Residential surveillance is an important coercive measure to protect the legitimate rights and interests of criminal suspects in criminal proceedings. Ensure that the legal and social effects of the case are of positive significance. On the one hand, it can ensure that proceedings must proceed; on the other hand, it can remove criminal suspects and defendants from their normal family life and study positions, and can also reduce the investment of national judicial resources. The Criminal Procedure Law clearly stipulates the applicable scope, objects and conditions of residential surveillance, protects the legitimate rights and interests of criminal suspects and defendants, and plays an important role in promoting their repentance and rehabilitation.
1. The provisions of the Criminal Procedure Law on residential surveillance.
Residential surveillance means that the People's Court, the People's Procuratorate and the Public Security Bureau confine criminal suspects and defendants to their residences or designated areas in accordance with the law, and are not allowed to leave without authorization, and their actions are strictly prohibited. An enforcement measure of surveillance.
Article 50 of the "Criminal Procedure Law" stipulates that the people's courts, people's procuratorates and public security organs may place criminal suspects and defendants under residential surveillance based on the circumstances of the case.
Articles 51, 60, 65 and 75 of the Criminal Procedure Law. Residential surveillance is available for criminal suspects and defendants who meet any of the following circumstances: (1) They may be sentenced to public surveillance, criminal detention, or additional punishments may be applied independently; (2) They may be sentenced to fixed-term imprisonment or more, and the use of residential surveillance will not cause social harm. Dangerous; (3) The criminal suspect or defendant who should be arrested is suffering from a serious disease or a woman who is pregnant or breastfeeding her own baby; (4) The criminal suspect in custody needs to be arrested and needs to be arrested; (5) The criminal suspect in custody needs to be arrested; suspects need to be arrested. There is insufficient evidence for the arrest of the criminal suspect in custody; (5) The legal custody period cannot be concluded upon expiration.
According to Article 75 of the "People's Procuratorate Criminal Procedure Rules" promulgated by the Supreme People's Procuratorate, criminal suspects and their legal representatives, close relatives, or lawyers entrusted by criminal suspects and their defenders, believe that If the person under residential surveillance exceeds the statutory period, he has the right to request the People's Procuratorate to lift the residential surveillance.
2. Problems existing in the judicial practice of residential surveillance.
1. Abuse of residential surveillance.
The Criminal Procedure Law clearly stipulates the applicable scope, objects and conditions of residential surveillance, but some investigative agencies have seriously violated the law in its application. First, if the procuratorial organ does not constitute a crime and does not arrest, the case should be dismissed and transferred to residential surveillance; second, surveillance is used instead of investigation, and it is not appropriate to adopt residential surveillance with compulsory measures; third, residential surveillance is used as a way to deal with civil disputes that cause minor harm. Fourth, for some special cases, due to administrative intervention, residential surveillance measures are excessively applied.
In the process of law enforcement, some units do not pay attention to strictly grasping the conditions of residential surveillance under the circumstances of human interference, use residential surveillance against criminal suspects and defendants who should not be subject to residential surveillance, and impose residential surveillance on criminal suspects and defendants who should not be subject to residential surveillance. People are "downgraded". In judicial practice, some case-handling units do not pay attention to the case facts and review conditions, ignore the legal and social effects of the case, and arbitrarily apply residential surveillance to a large number of criminal suspects and defendants who do not meet the conditions for residential surveillance.
The proliferation of residential surveillance has directly had a serious negative impact on the conclusion of cases, the testimonial environment of witnesses, and the quality of cases. It has caused people under residential surveillance to retract confessions, collude with confessions, and induce witnesses to retract confessions after they are released from custody. In some cases, It had to be put on hold, which made the litigation work passive and prevented some cases from being concluded, which had a very bad impact on society.
2. Illegal fees and lack of unified management.
The subjects of residential surveillance are mainly those whose offenses are minor and do not require detention or arrest, but their freedom of movement must be subject to certain restrictions on criminal suspects and defendants. In the process of law enforcement, it is quite prominent that some investigative agencies illegally charge fees to criminal suspects who are under residential surveillance or their units without any legal basis. The fees collected are managed by the case-handling unit, which is responsible for its own profits and losses. Some law enforcement officers with poor quality accept meals and gifts from relatives of criminal suspects and defendants, ignore the conditions of residential surveillance stipulated by law, and use residential surveillance against people who should not be placed under residential surveillance. However, criminal suspects and their relatives In order to absolve or reduce their guilt, they pay money and get out as soon as possible, which leads to the phenomenon of "prison buying" in disguise. In the desperation of "paying money to buy supervision", the phenomenon of "paying money to buy supervision" emerged. In terms of fees. The lack of unified management and arbitrary interception and misappropriation have led to the occurrence of violations of laws and disciplines by judicial personnel, which has reduced the prestige of the judicial organs, affected the public's credibility in judicial justice, and formed a wrong understanding that money can buy crimes. The law has lost its seriousness.
