Research On Criminal Detention

Criminal detention,a peculiar compulsory measure in criminal proceedings in our country,has a very high rate of application,and plays an important role in the entire criminal prosecution activity.Criminal detention is widely criticized and queried by academic circles because of the following reasons: this measure is only determined by the investigative organ;the decision and the whole process of execution lack for effective external supervision;the longest period of the deprivation of personal freedom of criminal suspects can last 37 days;it is common to be abused in practice;and so on.In the previous amendments of Criminal Procedural Law,most of the academic advice was not approved;On the contrary,the regulations related to criminal detention system shows unusual stability,while the degree of Rule of Law of the system of compulsory measures is overall increasing.Criminal detention system has become a short board of the Rule of Law in Criminal Procedure Law.It still has a long distance with the “minimum standards” of criminal justice in the international conventions on human rights.The thesis starts from the conception and reconstruction of criminal detention,analyzing the misunderstanding of the existing points of view and redefining the criminal detention as a compulsory measure.Based on this,the thesis conducts the normative analysis of criminal detention system in existing laws and the empirical analysis of the application in public security organ,which has the highest rate of application and the biggest question.In the end,the thesis refers to the “minimum standards” in the international conventions on human rights to protect the personal freedom of the accused,and recommended suggestions on the improvement of criminal detention system.The full text,which has four chapters,is about 170000 words.The first chapter is the normative analysis of criminal detention system.By comparing the current system and existing points of view,the thesis finds that academic points of view are not renewing with the change of system,so that can not accurately response to the characteristics of criminal detention in existing laws.As to the criminal detention in existing laws,not all applicable conditions have the characteristic of urgency,and detained period is longer than the public understanding of the concept of temporary.Various measures have confused positions,mixed functions and disordering application.The function of being present in court has existed in name only,while the guarantee of investigation has become the most important function.As the result,the concept of criminal detention shall be updated to: a compulsory measure determined by the investigative subject,depriving the personal freedom of criminal suspects within a certain period of time,to ensure investigative activities carried on smoothly.On the basis of redefining criminal detention,the thesis considers that criminal detention system is not a simple compulsory measure outlined by several provisions in Criminal Procedure Law,but a “ecosystem” constructed jointly by relevant laws and regulations,judicial interpretations and other regulatory documents.It includes the whole process of review,decision and implementation.It also includes various investigative activities taken by the investigative organ,such as interrogation,identify,personal checks,etc.,involving the dynamic balance between the investigative power and the rights of criminal suspects,and between internal power control and external power restriction.In the meantime,the procedural rights of criminal suspects,such as the right of defense and not be forced to incriminate himself and so on,can be achieved effectively only if the investigative organ carries out the obligations to the full.It can be said that criminal detention system reflects the basic attitude of the investigation organ to criminal suspects at the early stage of investigation.Before criminal detention,the investigative organ and investigator make the criminal suspect suffer investigation by measures as subpoena,summon by force,interrogating retention(with continuing interrogation)and so on.After personal check,information acquisition and interrogation,the investigator applies to examine and approve criminal detention,according to the evidence and material obtained.Inside the investigative organ,which mainly consists of the public security organ,has built a procedure of examination and approval containing five levels and involving different departments.Because of different investigative subjects,the decision and execution criminal detention program are also different slightly.In 1954,the law regulated that the investigative organ should inform the procuratorate within 24 hours;in 1979 the law regulated that the investigative organ should submit to examine and approve of arrest within 3 days after the detention,and the period can be extended 1 to 4 days with special cases;in 1996,the law which absorbed the measure of detain for interrogation,extended the period of submitting to examine and approve of arrest after detention to 30 days in “three kinds of cases”.The period of criminal detention has experienced a process of constant extending.During the period of criminal detention,the criminal suspect shall have the rights to know the reason of the criminal detention and other procedural rights,to advocacy by mandate and meet the lawyer without monitor.Criminal Procedure Law in 2012 clearly prohibits the investigative organ from forcing anyone to prove his or her guilty as its prohibitive obligation,but still retains the clause of “answering accurately”,which are in contradiction obviously.After establishing the rules of illegal evidence exclusion,the detained suspect can ask to state before the procuratorial personnel during the program of examining and approving of arrest.This is an important way for the detained suspect to apply for exclusion of illegal evidence.The second chapter is the empirical analysis mainly about the application of criminal detention by the public security organ.Through statistical analysis,the thesis considers that criminal detention has the highest rate of application in