The defense counsel is still at the security checkpoint. The trial has ended? Lawyer in the "Feng Bo Case" was banned from bringing a computer to court to cause controversy | Computer | Protection | Court | Rights | Trial | Court | Lawyer
Guests from the Security Inspection Office of the Intermediate People's Court. Image: Lawyer Zhou Ze
On August 7th, the second instance trial of a criminal case was held at the Intermediate People's Court of Laibin City, Guangxi. Two defense lawyers, Liu Chang and Wang Haochen, claimed to have encountered a setback at the security checkpoint of the court: the law enforcement officers conducted shoe removal security checks on them and did not allow them to bring their work computers into the court; What surprised them even more was that they were told that the trial was over before they entered the court.
On that day, two lawyers publicly issued a statement and introduced the relevant case on Weibo live streaming.
Can the court conduct security checks on lawyers who appear in court, even if they take off their shoes? Can lawyers be prohibited from carrying computers into court? How to protect the practicing rights of lawyers? Is the trial legal without a defense counsel present? The relevant topic has attracted high attention from the legal community.
On the afternoon of August 7th, Pengpai News contacted the Intermediate People's Court Office, Criminal Tribunal, and Propaganda Department multiple times regarding issues related to the second instance of the case, but did not receive a definite response.
Two defense lawyers have stated that they have not yet received any notification from the court to hold another trial.
Lawyer: I have been asked to take off my shoes for security checks and ban my computer. I haven't been informed that the court session is over yet
On August 7th, the second trial of the Laibin Intermediate People's Court was held to hear the case of Lawyer Feng Bo's involvement in organized crime. The defense counsel for Feng Bo in the second trial is Lawyer Liu Chang from Beijing Zhongwen Law Firm and Lawyer Wang Haochen from Beijing Zebo Law Firm.
Two lawyers issued a statement stating that at 8:47 am on August 7th, they arrived early at the Guest Intermediate Court and were ready to participate in the Feng Bo case trial scheduled to start at 9 am. But after arriving at the court, the security staff stated that the case was significant and sensitive, requiring security checks on the lawyer. Considering that the trial was about to begin, the two lawyers chose to agree to undergo security checks. The staff of the guest courtyard conducted a plane inspection of the bags they carried with them, and then conducted a physical examination of the two lawyers, requiring them to take off their shoes for security checks. Both parties cooperate.
The statement stated that after the security check was completed, the staff of the guest courtyard prohibited lawyers from carrying their own computers into the court. The lawyer repeatedly explained that there were over 600 case files in the case, and all materials were stored electronically in the computer. Laptops were necessary tools for lawyers to handle cases, and defense lawyers were allowed to carry computers during the first and second trial sessions, indicating that the case was not "significant or sensitive", and lawyers were allowed to carry computers.
The statement stated that during repeated communication, it was already 9:25 pm when two individuals wearing prosecutor's uniforms walked out of the security checkpoint. Subsequently, the judge's assistant and some individuals wearing law enforcement uniforms stated that the trial had ended.
Notice from the Intermediate People's Court to the lawyer.
According to a person who entered the court to listen, the trial lasted about 20 minutes while two lawyers were undergoing security checks and negotiating that they were prohibited from carrying computers. The court then announced an adjournment.
Two lawyers stated that they repeatedly requested the court staff to help contact the members of the collegiate bench to confirm whether the morning trial had really been held, or had ended, or if another day was scheduled, but there was no response.
Pengpai News noticed that after being informed that the trial had ended, lawyers Liu Chang and Wang Haochen introduced the relevant situation of the Feng Bo case live on Weibo. Over three hours of live Weibo viewing reached 105000 views.
On the afternoon of August 7th, Pengpai News called the office phone number of the Criminal Second Division of the Intermediate People's Court, which had previously contacted Lawyer Liu Chang, but no one answered. Subsequently, Pengpai News contacted the Office of the Intermediate People's Court and was informed that they were not aware of the situation related to the Feng Bo case. They could contact the Internal Affairs Department of the Second Criminal Court and the Propaganda Department of the Court. But Pengpai News repeatedly called the phone number it provided, but no one answered.
