Changes in detention methods change the fate of the persons involved
Anhui Procuratorate Deepens Reform
● Procuratorial organs follow up the case handling process at any time, and at any stage if they find that there is no need to detain criminal suspects or defendants, they will propose changes to compulsory measures
● Explore the establishment of a risk assessment table, conduct a comprehensive analysis of the criminal nature of the criminal suspect or defendant, the circumstances of sentencing, as well as personal characteristics, and the performance of the crime before the crime and the crime after the crime, and judge the criminal suspect through a standardized scoring method. Whether the person or the defendant is subject to socially dangerous conditions
● This year will also formulate the standard of non-arrest and non-prosecution for common crimes to provide guidance for grassroots procuratorates to handle arrest and prosecution cases, and avoid mechanical case handling due to lack of clear applicable standards
□ Our reporter Fan Tianjiao
Not long ago, Cheng Feng, who runs a company in Huainan, Anhui, was detained in a detention center on suspicion of fraud.
When he thought that the company had no leader and all businesses had to stop, Cheng Feng blamed himself "life and career are over".
What Ling Chengfeng did not expect was that the First Procuratorate of the People's Procuratorate of Datong District, Huainan City took the initiative to hold a public hearing on the necessity of detention through the remote interrogation system, taking into account the fact that he had already pleaded guilty and accepted punishment, refunded the amount of illicit money, etc. After hearing opinions, it was decided to change the compulsory measures to release on bail pending trial.
This means that Cheng Feng can return to the company and carry out normal production and operation activities to avoid putting the company and its employees in trouble.
Helping the enterprise turn the corner into safety reflects the judicial goodwill and warmth of the Anhui procuratorate.
In recent years, procuratorial organs at all levels in Anhui Province have conscientiously implemented the criminal justice policy of fewer arrests, prudent prosecution and prudent detention, promoted the in-depth review of the necessity of detention, focused on changing work concepts, improving review mechanisms, and strengthening political-legal coordination, which changed the past "criminal arrest immediately" "The judicial concept of "one custody to the end" effectively improves the legalization and standardization of the review of the necessity of detention, and realizes the organic unity of political, legal and social effects.
Follow up the case process at any time
Timely change of mandatory measures
Judging from past judicial practice, pretrial detention to a certain extent carries functions such as the guarantee of investigation and evidence collection, the guarantee of litigation procedure, and the prevention of illegal and criminal offences. The tendency to detain on behalf of the investigation".
"Many criminal suspects are in custody pending trial. If the public security organs extend the period of custody for investigation or if they find other crimes and need to recalculate the period of custody for investigation, they may be detained for one or two years." The First Procuratorate of Anhui Provincial People's Procuratorate presided over the work. Du Wei, deputy director of the department, said that it is necessary to clarify the boundary between the need for handling cases and the necessity of detention, so as to prevent improper detention from harming the rights of criminal suspects, especially suspects in minor criminal cases.
The Criminal Procedure Law of 2012 established the review system for the necessity of detention after arrest for the first time.
The revised Criminal Procedure Law in 2018 stipulates: "After a criminal suspect or defendant is arrested, the People's Procuratorate shall still review the necessity of detention. If there is no need for continued detention, it shall be recommended to release or change the compulsory measures." Detention necessity review cases shall be handled uniformly by the criminal enforcement procuratorial department of the people's procuratorate at the same level corresponding to the case-handling organ, with the cooperation of departments such as investigation supervision, public prosecution, investigation, case management, and procuratorial technology.
Du Wei said that in April 2021, the Central Committee for Comprehensively Governing the Country by Law included "adhering to the criminal justice policy of 'less arrest, prudent prosecution and prudent detention', and promoting the application of non-custodial compulsory measures in accordance with the law" as the main points of its work in 2021, and included "less arrest and prudent prosecution". "Careful custody" has risen from the judicial concept to the criminal justice policy of the party and the state.
In accordance with the deployment requirements of the Supreme People's Procuratorate, the Anhui Provincial Procuratorate has launched a special activity to review the necessity of detention for half a year since July last year.
