Innovative measures of procuratorial organs in many places promote the reduction of pre-litigation detention rate

  Develop "non-custodial codes" to increase the application rate of alternative detention measures

  □ Our reporter Cai Changchun

  □ Our newspaper trainee reporter Yang Jiayi

  The manager of a company in Hangzhou, Zhejiang Province, Mr. Shi, privately increased the proportion of business settlement payments that the company subcontracted to suppliers, and transferred the overpayment of 150,000 yuan to his account.

After arriving at the case, he truthfully confessed the facts of the crime and obtained the understanding of the full refund of the stolen money, and was released on bail pending trial in September 2020.

During the release of the guarantee, Shi checked in on the "non-custodial code" and accepted the subpoena as required, without violating relevant laws and regulations.

After the case was transferred to the procuratorate for review and prosecution, considering the circumstances of the case, Shi's attitude and performance of pleading guilty, the procuratorate recommended to the court a suspended sentence.

  This is a microcosm of innovative measures in recent years to promote the reduction of pre-litigation detention rates.

  "In 2020, the nationwide procuratorial organs have achieved significant results in reducing unnecessary detention, and the pre-litigation detention rate hit a record low, from 65.91% in 2019 to 53.61% in 2020." On the eve of the "Two Sessions" across the country this year, the First Procuratorate of the Supreme People's Procuratorate Minister Miao Shengming said in an interview with the media.

  Pre-prosecution detention generally refers to the arrest and detention of criminal suspects carried out by the public security organ after the arrest is approved by the procuratorial organ before the prosecution is initiated.

The pre-trial detention rate is usually calculated as the ratio of the number of people detained during the prosecution to the total number of prosecutors filed by the procuratorial organ.

The purpose of pre-trial detention is to prevent the accused from evading trial, colluding with confessions, obstructing the witness’s testimony, etc. It is a procedural safeguard measure, but excessive detention often means excessive detention.

  In recent years, the rate of pre-litigation detention in my country has shown a gradual decrease.

Is there room for further reduction in the detention rate?

What innovative measures are taken by the prosecutors to reduce the detention rate?

With these questions in mind, reporters from the Rule of Law Daily interviewed procuratorial organs and related experts in many places.

There is room for the rate of detention before litigation to be reduced

  The proportion of serious crimes continues to decline, and the number of misdemeanors continues to rise-in recent years, my country's crime structure has shown significant changes.

This year’s Supreme Prosecutor’s Work Report pointed out that the number of cases sentenced to less than three years’ imprisonment or less has increased from 53.9% in 2000 to 77.4% in 2020.

  According to estimates from local procuratorial organs’ case-handling data and work reports, the areas with the lowest detention rates are currently concentrated in Jiangsu and Shandong. In 2020, the detention rates in both provinces will both drop to around 30%.

  Traditional felony cases such as “serious violence”, two robberies, “pornography, gambling, and drugs” have been declining year by year, and the proportion of misdemeanor cases has increased year by year. In Suzhou, the proportion of crimes committed by the foreign population exceeds 85%, and the number of criminal cases is not only large The types are becoming increasingly complex." Ming Wenjian, director of the First Procuratorial Department of the People’s Procuratorate of Suzhou City, Jiangsu Province, believes that from the perspective of traditional case handling thinking, more detention measures are used in the investigation stage, but from the perspective of protecting human rights and resolving contradictions, the procuratorial organs Non-custodial compulsory measures should be actively explored, which is a requirement for the modernization of governance capabilities.

  Lin Xifen, a professor at the Kaiyuan Law School of Shanghai Jiaotong University, believes that judging from the current situation that minor criminal cases account for about 80%, the pre-litigation detention rate in my country is still relatively high, and there is still room for further reduction in the future.

  "The reasons for the high rate of detention before prosecution in our country are comprehensive." Lin Xifen told reporters that my country's criminal acts delineated by the criminal law are generally biased. In the process of prosecution, suspects are more likely to be taken into custody. Traditionally, more attention was paid to fighting crime, and at one time, indicators such as "arrest rate" were more important in assessment.

  "In terms of grasping the conditions of arrest, the tendency of'arrest for crimes is obvious'. Case-handling personnel attach importance to evidence conditions and relatively ignore penal conditions and social risk conditions. The review system for the necessity of detention after arrest has not played its due role either." Lin Xifen further stated that, in practice, it is relatively insufficient to remove unnecessary detention through the necessity of detention review.

Innovative alternative detention measures in many places

  "The high rate of detention is due to the fact that some law enforcement and judicial personnel did not accurately understand the conditions of arrest in the law, and did not implement the criminal justice policy of fewer arrests and cautions. This not only increases litigation costs, but also is not conducive to resolving contradictions." Ming Wenjian said frankly. .

  In order to effectively reduce the rate of pre-litigation detention, procuratorial organs in Suzhou, Zhejiang, Hangzhou, Shandong Dongying and other places changed their judicial concepts in a timely manner, and continuously increased the application rate of alternative detention measures such as release on guarantee pending trial.

  The procuratorate of Suzhou City overcomes the inertia of thinking of “just arrest if a crime is constructed” and actively maintains communication with the public security organs, provides them with training, and regularly compiles and issues analysis reports of non-arrest cases and feeds them back to the public security organs.

