The Study On Detainee’s Rights Protection In Pretrial Custody

Pretrial custody is a kind of compulsory measure that suspects and defendants are deprived of their freedom and put in a certain place temporarily by the specialized agency according to law before the court judgment in order to ensure proceeding smoothly. Pretrial custody is mandatory, exceptional, temporary and statutory. As an important system in criminal procedure, it has the function of procedure guarantee, security maintenance and human rights protection.The detainees’rights protection has three main theoretical foundations:the presumption of innocence, power restriction, human rights protection. Firstly, according to the presumption of innocence theory, anyone without judicial process should not be considered guilty. It aims to protect the legal rights of the accused and emphasize the dominant position of the accused. Secondly, the theory of power restriction has always been to prevent power abuse and alienation, it can limit pretrial custody right and reduce the violation of citizen’s freedom and other legal rights. Finally, human rights protection has become a theme of the era. Respect and protection of the detainees’ rights is based on the requirement of human rights protection theory.In view of the importance of detainees’rights protection in pretrial custody, the United Nations Criminal Justice Standards have provided a series of standards. From the point of its applicable principles, pretrial custody should have following basic principles:the statutory principle, the principle of necessity, the principle of proportionality, and the principle of judicial review. In term of the rights, the detainees’have right to enjoy freedom from arbitrary and illegal arrest and detention, be informed the reason of the arrest and detention, be brought to judicial organization promptly, be released temporarily, take exception against detention, have a trial within a reasonable time, get assistance from counsel, receive compensation for illegal detention, and humane treatment.There are various problems in the judicial practice of our pretrial custody, mainly in the lack of judicial review and judicial relief, finiteness of counsel assistance, non-neutrality of detention place, general detention, extended detention, the serious torture. In order to solve the above problems, the Code of Criminal Procedure of2012have improved greatly on pretrial custody, such as immediately sent to detention center, not notify the family with strict restriction, review the necessity of detention, improvement of counsel assistance, further improve on the principle of the presumption of innocence, refinement of the conditions of arrest, etc. But compared with the Untied Nations Criminal Justice Standards, there are some shortcomings in the new Code of Criminal Procedure, such as the conflict between the privilege against self-incrimination and obligation to answer truthfully, restriction of counsel assistance, insufficient reason of the arrest and detention, unspecific rule on review the necessity of detention, and lack of the right to take exception against detention.In order to protect new legislative achievements, implement the spirit of the new Code of Criminal Procedure, and protect the suspect, defendant’s rights and other interests, we can make great efforts from the following aspects. The detention center should be neutral under the jurisdiction of administrative organization of justice. The detainee’s obligation to answer truthfully could be canceled to protect his privilege against self-incrimination. Lawyers have the right to be on the scene when the detainee is questioned, and increase relief mechanism of counsel assistance. The right to be informed the reason of the arrest and detention should be improved comprehensively. The right to take exception against detention shall be put into practice for protecting detainee’s legal right. The system of reviewing the necessity of detention should be specific for it is convenient for practical operation.