3. The monitoring place is illegal and criminal suspects and defendants are detained in disguise.
Article 57 of the "Criminal Procedure Law" stipulates that the place of residential surveillance is the residence of the criminal suspect. If there is no fixed residence, it shall be carried out at the designated residence. In practice, the phenomenon of violation of legal provisions in places of residential surveillance is quite prominent, which is reflected in the fact that places of residential surveillance are mostly located in "guest houses", "basements", "case handling points", "security companies", "administrative detention centers", etc. In these "designated residences", persons under residential surveillance are detained and guarded by the police, and the persons under residential surveillance are responsible for their own food and accommodation and the care of the guards. Some investigative agencies stipulate that persons under residential surveillance are not allowed to meet anyone and install surveillance equipment in their residences for surveillance. In some cases, if the criminal suspect or defendant does not have a fixed residence, or has a residence but is far away from the case-handling agency, the investigative agency will generally send him or her to a "residential surveillance location" for execution. When the public security organs send criminal suspects to designated residences for residential surveillance, it is actually a disguised form of detention. The illegality of residential surveillance places has led to the detention or disguised detention of criminal suspects, which has seriously violated the personal rights of criminal suspects.
4. The law enforcement entities of the law enforcement agencies are illegal and the legal responsibilities are unclear.
Article 51 of the Criminal Procedure Law stipulates that residential surveillance shall be implemented by the public security organs. However, during the specific implementation of residential surveillance by the public security organs where criminal suspects and defendants are located, due to police constraints and other reasons, they often hand over the execution of residential surveillance to some policemen and joint defense team members. In special cases where there is a shortage of personnel, the phenomenon of temporarily hiring some personnel in the community to carry out the execution still exists; some investigation agencies entrust their own units or subordinate security companies to perform the execution; some entrust the village committee to monitor the persons under residential surveillance. , making residential surveillance ineffective. Because these people do not have legal qualifications as law enforcement subjects, they have no law enforcement rights and their activities are illegal. Since residential surveillance is a criminal compulsory measure stipulated in the Criminal Procedure Law, there are clear restrictions on the use of agencies, that is, the people's courts, people's procuratorates, and public security agencies can use it in accordance with the law. In terms of the execution power, the law stipulates that only public security agencies can enforce it. right. "Other personnel" are not qualified as law enforcement subjects and have no law enforcement power. If the execution power of residential surveillance is entrusted to them, their actions and results will inevitably violate the law. The subject of law enforcement is illegal, which makes the legal responsibility of residential surveillance unclear and makes it difficult to investigate and deal with problems. 5. Imprisonment without investigation will lead to serious lawsuit failure.
Article 58 of the "Criminal Procedure Law" stipulates that the maximum period of residential surveillance for criminal suspects and defendants by the people's courts, people's procuratorates and public security organs shall not exceed six months. If criminal liability is pursued or the period of residential surveillance expires, the residential surveillance shall be terminated and the person under residential surveillance and relevant units shall be notified in a timely manner. Due to the long period of residential surveillance, there are many cases of residential surveillance by the investigation agencies, and the conditions of residential surveillance still exist, and no one is investigating to understand. Some cases have been under residential surveillance for a long time without being investigated, so that the period of residential surveillance has expired and the investigation agency has not lifted the residential surveillance. In the end, the case was left unsolved, resulting in a serious violation of citizens' personal rights and democratic rights.
Article 58 of the "Criminal Procedure Law" clearly stipulates that if a criminal suspect or defendant decides to undergo residential surveillance, the investigation, prosecution and trial of the case will not be stopped, and it is strictly prohibited to indulge in crimes under residential surveillance in disguise. In practice, some criminal suspects with unclear criminal facts, insufficient evidence, and unclear responsibilities have been placed under residential surveillance for a long time without trial. In fact, the investigation, prosecution, and trial of the case have been suspended. Residential surveillance has become a disguised form of closing the case, which violates the law. The original intention of the legislation of residential surveillance has caused certain negative impacts on society.
