The author of this article: Li Mingzhen and Xu Yujie.
I. Formulation of the problem
In recent years, with the gradual growth of the number of criminal cases in China, major and complex joint crimes and related crimes in judicial practice have also increased day by day, especially in the cases involving a large number of people and complex cases of financial embezzlement, gathering crowds and crimes abusing public office, it is becoming more and more common for the relevant persons involved in the case to be "handled in a separate case".
In the author's handling of a retrial of a second-instance fraud case, a key defendant Z, who was clearly named a "defendant" in the part of the indictment during the trial and ascertainment, had the words "handled in a separate case" written after his name. Z, who was unwilling to be mentioned in the indictment, played a key role in "uploading and disseminating" and "connecting the previous and the next" in the entire facts of the crime, and it can be said that without Z's participation, none of the acts involved in this case could have been completed. It is even highly likely that Z is the main messenger behind the scenes in this case. However, during the trial and the previous judgment, Z has been in a "separate case" and appeared in this case as a "witness" through the pre-trial transcript, which has become an important piece of evidence against other defendants.
Regrettably, even though the defense lawyer repeatedly applied for Z to appear in court as a "witness", he was not allowed to appear in court for questioning during the entire second-instance trial of the retrial. Because of "handling a separate case", Z was so grandiose that "the golden cicada got out of its shell" and "ran away". As long as the part of the trial investigation involves Z, although the lawyers present are "hoarse" to question and put forward cross-examination opinions, because of Z's absence, the cross-examination of him can often only "scratch the itch through the boots". Facing the air, the judge is unable to use the method of "listening to prison lawsuits in five voices" to distinguish between right and wrong. As soon as the entire trial investigation reached a critical point, it evolved into a debate between the prosecution and defense, with only the opinions of the two sides "fighting in the air," but there was no investigation of the facts, and the trial was seriously blurred.
The author has repeatedly submitted to the case-handling organs before trial that "handling a separate case" violates legal procedures, and the case-handling organs have stated that they "will not let go of any fish that slips through the net", but to date, there has only been an oral response, and there has been no substantive progress or action. Combined with the process of handling the case, the author makes an analysis of the chaos and warnings of "handling another case" in judicial practice, and works with legal colleagues.
II. The concept, applicable circumstances, and related mechanisms of "separate case handling".
(1) The concept of separate case handling
The "separate case handling" is commonly found in the indictment opinions of the public security organs, the indictment of the procuratorial organs, and the judgment documents of the people's courts, but the Criminal Procedure Law does not provide for this system, and the judicial interpretations of the Criminal Procedure Law are only mentioned in three places, which are very scattered and lack systematization, namely: "Interpretation of the Criminal Procedure Law" Article 311:In cases where there are multiple defendants, and after some of the defendants refuse to defend themselves, but there is no defender, the case may be handled separately for that part of the defendants, and the trial of the other defendants may continue;Article 314 of the "Interpretation of the Criminal Procedure Law" shall clearly state the cause of the case, a brief description of the case, the trial process, and the verdict result of the report submitted for review of the death penalty or suspended death sentence for some defendants who have suspended trial according to the circumstances of the case, and article 426 of the "Interpretation of the Criminal Procedure Law". The comprehensive case report shall include the following content: ......6) Issues that need to be explained. This includes the disposition of co-offenders in a joint crime case handled separately, whether the case has a major social impact, and the parties' reactions.
On March 6, 2014, the Supreme People's Procuratorate and the Ministry of Public Security issued the Guiding Opinions on Regulating the Application of "Separate Case Handling" in Criminal Cases (hereinafter referred to as the "Opinions"), Article 2 of the Opinions stipulates the concept of separate case handling, " In the course of handling a criminal case, some criminal suspects suspected of committing a joint crime or being implicated in the case cannot or are not able or inappropriate to be handled in the same case with other criminal suspects in the same case due to special provisions in the law or special circumstances in the case, but are separated from the case and handled separately or in conjunction with other cases."
