「依法治国」? 6名被捕劳权人士法律权利被践踏实况 (1)

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「依法治国」? 6名被捕劳权人士法律权利被践踏实况 (1)

《被捕人士不获准与律师见面》

理论上—

根据中国刑事诉讼法第37条第2款规定 ,“辩护律师持律师执业证书、律师事务所证明和委托书或者法律援助公函要求会见在押的犯罪嫌疑人、被告人的,看守所应当及时安排会见,至迟不得超过48小时。 ”

中国已经加入的《公民权利和政治权利国际公约》第14条第3款规定:“在判定对他提出的任何刑事指控时,人人完全平等地享受以下的最低限度的保证:……(乙)有相当的时间和便利准备他的辩护,并与他自己选择的律师联络……”联合国人权事务委员会指出:“‘相当’的时间取决于今案的具体情况;‘便利’必须包括获取被告人准备其案件所需要的档和其他证据,同时有机会聘请辩护律师并与其交流。”

联合国《关于律师作用的基本原则》第1条规定:“所有的人都有权请求由其选择的一名律师协助保护和确立其权利并在刑事诉讼的各个阶段为其辩护。”这里强调的是“人人有资格”、“所有的人”,并未将特殊案件中的嫌疑人排除在外。第7条规定:“各国政府应确保,被逮捕或拘留的所有的人,不论是否受到刑事指控,均应迅速得到机会与一名律师联系,不管在何种情况下至迟不得超过自逮捕或拘留之时起的48小时。”

事实是—

6名被刑事拘留的劳权人士被控罪名分别为聚众扰乱社会秩序或职务侵占,均非中国刑事诉讼法第37条第3款所指危害国家安全犯罪、恐怖活动犯罪、特别重大贿赂犯罪案件,依法应获安排律师会见。
对被羁押的当事人来说,会见权是最重要的权利,乃辩护权的基础和核心,如果会见权被剥夺,便无法行使辩护权。简而言之,6名被捕劳权人士被剥夺与辩护人的会见权,不仅违反中国刑事诉讼法,也不符合联合国刑事司法准则最低限度的要求。

 

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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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