Program ideas to curb torture - the right to control the angle detection

Although torture is expressly prohibited by our Laws, but in judicial practice is still widespread in there. I believe that the root cause of the repeated abuse of the right to the investigation could not be effectively controlled. This is mainly reflected in the following aspects: First, crime suspect, the lack of rights of the accused, can not achieve the necessary counterbalance to state power, the incidence of torture is inevitable. The second is the lack of pre-trial procedures and effective checks and balances of power, inevitable abuse of power investigation. In our investigation procedure , due to the lack of involvement of a neutral judicial body, is difficult to achieve timely and effective protection of the rights of Criminal suspects. Third Interrogation programming rough, leading to investigation and interrogation and torture of multiple randomness. Fourth, the lack of the appropriate rules of evidence, such as illegal evidence exclusion rule. Although the Supreme Court excluded by judicial interpretation of the evidence of illegal words, but for various reasons, torture to obtain confessions in practice is still used as the basis for deciding that judicial The results will definitely increase the spread of torture. visible to curb torture is a systematic project, rely on a legal system to be ineffective. But I believe that the right to follow in order to restrict power to the power of checks and balances to the powers and the procedural norms the idea of the results of the process of regulation, the right to be healthy on the detection and effective control, construction of the legal mechanisms to curb torture, the illegal and Criminal acts will be reduced to a minimum.

First, the right to restrict: the prosecution of defense forces to strengthen pArty
(I established the presumption of innocence
Presumption of innocence after the victory of the bourgeois revolution, the presumption of guilt against the feudal establishment of an important principle of Criminal justice for the modern rule of Law generally recognized. Its basic meaning is: in Criminal proceedings, any person subject to Criminal prosecution in without a court decision until proved guilty according to Law, shall be presumed innocent.

Criminal Procedure Law of the provisions of Article 12 While the principle of absorption of the spirit, but the provisions of the conservative legislature also confirmed China's consistent position: not only against the presumption of guilt, are opposed to the presumption of innocence. In judicial practice , the concept of presumption of innocence can not be acceptable for the majority of judicial workers, which is so much torture in the investigation stage one of the important reasons. Since the presumption of innocence is based on the protection of human rights of defendants on the basis of , for curbing torture is of great significance: 1, protection of fundamental human rights of persons being prosecuted. As a concept, the presumption of innocence should be placed deep in the heArts of judicial staff, always pay attention to protection of the rights of criminal suspects, .2 prevent the occurrence of violations, clearly the burden of proof, and strengthen the concept of evidence. the presumption of innocence as a legal presumption can be rebutted, but the burden of proof by the prosecution. in order to overthrow the presumption of innocence, The prosecution must introduce sufficient evidence did, not to extract confessions of suspects .3, stressed the importance of due process, that is through legal procedures to maintain the human rights of criminal suspects, such as in criminal proceedings, the defendants shall be fully protected right to defense, and to ensure their access to the right of public trial according to Law.

(B give criminal suspects and defendants against forced self-incrimination privilege
Against forced self-incrimination privilege of the modern rule of law is an important pArt of the criminal justice standards. China in October 1998 signed the United Nations <<International Covenant on Civil and Political Rights>> Article 14, paragraph 3 (g provides that "subject to Criminal prosecution of the person shall be compelled to testify against his testimony or to confess guilt. "This privilege actually covers three rights: the rights of one against forced confessions, and second, right to silence and right to be informed and the third is the right of voluntary confession. three organic form of the privilege.

Establish the basis for the privilege mainly due to: 1, philosophical basis. People, man is based on the person's free will, it will make people free to become the subject of social life. Even if the alleged crime, the human will is not free to interfere with freedom of . the suspect is the subject of criminal proceedings, he has the right to decide whether statements and the statements of the content, the right to oppose any party from the proceedings of any form of forced .2, moral basis. that people do not violate their obligations, that is, "Let a person to act as his own grave-diggers is wrong." 3, the legal basis. Our Constitution gives citizens the right to freedom of speech, freedom of expression includes both the freedom of speech content, but also including the freedom of speech. It should be said including the right to remain silent and voluntary confession, including the right of this privilege is consistent with the .4 Constitution, due process under. of the privilege afforded to the prosecution side and the prosecution Fangxiang the ability to compete, help maintain a balanced defense and prosecution to achieve procedural fairness .

