Because a few days ago, I revealed two Lv Xian three lawyers “scam” case investigators to a case that the second defendant Shao Baichun torture video, got a call from the criminal judge to undertake the case, said I violated the national for the criminal cases handled by the lawyer is jointed release article 37 of the “lawyers involved in the case of criminal proceedings, can not to the criminal suspect or the defendant’s relatives and friends as well as other units and individuals to provide, shall not, without approval, or the social public to the media disclosure”, asked me to delete the video, otherwise will notify the relevant departments.
I made it clear to the judge that I released the video in order to expose the illegal and criminal acts of the investigators, to perform my duty as a lawyer in accordance with the law, and to exercise the right of citizens to criticize and accuse state organs and state functionals. If the judge finds that I have violated the rules, he will notify the same department.
As a professional lawyer punishment argue, of course I know the rules for the criminal cases handled by lawyers, the provisions of article 37, but doesn’t use all when the judge in the case of the rules for the criminal cases handled by lawyers, familiar with, so let me are: through public interrogation of a sound recording or video recording, I reveal Lv Xian SanAn investigators torture, the court of justice judicial no nuisance! On the contrary, it also helps to remind the judge that there is a problem of extorting confessions by torture in this case. The second trial should focus on examining the legitimacy and authenticity of evidence, and it can even eliminate the pressure on the judge to exclude illegal evidence and promote judicial justice.
However, the judge was not only ungrateful to me for exposing torture to promote judicial justice, but also asked me to delete my posts and threatened to report me to the relevant authorities. It is harder to be a good man than a good lawyer. Wouldn’t it help to cover up the criminal behavior of the investigators if I deleted the video revealing torture? If only judges had shifted their focus from helping investigators cover up torture to trying to achieve justice, rather than trying to figure out how to deal with lawyers.
Lu Xianxian “fraud” case files show that Shao Baichun accepted the indictment to reflect that he was tortured to extract confessions, applied for the removal of illegal evidence, but the court of first instance did not pay attention to; Lu Xiansan’s first-instance defender applied to get the audio and video recording of the co-defendant’s interrogation, but the court also ignored it. For the special format of dozens of simultaneous audio and video recordings of the trial (many interrogation transcripts corresponding to the trial has not been due to the simultaneous audio and video recordings of the interrogation), the first-instance judge may not have seen, or can not see. (By the way, my team and Mr. Siweijiang’s team also did a lot of research to convert the audio and video recordings of these interrogations into a viewable format.) Therefore, the judge of first instance may not know about the interrogators’ coerced confessions, such as violence and threats, reflected in the simultaneous audio and video recordings of multiple interrogations (even to the “victim”).
The three Cases of Lu Xian, whether the facts, evidence, or the application of law, the existing problems are obvious! Especially, Lv Xian three lawyers acting normal fee, normal lending dispute, has been public security at the outset as Shao Baichun, Xu Weiqin implementation “routine” loan “dog military adviser”, and draw’s procuratorate arrest on suspicion of fraud, in the people’s procuratorate three times to “insufficient” does not grant to arrest (procuratorate reconsideration in hefei, anhui province people’s procuratorate review remains not arrest decision), its still a general civil agent ACTS, to the crime of fraud and a fake action two transferred for examination before prosecution, investigators were obviously think they think is “crime” more accord with the characteristics of the false action, But false litigation sin is nine crime stipulated in the amendment of criminal law, can not cover the case of Lv Xian before three lawyers agent, with two SINS transferred for examination before prosecution), then has been to “insufficient” Lv Xian three not to arrest the procuratorial organs to participate in crime of underworld gangs and crime of fraud of the two charged to hefei then, and was then regarded as Shao Baichun hefei, eventually Xu Weiqin couple “routine is borrowed” accomplice “fraud”, in order to fraud sentenced to 12 years, significant errors.
Jin Hongwei and Yan Xin, the two defenders in the first trial, I and Si Weijiang, as the second defenders, so do many of my fellow lawyers who follow the Case of Lu Xiansan. It is understood that the anhui bar association organization’s argument opinion, also thinks so.
It is just such a case, which is regarded as the first “routine loan” in Anhui province. The investigation organ claimed that it had the instruction of the provincial leader and the public procurator and the law to study in Shanghai together, and said that it would “put him in place according to the set of Shanghai”. The first trial has been done like this, and how to defend the second trial has always been a problem we are thinking about. As professional criminal lawyers, we are all too familiar with the court system. For a second-instance case, especially one involving many people like this one, the opening session will of course be very troublesome. Therefore, the judges of many courts will meet with the appellant in a routine manner and urge the lawyer to submit written defense opinions. Even if new evidence is presented, the court will often reject the appeal directly and maintain the original judgment.
