Investigative Power Under The Scope Of Human Rights Protection

Human rights are respected and protected according to China's Amendments to the Constitution of the PRC code 24. This statement clearly shows that protecting the human rights has become the basic responsibility of the state. Any state power may not violate human rights. Instead, such power should be exercised in the way to protect and promote human rights. Among these powers is the investigative power without exception. The basic functionality of investigative power is to control crime and to protect human rights. The primary purpose of crime control is to protect human rights, which is also referred to by "The rationality of power lies in its rights protection". If the human rights are ignored or abandoned in the process of exercising investigative power, and crime control is inappropriately emphasized, the practice of investigative power will lose its direction. In that case, it will become a double-edged sword without control, which may hurt innocent people at any time. The validity of exercising investigate power seeks the optimal balance between crime control and human rights protection. In China, although the doctrine investigation mode has obvious advantages in the crime control, it has relatively weak protection for human rights. How to control crime effectively while strengthening and improving the human rights protection functionality of investigative power become the keys to the validity, rationality and harmony of exercising investigative power. In this thesis the human rights protection functionality of investigative power are discussed in detail, as shown in the following five chapters. Chapter 1 begins with the characteristics of investigative power, followed by bringing up and demonstrating the idea that investigative power is one judicial power having the administrative tendency. Further discussion in carrying out the investigative system reform according to the judicial rule is also presented. Chapter 2 demonstrates the necessities of strengthening the protective functionality of investigative power to the human rights in four aspects of law theories, litigation laws, investigative practices and international situations. Chapter 3 comparatively studies the investigation modes within the human rights protection dimension, discusses the main characteristics of the doctrine investigation mode and litigant investigation mode practiced in the major jural countries in the world and provides specific analysis to the functionalities of human rights protection. Chapter 4 objectively evaluates the advantages and disadvantages of China's doctrine investigation mode. Based on the evaluations, four major problems regarding the human rights protection during the investigation process are identified and emphasized, which include obtaining testimony by torturing, overtime detaining, difficulty of lawyer involvement, dereliction of the investigation authority. Chapter 5 gives some specific suggestions on making improvement of the investigative power and human rights protection. Firstly, the rule that investigative power be governed by law should be established, which ensures the principle of mandatory legal investigation, the principle of proportion, and the principle of judicial review. Secondly, investigation should be specified by the procedure. By improving the specific investigation procedure, the standardized investigative power system should be setup. Finally, the power and/or rights restriction system should be used to restrict investigation. The investigative power restriction systems including inspection and supervision system, trial and standardization system, defense and restriction system and internal self-inspection system should be established and improved.