Privacy Protection In Criminal Investigations

Protecting basic human rights and safeguarding human dignity are the highest legal values of the constitution.As one of the internationally recognized human rights,the right to privacy shall be protected undoubtedly.Criminal investigation,as a significant part of the criminal procedure,has the mission of finding out the truth,fighting crimes and maintaining public safety.In judicial practice,the enforcement of investigation power by investigation organs often infringes citizens' right to privacy.In this case,the demand for protecting basic human rights,especially the right to privacy,is increasingly prominent.Besides,citizens expect the improvement of laws and regulations on the protection of privacy.It is a difficult issue to balance the mission of criminal investigation and the protection of citizen's privacy.Chinese laws and judicial interpretations lack detailed and systematic provisions on investigation measures.Adhering to the principle that regulations are better to be broad than specific,provisions on privacy are broad and vague,which leaves room for the infringement of privacy.China should learn from the mature experience of foreign countries to improve the procedural and substantive provisions on criminal investigation.By analyzing extraterritorial investigation systems and cases,China can get inspiration and find a balance point for the conflict between the enforcement of criminal investigation right and the protection of privacy.Privacy protection in measures of conventional investigation,including questioning,search of domicile and persons,seal-up and seizure,shall be carefully considered at the legislative level.Criminal procedure law stipulates that the questioning of the victim is applicable to the questioning of the witness;however,under the circumstance that the victim has already suffered from the infringement,if the investigation organ fails to pay attention to the questioning environment and keep secret of the victim's privacy,the victim would suffer the second harm.With thedevelopment of social practice,the traditional definition of “domicile” should be extended.Besides,in the case that search at night has been legally included in the laws of many countries,China should consider including it into the laws or relevant judicial interpretations to protect the peace and privacy of citizens' life.While the search to extract the biological information has a greater invasion of the privacy of citizens,it is necessary to specify the laws and regulations of searching persons.The right to privacy of a third party shall be fully protected in seal-up and seizure of persons' items who have the professional secret,such as lawyers and doctors.In compliance with the rapid development of technology,the section of“measures of technical investigation” has been added into the criminal procedure law in 2012,which has confirmed the status of measures of technical investigation in the legislation,but only with five vague provisions.Measures of technical investigation are used to achieve the purpose of investigation by means of concealment,which has the characteristics of technicality and secrecy.If the provisions in procedural law are not strict,it is easy to abuse the investigation right and violate the right to privacy.Without the specific stipulation,monitoring on communications occurs frequently.When network service providers hold the users' information and record,in order to obtain the evidence,investigation organ would require them to provide relevant content without the writ.In the aspect of network monitoring,the subject responsible for approving investigation measures is unknown.In order to further promote the realization of the goal of respecting and protecting human rights,China's criminal procedure law and relevant judicial interpretations shall be further improved on investigation measures,including that the basic principles of the rule of law should be insisted in the legislation,the criminal investigation system shall be supplemented,and ex post remedy approach should be improved.To perfect the criminal investigation from both internal and external aspects is the best solution for protecting the right to privacy,thus playing a positive role in maintaining the basic balance between fighting crimes and protecting human rights.