The Anhui Provincial Procuratorate focuses on three categories of cases to review the necessity of detention, including detention cases in progress with a statutory sentence of less than three years in prison; ongoing detention cases involving crimes related to the operation of private enterprises; criminal suspects, defendants and their legal representatives , an ongoing detention case where a close relative or a defender has filed an application for a review of the necessity of detention.
"We request to focus on the review of the arrest link, the extension of the period of investigative custody, the recalculation of the period of investigation and custody, the filing review link, the prosecution link and the trial link, and continuous review without the limitation of litigation procedures." Du Wei further explained that the procuratorial organ will follow up with you at any time. During the case handling process, if it is found at any stage that the criminal suspect or defendant is not required to be detained, a suggestion will be made to change the compulsory measures.
Even if the suggestions made in the previous link are not adopted, due to changes in facts and evidence, they can still be submitted to the case handling unit after entering the next stage.
Create a risk assessment form
Break the limitations of case handling
Han Jing, a student at the school, has experienced a change in fate brought about by the change in the way of detention.
Two years ago, Han Jing went to a friend's company for an internship. In order to bring performance to the company, she and her friend reselled the company's business license, corporate accounts and other related materials, illegally making more than 10,000 yuan.
It was not until she was arrested by the police in Jinghu District, Wuhu City that Han Jing realized that her behavior had been suspected of the crime of buying and selling documents from state organs.
"When the case was transferred for prosecution, it was the school season. If the detention status is not changed, Han Jing's studies will be affected." Have a fixed residence, less social danger, less subjective viciousness in joint crimes, relatively minor circumstances, voluntary confession of guilt and punishment and return of stolen goods.
In order to protect his right to education and rescue and reform, the court decided to change the compulsory measure to release on bail pending trial.
According to the judgment of similar cases in the past, if from the perspective of punishing crimes only, continuing to detain Han Jing does not violate the laws and regulations, but the prosecutor handling the case did not treat it passively, but actively communicated, comprehensively considered and accurately evaluated Han Jing's behavior and harmfulness. The decision to change the compulsory detention measures reflects the transition from the traditional judicial concept to the modern concept of the rule of law.
"Generally, the review of the necessity of detention mainly considers three factors, that is, whether there is evidence to prove that there is a crime, the possibility of being sentenced to more than a sentence of imprisonment, and whether it is dangerous to society. For relatively minor crimes, the use of non-custodial coercive measures is sufficient to prevent the occurrence of social danger. According to the nature of the crime and the possible punishment, compulsory custodial measures may not be applied according to law.” said Chen Haitao, assistant prosecutor of the First Procuratorate of Anhui Provincial People’s Procuratorate, but due to lack of legal and practical aspects As for the quantification standard of social harm, prosecutors have strong subjective judgment when considering it, and sometimes equate guilt with social danger, and dare not apply change of custody.
In this regard, the Anhui Provincial Procuratorate has clarified that the object of "less arrest and careful detention" is the situation where the social danger is not clearly defined or other compulsory measures can be taken, and encourages all localities to determine the situation according to the situation of the criminal suspect, the nature and harmfulness of the crime, and the performance after the crime. situation, scientifically and reasonably assess the social danger.
The Wuhu City Procuratorate has set up and tried out guidelines on the standards for not approving arrests in minor criminal cases, and refined the social risk indicators, striving to have a relatively stable and unified standard when examining the necessity of detaining criminal suspects and defendants.
Zhao Chuan, deputy director of the First Procuratorate of the Wuhu City People's Procuratorate, who is in charge of this work, said that the pilot institute has refined 21 specific cases of five social dangers, including possible re-offending, possible destruction, and forgery of evidence, as stipulated in the Criminal Procedure Law. Demonstrate behavior, explore the establishment of a risk assessment form, conduct a comprehensive analysis of the suspect or defendant’s criminal nature, sentencing circumstances, personal character characteristics, and performance before and after the crime. Whether the criminal suspect or defendant is subject to socially dangerous conditions.
