Mechanism For Judicial Review. Pre-trial Detention And A Comparative Study

As a stringent compulsory measure, pre-trial custody is widely used in criminal procedure. The main purposes of pre-trial custody are to effectively prevent the criminal suspects and the accused from hampering judicial activities, and to make the investigation going smoothly. But pre-trial custody is a two-bladed sword. If it is applied correctly, it may play an important role on punishing crime and preventing crime and carrying out penalty. If it applied improperly, it may seriously trespass the personal freedom of suspects and defendants, even violate the human rights. In many countries, however, the substantive requirements and procedures as well as detention period of the pre-trial custody have been regulated strictly in the relevant laws. Furthermore, judicial review of the pre-trial custody has been universally established in these countries. The constitution of China has stipulated that the state respects and protects human rights. The matter of restriction of citizen's personal freedom has been strictly stipulated in the laws concerned in our country. But the problem such as overtime custody appears repeatedly regardless the regulations. By comparatively study and analysis on the judicial review of pre-trial custody in many countries, this paper will discuss the theoretical foundation of the pre-trial custody and its value, then the author put forward and demonstrates that the judicial review mechanism of pre-trial custody should be built in China. The paper consists of four parts. Firstly, the author compares and analyses the judicial review of pre-trial custody in some countries, including separating the pre-trial custody and the arrest, the organizations to practice the judicial review of pre-trial custody, the substantive requirements and the procedures of pre-trial custody, as well as legal redress on the pre-trial custody. Then the author try to sum up the common features of the pre-trial custody in these countries. Secondly, the author discusses the theoretical foundation of judicial review of pre-trial custody, which demonstrates four aspects including the checks and balance of the powers, protection of human rights, the procedural justice, and principles of the rule of law. Thirdly, the author analyses structural defects of the pre-trial custody in China. Finally, the author discusses the ideal blueprint to set up the pre-trial custody judicial review mechanism in our country. This part emphasis on the procedural institutions, including to separate the measures of detaining, arresting and pre-trial custody, to confirm the body to make decision of pre-trial custody by law. The author put forward the principles of the pre-trial custody, the procedures of the judicial review mechanism and the legal redress procedures. The author thinks that the machinery of executing pre-trial custody should be neutralized. On the basis of the above analysis and discussion, the author try to demonstrate that the judicial review mechanism of the pre-trial custody may be established in the process of managing the state according to law, so as to protect human rights effectively and keep the restraint and balance between executive departments and judicial organs concerned. The paper shows some of the author's thinking for the ongoing judicial reform in China.