Font Size: a A A

On The Right Of Accessing To The Case Materials Of The Suspects And The Defendants

Posted on:2018-04-24Degree:MasterType:Thesis
Country:ChinaCandidate:Q LinFull Text:PDF
GTID:2346330515990123Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Information is crucial for the effective defense and access to the case materials is the most convenient and effective means to get the information.Because most of the accused persons in China's criminal proceedings don't have a defense lawyer,the accused persons can't view the case materials by themselves and most of those accused persons are detained,those accused persons who don't have the defense lawyer totally don't have any access to the case materials of his case which is bad for the effective defense?cross examinations and identifications.By comparative views,the European Union(EU)has passed a directive about the suspects and defendants' right to the information in criminal proceedings.In this directive,it has provided the scope of the accused's right to the case materials,when and how the accused may get the access to the case materials.What's more,European Court of Human Rights(ECtHR)has decided many important cases on the suspects' right to case materials which have influenced greatly on the European country and the EU directive.By referring the practice of ECtHR and the provisions of EU's directive,I will discuss the background and significance for the accused's right of access to the case materials in China's criminal proceedings and suggest that we should give the accuse persons access to the case materials in China's criminal proceedings.This thesis proceeds in three parts except introduction.Part I has analyzed the right of access to the case materials in the ECtHR case law.According to the case law of the ECtHR,the suspects and defendants have the right to get the case materials which are essential to challenge the lawfulness of the detention.The time for the right is before trial,while the prosecution should give the defendants enough time to prepare effective defense.The authority should guarantee the defendant and his lawyer essentially get the case materials not by the forms.What's more,in the ECtHR case law,it has explained the situations when the authority can refuse to give the defendant or his lawyer the case materials and the means for the defendants and his lawyer to have when their rights are been refused.However,the case law of the ECtHR is not systemic and it is only binding for those complained countries.For the other countries of the EU,it is depending on themselves to obey the ECtHR case law.Part II is mainly about the analysis of the EU's directive on the suspects and defendants' right to case materials.EU's directive is the results of the European integration.EU law has provided the minimum standards for the protection of suspects' rights and has provided another way for the accused to ask for help.For the accused's right to the case materials,EU directive has absorbed the experience of ECtHR.For the right of access to case materials,the EU directive has distinguished the right based on whether the suspects or defendants being arrested or detained.If the accused has been arrested,no matter which stage he is in the criminal proceedings,the accused has the right to get the those materials which are essential to challenge the lawfulness of the arrest or detention.If the accused doesn't been arrested or detained,he has the right to get the material evidences which are in the possession of the authority.The time for those accused(who haven't been arrested)to get the case materials is before trial,while the authority should give enough time for the defendants and lawyer to prepare effective defense.The right of access to the case materials is free.When the accused has been arrested or detained,the authority should inform the accused his procedural rights by the way of letter of rights.EU directive has also provided some situations where the authority may refuse to give the accused or his lawyer the case materials and the ways which when refusal happens the accused and his lawyer may use for pleading.Although EU law has provided the minimum standards for the protection of the suspects and defendants,as there is different legal systems and traditions between the member states,the effectiveness of the EU law in the member states is largely depending on how the EU law can coordinate with the national laws.Part III is the analysis of the access of case materials in China's legislation and practice,its main problems and the caused for those problems.By referring to the foreign experiences,I suggest that we should also provide the accused the right of access to the case materials in China's criminal procedure law.As for the right of access to the case material,in China's criminal procedural law,there isn't uniform rule about this right.In practice,the accused is rarely able to get the case materials in China's criminal proceedings.There are many reasons for this problem which includes the investigatory-centered in China's criminal proceedings,the emphasis on the penalty than the protection for the accused in practice,the aim of criminal procedure and the stage where we are in the criminal proceedings.In China's criminal proceedings,because there is great power gap for the prosecution and defendant and his lawyer on the collection of evidence,plus most of the accused doesn't have a lawyer,it is critical to entail the accused right to the case materials in criminal proceedings.There are many advantages for providing the accused with the right of access to the case materials such as it will advance the efficiency of the procedure,it will help the fulfillment of cross-examinations for the accused and it will promote to realize the effective defense.The specific improvement measures including give the accused right to case materials,distinguish the right of access to case materials on the basis of whether the accused have been arrested.Define the specific rules for the accused to achieve the right of access to case materials,the situations when the authority may refuse to give the case materials and the means for the accused and his lawyer to turn to for help when the refusal does happen.
Keywords/Search Tags:The Suspects and Defendants, The Right to Case Materials, European Law, ECtHR Case Law
PDF Full Text Request
Related items