negligent crime shows remorse after committing the crime and effectively controls the loss or actively compensates for the loss;
(4) The criminal suspect and the victim have reached a settlement agreement in accordance with the relevant provisions of the Criminal Procedure Law, and after examination, it is considered that the settlement is voluntary and legal, and the guarantee has been fulfilled or provided;
(5) The criminal suspect is a minor or a school student who has reached the age of 14 but has not reached the age of 18, and shows repentance, and his family, school, community, residents' committee and villagers' committee are qualified for guardianship and assistance;
(six) the elderly over seventy-five.
Four, the lawyer shall examine whether the case handling organ complies with the procedural provisions of arrest, and find the facts that do not conform to the arrest procedure, and promptly put forward opinions that violate the procedure.
(1) Arrest procedures and materials submitted by public security organs.
20 15 10 Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Conditions of Arrest of Social Danger (for Trial Implementation) Article 3 When the public security organ requests the arrest of a criminal suspect, it shall at the same time transfer the evidence proving that the criminal suspect is socially dangerous. If the evidence proving the facts of the crime can prove that the criminal suspect is socially dangerous, it shall be specifically stated in the application for approval of arrest. If the evidence that proves the facts of the crime cannot prove that the criminal suspect is socially dangerous, the evidence that the criminal suspect is socially dangerous shall be collected and fixed, and shall be transferred with the volume when the arrest is requested.
(two) the procedures and materials when the procuratorate approves the arrest.
20 15 10 provisions of the Supreme People's Procuratorate and the Ministry of public security on several issues concerning the conditions of socially dangerous arrest (for trial implementation) article 4 when examining and determining whether a criminal suspect is socially dangerous, the people's procuratorate shall make a comprehensive determination based on the evidence of social danger and the specific circumstances of the case obtained by the public security organ. When necessary, the relevant evidence can be verified by interrogating criminal suspects, questioning witnesses and other participants in the proceedings, and listening to the opinions of defense lawyers. If it is not certain that the criminal suspect meets the social danger conditions of arrest according to the evidence filed, the people's procuratorate may request the public security organ to supplement the relevant evidence. If the public security organ fails to supplement the transfer, it shall make a decision not to approve the arrest.
Five, lawyers should be familiar with the latest provisions of the review of the necessity of detention, and actively provide strong evidence for the defendant to apply for the review of the necessity of detention.
1. Definition: The review of the necessity of detention refers to the supervisory activities of the people's procuratorate to review whether the arrested criminal suspect or defendant is necessary to continue to be detained according to the provisions of Article 93 of the Criminal Procedure Law of People's Republic of China (PRC). If it is not necessary to continue to be detained, it is recommended that the case-handling organ cancel or change the compulsory measures. (Article 2 of the Review Opinions of the People's Procuratorate on the Necessity of Detention (Trial))
11July "Guiding Opinions on Implementing the Provisions of People's Procuratorates on Examining Cases of Necessity of Detention" stipulates that it is not necessary to examine the necessity of detention if the three organs of public security and procuratorial law, criminal suspects, defendants, family members and defenders apply for changing compulsory measures in accordance with Articles 94 and 95 of the Criminal Procedure Law of People's Republic of China (PRC).
2. Pre-arrest review and post-arrest review are equally important: Article 93 of the new Criminal Procedure Law provides the general rules on the necessity review of post-arrest detention. 20 16, 1 the Supreme People's Procuratorate promulgated the Provisions on the Examination of the Necessity of Detention of People's Procuratorates (for Trial Implementation), and in July 2065, 1 1 issued the Provisions on the Examination of Cases of the Necessity of Detention of People's Procuratorates (for Trial Implementation). The specific conditions, procedures and handling organs of this work are stipulated, which corrects the past one-sided practice of emphasizing pre-arrest review and ignoring post-arrest changes, and provides a legal basis for lawyers to exercise their right to defense.
3. Necessity of detention review procedure.
Item 1: filing a case
Notice of rights: Article 8: After a criminal suspect or defendant is arrested, the procuratorate of the detention center shall, within five working days.
Preliminary examination: preliminary examination according to the application-the criminal execution procuratorial department puts forward opinions on whether to file a case for examination within three working days.
Trial ex officio-If the court decides to arrest or the court decides to arrest, the trial shall be conducted ex officio.
