Restriction And Protection: The Due Pleading Of Privacy In Criminal Procedure

The due pleading of privacy in criminal procedure agrees with two kinds of tendencies: 1, The colony tendency of privacy in the constitution, the civil law, the administrative law, the criminal law, the international law, etc because of its unclear description.2, With the universal recognition of the protection of human rights in the criminal procedure, the due pleading of privacy as one of the basic human rights has been recognized in more and more countries.Since ancient times, privacy protection has been discussed by many learned men and their discussions center on the following questions: 1. Why do people have the demand to protect their privacy? 2. Should they have and in what degree should they have the right to protect their privacy legally?Different countries differ in the protection of privacy in the criminal procedure mainly because of their different understanding of privacy. Americans tend to interpret privacy as the right to be alone while Germen and Frenchmen tend to interpret privacy as the right to be free from being watched or followed and to keep one s secrets. As to the privacy, the writer prefers the privacy protection conceptraised at a special conference held by the International Lawyer Commission in 1967. At the conference ten concrete rights of privacy protection were proposed.In the past the concept of privacy was in the shadow region of the constitution. Now it has been illuminated for the most part and articles of privacy protection have been added to the civil law, the criminal law, the criminal procedure law, the administrative law, etc considerably.The protection of privacy relies on the limit to the state-owned authority and the protective measures the involved are entitled to legally. This dissertation aims toanswer this question: Should the involved ------the suspect, the victim, the witness------enjoy the protection of privacy in the criminal procedure and in what degree?Because they seriously endanger the society, criminals do not enjoy the protection of privacy. The government as the social protector is justified to use the national penalty right But this kind of right ought to be subjected to the judicial examination at the same time.Because the international community accepts privacy as one of the fundamental human rights and the criminal procedure law safeguards the fundamental rights of the suspect, the protection of the privacy of the suspect should be justified. The consciousness of protecting the privacy of the suspect calls for reforms in the criminal procedure territory.In the criminal investigation procedure, the privacy of the suspect is violated. The investigation measures, which violate the suspect s privacy, can be classified intotwo types. Body-searching, bugging, monitoring, room searching, etc are considered serious violation measures while bank account checking, questioning, following, car searching, etc are slight violation ones.The legislation in the protection of privacy began comparatively late in China. Itwent through two stages------from indirect protection laws to direct ones. By usingthe questionnaire method the writer gives an experience description of the privacy protection in China s criminal procedure. The statistics show that the execution of China s criminal procedure law largely diverges from the law. The suspect doesn t enjoy some basic human rights, let alone the right of protection. Illegal investigations still exist. On the one hand, China s criminal procedure reflects the law-rule environment; on the other hand, the execution of the law is interfered. In the process of crime investigation, the power is neither too strong nor too feeble. The lack of the law in microcosmic authority techniques results in the abuse of the state power. In the reform of the criminal procedure, the means of investigation have to be improved. Nevertheless the investigating, charging and executing authority in itself ought not to be weakened.Therefore, there are some suggestions about the protection of privacy in the criminal procedure: 1. The judicial examination system should be established. 2. The procedure violation penalty system should be established. 3. Improve the law in the suspect s privacy protection.