「依法治國」? 6名被捕勞權人士法律權利被踐踏實況 (1)

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「依法治國」? 6名被捕勞權人士法律權利被踐踏實況 (1)

《被捕人士不獲准與律師見面》

理論上—

根據中國刑事訴訟法第37條第2款規定 ,“辯護律師持律師執業證書、律師事務所證明和委託書或者法律援助公函要求會見在押的犯罪嫌疑人、被告人的,看守所應當及時安排會見,至遲不得超過48小時。 ”

中國已經加入的《公民權利和政治權利國際公約》第14條第3款規定:“在判定對他提出的任何刑事指控時,人人完全平等地享受以下的最低限度的保證:……(乙)有相當的時間和便利準備他的辯護,並與他自己選擇的律師聯絡……”聯合國人權事務委員會指出:“‘相當’的時間取決於今案的具體情況;‘便利’必須包括獲取被告人準備其案件所需要的檔和其他證據,同時有機會聘請辯護律師並與其交流。”

聯合國《關於律師作用的基本原則》第1條規定:“所有的人都有權請求由其選擇的一名律師協助保護和確立其權利並在刑事訴訟的各個階段為其辯護。”這裡強調的是“人人有資格”、“所有的人”,並未將特殊案件中的嫌疑人排除在外。第7條規定:“各國政府應確保,被逮捕或拘留的所有的人,不論是否受到刑事指控,均應迅速得到機會與一名律師聯繫,不管在何種情況下至遲不得超過自逮捕或拘留之時起的48小時。”

事實是—

6名被刑事拘留的勞權人士被控罪名分別為聚眾擾亂社會秩序或職務侵佔,均非中國刑事訴訟法第37條第3款所指危害國家安全犯罪、恐怖活動犯罪、特別重大賄賂犯罪案件,依法應獲安排律師會見。
對被羈押的當事人來說,會見權是最重要的權利,乃辯護權的基礎和核心,如果會見權被剝奪,便無法行使辯護權。簡而言之,6名被捕勞權人士被剝奪與辯護人的會見權,不僅違反中國刑事訴訟法,也不符合聯合國刑事司法準則最低限度的要求。

 

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“Rule of laws”? The government’s violations of legal rights of the six detained labor activists (1)

《Detainees are rejected from meeting their lawyers》

In theory—

As per article 37 of the Criminal Procedure Law of the People’s Republic of China, where a defense lawyer files a request during the period of criminal investigation for a meeting with a criminal suspect in custody who is suspected of compromising national security, terrorist activities, or extraordinarily significant bribery, the meeting shall be subject to the permission of the criminal investigation authority. In such a case, the criminal investigation authority shall issue a prior notice to the jail. Furthermore, when a defense lawyer files a request for a meeting with a criminal suspect or defendant in custody on the basis of the lawyer’s practicing license, a certificate issued by the law firm, and a power of attorney or an official legal aid document, a jail shall arrange a meeting in a timely manner, no later than 48 hours after the request is filed.

The International Covenant on Civil and Political Rights (ICCRP) states that “in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: …(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. The United Nations Human Rights Committee has indicated that “adequate time” depends on the circumstance of individual cases. Individuals access to lawyers, documents and evidence required for defending the case must also be guaranteed.

Article 1 of the Basic Principles on the Role of Lawyers adopted by the United Nations states that “[a]ll persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings”, whereas, article 7 says “[g]overnments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention”.

But the reality is—

The six labor activists have been accused of “assembling a crowd to disrupt social order” or “financial embezzlement” respectively; all these are not charges stated in article 37 of the Criminal Procedure Law that would justify a denial to meet their lawyers.

For detainees, meeting a lawyer is the most important legal right, which makes the basis of the right to defense. In brief, not only being denied the rights enshrined in the Criminal Procedure Law, the six labor activists are also deprived of the rights to meet their defendant lawyers which is regarded as the minimum requirement of criminal justice standards of ICCRP.

 

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