Results of preliminary examination
1. Cases of not filing a case: Article 15 If a criminal suspect or defendant is under any of the following circumstances, after preliminary examination, the case will generally not be filed, except that the criminal suspect or defendant is seriously ill or has other special legal circumstances that make it inappropriate to continue detention:
(a) suspected of endangering national security crimes, terrorist activities, organized crimes of a triad nature, major drug crimes or other crimes seriously endangering society;
(two) suspected of intentional homicide, intentional injury causing serious injury or death, rape, robbery, kidnapping, drug trafficking, arson, explosion, throwing dangerous substances and other crimes that seriously undermine social order or organized violent crimes;
(three) suspected of major corruption and bribery crimes, or serious violations of citizens' personal rights by taking advantage of their powers;
(4) Being a recidivist or having been sentenced to punishment for crimes of endangering national security, terrorist activities, organized crimes of a triad nature, serious drug crimes or other crimes seriously endangering society;
(five) may be sentenced to more than ten years in prison;
(six) the facts of the case have not been ascertained, the evidence has not been fixed, or the criminal suspect or defendant has other criminal facts that need further verification;
(seven) the criminal suspect and defendant in the same case are not within the scope of filing, and there is a possibility of collusion;
(eight) more complex * * * and criminal cases, there is the possibility of collusion;
(9) Being wanted or arrested for violating the regulations on obtaining a guarantor pending trial and residential surveillance;
(10) Less than one month has passed since the decision of the investigation and supervision department to approve the arrest or extend the period of investigation and detention;
(eleven) other circumstances that are not suitable for filing a case to review the necessity of detention.
Second, there may be one of the circumstances in Article 26 and Article 27 of this Guidance, and it shall be put on file.
Item 2: Review
Article 19 stipulates the review method, article 20 stipulates the review content, and article 2 1-25 stipulates that the necessity of continuing detention can be comprehensively evaluated by adding and subtracting points, which can be divided into plus points, minus points and veto items.
Articles 26-28 stipulate that detention measures should be changed, can be changed, and can be changed if there is no decision for a long time. Twenty-sixth after the examination of the necessity of detention, it is found that a criminal suspect or defendant has one of the following circumstances, and it shall put forward suggestions to the case-handling organ to lift or change the compulsory measures:
(a) the evidence of the case has changed significantly, and there is no evidence to prove that there is a criminal fact or that the criminal suspect or defendant has committed a criminal act;
(2) If the facts or circumstances of the case change, it may be sentenced to criminal detention, public surveillance, independent application of supplementary punishment, exemption from criminal punishment or acquittal;
(3) continuing to detain a criminal suspect or defendant, and the detention period will exceed the fixed-term imprisonment that may be sentenced according to law;
(four) the facts of the case have been basically ascertained, and the evidence has been collected and fixed, which meets the conditions of obtaining a guarantor pending trial or monitoring residence.
Article 27 After reviewing the necessity of detention, if it is found that a criminal suspect or defendant has one of the following circumstances and shows remorse, and social danger will not occur if he is not detained, he may suggest to the case-handling organ to cancel or change the compulsory measures:
(1) Preparatory crime or discontinued crime;
(2) An accessory to a crime or an accessory to coercion;
(3) criminal negligence;
(four) excessive defense or excessive avoidance;
(5) First offense with less subjective malignancy;
(six) minors or over 75 years of age;
(7) reaching a settlement agreement with the injured party voluntarily according to law, and having fulfilled or provided guarantee;
(eight) suffering from serious illness, life can not take care of themselves;
(nine) pregnant or breast-feeding women;
(10) Being the sole supporter of a person who cannot take care of himself;
(eleven) may be sentenced to fixed-term imprisonment of not more than one year or suspended;
(twelve) other circumstances that do not need to continue to detain the criminal suspect or defendant.
Article 28 If a criminal suspect or defendant has been detained for more than five years, and the case is still in the stages of investigation, prosecution, first instance and second instance, or the criminal suspect or defendant has been detained for four years, which may lead to extended detention, suggestions for release or change of compulsory measures may be made to the case-handling organ.
Articles 29-35 stipulate the contents and procedures of public review.
(1) The criminal suspect or defendant dies; (2) The criminal suspect or defendant is released or compulsory measures are changed; (3) The people's court has made an effective judgment or ruling; (4) Other circumstances in which the examination should be terminated.
Item 3: Closing the case
It shall decide whether to put forward a proposal to lift or change compulsory measures within ten working days after filing the case. If the case is complicated or there are special circumstances, it may be extended for five working days with the approval of the chief procurator or the deputy chief procurator in charge.
Article 38 -40 stipulates that if it is considered unnecessary to continue detention after examination, the public prosecutor shall report to the chief procurator or the deputy chief procurator for approval, and issue a proposal to the case-handling organ to cancel or change the compulsory measures in the name of our hospital. If it is necessary to continue custody, the prosecutor shall decide to close the case and notify the case-handling organ.
Article 41 stipulates that the criminal execution procuratorial department of the people's procuratorate shall promptly inform the applicant in writing of the suggestions made by the case-handling organ and the handling of the case, or the necessary examination opinions and reasons for continuing detention.