This provision treats cases of joint crimes and related crimes that cannot be tried together due to objective reasons or special provisions of the law as circumstances that may be handled separately or in conjunction with other cases.
(2) The applicable circumstances of separate case handling
Article 3 of the Opinions stipulates that "separate case handling" may be applied to some of the criminal suspects involved in the case in any of the following circumstances:
1) It is necessary to transfer jurisdiction for disposition in accordance with law;
2) It is a juvenile and needs to be handled separately;
3) Where the criminal suspect in the same case is at large at the time of the request for approval of arrest or transfer for review for prosecution, and is unable to appear in the case;
4) Where other crimes are suspected and further investigation is needed, and it is not appropriate to submit a request for approval of arrest or transfer for review for prosecution together with the criminal suspect in the same case, or where other crimes are more serious and it is more appropriate to handle them separately;
5) The existing evidence of the suspected crime does not meet the standards for a request for approval of arrest or transfer for review for prosecution, and it is necessary to continue the investigation, and the criminal suspect in the same case meets the standards for requesting approval of arrest or transfer for review for prosecution;
6) Other situations where it is more appropriate to apply "separate case handling".
(3) Procedures applicable to separate case handling
On the basis of article 5 of the "Opinions", where the case-handling department of a public security organ discovers that some of the criminal suspects meet one of the circumstances provided for in article 3 of these Opinions and intends to "handle the case separately", it shall submit a written opinion and attach the following supporting materials, and report to the responsible person at the public security organ at the county level or above for review and approval after review:
1) Where it is necessary to transfer jurisdiction in accordance with law, provide materials such as the notice of transfer of jurisdiction, the decision to designate jurisdiction, and so forth;
2) Where it is a juvenile that needs to be handled separately, provide materials such as the minor's household registration certificate, the decision to file the case, the written request for approval of arrest, and the written opinion for prosecution;
3) Where the criminal suspect is at large, provide materials such as detention warrants and online information on the pursuit of fugitives;
4) Where the criminal suspect is suspected of other crimes and further investigation is needed, provide materials such as a decision to file the case;
5) Where the existing evidence of the suspected crime does not meet the standards for requesting approval of arrest or transfer for review for prosecution, and it is necessary to continue the investigation, provide the corresponding explanatory materials;
6) Where for other reasons it is temporarily impossible to submit a request for approval of arrest or transfer for review for prosecution, provide corresponding explanatory materials.
It can be seen from the "Opinions" that for the six situations that meet the requirements of "separate case handling", the public security organ must submit a written opinion and attach supporting materials, and after review, it can be reported to the responsible person of the public security organ at or above the county level for examination and approval before it can be handled separatelyFor those who are at large or need to continue investigation, whether relevant work has been done, etc.
3. The current situation and problems handled by China's separate cases
(1) Lack of laws and lag in norms
From the above, it can be seen that although the Opinions have an explanation of "separate case handling", its effect is low and it is not a law or regulation, and although the judicial interpretation does involve it, it is not only a low level of regulation and lacks authority, but also a very fragmented content, lacking systematization and universality, in short, there is a lack of specific, clear and effective laws and regulations for the handling of separate cases.
(2) Each case-handling organ does not have a uniform standard for the application of "separate case handling".
Due to the lack of clear standards and the very wide range of applicable circumstances stipulated in the Opinions, it is easy to make the discretion of the investigating organs too large during the investigation stage, and there will be artificial and improper division of casesIn the stage of examination, prosecution, and adjudication, because there is no clear standard for application, all case-handling organs are in a state of doing their own thing, and most of them divide cases according to their own needs and understandings, and there is no uniform standard at all.
(3) Lack of restraint and effective supervision of power
In accordance with the provisions of the "Opinions," all case-handling organs can independently make a decision on "handling a separate case," and during the investigation stage, when a public security organ makes a decision to "handle a separate case," it only needs to report to the responsible person of a public security organ at or above the county level for examination and approval. Moreover, in judicial practice, only the words "separate case handling" can be seen on various legal documents, and as for the reasons and which circumstances are applicable, even if there is no examination and approval procedure or process, the rigidity of such legal supervision measures is insufficient, and the function of "handling another case" is alienated, such as the failure to guarantee the quality of cases, as well as power rent-seeking and judicial corruption.