There are three reasons for the problem of residential surveillance.
1. Residential surveillance violates the basic rights of third parties.
In practice, criminal suspects and defendants often do not live in a "single residence" but in "mixed residences." As far as the criminal compulsory measure of residential surveillance is concerned, it involves three terms: "single residence", "mixed residence" and "third person". The so-called "single residence" refers to the criminal suspect or defendant living in the same residence with a third party; the so-called "third party" refers to other persons living together with the criminal suspect or defendant. Such as spouse, parents, children, etc. Because, on the basis of residential surveillance, the Criminal Procedure Law does not distinguish between the two types of residence facts: "single residence" and "mixed residence", but collectively refers to "residence", that is, all criminal suspects; that is to say, all criminal suspects, If the defendant has a fixed residence in his place of residence and meets the conditions for residential surveillance, he can be placed under residential surveillance. Although the legislation does not deprive criminal suspects of their right of residence, it ignores the existence of "third parties" in "mixed living".
Our country's constitution has strict provisions on citizens' personal freedom, that is, "personal freedom" in addition to citizens' personal freedom, usually also includes the inviolability of residence related to personal dignity and personal freedom; communication; Freedom and confidentiality of communications are protected by law. In the process of implementing residential surveillance, the public security organs will inevitably infringe on the basic rights of third parties. If criminal suspects or defendants use "mixed" public telephones to collude in confessions, destroy evidence, or obstruct judicial activities, the public security organs must monitor "mixed" public telephones, such as telephones, mobile phones, and the Internet. , mailboxes, residential areas, vehicles, etc. for inspection. Public security agencies must also inspect public facilities in "mixed residences". The public security organs must inspect and monitor public access facilities such as telephones, mobile phones, Internet, mailboxes, some residences, and transportation vehicles in "mixed households". Inspecting and interrogating third parties will inevitably infringe on the third party's personal integrity. free. Precisely because the concept of "residence" in residential surveillance is unclear and there is no distinction between "single residence" and "mixed residence", this legislation violates the provisions of the Constitution on protecting the basic rights of citizens. To protect the basic rights of citizens, the investigative agencies violated the basic rights of third parties during the implementation of residential surveillance.
2. Residential surveillance is in vain and administrative agencies find it troublesome and abandon it.
Any kind of criminal coercive measures used by judicial organs must be judicially uncontroversial and recognized by the legal community. However, the use of residential surveillance as a criminal coercive measure is controversial for the judicial authorities themselves. This controversy is specifically reflected in the issues of "mixed living", "third persons" and how to deal with public facilities. At the same time, criminal suspects, defendants and their agents also have disputes over the law enforcement actions of the public security organs. The reason lies in legislative issues. The conditions for residential surveillance set by the law are not very perfect.
For example, a certain city's public security agency handles a case of infringement of trade secrets. Multiple suspects in the case "live together" in the location where the case was reported. After reporting to the procuratorate, the arrest was not approved due to insufficient evidence. The public security agency changed the residence under surveillance. In order to prevent the suspects from To prevent criminal suspects from destroying evidence and colluding confessions, residential surveillance is carried out in designated locations by the public security organs. From a legal perspective, the designated place under residential surveillance in this case has some deviations in law enforcement and is a disguised operation. At the same time, when the public, prosecutorial and legal agencies are handling cases, because the concept of residential surveillance is unclear, controversial, risky and costly to use, the case-handling units and personnel find it troublesome to use it and abandon it.
3. The legal provisions are not specific and the operation is very arbitrary.
The provisions on applicable conditions for residential surveillance are too general and not very operable. First of all, Paragraph 2 of Article 51 of the Criminal Procedure Law stipulates that if a person may be sentenced to a penalty of fixed-term imprisonment or more, residential surveillance will not cause social danger. Paragraph 1 of Article 60 of the Criminal Procedure Law stipulates that if there is evidence to prove the facts of the crime, the person may be sentenced to fixed-term imprisonment
Residential surveillance and other methods adopted by criminal suspects and defendants are not enough to prevent social harm. If the person is dangerous and arrest is necessary, he shall be arrested immediately in accordance with the law. It can be seen that the key to the application of arrest and residential surveillance lies in the social danger, and the social danger is difficult to accurately judge and cannot form a unified standard; secondly, the adoption of "can" regulations on residential surveillance intensifies the arbitrariness and inconsistency of the issue of residential surveillance. Certainty, even if the conditions for residential surveillance are met, the decision-making authority can still disagree with residential surveillance, which has extremely free discretion, resulting in residential surveillance being abused in practice.