(C questioned in the investigation stage to give lawyers the right to the presence of
Investigative interrogation of criminal suspects, with or without the presence of the right to counsel, the provisions of two legal systems quite different. Common law right to protection from the point of view, to give counsel when the investigation stage presence interrogate suspects the right and give programs more fully protection. facts of the case for consideration of Civil law, some countries do not have the right to give the presence of lawyers, such as Germany, France, Japan and so on. Article 96 of China's Criminal Procedure Law of the investigative phase of the criminal suspect may appoint a lawyer for legal assistance But for the "present right" of the right but not the most critical requirement, which is obviously take into account the ability of the present investigation agencies and lawyers involved in handling psychological endurance. No doubt, the presence of the right to a lawyer on whether the investigation of illegal a strong control measures is an effective means to prevent the torture occurred. and other rights lawyer compared it to the maintenance of the legitimate rights of criminal suspects and prevent the occurrence of torture has an unparalleled, critical role. the presence of the right to be suspect, the lawyers argued, by the investigating authorities to protect it. attorney investigators questioned the violations that occurred on the spot advice, not to correct for the right to sue the judiciary.

Second, the power balance: effective control of the investigation right
(A mechanism for the introduction of judicial review
Judicial review of the modern rule of law principle is generally followed the rule of law program, the core idea is to give full play the role of the Court's judicial activism on the national review of the legality of coercive power to protect the rights of individual citizens the right to not enforce state law violations. in criminal proceedings, the principle requires, without court authorization and review, not the arrest of citizens, detention and other compulsory measures as well as search, seizure, wiretapping and other investigative measures mandatory.

Present in large numbers of criminal investigation procedures in the torture, extended detention and other issues, the recovery of their actions on the root causes of system is the lack of an effective power control mechanism. In the Procedure before the existence of prosecution side only unilateral use of power Only the defendants and the prosecution of the Defendants between stark lack of a detached and neutral judicial activities on the prosecution side of the legal review that the suspect, the lack of effective protection of human rights, making the detection of loss of the right to use the necessary judicial control, torture and other illegal activities is difficult to be effectively curbed.

To prevent abuse of power Detective parties to curb torture and other illegal activities in China is necessary to establish the judicial pre-trial review system will be introduced ahead of a neutral judicial investigation procedure, the right to control the judicial power of investigation, investigative activities to achieve the heterogeneity of supervision. the one hand, the Civil liberty of the detention, arrest and other enforcement measures for the approval and conducted by a neutral judiciary and judicial review of judicial authorization, to break the current custodial coercive measures taken by the authorities and police were monopolize the market, to prevent excessive expansion of the right to Detective. Meanwhile, custodial coercive measures should be used with caution, and a special hearing procedures by increasing the proportion of bail to minimize unnecessary detention. detention has decreased, torture lose which occurred in the environment. On the other hand, criminal suspects and defendants have the right to apply for the unjust detention after the judicial relief. If there is no evidence to arrest or subjected to torture during detention, and may apply to the Court application for judicial review, an investigation has revealed that the previous improper detention should be abolished compulsory measures. reposted elsewhere in the Research Papers Download http://www.hi138.com (b establish the real separation of investigation and detention
In the criminal proceedings, criminal suspects from being detained, arrested, detained in detention centers are duly made until the court decision. Although the internal investigation in the public security organs have different functions and custodial management of the division of responsibilities, but the two leaders belong to the public security organs it is an indisputable fact that unity of purpose to combat crime, the driver makes the common interests of the investigation and detention within the restrictive relationship exists in name only, for collection of evidence, as soon as possible need to break the crime, investigators are usually long, the suspect set under its direct control, which torture occurred.

I recommend will be responsible for managing the detention center custody separated from the public security system, to change the jurisdiction of the judicial administrative body, to achieve the neutrality of the detention center. This investigation by the public security organ to exercise the right to the collection of evidence, the fact that the identification and detention in custody solely on the management, in a neutral, detached position to realize the suspect, the defendant's human rights protection, the right to play an effective role on the detection of the role of external constraints. this should be modified to <<People's Republic of Detention Ordinance>> clear the neutrality of the detention center, will protect the rights of detainees clearly an important function as a detention center, and the establishment of the matching system.