In order to allow the parties to have a public trial, and thus to obtain a fair trial, we decided to carry out a public defense for Lu Xianxian’s lawyer. Under the circumstance that the court is not sure whether the trial will be held or not, releasing the video of investigators’ interrogation by torture, which could also be used as evidence in the public trial, is part of our public defense for Lawyer Lu Xianxian.
As I said in a text message I sent to the judge after receiving a call from the judge asking for deletion, “I disclose the issue of police officers’ extorting confessions by torture solely out of the fulfillment of a lawyer’s duty to safeguard the legitimate rights and interests of the parties, the correctness of the law and social fairness and justice. If such problems are not disclosed, doesn’t it mean that such abuses will be buried forever?
I thought about disclosing the video for a long time, and I thought that it might offend the powerful Anhui public security and judicial organs, and the consequences might be very serious, but I finally decided to disclose it. No matter what the consequences are, I am willing to bear them. Although I am totally free to defend The lawyer Lu, the disclosure of these public security personnel’s extortion of confessions by torture is, after all, related to safeguarding the legitimate rights and interests of the lawyer Lu, safeguarding the correct implementation of the law, and safeguarding social fairness and justice. If it stops me from practicing law, let it be my last service to the profession.”
It is a great pity that the video I posted was taken down soon after I received a phone call asking me to delete the video of hefei public security’s torture to extract confessions. To that end, I posted a tweet: “What happened to the synchronized recording and video recording of the shocking torture? At all events, to the extent of the elimination of criminal evidence, presumably have division on the problem has been clear! Will we try to solve the problem, or will we solve the problem for the person who raised it?” In this regard, many fellow lawyers expressed their support to me in different WeChat groups, friend circles and weibo, or in their communication with me. They believed that there was no problem for me to disclose the audio and video recordings of hefei public security bureau’s interrogation under torture of criminal suspects (see the attachment).
The comments of all the lawyers are very insightful. Here, I would like to share my views with you.
img
First of all, the video I have released to extract confessions by torture is not a case file, but a defense evidence to be submitted to the court.
I have taken two clips from a 30-hour interrogation of the suspect Shao Bochun in the case file. The video is made of 8 minutes and 26 seconds and 13 minutes and 27 seconds, and we have written the words with them. This is part of the defense evidence we are going to bring to court.
During the dozens of hours of interrogation that I released, there was plenty of violence and threats recorded on video. Investigators also extorted confessions from other criminal suspects to varying degrees, and even resorted to threats to coerce the so-called “victims” into giving evidence. We will take audio and video footage of interrogations that have been found to be problematic and make it into defense evidence.
We also sorted out the only audio and video recordings of the trial of several important defendants into texts (the simultaneous audio and video recordings of multiple trials lasted several hours, ten hours, even 20 or 30 hours, and the texts were tens of thousands of words or even hundreds of thousands of words, which took the team a huge amount of time). These according to the interrogation audio – video collation of the text, and interrogation transcripts are vastly different. We are also prepared to present it to the court as defense evidence.
A little regret, because time is limited, and we don’t need to responsible for the entire case Shao Baichun couple’s defenders, the first-instance judgment has not considered Lv Xian three lawyers accused to participate in the underworld property organization crime, we only see parts of the procuratorial organs refer the case to the court and Lv Xian three lawyers were sentenced to recognition of the crime of fraud of the relevant criminal suspects in the volume of trial video, the other has nothing to do with the “crime” Lv Xian three interrogation of the suspect connection with the video, not see, also don’t have time to see an estimated. If the procuratorial organs in the volume of all the criminal suspect interrogation transcripts corresponding to the synchronous audio and video, are transferred to the court, we also have time to other and Lu Xianthree “crime” unrelated to the interrogation of the criminal suspects are seen through the audio and video, I believe that we will find many and I open torture video similar scenes!
Yes, I publish the evidence we produce as defenders, not case files!
Second, I publicized the “fraud” case of Lawyer Lv Xiansan, who was characterized by the public security organ as “refusing to confess his criminal facts suspected of fraud”. It is a defense act to extract confessions by torture by video.
