"The presence of a lawyer right" must be viable and

Following the 1996 to 1979, "Criminal Procedure" to conduct a comprehensive amendment, after more than 10 years of implementation, "Criminal Procedure Code" has revealed a number of issues. Now, "the Code of Criminal Procedure," the amendment has been included in the 2007 legislative plan of the NPC Standing Committee, of which the most controversial, was questioned in the investigation, "the presence of a lawyer right".

The media widely reported the She Xianglin wronged case stems from extorting confessions by torture. She imprisonment in the 11, only because his wife suddenly returned to renounce grievances. After release, She Xianglin was suffered by their physical and mental pain description said: "I was beaten, corporal punishment, torture, as long as 10 days Yougong 11 nights," "They were divided into several groups of trial I, sleep deprivation, then I see what are the ghost. " This is probably a more extreme case. China's departments in the investigation of the practice, because of over-reliance on the statement, the force, lured the suspects statements have occurred, particularly in difficult to verify certain facts, the evidence it is difficult to determine the types of cases, more so.







Such as bribery case. In recent years, the bribery case before the courts have a regular phenomenon: In the early period under review, for taking bribes facts and circumstances of the confession more stable, more consistent before and after, the transfer's Procuratorate began to appear after estoppel, and access to court proceedings followed by a more And more people Hanyuan reverse the verdict and claimed that the previous statements due to torture. Court adopted the practice or not the letter, or request the relevant information note issued by investigators confirmed that no acts of torture, to exclude judges reasonable doubt.

Written by the parties themselves to prove the existence of negative extorting confessions by torture, then confirm the legitimacy of the accused and the authenticity of statements, this somewhat ridiculous, it is a last resort option. The reason is that "the Code of Criminal Procedure," the investigators provided the suspect's interrogation is difficult to supervise the disadvantages of not knowing the outside world, their own lack of convincing proof, with the result that two-way hurt: the criminal suspects, If torture really be subject to grievance, but if there is no obvious injury or wound has healed, it is difficult to deny the legitimacy of false statements, only Hanyuan imprisonment; questioning the implementation of the investigators, in case of dispute People often tend to authorized torture and other violations exist, then it is difficult for them to self-clean, the image of the investigating authorities is not a small injury.

Therefore, law experts generally think that in order to put an end to torture in criminal proceedings in question, we must introduce a "right to a lawyer present." Must be clear, officers questioned in the investigation, the presence of a lawyer is not only the right to counsel, even criminal suspects of their rights. Because criminal proceedings in criminal suspects in a weak position in its lawyers to be questioned in a scene so that "the state respects and safeguards human rights" and "defend the accused was" implement the constitutional rights.

Provisions of this right, of course, the current investigation will bring the work of the department no small challenge, so the investigation department took a different view. They believe that the investigation work of the interrogation of criminal suspects is still quite dependent, worried that provisions of the presence of a lawyer, criminal suspects may be emboldened, and refused to provide circumstances of the case, many cases of the investigation work will be greatly affected. Another police issue, a matter of time (to be provided within 24 hours of interrogation difficult arrangements), the lack of adequate resources lawyers, and so on. These are the real problem exists objectively, law experts who pop a compromise choice that the limit on some major problems in the case, given the right to a lawyer present more realistic.

"The presence of a lawyer the right to" challenge, not only is the investigation department, in the protection of individual rights has long been the prevailing shortage. If there is no equal protection for all, any of us could in life and become excluded from that part. China's criminal policies of the past "Buwang if not," the guidelines, in fact, this is an ideal state, in practice not possible to fully realized. In fact, evidence must be "really, fully," the request, should be "vertical Bu Wang Ning." For each object was the investigation, "the presence of a lawyer right" means that the constitutional rights of individuals can truly implemented, then the She Xianglin, it means that all the freedom, future and hope. Compared with other legal interests, the protection of human rights should be given priority consideration. From the above sense, not only the investigation department, "conditions are not ripe" for difficult foothold, it is also not tenable compromise choice, because it "citizens are equal before the law" directly contravene the provisions of the Constitution.

I think that, in accordance with the "Constitution" and the relevant provisions of China's criminal investigation of the objective situation, "the Code of Criminal Procedure," the amendment can consider the following: investigators at the first interrogation of the suspect, or to take coercive measures, should be informed Criminal suspects the right to hire a lawyer to provide legal advice, complaints against agents, criminal suspects in the subsequent questioning of the right to request the presence of their defence lawyers. Crime suspects who requested the presence of his defence lawyers, investigators should be suspended questioning, timely notice of their defence lawyers arrived at the scene. For failure to inform or notify the suspect's lawyer arrived at the scene, resulting in the presence of the defence lawyers failed, interrogation transcripts invalid. Investigators should be informed of the formation of written transcripts, and the signature Fujuan criminal suspects. This provides not only highlights the "presence of a lawyer right" and take care of the investigation department first time questioning the objective situation of urgency, it should be feasible.