Study On The Right Of Communication Of The Accused In Custody

Except preface and epilogue,the article is divided into three parts:The first part is about the basic theory of the right of communication of the accused in custody.The right of communication of the accused in custody refers to the right of the accused in custody who communicate with the outside through some media.This right belongs to a citizen's right of communication,which is a constitutional right;then,if the object of communication is a counsel,this right also relates to the right to defense;in the end,no matter the right of communication in constitution or the right to defense,are both basic human rights.Also because of this,the most important theoretical basis of protecting the right of communication of the accused in custody is protecting human rights.This is not only the inevitable requirement of effective defense,but also an effective means to prevent the inhuman treatment.Protecting the right of communication of the accused in custody has important practical significance to the accused in custody,counsels,the accused person's friends and relatives,and case-handling organizations as well.However,this does not mean that the accused in custody shall enjoy an unlimited right of communication.Limiting this right has the rationality and necessity.Restrictions should follow the principle of law retaining,the principle of proportion and the principle of effective remedy.Otherwise,it will constitute a willful restriction,which also violates the related subject's right of communication.The second part analyzes the protection of right of communication of the accused in custody of the European Court of Human Rights.Following the appeal lodged by the accused because of the examination of his or her communication,the European Court of Human Rights usually uses the article 8 of the European Convention on Human Rights to judge whether the government's actions violate the rules of the convention and invade the appellant's rights protected by the convention.Taking the classic precedent Silver and others v.U.K.as an example,the European Court of Human Rights uses three standards to examine the interference of the right of communication of accused in custody,so as to judge whether the interference violates the article 8 of the convention.The first standard is according to law,the second is with proper purpose,and the third is with the requirement of a democratic society.In addition,the European Court of Human Rights also establishes four principles to the interference of the right of communication rights: abandon the theory of special power relationship,the ban on routine inspection,opening but not reading and procedural guarantee,so as to guide the member states to intervene the right of communication of the accused in accordance with law.The judgments of the European Court of Human Rights have a huge impact on member states,especially a positive impact on the relevant provisions of their internal laws.For example,the Italian government sets up a new legal framework to examine the communication and takes measures to ensure the effective domestic remedy,so as to satisfy the requirements of judgments.As the result,the European Court of Human Rights makes the article 8 of the Convention which safeguards the right of communication real and effective.The third part introduces the actual state of the right of communication of the accused in custody in our country,analyzes reasons,and puts forward suggestions.The Constitution in our country has provided clearly that citizens shall have the right of communication,so the limitations on communication of the accused in custody should abide by the provisions of the Constitution firstly;Criminal Procedure Law regulates the right of communication as a defense lawyer's professional privilege,and regulations are too simple;Other laws and regulations also do not set detailed rules,do not make a distinction among different objects of communication as to the restrictions,and do not establish the principle of examination for exception related to the communication between the accused in custody and their counsels,although they may have already involved the regulations on communication between the accused in custody and their counsels,and between them with their families and friends,communication of foreign accused people in custody with the outside.Practices on the right of communication of the accused are also different.It is of the reasons not only of the ideological concept,but also of the legislation and practice,and of the right remedy as well.Considering the problems in legislation and practice and referring to principles of the European Court of Human Rights,we should implement the concept of respecting and protecting human rights,provide the safeguard of the right of communication of the accused in custody clearly in legislation in accordance with the principle of law reservation,restrict the limitations on the right of communication of the accused strictly in practice in accordance with the principle of proportionality,and provide the subject whose right of communication is violated with effective remedy in accordance with the principle of effective remedy.As the result,we can improve the protection of the right of communication of the accused in custody in our country to seek the proper balance among fighting against crime,maintaining order and protecting human rights.