Criminal cases involve citizens' freedom, reputation, money and even life, a person's fate and the happiness of a family. However, the judge's judging process is a logical reasoning process, which will inevitably be integrated into the judge's personal subjective understanding and judgment, and the problem of "different judgments in the same case" will appear in the differences of judges' individualization. On July 27th, 2020, the Supreme People's Court issued "Guiding Opinions on Strengthening Class Case Retrieval by Uniform Law Application (Trial)" (hereinafter referred to as "Class Case Retrieval System"), and the trial began on July 30th, 2020. The introduction of similar case retrieval system aims at standardizing judges' discretion, realizing "the same case and the same sentence", promoting judicial justice and enhancing judicial credibility.
Second, the retrieval problem
With the advent of the epidemic era, the impact on criminal cases is obvious. Whether it is the case-handling organ or the lawyer industry, everything is "changing". For the case-handling organs, it has become a "first-class" difficulty to send criminal suspects/defendants to the detention center, and the rate of non-detention in criminal cases has been rising. Even many cases have been sentenced to actual punishment by the court of first instance, and the defendants are still released on bail pending trial. The root of these phenomena lies in the grim situation of epidemic prevention and control. Many parties arrested abroad or after returning to China are facing the epidemic isolation stipulated in the epidemic prevention and control regulations for the first time. 30 days of isolation is the norm! The author's client was arrested abroad and handed over to the domestic police. According to the epidemic prevention and control policy, the domestic police implemented epidemic isolation measures for him in a hotel. During the period of isolation, he lived in a standard room with the police, wearing shackles during the day and handcuffs at night, without any personal freedom. However, the court of first instance deducted the quarantine period from the sentence, which caused a practical problem: should the defendant be regarded as the first guardian during the quarantine period and deducted from the sentence?
Third, identification cases.
So, how is it universally recognized in judicial practice? And look at the following eight kinds of epidemic isolation period deducted from the sentence.
1.2020 12.25, leping city People's Court (2020) Gan 028 1 criminal judgment of first instance.
Basic information: The defendant took a flight from Lancang to Kunming on July 2, 2020, was arrested by the police when he arrived in kunming changshui international airport, and was held in isolation in the police station of the airport terminal. On July 7, 2020, he was taken back to Leping for criminal detention by the leping city Public Security Bureau.
Term of imprisonment: the term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is, from July 2, 2020 to July 2027 1. The fine shall be paid within one month from the effective date of the judgment.
2. On February 6, 2020, 65438+65438, Yongqing County People's Court (2020) Ji 1023, criminal judgment was the first instance.
Basic information: The defendant was chased by the Internet on May, 2020 15. On June 4, 2020, he was arrested and brought to justice by the police of Netan Brigade of Longchuan County Public Security Bureau, Dehong Prefecture, Yunnan Province. He was sent to the isolation point of Longchuan County Rehabilitation Brick Factory 14 days due to the epidemic, and was arrested by the police of Yongqing County Public Security Bureau from June 18 to June 19. /kloc-from June 0/8 to June 23, 2020, he was placed under residential surveillance by the police of Yongqing County Public Security Bureau, and his personal freedom was restricted.
Term of imprisonment: the term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is, from June 4, 2020 to September 3, 202 1 year. The fine shall be paid within ten days after the judgment takes effect.
3. On February 6, 2020, 65438+65438, the Intermediate People's Court of Linfen City, Shanxi Province (2020) made a criminal judgment of the second instance with 10.
Reason for commutation: After investigation, the appellant claimed that he was detained with two accomplices at the same time after the first trial on September 2, and was forced to be isolated until September 16. During this period, his freedom was restricted and his sentence should be reduced according to law. During the trial of the second instance, after verification by the court of first instance and the investigation organ, the Yaodu District Public Security Bureau of Linfen City issued a statement on the time when the appellant was arrested, confirming that on September 3, 2020, the Yaodu District Public Security Bureau arrested the appellant according to the decision of the Yaodu District People's Court, and the appellant was observed in the Yellow River Hotel in isolation on 15, and was arrested by the Yaodu District Public Security Bureau on September 16 of the same year.
According to the appellant's confession and explanation, it can be concluded that the appellant was arrested on September 3, 2020, and the isolation time should be deducted from the sentence according to law.
4.202 1118 The People's Court of Yanhu District of Yuncheng City (2021) Jin 0802 No.404 was the first instance of criminal judgment.
Basic information: On June 25th, 2020, on suspicion of committing XX crime, he was criminally detained by the Salt Lake Branch of a bureau in Yuncheng, and was placed under residential surveillance at the designated residence the next day. On February 22, 2020, 65438 was criminally detained by the Salt Lake Branch of a bureau in Yuncheng, and was arrested on June 6, 2026 1 1.