Once a criminal suspect is subjected to coercive measures, he is labeled a “criminal” and social evaluation is lowered. Arrested, prosecuted and tried, with the progress of the prosecution process, the damage to the social evaluation of the parties is also increasing. Especially the cases publicized by the public security and judicial organs. Therefore, criminal defense, especially party pleaded not guilty of suspected person, is not only to the law for a fair evaluation, but also to bring justice to the parties to a social evaluation, lawyers have a duty to the society know what to do with his client’s case is that his client was wronged, the law of public security judicial organs to evaluate whether justice! The large number of miscarriages of justice shows that justice is not always fair. In the case of judicial injustice, if the society does not know the true facts of the case, can not give the parties just evaluation, for the parties, is undoubtedly double injustice! Therefore, for cases that do not involve privacy, state secrets or commercial secrets, lawyers’ public defense for their clients is not only the due justice of judicial openness, but also the natural requirement for lawyers to protect the legitimate rights and interests of their clients!
As a defender of Lu Xianxian, the lawyer who was accused of propaganda, I publicized the video of investigators’ torture to extract confessions, revealed the illegal and even criminal behavior of investigators, and revealed the illegal evidence collection of the case, which was just to defend my client! This is not only in the protection of the legitimate rights and interests of the parties, but also in the maintenance of the correct implementation of the law, the maintenance of social fairness and justice!
Therefore, the disclosure of part or all of the interrogation recordings and videos in the case files that can reflect my defense views is a legitimate and reasonable use of the case files, and is necessary to fulfill the lawyer’s defense duties in accordance with the law, not a “unauthorized disclosure to the media or the public” case files!
Third, I have publicly disclosed that the act of extorting confessions by torture by investigators is a citizen’s public criticism and accusation against state organs and state functionaries. It is a lawful act protected by the Constitution.
Article 41 of the Constitution of the People’s Republic of China provides that citizens have the right to criticize and make suggestions against state organs and state functionaries, and the right to appeal against, charge against and expose violations of the law or dereliction of duty committed by state organs and state functionaries.
The illegal collecting of evidence and extorting confessions by torture by investigators are, of course, illegal acts of state functionaries, and even criminal acts in serious cases. In this regard, lawyers, as citizens, without prejudice to the legitimate rights and interests of their clients, have the right of course to criticize, accuse and inform against. Criticism, charges and exposures of illegal or criminal acts may, of course, be made in writing materials to the relevant departments and organizations for their reflection. However, the law does not exclude public criticism, accusation and accusation of illegal and criminal acts. On the contrary, the public criticism, accusation and report of illegal and criminal behaviors have more obvious effect and greater social significance than writing materials for the relevant departments to reflect. Of course, the criticism, accusation and report also need to have greater courage and social responsibility, which is more commendable! This is not, I disclose the problem that investigators extorts a confession by torture publicly, not to encounter menace “should inform concerned branch”. Maybe the interested parties will press the bar association and the judicial administration to punish me!
Fourth, I have publicly disclosed that the act of extorting confessions by torture by investigators is a socially beneficial and harmless act that should be encouraged. The purpose of the Code for Lawyers handling Criminal Cases is not to censure lawyers’ pro bono activities, nor to restrict lawyers to protect the legitimate rights and interests of the parties in any way not prohibited by the law, to safeguard the correct implementation of the law, and to safeguard social fairness and justice.
Extorting confessions by torture is a kind of violation of human rights and the rule of law, which has serious social harmfulness. Therefore, the public disclosure of torture is to maintain the rule of law, is a kind of public interests to protect the behavior. Such behavior should be encouraged, not condemned, by the whole society.
Just as in the face of illegal and criminal acts, some people may shout loudly at the injustice, publicly stand up to reveal, stand up to stop, or even turn over the criminals, which may result in the crazy revenge of the criminals. Some people are less daring and dare not publicly reveal and stop crimes. Instead, they report to officials and ask for secrecy. While some people may turn a blind eye to the crimes, or even laugh at the brave people who do not know how to protect themselves and show their courage.
A normal society will not require all people to do good deeds, but it will always support and encourage those who do good deeds, instead of criticizing or even punishing them.
Whatever the provisions of the Code for Lawyers to Handle Criminal Cases, it is not intended to restrict or prohibit the public good such as the disclosure of torture to extract confessions. At the same time, as mentioned, I published investigators torture video, is in order to protect the legitimate rights and interests of the parties to maintain the correct implementation of the law, safeguard social fairness and justice, is in accordance with law, perform the duty of a lawyer, as a lawyer industry specifications for the criminal cases handled by the lawyer, the purpose of is more likely to disrupt the attorney to perform his duties.
