The Comparative Study On The Special Criminal Procedure Of Terrorism

This doctoral dissertation includes an introduction, four chapters and a conclusion.Introduction relates the significance of writing this paper. At the beginning, thedissertation straight strikes the reality that the criminal procedure of the anti-terrorism crimesis necessary and important. Countering terrorism has been the most important global focus inthe international security fields. The “war on terror” mode has been proved by the reality to beirrationality. Countering crimes of terrorism by way of mechanism of criminal due processhas increasingly been accepted by the international community. Nowadays, there are greatimprovements about the anti-terrorism criminal legal research in other great powers. Chinahas been confronted with severe situation when countering terrorism, but the theoreticalresearch cannot meet the need of the reality of countering terrorism. In2001, China haspromulgated amendment ⅲ to the criminal law of the people’s republic of China, and theanti-terrorism criminal law research has made lots of achievements. There are important legalfoundations for fighting crimes of terrorism. In contrast, research about the criminalprocedural law is almost none. It is a great regret. In view of this, this doctoral dissertationregards anti-terrorism criminal procedure as the object of study.The first charter mainly introduces the present situation of the terrorism-countering, thedevelopment of international anti-terrorism laws and the mode of countering crimes of terror.The crimes of terrorism have been regarded of one of the three threats we human haveconfronted. So, every country has taken compositive measures to deal with it. In essence, it isa special kind of crime, and countering crimes of terrorism by way of mechanism of criminaldue process is a reasonable way. The author make an introduction and analysis of thelegislative reforms and anti-terrorism realities of the international organizations and the maincountries and regions after the “9·11” terror strike. There are two kinds of mode ofanti-terrorism. One is the “war on terror” mode, which is characterized by America. The warmode is in harmony with the “patriotism” and philosophy of the U.S.A. In fact, the terrorstrikes are not wars, and the object of the war of anti-terrorism is wrong. Also, the results ofthe war are out of the expectation of America. In contract, political tendency on theanti-terrorism fighting has led to great serious human rights crises, which is in essence a dangerous practice. The other is countering crimes of terrorism by way of mechanism ofcriminal due process. It is a relatively reasonable way, and it can make a dynamic balancebetween “crime strikes” and “human rights protection”.The second charter deliberates the conception of the special criminal procedure ofanti-terrorism and its backgrounds.And its theoretic basis and main characteristics are alsodiscussed. In view of its specialties, most countries have made modifications of their originalcriminal procedure laws, and the corresponding reforms have formed some special proceduralrules. The special criminal procedure in this doctoral dissertation is a synthesis of thesespecial rules. There are four basic premises for a special criminal procedure to crimes ofterrorism. Firstly, crimes of terrorism have their specialties comparing with the normal crimes.Secondly, attentions must be paid to the experience and lessons of the internationalcommunity on dealing with terrorism. Thirdly, the UN and other regional internationalorganizations have released and signed many resolutions and conventions, on which thespecial criminal procedure must be rested. Fourthly, there are great academic improvementsabout the criminal justice.There are three theoretic basises must be insistede. One, thesecurities are the supreme interest; Two, the base-lined due process rights must be protectedbeing based on the internatioanal human right laws; Three, a dynamic balance between “crimestrikes” and “human rights protection” must be preserved. In sum, there are some commontrends in the value idea, the procedure design and the factual practice in the criminalprocedure of anti-terrorism, which are conducive to grasp the holistic feature of the specialcriminal procedure, and also are deserve rethinking when making reforms of China’s criminalprocedure law.The third charter discussed the investigative and detains procedure of the crimes ofterrorism by way of country comparative. The specialties of the crimes itself have directeffects on the preventive idea and counter-measure design. Most of countries perverse theprinciple of “prevention first and give consideration to punishment”. The investigationmode has transformed from responsive to initiative. The author takes a comparative study ofthe countries such as America, the UK, Canada, which belonged to the Anglo-American lawsystem and France, German etc. which belonged to the civil law system. We