The Study Of Pre-trial Detention By The People’s Courts

With the constant advancement of judicial reform and the emphasis on judicial protection of human rights,the procuratorial organs have gradually tightened the restrictions on the exercise of power to arrest.Under this background,the situation,that the court decides to arrest the defendants who were not detained before the trial,has been increasing.This article argues that although there is always a cause when the abovementioned situation happens and more and more courts would choose to do that,in fact,the inevitable requirements vary in different cases,and not all pre-trial arrest decision is bases on sufficient reasonableness.Those pre-trial arrest decision which make convenience for the coming trial and the execution of the uncertain imprisonment,may often seem reasonable,however,it is always lack of legitimacy and rationality actually.This paper uses data statistics analysis,interviews and questionnaire surveys to investigate the actual situation of the court’s decision to arrest before the trial,and finds that the rate of pre-trial arrest being decided by the courts in China is on the rise.Nowadays,with an increasing focus on the protection of human rights,the rise in pretrial arrest rates has attracted attention and caused controversy.In addition,deciding to arrest before the trial is not just a specific judicial practice of a particular district courts.The data shows that kind of practice is general in all parts of our country,and the only difference is the amount.Defendants suspected of various crimes may be arrested by the court before the trial,and among them,those who are involved in crimes such as dangerous driving crime and larceny are most likely to be arrested before the trial.The maximum statutory penalty for dangerous driving crime is detention,so defendants suspected of dangerous driving crime does not meet the conditions for being arrested according to the existing law,but the courts would still decide to adopt pre-trial arrest.The investigation have found that the main reasons for the behaviors of the courts are: the defendants have seriously violated the relevant prohibitive provisions during the period of bail or residential surveillance,and have not been present at court or escaped when noticed;or the attitude of confession is not good and do not actively reach a settlement with the victim;or intend to sentence the defendant to imprisonment so that detaining him in advance would make for the execution of the penalty.The reasons why courts decide to arrest defendants before the trials can be divided into two categories.One is necessary category,which means that when the defendants who is released on bail or residential surveillance before the trial violate the relevant prohibitive provisions but not be arrested by the procuratorial organs,the courts decide to arrest to ensure the smooth conduct of the court trial procedure.The other is unnecessary category.In this kind of situation,the defendants who is released on bail or residential surveillance before the trial comply with the regulations,and there is no statutory circumstance leading to arrest.The main consideration of the courts to conduct pre-trial arrest is that the defendants is tend to be sentenced to imprisonment,or the pretrial arrest is convenient for the coming court trial.The pre-trial arrest decision has different effects on both the defendants and the courts.For the defendants,it will cause them to lose freedom,encounter negative evaluation of the community,interrupt production in normal life,and reduce the possibility of being sentenced to probation or innocence.For the courts,it could prevent defendants from being absent at court trial or escaping,and guarantee the judicial procedure to proceed normally.As for the lack of legality and rationality of the pre-trial arrest,the main manifestation includes that the court might violate the principle of proportionality applicable to the compulsory measures,and the situation that the court is both the approving authority and the executive authority would pose a threat to the defendant’s legal rights.Moreover,when the court decides to arrest defendants before trial,it is hard for the procuratorial organ to conduct supervision and also for the lawyers to exercise defense functions,causing unnecessary arrests and ignorance of innocence.In order to prevent the risks mentioned above,the internal supervision should be set up by the courts,and the external supervision by the procuratorial organs should be reinforced.Meanwhile,the judges should establish the correct concept of handling cases,and the court should perfect the examination method for judging the judges’ performances.Everything should be done to let the power to arrest not become a private tool for the judge itself.