It should be emphasized that, as a self-disciplinary norm of the lawyer industry, the Code for Handling Criminal Cases by Lawyers does not have the effect of laws and regulations at all, nor can it become a “talisman” for public authorities to punish lawyers and protect public officials from illegal and criminal acts. Therefore, “the lawyer handles the criminal case standard” in any case stipulation, its implementation must accord with the rule of law principle, cannot contravenes “the constitution” to safeguard the freedom of speech and the citizen to the state organ and the state functionary criticization, the accusation, the report and so on the right stipulation!
The picture
Appendix 1: Comments on Weibo by famous lawyer Dr. Yang Mingguo:
- Simultaneous audio and video recording of interrogation of witnesses, especially suspects, is an indispensable part of the legitimacy of evidence collection, otherwise the qualification of evidence itself is in doubt. This is clearly required by the criminal law, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security.
- This case is not a case that is legally not heard in public. The relevant evidence of the case includes the same recorded material which is not a matter of “state secrets” as stipulated in the State Secrets Law.
- If there is a stipulation — for example, the National Bar Association stipulates that the case materials shall not be disclosed against the facts, so as to hype the case and affect the judicial justice. But in this case, first, there is no violation of the facts, not to hype the case, but typically to redeem the judicial fairness and public trust; Second, even if there is such a provision there is no source of superior law, such a derogation of defense lawyers’ practice rights, to put it bluntly, is to cover up for the ugly judicial shame wipe fart, without any legitimacy.
- In order to achieve individual justice and to prevent the violation of the law by the judiciary, such actions are legally permitted and encouraged by the parties, even if the national law stipulates that lawyers shall not do so. Otherwise, it is the disregard and even disobedience of judicial justice, which is to support and encourage the illegal investigation and police violence by the police.
- Law has a regulation, have questioned the facts and evidence of trial and appeal, the second instance shall open a court session to hear, but in the judicial practice, on the other, by contrast, in principle is not hearing, the litigant’s right of appeal/the right to defend completely useless, lawyer follow normal process no reasonable, multiply points specified as if the waste paper, thereby forcing a responsible lawyer had to seek righteousness and “trial” outside the court.
- Desperately saburo fear – zhou ze, a lawyer on Wednesday in order to safeguard the legitimate rights and interests of sin/by case law, in order to let the muddy muddy heavy justice and unmistakably identified of problems existing in the practical value and focus on this case, this seems to be wrong, but have to, and no illegal means disclosure of illegal and even criminal behavior, investigators are undoubtedly commendable, argue that fulfills the punishment law of the highest professional ethics.
- Such illegal investigations and non-opening of second instance trials are commonly found in cases involving “lawyers” — of course, they also exist in cases involving other subjects such as the director of public security and the procurator-general. To safeguard the rights of lawyers is also to safeguard the rights of judges, prosecutors and police, as well as the rights of every citizen, because theoretically you and I are all potential defendants.
- In my recent cases transferred to the lawyers were sin, we in the “fourth” review – the retrial is found guilty and involvement in the appeal process, the police in a similar naked illegal evidence collection behavior, we have been ready to open video well prepared, but the relevant departments/industry group attaches great importance to and actively communication and coordination, the party a lawyer has full year jail, but at the beginning of this month formally through legal proceedings in the broken chains, the retrial, dropped close case (the original prepare court upheld as soon as possible, after the hearing but after the meeting was cancelled before two court trial plan and direct make an order a second trial). Lawyers involved in the case finally asked for justice and innocence. I am convinced that in the face of such a ridiculous case of Lu Xian-san, if the competent authorities/industry organizations had paid timely and effective attention to the case and taken actions after zhou Ze and Si Weijiang raised their rights claims and appeals, Zhou Ze would not have taken such measures as a last resort.
Annex 2: Comments made by Lawyer Li Yatong, son of the famous legal person Li Zhuang, in the Circle of friends
Article 37 of the Regulations on Handling Criminal Cases by Lawyers, “The case files obtained by lawyers through their participation in criminal proceedings shall not be provided to relatives, friends or other units or individuals of the criminal suspect or defendant, nor shall they be disclosed to the media or the public without authorization.” Here’s the question:
- If the trial is live broadcast and the court decides by itself to “disclose” the evidence for defense, is it “unauthorized disclosure”?
- If the trial is broadcast live and someone (not a lawyer) records the relevant video and releases it to the public, will the individual be held accountable?
The answer to both questions is definitely no. To continue.
“Public trial” is the nature of the case, and “live trial” is only one of the means to achieve public trial. As long as the case is open to the public, that is, all procedures and substantive issues of the case can be made public, including, of course, all the evidence on the record, and even the interrogation video. Therefore, the public hearing of the case that is not broadcast, the property of all the evidence has been completely “socialized”, the degree of disclosure of the case information does not differ depending on whether the trial is broadcast.