  Beginning in 2009, the Suzhou City Procuratorate invited the local public security agency to provide evidence of the “necessity of arrest” when arresting, and formed a working practice; in 2014, it jointly issued relevant regulations with the Municipal Public Security Bureau to force investigators to focus on collecting evidence Prove the social danger and guide the prosecutors to shift the focus of the review of arrest cases from only focusing on conviction and sentencing to simultaneously focusing on preventing social danger.

  In practice, the Suzhou City Procuratorate has widely used the system of lenient admission of guilty and punished punishment, provided the defendant with a stable psychological expectation by determining the sentence and sentencing recommendations. At the same time, it has introduced mechanisms such as the diversion of complicated criminal cases and the one-stop direct sentence of criminal detention, which greatly reduces the length of litigation. The phenomenon of insurance is greatly reduced.

Since 2007, the court has also stipulated that the innocence, non-prosecution, withdrawal and withdrawal of the case after arrest shall be regarded as wrongful cases, and cases such as those sentenced to control, detention, and single fines for natural persons after arrest shall be included in the scope of imperfect quality of arrests, and rigid measures shall be adopted. Promoting the rule of law concept of "guarantee is the norm, and detention is the exception" penetrates into the hearts of prosecutors.

  "The defendants sentenced to more than ten years in prison in Hangzhou only accounted for about 2% to 3% of the total number of crimes." In fact, non-custodial measures can be applied to criminal suspects sentenced to a fixed-term imprisonment of less than ten years.

  In order to reduce unnecessary detention and ensure that the criminal suspect arrives in time, the Hangzhou City Procuratorate has also formed a special development team with the Municipal Public Security Bureau to jointly develop the "non-custodial code" App and use digital empowerment to ensure that the criminal suspect is under necessary control. Return to daily life.

  Sang Tao told reporters that since the "non-custodial code" was officially put into use in October last year, the pre-litigation detention rate in Hangzhou has dropped below 50% for the first time.

  The People's Procuratorate of Hekou District of Dongying City has stabilized the detention rate before the lawsuit at about 20% in recent years. This is due to the trial work that the court has explored and carried out to review the necessity of detention since 2012.

  Divert and filter before arrest, try not to arrest those who can not be arrested, and actively promote the litigation of review and arrest methods to reduce detention from the source; the necessity of detention after arrest is continuously reviewed, and the state of custody can be changed at any time... Hekou District Procuratorate through the use of smart hands The Huanhe mobile phone applet realizes the all-day positioning of criminal suspects and defendants who apply non-custodial measures.

  Over the years, the Hekou District Procuratorate has worked closely with the courts, public security, judicial administration, and social forces to effectively protect the legitimate rights and interests of people who are not required to be detained.

 Social risk assessment needs to be improved

  Regarding the obvious decline in the pre-litigation detention rate in some areas in recent years, Lin Xifen believes that it should be treated rationally. On the one hand, the decline in the detention rate is directly related to the revision of the Criminal Procedure Law and the update of the concept of arrest. On the other hand, my country’s criminal legislation There is a trend towards stricter and lighter sentences in the establishment of crimes and penalties. The sharp increase in light sentence cases that do not apply arrest measures has also contributed to the decline in the detention rate to a certain extent.

  But Lin Xifen also noticed that the current overall detention rate in my country is still relatively high.

  How to change this status quo?

In Lin Xifen’s view, the most important thing is to build an arrest condition review mechanism with social risk as the core, clarify the progressive relationship among the evidence elements, penal elements, and social risk elements, and highlight the role of social risk review in regulating arrests. The key role in application.

  "At the same time, it is necessary to promote the quantitative proof of social risks, encourage the development of technologies such as artificial intelligence and big data, and assist case-handling personnel to more scientifically assess the level of social risks and make more reasonable arrest decisions." Lin Xifen added.

  As a special type of criminal suspects and defendants, the minors involved are also facing the dilemma of "general detention", "extended detention" and "detention to the end".

  “At present, the condition of pre-litigation detention of juvenile criminal suspects has improved, but the arrest rate is still high.” As an example of self-regulation, the associate professor of Law School of Chongqing University said, for example, in some coastal areas with frequent population movements, the non-local household registration is involved in crimes. Adults cannot provide effective guarantees. In order to ensure the smooth progress of litigation activities, procuratorial organs often have to take detention measures against them.

  “In fact, in recent years, the crime rate, felony rate, and recidivism rate of minors have all been on the decline.” According to the law of self-regulation, in order to further reduce the rate of minors involved in crimes and the overall detention rate, procuratorial organs should implement detailed review of the necessity of detention. Procedures, improve the social risk assessment system for criminally involved minors, adopt separate management and separate education for criminally involved minors of different risks; establish a variety of alternative detention measures to optimize and increase the application rate of bail pending trial and residential surveillance measures. Construct a professional and diversified social care system.

  In the process of reducing unnecessary detention, procuratorial organs often encounter problems such as insufficient cooperation with investigative agencies, disconnected systems for release on bail pending trial in various regions, and the possibility of a very small number of people on bail pending trial who may escape.

  In this regard, experts suggest that the criminal justice policy of "less arrests, prosecutions and detentions" should be further promoted, and the awareness of political and legal officers on detention issues should be deepened. At the same time, modern scientific and technological means should be used to establish a network information sharing platform for public security and judicial organs, and innovative launches should be more effective. Non-custodial supervision measures to protect the lawful rights and interests of criminal suspects and defendants at all stages of investigation, prosecution, and trial.