found that thereare many commons in the investigation of the crimes of terrorism, including1. newtechnologies have increasingly been used in criminal investigations, which enhance theefficiency but results in problems of human rights protection;2. The judicial control of the investigative conducts has been loosened as a whole, and the function of the writ to placerestrictions on the powers has weakened;3. The evidence requirements of taking someinvestigative conducts have been lowered;4. The obligation to cooperation with theinvestigation organ of the commons are strengthened;5. The threshold of the evidence to beused in trial hearings has been lowered. The countries belonging to the Anglo-American lawsystem (especially the USA and the UK) have great differences with countries of civil lawsystems such as France and German in procedure idea and lawmaking preparations, so, thereare discrepancy in the investigation procedural law reforms. And the comparative study isconducive for us to dig out the factors having influence on legislative reform of criminalprocedure of anti-terrorism.Detainment is one of the most important measures in criminal proceeding, and thedetainment system is an indicator to weigh whether or not the criminal proceeding isreasonable. The dissertation takes a comparative research and analysis of the detainmentsystems in countries in countering terrorism crimes. To put it more specifically, the Americahas transformed from “.legal vacuum” to “limited review” mode; The Britain implementunlimited detainment system and characteristic control order system; Canada executeirregularly scheduled detainment system on the basis of security certification; The policedetainment system has been strictly observed. The detainment systems of the countries havedifferences in the legal basis, power execution, rigidity of the system and the degree ofrealization of the international human rights regulations. Meanwhile, there are commonproblems. One, the non-nationals are discriminated; Two, the reasonable and due proceduralrights are always deprived in the course of implementing detainment; Three, the detainmentsystem has little control by judicial, and the administrative power is unduly emphasized.The forth charter mainly discussed the structure types of trial court of the crimes ofterrorism by way of comparative research. The trial is the center of a criminal procedure, andit is a criterion for a proceeding. Different countries have different trial types and modebecause of their own security pressure, original systems and value chased. The author made acharacterization and an analysis of the “military court”, the “anti-terrorism court” and theproposed “national security court” in USA. And a discussion is made for the “Diplock trialcourt” in the Northern Ireland of Britain. The author also makes a study of the “double-tracksystem” in Israel. Meanwhile, the corresponding countries such as Spain, France and Germanwhich belonged to the civil law system are also involved in the comparative study. On the basis of that, the author made a conclusion in terms of the function of the subject of trial, thedegree of equilibrium of prosecution and defense, the basis and method of trial, and the rulesof trial. It helps us to known more thoroughly of the theory and practice of the systems of trialof crimes of terrorism.The fifth charter is about the special rules of evidence in the criminal procedure ofcrimes of terrorism. Four questions are discussed in this part:1.How the information obtainedfrom investigative conducts can be used as prosecuting evidence. There are some specialproceedings in foreign countries.2. How to protect the rights of the witnesses and victims interrorism crimes are important. Some special procedural measures are also discussed,especially the special procedure to testify in trial court.3. The burden of prove of theprosecutor is gradually unloaded in the course of prosecution of crimes of terrorism. Theauthor mainly dealt with the questions of rules of simplified burden of proof and specialdistribution rules of burden of proof.4. The standard of proof is lowered in procedure ofcrimes of terrorism; it is a new trend in some countries’ legislation and practice.The sixth charter mainly dealt with the criminal procedure reform and design in China,which is based on the reality of counter-terrorism of China and by way of empirical research.At the beginning, the author introduced the situation and criminal legislation ofcounter-terrorism in China. The cardinal directions of China’s criminal procedure reform, thebasic principles are discussed in this part. Then, some proposals, which is on the basis ofChina’s legislative tradition and existing criminal laws, are brought out to perfect China’scriminal procedure in order to effectively deal with the crimes of terrorism.Conclusion shows the accomplished research and the basic conclusion in the dissertationas well as questions and directions which needed to be studied possibly.