It is believed that the purpose of this section is to prohibit attorneys from disclosing evidence that raises questions of collusion and the use of the media to interfere with justice (among others?). Then there’s the question:
- In a case that has been tried publicly, the evidence can be fully disclosed to the public. Is it still within the scope of this regulation to disclose the evidence later?
- If the supervised matters are found to be illegal or even criminal after using the media for supervision, does the disclosure still need to be held accountable?
Of course, the last two questions are perfectly acceptable: Yes. If so, what is the purpose of the specification? No matter the law or the norms, we will not be faced with the dilemma of right and wrong, let alone give up the value judgment to mechanically cater to the words.
Zhou Ze, the lawyer, is trying to tell us that there is more to be “treated” than pneumonia. I trust he’ll be fine.
Appendix 3: comments by menjinling, a famous lawyer and professor of university of Chinese Academy of Social Sciences, in WeChat group:
Zhou Ze’s release of a video of police evidence has sparked a debate about whether it violates Article 37 of the Code for Lawyers to Handle Criminal Cases, or other relevant laws and regulations that require confidentiality of case materials.
Article 37 of The Regulations on Handling Criminal Cases by Lawyers: the case materials obtained by lawyers through their participation in criminal proceedings shall not be provided to relatives and friends of criminal suspects and defendants, other units or individuals, and shall not be disclosed to the media or the public without authorization.
The purpose of this regulation, as well as other relevant regulations in the criminal law and other interpretations, is (1) not to impede the investigation. The requirements of the principle of investigation of secrecy. (2) It shall not divulge state secrets, the private affairs of the parties concerned, the secrets of consultations or other matters that need to be kept confidential in accordance with the law.
The norms stipulate the objects that cannot be disclosed :(1) relatives and friends of the criminal suspect or defendant; (2) Other units or individuals; (3) The media or the public
It can be concluded that what is not allowed to be disclosed without authorization is about “the facts of the case and relevant evidence”, and the purpose of the specification is to prevent the obstruction of investigation, infringement of privacy protection, disclosure of state secrets and trade secrets, etc. The procedural fact that police means of obtaining evidence are illegal is obviously not included.
“Police illegal evidence collection” is not the “object” of article 37 of the Lawyers Law and relevant regulations.
The illegality of police evidence collection in this case is not a substantive fact of the case, but a procedural fact. The means of investigation are illegal, the power of public is illegal, and the need to start the exclusion of illegal evidence is another lawsuit different from the case, “the lawsuit in the lawsuit”. Whether the means of police collecting evidence is illegal or not needs to be realized and guaranteed in a visible way. There is no reasonable or legal basis for confidentiality, but the obligation to disclose, expose, supervise and publicize is precisely needed to promote judicial justice.
Video recording is direct evidence, which can clearly show the fact that police torture to extract confessions. The release of police illegal evidence by lawyers is the need to maintain judicial justice, and it is also the justice due to the supervision of the media and the public to the judiciary. If we do not support the publicity to the media and the public, there is no way for the media and the public to supervise the illegal and criminal activities of public power. Using hypothetical reasoning to fall into a fallacious error, we will find that if the confidential content of the normative purpose stipulated in the Lawyers’ Law 37 includes police illegal evidence collection, then “police torture to extract confessions” will not become a secret to be kept by lawyers, which cannot be explained.
The exercise of public power by the police is a symbol of public power and one of the ways to prevent public power from infringing citizens’ rights is to supervise the exercise of public power by the media and the public. If it is to disclose the illegal situation of individual citizens, there are still restrictions on the protection of privacy, but the illegal disclosure of public power just does not need such restrictions to conform to the legal principle, and the police do not enjoy the protection of personal privacy when they exercise their official duties.
Finally, from the perspective of judicial practice, I would like to make a personal immature point of view:
- Although the disclosure of police ah illegal evidence, incidental disclosure of information related to the case is a fragment of fragments of information does not constitute the “disclosure of case material”, but you can consider appropriate to the case of information Mosaic processing, only the disclosure of the means to prove the illegal part;
- In case of case-handling organ various shortcomings in criminal cases, even though from the ought to be sex can be directly to the public or the media disclosure, but technically more rational and favorable personally, exhausted all means in a program first, report to the court, procuratorate, commission for discipline inspection, public security, etc, send materials, reports, after the end of legal relief means, stood on the commanding heights of the professional ethics, to “adhere to the” or “partners who” or “ke”, to the media and the social public disclosure police illegal evidence, in order to promote judicial progress, alert all legal community members.
Recent Comments