Term of imprisonment: the term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. From June 25, 2020 to February 24, 2023. The fine shall be paid within 30 days after the judgment takes effect.
Reason for deduction: The compulsory measure of residential surveillance at designated residence adopted by an institution for epidemic prevention and control, because the designated residence is isolated, there is no substantial difference between the severity of personal freedom restriction on the defendant and criminal detention, so the time of residential surveillance at designated residence should be deducted from the sentence.
5. On August 20th, 2020, the criminal judgment of Xiangcheng District People's Court of Xiangyang (2020) E 0602No. 14 1 was first tried.
Basic information: The defendant was criminally detained by Xiangcheng Branch of Xiangyang Public Security Bureau on 2011.06 on suspicion of excavating ancient tombs, and was arrested on February 24th of the same year. On February 2, 2020, he was released on bail pending trial by Xiangcheng Branch of Xiangyang Public Security Bureau because of his serious illness, and was arrested on April 2, 2020.
Term of imprisonment: the term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is, the term of imprisonment begins at1October 201916 and ends at1October 202 1 15. The fine shall be paid within ten days after this judgment takes effect.
Reason for deduction: The defendant was suspected to have novel coronavirus during his detention, and the public security organ treated him in isolation according to the requirements of epidemic prevention and control. Although it is not a detention measure, the defendant's personal freedom is indeed restricted. According to the principle of benefiting the defendant, the defendant's bail can be deducted from the sentence in accordance with the provisions of detention.
6. On August 3, 2020, 100, the criminal judgment of the people's court of Xiangcheng District, Xiangyang City was made in the first instance.
Basic information: On July 3, 2003, the defendant was sentenced to three years' imprisonment and fined 1000 yuan by the People's Court of fancheng district, Xiangyang. He was arrested on 20 1910/0/010/0 on suspicion of forging, buying and selling official documents, certificates and seals of state organs. The next day, he was criminally detained by Xiangcheng Branch of Xiangyang Public Security Bureau, and he was arrested in the same year 10/0/0. On February 23, 2020, due to serious illness, Xiangcheng Branch of Xiangyang Public Security Bureau decided to get bail pending trial, and was arrested according to law on April 18 of the same year.
Prison term: The defendant's prison term starts from 20 19, 19 and ends on 2020 18.
Reasons for discount: We believe that the defendant's personal freedom was indeed restricted, although he was observed in isolation according to the requirements of epidemic prevention and control during the bail pending trial. According to the principle of benefiting the defendant, the defendant's sentence should be reduced, and this excuse and defense viewpoint was adopted by our court.
7. On February 2, 2020, 65438, the Intermediate People's Court of Wuxi City, Jiangsu Province (2020) Criminal Chu Zi No.33 Su 02 criminal judgment of first instance.
Basic information: The defendant was sentenced to criminal detention on April 30, 2020 on suspicion of intentional injury. Later, due to the COVID-19 epidemic, he was placed in medical isolation (personal freedom was restricted during the isolation period), and was detained in criminal detention on May 7, 2020, and was arrested on 2 1 of the same month.
Term of imprisonment: the term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of fixed-term imprisonment, that is, from April 30, 2020 to April 29, 2035.
On March 29th, 8.202 1 year, Shan County People's Court (202 1) Lu 1722 criminal judgment pronounced the verdict in the first instance.
Basic information: The defendant was arrested and brought to justice on September 26th, 2020 1 1. On the same day, due to the need of COVID-19 epidemic prevention and control, he was quarantined at the Changyun Hotel in Menglian County, Yunnan Province (personal freedom was restricted during the quarantine period). On September 26, 2020, he was brought back to the designated residence of Shan County by Shan County Public Security Bureau for residential surveillance, and was arrested and sent to the detention center on June 12 of the same year.
Term of imprisonment: the term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is, from June 2020 10 to February 2020 12.
Reason for deduction: the defendant was restricted from personal freedom during the isolation period before being detained 15 days, and lived under surveillance in the designated residence 16 days (two days of living under surveillance in the designated residence was reduced to one day of fixed-term imprisonment). The above situation should be reduced to fixed-term imprisonment of not more than 23 days according to law. The above-mentioned defense opinions of defenders have factual and legal basis and should be adopted.
Fourth, search conclusion.
Conclusion: Pre-trial detention is based on the restriction of personal freedom, and any period of pre-trial detention that restricts or deprives personal freedom should be deducted from the sentence. As long as personal freedom is deprived or restricted during the epidemic isolation period, this period belongs to pre-detention and should be deducted from the sentence.