欧洲人权法院对侦查阶段律师阅卷权的保障及启示

The Protection of Lawyer's Right of Reviewing Files in the Course of Investigation by European Court of Human Rights and its Implications

成果信息
DC信息
传播影响力
本库下载频次:
本库浏览频次:
CNKI下载频次:0

归属学者：

李冉毅

归属院系：

法学院

作者：

李冉毅

摘要：

<正>2012年修改后的《中华人民共和国刑事诉讼法》(以下简称《刑事诉讼法》)明确了律师在侦查阶段的辩护人身份,并同时规定:"辩护律师在侦查阶段可以向侦查机关了解犯罪嫌疑人涉嫌的罪名和案件有关情况,提出意见。"[1]了解案件的相关情况是辩护律师展开有效辩护的前提,至于是通过阅卷还是其他方式了解案件情况,立法则没有提及。根据《刑事诉讼法》第38条的规定,"辩护律师自人民检察院对案件审查起诉之日,可以查阅、

语种：

中文

出版日期：

2018-11-30

学科：

诉讼法学

提交日期：

2018-12-20

引用参考：

李冉毅. 欧洲人权法院对侦查阶段律师阅卷权的保障及启示[J]. 中国人权评论,2018(01):53-63+183-184.

全文附件授权许可：

知识共享许可协议-署名

  • dc.title
  • 欧洲人权法院对侦查阶段律师阅卷权的保障及启示
  • dc.contributor.author
  • 李冉毅
  • dc.contributor.author
  • Li Ranyi;Southwest University of Political Science & Law
  • dc.contributor.affiliation
  • 西南政法大学法学院;
  • dc.publisher
  • 中国人权评论
  • dc.publisher
  • China Human Rights Review
  • dc.identifier.year
  • 2018
  • dc.identifier.issue
  • 01
  • dc.identifier.page
  • 53-63+183-184
  • dc.date.issued
  • 2018-11-30
  • dc.language.iso
  • 中文
  • dc.description.abstract
  • <正>2012年修改后的《中华人民共和国刑事诉讼法》(以下简称《刑事诉讼法》)明确了律师在侦查阶段的辩护人身份,并同时规定:"辩护律师在侦查阶段可以向侦查机关了解犯罪嫌疑人涉嫌的罪名和案件有关情况,提出意见。"[1]了解案件的相关情况是辩护律师展开有效辩护的前提,至于是通过阅卷还是其他方式了解案件情况,立法则没有提及。根据《刑事诉讼法》第38条的规定,"辩护律师自人民检察院对案件审查起诉之日,可以查阅、
  • dc.description.abstract
  • Effective defense should be made on the basis of getting enough information and evidence from the prosecutor by reviewing files. However, the defendant's right to review files in the course of investigation is limited to different degrees because of the requirements of effective investigation. This reduces the defendant to absolute inferiority,unable to contend with investigation organizations, especially in pretrial detention where basic rights are most severely violated. European Court of Human Rights once heard four appeal cases on the issue of the right to review files put forward by German authorities,in which defense lawyers were not able to do a timely and thorough review of the files in the period of detention review during investigation. According to Item 4, Article 5 of European Convention on Human Rights, everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawfiil That is to say, the proceedings should comply with the basic requirements of judicial procedures, which should be adversary hearing proceedings, ensuring both the defendant and prosecutor are "equally armed". If the defendant is not entitled to reviewing files,he is not able to challenge the lawfulness of detention, thus being equally armed "of both the defendant and prosecutor would not be realized in the proceedings, which fails to meet the requirements of u adversary hearing proceedingsAs a result, European Court of Human Rights decided without exception that German authorities 9 denial of reviewing files by defense lawyers violated Article 5 of European Convention on Human Rights, and it further clarified that the defense lawyers'right to review files should not be denied by any means in the detention review proceedings during investigation. Specifically speaking,it was not allowed to replace the lawyer who reviewed files because of detention warrant;it was not allowed to orally inform the lawyer of being replaced;it was not allowed not to provide all of the files to the lawyer, and the follow-up files should also be provided in time; the court that decided the lawfulness of the detention should actively ensure the lawyer' right,and if the procuratorate denied the file reviewing,the district court with judicial examination power should provide remedies to defense lawyers when reviewing the detention warrant.The decision made by European Court of Human Rights has provided necessary protection for the defense lawyers' right to review files in the course of investigation as well as manifested the concept of due process of law and prioritizing rights protection.This has not only helped to improve German Law,but also provided inspiration to similar practices in China, Firstly, the fact that the right to review files during investigation cannot be guaranteed has a huge negative impact on the effectiveness of lawyers' questioning of the detention. The criminal procedures in China may establish defense lawyers' right to review files during investigation and its concrete realization stages. The requirements of the decision by European Court of Human Rights and the stipulations by the Criminal Procedure Code in Germany can serve as references. For example,necessary protection of the review rights can be provided to defense lawyers in the stages of reviewing arrest, reviewing the necessity of detention, and reviewing prolonging the detention. Secondly, for the sake of the duty of investigation and supervision and the convenience as the review subject, the investigation and supervision department of the procuratorate should also actively ensure the review rights.
  • dc.description.sponsorship
  • 重庆市社科规划博士项目“庭审实质化的实践阻力与应对策略研究(2017BS41)”的阶段性成果
  • dc.subject.discipline
  • D925.2
回到顶部