On The Right-of-access-to-case-files Of The Defendant

As an important institutional design for acquiring adequate information and realizing effective defense by the defendant, right-of-access-to-case-files is an important means of guaranteeing exercise of the full right to defense by the defending party. Under modern system of criminal proceedings upholding the defendant as the subject of litigation and the Theory of Equilibrium of Prosecution and Defense, not only the defendant is the subject of right-of-access-to-case-files, but also the defendant is entitled to exercise such right in person. At present, as the defendant’s right-of-access-to-case-files has been expressly stated in many international conventions, meanwhile the contents with respect to the defendant’s right-of-access-to-case-files have been greatly enriched by the judicial practices of European Court of Human Rights established under European Convention on Human Rights, which are of essential value of reference for perfecting the system of accessing-to-case-files in member states. Under the influence of cases reported by such court, it has been an orientation of criminal procedure law of modern country under the rule of law to recognize the defendant’s right-of-access-to-case-files. In such an international context, the legislation in China, however, remains to uphold such traditional idea that the right-of-access-to-case-files should be vested to the defender, and that the defendant is prohibited from accessing to case-files directly since the setting and perfecting of such system of accessing to case-files are all defender-centered. While it remains an issue with such an arrangement that how such defendant without any defender can access to case-files, meanwhile it is for reasons that the right to access to case-files are vested to the defendant, therefore such a long-disturbing problem of “difficulty in accessing to case-files” has been caused due to failure to realize equality in hierarchy of rights between the rights of defendant and that of the defender, and due to much restrictions imposed during the defender’s exercise of his right to access to case-files, so it is evident that such a legislation and legal practice are well worthy of review and reflection. This thesis, based on typicality and far-reaching influence of practices of European Courts of Human Right, makes a systematical summarization to the system of accessing to case-files under the operation of European Court of Human Rights by analyzing precedent cases, and re-examine and review the theory on the right-of-access-to-case-files on the basis thereof. This thesis, by making a thorough review of the laws and regulations and theories existing in China concerning the right-of-access-to-case-files, makes an analysis to the necessity of the defendant to enjoy and exercise his right to access case-files, which theoretically removes obstacles for vesting right-of-access-to-case-files to the defendant by legislation, and further attempts to formulate a system for accessing to case-files in China by integrating the existing litigation system in China.This thesis proceeds in four parts except for introduction.Part I introduces the legislative evolution of Chinese right-of-access-to-case-files. There are two sections in this part, section one is the legislative evolution concerning system of accessing to case-files, in which a systematical summarization is made to the system of accessing to case-files in China from the following five aspects, i.e. subject, time, scope, supporting measures and new breaks, and a conclusion is made therefore that the existing system of accessing to case-files in China is defender-centered, especially the attorney-for-the-defendant-centered, and the possibilities for the defendant to access to case-files are completely excluded under such a system; section two are challenges to the existing system of accessing to case-files. By analyzing from three aspects, i.e. lower rate of defense, reliance between the defendant and the defender, and occupational risks of the defender, it is believed that the existing system of accessing to case-files can not meet the needs of the defendant’s obtaining information on case-files.Part II describes the dispute on ownership of the rights-of-access-to-case-files. One of the reasons that restrictions exist for development and reform of the system for accessing to case-files lies in that theoretical research lacks of attention to the defendant’s right of accessing to case-files. A big debate has been arisen in theoretical and practical field to such a fundamental issue in terms of ownership of the right-of-access-to-files due to problems faced in judicial practice and under the influence of the overseas development of the right-of-access-to-case-files. Typically, there are three theories: Monadic Theory claims that the right-of-access-to-case-files is an inherent right of the defender, and opposes that the right-of-access-to-case-files is vested to the defendant, such a theory is mainly based on the following considerations, first, absence of legal vestment, second, the defendant’s role as a provider of verbal evidence, third, a series of negative effect caused by the defendant’s access to case-files. While Binary Theory holds that the defendant is the subject of the right-of-access-to-case-files, and the defender’s right-of-access-to-case-files is a derivative right. Such a theory demonstrates the legitimacy of vesting the right-of-access-to-case-files from the following aspects, i.e. the value of the right-of-access-to-case-files, defendant’s status in litigation and current judicial status. And Pluralism is in favor of the viewpoint that the right-of-access-to-case-files belongs to the defendant, and therefore holds that the immediate family of the defendant shall also enjoy such right, but certain restrictions may be imposed to the rights of immediate family in consideration of interests of respective parties.Part III is about the model of disposal of European Court of Human Rights. As a key part of this thesis, it is divided into three sections. First, by making a brief introduction to European Convention on Human Rights and European Court of Human Rights, an interpretation is made to relevant provisions of the Convention, and an explanation is made to the establishment and functions of European Court of Human Rights. Second, supported by a number of pertinent precedent cases, the model of disposal in respect of the right-of-access-to-case-files by European Court of Human Rights is formulated. According to the Court, the object of the right-of-access-to-case-files is all information obtained or possible to be obtained by the nation, and the subject of right-of-access-to-case-files belongs to the defendant, and meanwhile the defender’s right-of-access-to-case-files is admitted, thus the right of defendant and that of defender are deemed as a whole right. Principally, the period for exercising the right-of-access-to-case-files is in line with the period of prosecution; however, the application of the right-of-access-to-case-files to defendant subject to possible physical restrictions may be extended appropriately. The court holds that the right-of-access-to-case-files may be restricted, and exercise of the right-of-access-to-case-files may be restricted for the need of special benefits, however, restrictions are exceptions to the right-of-access-to-case-files, therefore they should be confirmed with reasonable procedures. Once the right-of-access-to-case-files is infringed, the member states shall offer means of remedies to the defendant. Third, based on comments to the right-of-access-to-case-files from the view of European Court of Human Rights, a basic profile of the right-of-access-to-case-files is outlined on the basis of the foregoing sections, and the difference in logic of jurisprudence in terms of defendant’s right-of-access-to-case-files between the European Court of Human Rights and that of the member states is analyzed, and a brief comment is made to its mode of operation.Part IV is on structuring the defendant’s right-of-access-to-case-files in China. There are two sections in this part. First, an overall idea of system structuring is proposed by responding to the dispute in ownership of the right-of-access-to-case-files mentioned above, i.e. on the premises that the right-to-access-to-case-files belongs to the defendant, admitting the binary subject system of accessing to case-files, i.e. the right-of-access-to-case-files are jointly exercised by the defendant and the defender, and the necessity of vesting the defendant and reserving the defender the right-of-access-to-case-files is further elaborated, thus laid a theoretical support for the overall idea. Second, with respect of the specific structuring of system, based on the existing system of litigation in China, an attempt has been made in this thesis for structuring a system of accessing to case-files which is in compliance of the current judicial status in China from five aspects, i.e. subject, scope, time, manner and remedies for infringement.