There is also no provision for the corresponding adverse consequences in the case of improper or artificial division of cases, which makes some case-handling organs directly "ignore" the corresponding provisions in practice, and often do not turn a blind eye to the opinions put forward by lawyers on the basis of arguments.
(4) The defendant's right to cross-examine evidence and the right to defend may not be guaranteed
China's Criminal Procedure Law does not have clear provisions on how the defendant should exercise the right to cross-examine evidence and the right to defend if the defendant in the same case is "handled in a separate case", while the judicial interpretation stipulates that "if the court deems it necessary", the defendant in a case of joint or related crime that is tried separately may be summoned to appear in court to confront him, but what is "necessary" depends on the court's unilateral decision. And when the case-handling organ uses the confession or relevant evidentiary materials of the criminal suspect and defendant in the same case as the defendant's prosecution evidence in the case, the criminal suspect and defendant in the same case who is "handled in a separate case" may be transformed into a "witness" in the case, but this kind of "witness" often has a major interest in the case, as mentioned by the author at the beginning of the topic, Z is a "criminal suspect" who has a major conflict of interest in the case, and his status as a witness violates the provisions of the law on witnessesSecond, because they cannot appear in court, the defender cannot question them, and the judge cannot "question" them in accordance with the principle of direct speech, and the testimony of such "witnesses" is often very unfavorable to other defendants, which undoubtedly deprives these defendants of their right to cross-examine evidence and the right to defend, and also makes it impossible for the court to fully hear the case, violating the principle of comprehensive trial and substantive trial.
IV. Strictly apply the way out of "handling a separate case".
(1) Improve legislation: Incorporate the handling of separate cases into the Criminal Procedure Law
The Criminal Procedure Law shall provide a legal basis for "handling a separate case";Second, judicial interpretations may refine the review and approval, supervisory bodies, measures, applicable circumstances, methods, and specific rules for the "separate case handling", including the specific review departments at each stage, the evaluation standards, the application of documents, and publicity, etc., to improve the connection between the "separate case handling" and some relevant systems for criminal proceedings.
(2) Standardize the judiciary: standard operation and strengthen supervision
All case-handling organs should strictly apply the relevant standards for "handling separate cases" in laws and regulations, reducing the unidirectional, internal, and arbitrary nature of operations;At the same time, the circumstances and relevant bases for the application of "separate case handling" should be disclosed to the defender and the parties, and the supervision mechanism must not only be internal supervision, but also external supervision, so as to ensure that the defendant has reasonable and unimpeded channels for objections.
(3) Safeguard the defendant's right to a defense
First, the court should ensure that criminal suspects in the same case who are "handled in a separate case" appear in court to testify and accept cross-examination, and where the court is unable to distinguish the authenticity of testimony that is unfavorable to the parties, it cannot be used as the basis for a verdict if the court is unable to distinguish the authenticity of the testimony that is not in courtWhere reasonable doubt cannot be eliminated, the result of applying innocence as provided for in the Criminal Procedure Law should be boldly applied;Second, defenders should be given the right to inspect the relevant files of criminal suspects in the same case who have been "handled in a separate case";Third, the channels for the parties to raise objections before trial are unblocked, and if there are objections to the "separate case handling", where a reasonable explanation cannot be made and there is no document prescribed by law, it should be regarded as illegal.
5. Appeals and warnings
At present, the "handling of separate cases" is chaotic and the functions are alienated, which seriously disrupts judicial fairness, and even if the defender discovers this problem, he often has no way to appeal. In order to safeguard judicial fairness, promote the substantiation of court trials, and protect the defendant's right to a defense, we hereby call for the early inclusion of the provision of "handling a separate case" into the Criminal Procedure Law, improve legislation, standardize the judiciary, and make joint efforts by all parties to promote the civilized process of criminal rule of law