investigative practice of compulsory measures: the general rate is more than ninety percent;in different regions,the applicable rates differ with the influence of factors such as the mode and practice of the investigative organ case handling,the pilot criminal justice reform,and so on;in the same area,the factors such as the gravity of the alleged crime,the frequency of this kind of crime,the social risk of the criminal suspect,the difficulty of investigation and evidence collection,and so on,influence the investigator to make a criminal detention decision.Since the implementation of Criminal Procedure Law in 2012,because of the adjustment and improvement of the internal working mechanism of the investigation organ,there have been some changes of the application of criminal detention.Although the situation of extending the period of detention is still outstanding,the period of deprivation of personal freedom of the suspect shows a decreasing tendency as a whole.in general suspect time shorten the trend;and changes from detention to arrest decrease,while changes to bail increase instead.The thesis gets to know how policemen deal with criminal cases,through interviews with them as well as the basic level investigative department and legal department of the public security organ.In practice,the police do not distinguish the character of the case(incident)while get the call.They take the suspect to the police and interrogate to decide whether treat it as a criminal case,and go through the relevant procedures.Interrogation is an important work to decide the character of a case.According to the results of interrogation in combination with other evidence and material,investigative policemen submit for approval of detaining certain suspect through “the law enforcement and case handling system”.After five steps of examining and approving from the investigative policeman to the legal member of the department,the person in charge of investigative department,the legal policeman,and the person in charge of the public security organ above the county level,criminal detention is approved and the detention certificate can be printed.At present,“the law enforcement and case handling system” has popularized in the national public security organs,as well as the team of legal members has been established and the quality is improving,so that the internal examination and approval of criminal detention has a good effect of power control.At the request of the unified examination and exit,the legal police have formed the unified idea and evidence requirements of the examination and approval of criminal detention.In the recent reform of criminal justice,some changes as to the working mechanism of criminal detention also have taken place.Reforms,such as the experimental unit of criminal speed cutting procedure,the rapid conducting mechanism of minor criminal cases,and so on,require the public security organ shorten the period of detention,dealing with minor criminal cases promptly.The third chapter uses comparison method to analyze the regulations in the major international conventions relating to depriving of personal freedom in the penal prosecution activities.The thesis focuses on the requirements of protecting personal freedom in the European Convention on Human Rights and the judicial precedents of the European Court of Human Rights,the development and strengthening of protecting the procedural rights of the accused by the European Union,as well as the criminal in international conventions on human rights relating to the personal freedom security standards and requirements within the framework of the United Nations.International conventions on human rights and criminal judicial criteria require that deprivation of accused person’s personal freedom shall be conducted in accordance with the law,which itself should have corresponding quality,and the suspect should be taken to a judge or other official who exercises judicial authority authorized by the law as soon as possible after the arrest.During the detention after arresting,the suspect has sufficient procedural rights,and should be able to effectively exercise,so as to protect the right of liberty and other basic rights from the infringement of the public power.The fourth chapter puts forward the guiding ideology,basic principles and specific recommendations to perfect the criminal detention system,on the basis of the former three chapters.Criminal detention involves the personal freedom of individual citizens,and the guarantee of basic rights should be valued from the perspective of the constitution.Adhering to the balance between punishing crimes and protecting human rights,the personal freedom protecting mode of “using right to restrict power” should be built.Under the background of criminal judicial reform,an overall plan should be made and a scheme to perfect should be scientifically planed.We should refer to the requirements of international criminal judicial criteria,perform our duty according to international laws,and shape the image of a responsible big country.In the process of establishing the rules,we should insist on the principle of legal procedures,the principle of separation of powers and the principle of proportion.In terms of specific measures,the thesis proposes the improvement idea of criminal detention system from five aspects:First,clarify the status and function of criminal detention in legislation.Second,reasonable design the system of measures to the case.Design undocumented detention against suspects who are committing a crime,and clearly stipulate that the object of summoning and arrest shall be made,the system of measures to the case against the suspects who are not committing crime shall be perfected.Third,improve the decision and enforcement procedures for criminal detention,the establishment of judicial detention mechanism.Fourth,clearly stipulates the criminal suspect’s litigation rights and safeguard measures.Fifth,improve the state of criminal detention for criminal detention.In this way,investigators and investigators will have a sense of responsibility to strictly comply with the provisions of the law on criminal detention procedures and deadlines.