4. Influenced by economic interests.
The public security organs are the national public security organs and criminal investigation organs. The requirements of the public security organs on the quantity and quality of their personnel are far from being able to meet the current heavy security tasks and the needs of handling criminal cases. In addition, the public security organs are generally short of funds. In order to apply compulsory measures in handling criminal cases, a large amount of manpower and resources have been invested. Material resources are unrealistic. In order to make up for the lack of funds, the investigation agencies adopt the method of "fixing the case according to the case" and "generating income" through residential surveillance. Some case-handling units intervene in economic disputes and conduct residential surveillance in some civil cases, prompting them to "repay the money and release the person." Some case-handling units may adopt public security penalties for some cases, first placing them under residential surveillance and then imposing a fine. Let him go, and then let him go after paying back the money." ", has caused a bad influence among some people of "paying money to buy crimes and let people go"; some law enforcement officers often use residential surveillance to indulge in crimes, which seriously affects the prestige of the judicial organs, causing some cases to lose residential surveillance after the completion of the case, making the Criminals do not receive the due crackdown.
5. Law enforcement thinking and level of law enforcement have not adapted to the new requirements for case handling.
The old ideas in the minds of some investigators. The concept of law enforcement has not been completely changed. In the work, emphasis is placed on entities, light on procedures, emphasis on crackdowns, and light on protection. The pursuit of the number of cases is ignored, and the protection of the legitimate rights and interests of criminal suspects is ignored. First, in order to combat crimes. , some judicial agencies have used detention instead of investigation at the expense of litigants' rights; secondly, the investigative agencies' investigation methods and methods are still relatively backward, and investigation work still relies on arresting people for oral confessions. The old method of conducting investigations based on confessions
6. The supervision of residential surveillance is insufficient.
In actual operations, the three agencies, the People’s Court, the People’s Procuratorate, and the Public Security Bureau, cannot communicate with each other. Mutual constraints, the decision-making and implementation of residential surveillance are concentrated in the three organs of power, public security, procuratorate, and law. There is no clear division of labor and restrictions on the decision-making power of residential surveillance. There is a lack of checks and balances and supervision in the distribution of power, which will inevitably lead to various violations of laws and disciplines, and favoritism. The procuratorate, as a specialized legal supervisory organ, supervises the illegal and criminal acts under surveillance by the investigative agencies only by providing corrective opinions in written or oral form, which lacks strong support. Powerful supervision and safeguard measures are difficult to effectively curb illegal and criminal activities. 7. The approval process is not strict and there is a lack of supervision and restraint.
Due to the lack of supervision and restriction mechanisms, some investigative agencies have established residential surveillance review agencies, but due to lax review and control, the use of residential surveillance is relatively chaotic. For example, some criminal suspects directly take residential surveillance measures without filing a case, and then go through the formalities for filing a case; some do not file a case until the residential surveillance measures are lifted, seriously violating the provisions of the Criminal Procedure Law; some adopt residential surveillance measures against criminal suspects Finally, no formalities were completed during the application process; in some cases, no formalities were completed even until the residential surveillance measures were lifted, resulting in the abuse of residential surveillance.
4. Improve ideas and strategies.
1. Further correct the thinking of law enforcement and enforce the law strictly.
Residential surveillance is a coercive measure with Chinese characteristics determined by my country’s Criminal Procedure Law. Its coercive force is between criminal detention and bail pending trial, and it has its own unique legal status. It is necessary to educate and guide investigation agencies to correctly understand the relationship between case quality and quantity, crackdown and protection, fully understand the importance of enforcing procedural laws, and handle cases strictly in accordance with the law. It is necessary to improve the quality of law enforcement personnel and consciously resist the dual negative effects of profit-driven and law enforcement interference. Based on facts and the law, we must strictly enforce the law and set an example by handling cases in accordance with the law. Internally, we must enhance legal awareness, establish the concept of legal supremacy, and consciously safeguard the authority of the law. Externally, we must be brave and good at resisting and eliminating interference from undesirable factors in all aspects of law enforcement, so that law enforcement officials can decide fairly and fairly whether to adopt residential surveillance measures for criminal suspects and defendants based on facts and the law. to deal with persons under residential surveillance.