Article 7 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966 and acceded to by China on 5 October 1998, stipulates that "no one shall be subjected to torture or to cruel, inhuman or degrading punishment or punishment." "Article 1 of the United Nations Convention against Torture, which was applied by the United Nations Security Council in 1984 and entered into force for China on 3 November 1988, contains detailed provisions on "torture" "I, for the purposes of this Convention, "torture" means the purpose of obtaining information or confessions from a person or a third person, punishing him for an act committed or suspected of having been committed by him or a third person, or for the purpose of intimidating or threatening him or a third person, or for any reason of discrimination of any kind, Any act which is intended to cause severe physical or mental pain or suffering to a person caused by or at the instigation, consent or acquiescence of a public official or other person acting in an official capacity. Pain or suffering that arises solely as a result of or is inherent in or incidental to a legal sanction is excluded. ”
According to the 2010 Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in the Handling of Criminal Cases, "confessions of criminal suspects or defendants obtained by torture or other illegal means, as well as witness testimony and victim statements obtained by violence, threats and other illegal means, are illegal verbal evidence"; The 2012 Criminal Procedure Law only stipulates that "confessions of criminal suspects and defendants obtained by illegal methods such as extorting confessions by torture shall be excluded". The 2013 "Opinions on Establishing and Improving Working Mechanisms for the Prevention of Unjust, False and Wrongly Decided Criminal Cases" clearly stipulates that "confessions of defendants obtained by torture or illegal methods such as freezing, starvation, sunbathing, roasting, or fatigue interrogation shall be excluded". The 2016 Opinions on Promoting the Trial-Centered Reform of the Criminal Procedure System stipulates that "verbal evidence gathered by torture, violence, threats, or other illegal methods shall be excluded in accordance with law". The 2017 Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases only stipulate that confessions obtained by criminal suspects obtained by means of torture, violence, disguised corporal punishment, or threats should be excluded, but does not mention fatigue interrogation. In other words, it is interesting to note that our country only clearly stipulates fatigue interrogation in the 2013 opinion at the normative level, and all subsequent normative documents do not mention it. No matter how ambiguous the legislation is, the judiciary has already excluded verbal evidence obtained from fatigue interrogation.
Trial Reference No. 869 Liu Xiaopeng and Luo Yongquan Drug Trafficking Case "The confession began at 21:07 on October 28, 2012 and ended at 23:26 on the same day; The interrogation took place on the third floor of the Liangping County Detention Center in Chongqing Municipality. Upon on-site inspection, it was found that the interrogation site was not an informal interrogation room and there was no isolation facility in between. At the same time, Liu's arraignment evidence recorded that Liu Xiaopeng was escorted out of the detention center at 17:00 on October 26, 2012, and remanded in custody at 3:00 on October 29 of the same year, lasting two days, three nights, and 58 hours (he was not returned to the detention center's detention cell), and it was during this time that Liu's third confession was formed", and the court held that this evidence should be excluded based on the simultaneous audio and video recordings and the supporting materials submitted by the procuratorate. [The regulations for the 13-year fatigue trial have not yet been issued].
Criminal Trial Reference No. 1040 Yin ** Case "lasted about 72 hours, never left the location of the case, and has been under the investigation of the case-handling personnel in the style of "wheel warfare", sleeping less than 4 hours a day. In addition, from the 25th to the 27th, the investigating agency did not produce a single investigation record, nor did it transfer the simultaneous audio and video recordings from the 25th to the 27th", and the court held that the investigating agency adopted fatigue tactics to collect evidence. Criminal Trial Reference No. 1141 Wu Yi and Zhu Beiya** Case "The defendant Wu Yi did not get any necessary rest during the continuous interrogation of more than 30 hours, and this kind of fatigue interrogation is a kind of disguised corporal punishment, and the degree of infringement of citizens' basic rights is basically the same as that of extorting confessions by torture." Wu Yi's confession of guilt under these circumstances cannot be ruled out as having been made against his will in the context of mental and physical suffering. Such confessions are unreliable and are evidence obtained using illegal methods, and shall be excluded and must not be used as the basis for a verdict. ”
In a gang-related case handled in 2020, the defendant's 21 records obtained due to fatigue interrogation were successfully excluded. , unrecorded, 10:50-11:50.
At present, I can obtain about 1,190 judgments by searching for fatigue trial as a keyword on the judgment document network, and I have the following thoughts on some of these cases
First, about the length of the interrogation. At present, different courts have different understandings of how long an interrogation is a fatigue trial. In the 2017 draft of the anti-illegal rules, it was originally stipulated that "the interrogation of defendants and criminal suspects shall ensure a continuous rest period of not less than 8 hours per day." However, it was not adopted in the later stage, which led to the lack of clear legal standards for the determination of fatigue trial in practice. Generally, there are 8 hours to say, 12 hours to say, 24 hours to say, and so on. I think that as a defender, as long as there is a continuous interrogation or a single interrogation of 8 hours, you should verify with the parties whether there is fatigue in the interrogation, and some records will write that there is a half-hour break in the middle, or that the intermediate suspect eats, goes to the toilet, rests, etc., but whether these situations really exist must be carefully verified.
Second, about the interrogation time. As long as night interrogation is involved, even if the time is short, it is easy to cause fatigue interrogation**. After all, in the environment of a detention center, after interrogation at night, the conditions for being able to rest normally during the day are basically non-existent. In the case of Liao Lin, Huang Chongjing, and others covering up and concealing criminal proceeds, the verdict pointed out that the public security organs interrogated in the middle of the night, and that a number of criminal suspects were interrogated many times in the middle of the night or early in the morning.
Third, in addition to the above two points, the physical and mental state of the interrogated person is also a key factor affecting whether the fatigue interrogation is established. These physiological states include, but are not limited to, whether the defendant is suffering from illness, whether he is in a state of hunger, whether he thinks clearly when answering questions, whether his language is fluent, whether his expression is natural, etc., and the age of the criminal suspect, especially the age of the elderly criminal suspect, can also be a reason that our lawyer can mention.
In order to prove the legality of the evidence gathered, the public prosecution will generally have the following options for the reasons raised by the defenders mentioned above:
The "Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in the Handling of Criminal Cases" stipulates that "explanatory materials submitted by the public prosecutor with an official seal without the signature or seal of the relevant interrogator cannot be used as evidence to prove the legality of evidence collection." This is a formal review, and secondly, we also need to see whether the content of the statement of circumstances can prove the legitimacy of evidence collection.
Second, investigators appear in court to testify, and the "Regulations for the Exclusion of Illegal Evidence in the Handling of Criminal Cases by the People's Courts (for Trial Implementation)" stipulate that "the public prosecutor may present evidence such as interrogation records, arraignment registration, physical examination records, legal documents for taking compulsory measures or investigative measures, and verification materials on the legality of the interrogation before the conclusion of the investigation, and may also make audio or video recordings of the interrogation during the interrogation period to which the defendant and his defender raise objections." Request that the court notify investigators or other persons to appear in court to explain the situation. Explanatory materials signed by investigators and affixed with an official seal must not be used as a substitute for investigators to appear in court. ”
Third, simultaneous audio and video recordings, focusing on reviewing the mental state of the person being interrogated in the video;
Fourth, the time of the arraignment of the interrogation warrant, the physical examination records, the testimony of the same cell, and the materials for reviewing the legality of the interrogation records before the investigation is concluded.