Third, the program improved: Interrogation procedures standardization
1. Clear evidence of the conditions examined. On the condition began to Investigation and Interrogation, in particular, evidence of conditions, there is no clear provisions of the Criminal Procedure Law. Is generally believed that, as long as has been filed, interrogation of criminal suspects is legal, arbitrary questioning the larger , encouraged the "confession centrism." In this regard, I believe that conditions should be questioning the evidence is that investigators have a reasonable basis to suspect there is a major suspect to commit the crime. If at the scene saw the victim or the crime he is identified , or in the side or the residence found evidence of a crime, and so on. The standard of evidence than the arrest condition is the minimum standard of investigation and interrogation.

2. Improve the rights of this program. Interrogation of criminal suspects is a necessary investigation procedures, to ensure fairness of the proceedings, investigators in the interrogation of criminal suspects should fulfill the obligation to prevent violations from occurring. Need to tell the right main including: (1 against forced self-incrimination privilege, should be clearly informed of the right to remain silent. (2 self-defense. (3, right to counsel. (4 judicial review and judicial relief. the specific content should be made of this "rights card "so unified and efficient.

3. To the interrogation of the time, location restrictions. Should be clearly prohibited by the Criminal Procedure Law and its exceptions night interrogation, provides an examination of the suspect in custody the longest time, the minimum time interval between two interrogation and the minors, special provisions for pregnant women, examination should be conducted in designated places of detention, except for special cases stipulated by law. Meanwhile, the response to the legal consequences of violating the above provisions shall be provided.

4. Full use of audio, video record the questioning. The use of audio, video and data recording process of questioning by investigators, the move abroad (such as the UK experience has been successful in recent years, judicial practice in China has also begun to use, to prevent or detect acts of torture. To ensure the recording, the recording of objectivity, and audiovisual materials should be questioning the production staff and management to isolate. this can be fixed examination sites, automatically recording method, conditions are not have, by the hand camera, person responsible for custody.

Fourth, the results of regulation: the establishment of illegal evidence exclusion rules
1984, United Nations, through the <<against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment>> Article 15 clearly stipulates: "Each State Party shall ensure that in any proceedings, shall not be invoked any established to torture to obtain confession as evidence, but such statements can be used as those accused of torture evidence of torture to extract confessions. "
China's Criminal Procedure Law of illegal evidence exclusion rule has not been established, but the Supreme Court's judicial interpretation of the evidence ruled out the effect of illegal words, this is a definite progress. For the illegal evidence exclusion rules, I propose the following provisions: the violation of Civil constitutional right to evidence obtained illegally, such as through torture, illegal searches, illegal detention and violation of the right of suspects to obtain evidence for the defense, not as the basis for deciding. the illegal evidence obtained by torture is removed completely, the result will be from back the source, blocking the torture of the wicked. and adapt to this, I suggest the addition of two provisions in the Code of Criminal Procedure:
1. To give criminal suspects the right to apply for physical examination (inspection injury rights. The light of foreign legislative cases, physical inspection can be used as the suspect to the provisions of the obligation can also be a right as a suspect in the case of occurrence of torture , by the suspect or his lawyers argued. This timely collection of evidence that torture is necessary, but also for the realization of illegal evidence exclusion rule provides the conditions.

2. Illegal issue of the admissibility of evidence of the implementation of "burden of proof" principle. That is, from the prosecution (proof of torture behavior Detective Party does not exist, such as the burden of proof that they do not, then finds torture exists, unlawfully obtained confession Jibei ruled out. This is because: first, the prosecution has the burden of proof necessary. It is by its nature of judicial staff, and in strict accordance with the law of evidence requested by judicial officers, when on the legal evidence of a dispute, are obliged to prove that Detective circumstances. Second, the prosecution has the burden of proof possibilities. from the evidence from the convenience of proximity and degree of evidence is concerned, Detective square susceptible of proof than the prosecution more. especially in the former mentioned above, synchronous video monitoring system, the burden of proof by the Detective side easier, more efficient, fair and efficient requirements. Finally, patients from abroad to see the legislation, taken in defendant confessed in court breach of its voluntary nature, the police are liable for that obligation. Links http://www.hi138.com Research Papers Download