"On the premise of not being dangerous to society, we have included factors such as refunding compensation and returning stolen goods, repentance and confession, and reaching reconciliation into the consideration of the review, and infiltrated judicial purposes such as resolving conflicts and promoting harmony into the case review, breaking the process of handling cases. limitations." Zhao Chuan said.
public hearing for comments
Eliminate confrontation and resolve conflicts
"There is now a public hearing on whether the criminal suspect Chen Yan needs to continue to be detained." In June last year, the People's Procuratorate of Bowang District, Ma'anshan City held a public hearing on the necessity of detention for a case of illegally manufacturing firearms, inviting people's supervisors, Deputies to the National People's Congress and cadres from the town and village where Chen Yan is located attended the meeting as hearing officers.
The suspect, Chen Yan, is the person in charge of a local machinery parts factory. Out of curiosity, he purchased parts online and remodeled an air gun to play.
Later, because he couldn't buy empty cartridges, Chen Yan threw the gun in the cesspool of the aqua toilet in the suburbs.
After the incident, the air gun was salvaged and was identified as a firearm.
At the hearing, prosecutors, investigators, and Chen Yan's defense lawyer expressed their opinions on the facts of the case, the fixation of evidence, whether the criminal suspect is dangerous to society, and whether arrest is necessary.
After various explanations, the hearing panelists unanimously agreed that non-custodial coercive measures are more appropriate.
The Bowang District Procuratorate adopted the hearing opinions and decided to change the compulsory measure for Chen Yan to release on bail pending trial.
"The procuratorial organs take the initiative to hold a public hearing, which can ensure the necessity of detention and the fairness of the handling of cases involving private enterprises, allowing all parties to fully express their ideas, eliminating confrontation and resolving conflicts to the greatest extent possible." Wang Chengyou, a people's supervisor of the Bowang District Procuratorate who was invited to the hearing, said. .
Since the special campaign for the review of the necessity of detention, the Anhui procuratorial organs have carefully and meticulously done a good job of confessing guilt, accepting punishment, explaining the law and reasoning about the persons in charge of private enterprises suspected of crimes, and dealing with those who have a major social impact, involve public interests, and the production and operation fields of enterprises. , in the form of organizing a hearing, listen to the opinions of all parties on whether to decide whether to arrest, whether to approve the extension of the period of investigation and detention, and whether to continue the detention, and consciously accept social supervision.
In the second half of last year, 189 persons were reviewed for the necessity of detention in the form of hearings, and 71 persons were not detained after the hearings, accounting for 37.57% of the hearings.
In order to better listen to effective opinions, the grass-roots procuratorial organs will seriously examine the opinions put forward by defense lawyers during the stage of review and arrest, strengthen the interrogation of the authenticity of the confession of the criminal suspect, the possibility of taking non-custodial measures, and other procedural content, and listen to them. Victims' opinions in minor intentional injury cases, so as to find the possibility of criminal reconciliation and achieve the reality of not arresting.
"From the perspective of protecting the development of private enterprises, conducting a review of the necessity of detention of private entrepreneurs involved in the case, and then changing the compulsory measures can reduce and avoid the possible negative impact of case-handling activities on the normal production and operation activities of private enterprises, and can also effectively protect private enterprises. The lawful rights and interests of the family.” said Zhang Shijin, director of Anhui Jin Asia Pacific (Changfeng) Law Firm.
In Zhang Shijin's view, in accordance with the Criminal Procedure Law and other relevant regulations, during the investigation or trial stage, the procuratorial organ can propose to the public security organ or court to release the criminal suspect or defendant or change the compulsory measures in the form of a recommendation.
However, this suggestion has no mandatory effect. If the case-handling organ does not accept it, and the detained party refuses to accept it, there is no better remedy except to report to the higher-level procuratorial organ and apply again.
