Research On Swiss Compulsory Measures Court

Like Germany and France,Switzerland is a civil law country,whose legal system,however,receives much fewer attention from Chinese scholars.The existing study is limited to the introduction of the general legal system in Switzerland by Chinese delegation in earlier years.As for criminal law,domestic studies mainly focus on punishment execution system and military legal system in Switzerland,besides the introduction of the changes of Swiss criminal law by Taiwan scholars.The author examines the new Swiss criminal procedure code implemented since 2011 during her visit there.To restrict the investigation power in the investigation procedure,and to comply with the requirement of human right protection in the international world,this criminal law sets up the criminal compulsory measures court,which is one of the innovations of the law.The function of the criminal compulsory measures court is to conduct judicial review of decisions and modification of compulsory measures,including custody and some mandatory investigation acts.Through the ruling of compulsory measures court,this criminal law effectively restricts the criminal compulsory measures involving civil rights and personal freedom.However,Chinese criminal procedure law only defines the approval for arrest by the procuratorial authorities as judicial review,while other compulsory measures and compulsory investigation behaviors that might infringe citizens' basic rights can be approved by the investigating organ after internal review.In judicial practice,the prosecutorial aim of investigating organ and weak supervision can easily lead to the abuse of compulsory measures,thus infringing suspects' personal and property safety.Therefore,this thesis examines Swiss compulsory measures court and analyzes the judicial review of criminal compulsory measure in China.Based on modem concepts of criminal procedure such as protection of human rights,balance of power,and due process,the author refers to the judicial review of Swiss compulsory measures and conceives a judicial review system,where a compulsory measures court is established,to restrict criminal compulsory measures involving citizens' rights and personal freedom,and to letigationize the investigative procedures,thus fulfilling the goal of protecting human rights and prosecuting criminals.The study consists of five parts:Chapter One examines Swiss criminal compulsory measures.The author first introduces the definition of compulsory measures in Swiss criminal procedure law and points out that the law emphasizes the features of the infringement of civil rights in terms of compulsory measures.Secondly,the author introduces the principle of application in Swiss criminal compulsory measures,including principle of legality,principle of proportionality,etc.Finally,the author moves to the brief introduction of compulsory measures system in Swiss criminal procedure law.Chapter Two examines the background of Swiss compulsory measures court.On the one hand,the developments of International Human Rights Covenants improves the human rights protection worldwide,and European Convention on Human Rights binds its member states to more specific obligations.On the other hand,to fulfill the goal of effective prosecution,Switzerland chooses procurator-oriented investigating organ after the integration of criminal law in federal level;thus,Switzerland establish a separate compulsory measures court to balance its power.Chapter Three closely analyses the basic features of Swiss criminal compulsory court and the operation mechanism.This chapter first introduces the features of compulsory measures court such as independence,exclusivity,and short time limit of trial.It then interprets the court's functions in terms of approving custody and some compulsory measures,distinguishing pre-examination and ex post approva.This chapter also explains that both the federation and states have the authority to decide the structure of compulsory measure court,and examines the private hearing in process of judicial review of custody and the confrontation in the process of ruling,pointing out that the possibility of documentary hearing is not excluded.Finally,this chapter points put the justiciability of the ruling of compulsory measures court and suggests that suspects are defined the right of appeal to objections authority.Based on the above research on Swiss compulsory measures court,Chapter Four focuses on its value on protection of human rights and balance of power and reviews its defects such as over intervention in investigation power,lack of rigidity in terms of alternative measure,and neglect of the victim's opinion.Chapter Five first recognizes the differences between Chinese and Swiss criminal compulsory measure,and then analyses the necessity of establishing judicial review of compulsory measures in China,according to the existing judicial review system in our country.Refering to Swiss compulsory measures court,the author conceives of the establishment of compulsory measures court and its operation mechanism in our country.