Researching On Remedy System Of Illegal Pretrial Detention

As an effective means of criminal prosecution in criminal proceedings, thepractice of pretrial detention has its legitimacy and necessity. However, if the detentionauthority to operate improperly, can easily trespass the legal rights of detainees.Presently In our system of pretrial detention, the error custody, improper or plolongeddetention has been long-term standing, but there is lack of effective relief mechanismto against such illegal detention in criminal proceedings code. Although theamendment of criminal procedure law in2012had modified and perfected the criminalcompulsory measures, which include the pretrial detention. Even that, it has nottouched the fundamental flaws in pretrial detention system, the current situation ofmissing remedy mechanisms in pretrial detention still can haldly changed. Therefore,in order to reform the remedy mechanisms in illegal detention, it is urgent for us tomake a profound reflection and further research on the solution for theabove-mentioned problems.Besides the introduction and conclusion, this article is composed of three parts,which includes about thirty-three thousand words.The first part mainly discusses basic content of the right to remedy. The reliefrights of detainees is refers to that, suspects or accused who suffer from pretrialdetention have the right to submit an application to the relevant authorities, and requirethem to make a fair adjudication. The issues which caused such activities include thelegality, necessity and proportionality of pretrial detention. Granted detainees’ right toresist the illegal or arbitrary detention is based on the presumption of innocence,human rights protection and due procedure principle. The specific contents ofdetainees’ relief rights include applications for guaranteed pending trial, judicialreview, released pending trial as well as get the compensation for illegal detention.The second part makes a deep analysis on the critical issues of remedy system ofillegal pretrial detention in our criminal litigation and the reasons which behind this.Firstly, the rights of detainees which can be remedy is very short. Secondly, the rights against illegal pretrial detention are still limited to adminstrative methods, by thatmeans, there is no judicial remedy proceedings in strict sense. Finally, the legislationconcerning remedy proceedings is ambiguous, lacking of operability, and the actualeffect of remedy is far from satisfaction. The above-mentioned problems are caused byinstitutional factors, legislative factors and cases factors. As we know, thetrial-centered litigation model has not formed in current criminal justice system, thusthe courts can’t intervene in pretrial litigation activities and unable to implement anyform of judicial review. Therefore, there is no judicial remedy in the strict sense toagainst illegal pretrial detention. From the legislative point of view, the pretrialdetention is an inevitable status result from been detained or arrested rather than anindependent compulsory measure, which caused the absence of proportion principle.This kind of legislation designed makes it difficult to provide effective remedymeasures by judicial organs. Furthermore, in practice the benefit when criminalinvestigation agency adopt custody can be obtain is much greater than its’ cost.Meanwhile, there is almost no risk concerning illegal pretrial detention, which lead tothe intrinsic motivation of remedy measures provide by criminal investigation isclearly insufficient.The third part mainly discusses suggestions for perfect remedy system of illegalpretrial detention. To achieve this goal, the precondition is establishing proportionprinciple both at litigation idea and legislation aspect, reforming the current situationof pretrial detention period tends to be unity. The right to be informed of detaineesshould also been guaranteed and make sure that judicial organs have the obligation toinform the rights, though that way to enhance the fundamental rights of detainees.Secondly, as to concrete steps in the legislation, the right to restrict power is one hand,we should take the chance of perfecting defense mechanism by the2012code ofcriminal procedure, expand the influence of righr to defense in pretrial detention, andfully realize the objective of defense lawyers. On the other hand is the power to restrictpower, strengthen the prosecutorial supervision, the prosecutors should play a key rolein pretrial detention procedure and determin whether a formal arrest be made.Moreover, the inspection on the necessity of proceeding detention after arresting need to be improved, establish the judicial review and adopt the model of hearing, thedetainees and defense counsels should also be given opportunity to take part in. At last,in terms of corresponding institutions, we should further improve the existingmechanism for bail, and fully functional alternative to custody on bail, whileestablishing sanctions regime to against illegal detention, raising the cost and risk ofimplementation of illegal detention. Though the above measures, can we achieve thepurpose of illegal detention correction and human rights protection.