Covert Extended Custody In China

The covert extended custody refers to a sort of substantive illegality, hidden by legal form. Although the time of pre-trail detain hasn’t beyond the limitation, according to the particular facts of the case it is not necessary, which obviously on contrary to the presumption of innocence and the principle of proportionality in custody. Hidden in the legal cases, it is extremely difficulty to perceive and prevent. So it’s more harmful than obvious extended custody. In judicial practice, not all the clearance of extended custody were corrected by accelerating the proceeding, releasing detainees, or any other measures which will protect detainees’ right. A lot of extended custody was adapted to completing the related formalities in procedure, making the substantive illegality have the legal form. The obvious extended custody hasn’t been cure radically.In the investigation stage, the police or procuratorate often make permission to continue detaining the arrestees or recalculate the detention, in consideration of conducting further investigation for detecting evidence, while the detain is not necessary indeed. There are various of conditions of continuing detaining and recalculating the detention. Also the examination and approval procedure are very complicated, resulting in very serious covert extended custody. In the stage of review and prosecution, lack of approval and supervision procedure in law makes the permit of extend maturity universal, and the unnecessary one leading covert extended custody. Some personnel handling the case use the regulation of supplemental investigation to extend maturity, which may cause five months covert extended custody or even more. Once change jurisdiction, the deadline of handle case will be reset, leaving the period of previous detain unconstrained. The period of psychiatric assessment will be excluded the time limit, while the detention is continuous.The lack of independent systems of detention is the basic reason of covert extended custody. The misconduct and the conservative concept are the immediate cause. In China, the subject of approve custody is not judicial, and the conditions of detain is not independent, as well as the place of custody. There are lots of legal loopholes, such as the integration of period of handling case and time limit of custody, no definite legal basis of extend the period of handling case, non-division of time limit of petty crime and severe crime, non-division of time of custody, which make enough room for covert extended custody. Lots of hidden rules in juridical practice make personnel handling the case accustomed to take advantage of these legal loopholes. Prolonging time limit of custody randomly is very common in juridical practice. The subtraction of term of penalty makes the pre-trail punitive, and provides the extended custody legal form. The lack of judicial remedy to pre-trial detention results that it’s very hard to detainees to struggle for rights. The procuratorate doesn’t execute its duty of supervision fully, and the inefficient supervision to detention causes the covert extended custody.In order to solve the problems of covert extended custody, we should perfect legislation. First, establish the independent pretrial custody system, clearly stipulate that the authorization of detain must be made by judge. Set up time limit of custody according to principle of appropriateness and definitude of a legal longest time limit. We should perfect the stipulation of law about the period of handling case, such as making explanations about conditions of extend the period of handling case definitely, conduct a judicial review about the necessity of custody as long as extending the period of handling case, control the prolonged of detention time strictly. Secondly, we should standard the juridical practice and lead the old judicial philosophy to modern ones. It is very important to emphasize the principle that pretrial detain should only be an exceptional measure. Thirdly, we should strengthen supervision on pretrial detain and establish the punishment to behavior of violation of time limit of custody. Also, the government shall increase financial input into judicature as well as carry out more professional attainment training for raising judicial efficiency. In case of using the guilty verdicts wipe off covert extended custody, we should establish the judicial review about pretrial detention at trail, and offset a prison term based on the calculation formula of legal pretrial detention with double, according to the period of covert extended custody. Fourthly, we should establish the discretional review of time limit of custody to prevent the abuse of detaining power and protect personal freedom. Only in these ways, can we solve the problems of covert extended custody fundamentally.