In order to reduce the occurrence of such phenomena, in special activities, Anhui procuratorial organs focus on establishing close information communication with the public security organs, intervening and guiding mechanisms, knowing the evidence situation, creating favorable conditions for the procuratorial organs to review and arrest, and grasp the case handling in a timely manner. It can effectively guide the investigation activities of the public security organs. For some minor criminal cases with less social danger, the public security organs are advised not to request arrests before the public security organs request arrests.
"We are exploring a mechanism for direct prosecution of criminal detention. For those who have evidence to prove criminal facts, but do not meet the conditions for arrest or are not necessary for arrest, we recommend that the public security organs directly transfer the prosecution, omitting the review and arrest link, thereby effectively reducing the rate of pre-trial detention and post-arrest detention. Light sentence rate." Du Wei said.
Explore quantitative assessment methods
Included in the assessment allowable errors
From July to December last year, the Anhui Provincial Procuratorate conducted a review of the necessity of detention for 16,754 cases (times) in accordance with the requirements of the special activities, and decided or recommended not to detain 4,521 people (times) after the review, accounting for 16,754 persons (times) who were detained during the special activities. 26.98% of the total number of people (times) for necessity review.
After half a year of hard work, in the second half of last year, the pre-trial detention rate in Anhui Province decreased by 0.93 percentage points compared with the first half of the year, and the non-arrest rate increased by 2.81 percentage points.
While achieving certain results, the Anhui procuratorate also found some problems in the process of reviewing the special activities.
Du Wei told reporters that, for example, to promote the review mechanism for the necessity of detention, it is necessary to solve serious crimes and misdemeanors. After the measures, the judicial supporting measures are not perfect.
In recent years, the criminal structure of Anhui Province has undergone major changes. Serious violent crimes have been greatly reduced, and minor criminal cases have risen sharply. After arrest, more than 60% were sentenced to fixed-term imprisonment of less than three years, short-term detention, public surveillance, probation, and exemption.
"These changes provide a favorable opportunity to promote non-custodial compulsory measures." Du Wei said that the Anhui Provincial Procuratorate has formulated opinions on non-prosecution of drunk driving cases and non-prosecution standards for cases of illegal fishing of aquatic products, effectively reducing the number of criminal prosecutions in the two types of cases. , this year will also formulate the standard of no arrest and no prosecution for common crimes, to provide guidance for grassroots procuratorates to handle arrest and prosecution cases, and to avoid mechanical case handling due to lack of clear applicable standards.
According to Xi Wei, a professor at the Law School of Anhui Normal University, the procuratorial organs should standardize the review process, fully inform the criminal suspects and defendants of their rights, give written replies to whether or not to accept the application and the review results, and explain the basis and reasons to actively promote The subjective and objective conditions for changing detention measures are met.
In order to fully implement the detention necessity review system, Zhou Shihong, a member of the National Committee of the Chinese People's Political Consultative Conference and the chairman of the Hefei Lawyers Association, proposed that all cases involving criminal detention and arrest should be reviewed by the procuratorial organs on their own initiative, making it necessary. After the procedure, the people's court shall also conduct a review of the necessity of detention when arresting a defendant in the trial stage of a criminal case.
Xi Wei believes that the procuratorial organs can explore the establishment of a quantitative assessment method for the necessity of detention and an evidence system for social risk assessment, scientifically divide the risk level of risk, and improve the operability and standardization of the review of the necessity of detention.
At the same time, the remedies for the review of the necessity of detention are added. If the applicant is not satisfied with the review result, he can reconsider with the procuratorial organ that made the decision.
In addition, the interviewed experts told reporters that some prosecutors would be worried that after changing the compulsory detention measures, the suspects and defendants will be held accountable because they are out of control or re-offending. On the other hand, it is necessary to establish a fault-tolerant mechanism to allow a certain range of errors, and to change the mentality of seeking no success and not seeking past.
Not long ago, the Supreme People's Procuratorate decided to extend the special activity for reviewing the necessity of detention for one year, expanding the scope of cases from three types of key cases to all ongoing detention cases, further deepening the effect of the special activity.
(The suspects and defendants involved in this article are all pseudonyms)
Comics/Li Xiaojun