Should lawyers participate in court hearings and undergo security checks?
The above-mentioned court hearing controversy has attracted high attention from scholars and the legal community, and has sparked heated public opinion discussions.
Should lawyers undergo security checks when attending court hearings? The Supreme People's Court has clear provisions in the Court Rules of the People's Courts of the People's Republic of China. Article 6 stipulates that individuals entering the court shall present valid identification documents and undergo security checks on their personal and personal belongings. Prosecutors and lawyers who hold valid work permits and appear in court to fulfill their duties can enter the court through specialized channels. People's courts treat prosecutors and lawyers equally if security checks are required.
"Logically speaking, the" Court Rules "provide three levels of regulations for personnel performing their duties to enter the court." He Xiaodian, former vice president of the Hunan Criminal Law Research Association, introduced the basic principle that all personnel entering the court, including judges, prosecutors, and lawyers, must undergo safety checks on their personal and personal belongings. "; Secondly, adopting the principle of excluding certain exceptions, it is stipulated that prosecutors and lawyers who hold valid work documents and appear in court to perform their duties can enter the court through specialized channels.
"The" Court Rules "use the word 'may'. What is' may ', based on the basic spirit of legal theory and rule setting, is that lawyers who perform their duties should be allowed to enter the court through specialized channels, and it is not allowed to be an exception. Otherwise,' may 'is understood as' can be allowed or not allowed', and it is up to the court staff to decide at will. Therefore, this provision is meaningless." He Xiaodian emphasized.
Finally, the Court Rules specify the standards and conditions for lawyers performing their duties to undergo security checks when entering the court.
"This standard is unique and clear, that is, 'if security checks are required, the people's court treats prosecutors and lawyers equally.' In other words, the prerequisite for lawyers to conduct security checks is that prosecutors also need to conduct security checks. There are no other standards besides this. 'He Xiaodian said that some courts set their own security check standards for' significant or sensitive cases, 'which is a misinterpretation of the' Court Rules. '".
"In addition, as an extension of the equal litigation rights of all parties in the court, the ability to maintain the equality of the prosecution and defense when entering the court is the initial test and sign of whether the court can treat the prosecution and defense equally." He Xiaodian said, "If prosecutors and lawyers who perform their duties are treated differently from the beginning, it will be impossible to implement the equality of the prosecution and defense in substantive court trials."
Can the attending lawyer bring their own computer to enter the court? Supreme Law: Yes
Regarding the situation where lawyers in court are prohibited from carrying computers into court, several defense lawyers have told Pengpai News that in recent years, this situation has been rare in the process of performing their duties. Lawyers must bring relevant items to participate in court trials, such as laptops, mobile phones, briefcases, etc. These items can better assist lawyers in completing court activities such as expressing legal opinions and debating viewpoints, and improve court efficiency.
Pengpai News has noticed that some provincial, municipal, and regional high courts have clear regulations on protecting lawyers' rights to practice and allowing them to bring computers into court. For example, as early as July 20, 2005, Article 11 of the "Opinions on Safeguarding Lawyers' Practice Rights and Maintaining Judicial Justice" issued by the Beijing High Court stipulated that "when a lawyer holds a valid lawyer's practice certificate to participate in litigation in accordance with the law, the lawyer and the litigation materials, physical evidence, laptops, and official bags carried by the lawyer are exempt from security checks when entering the court."
In April 2016, the Supreme People's Court issued a newly revised "Rules of the People's Courts of the People's Republic of China", further emphasizing the full protection of the exercise of various litigation rights and the principle of equal prosecution and defense by litigation participants in court proceedings in accordance with the law.
According to news reports from Pengpai News, Hu Shihao, then the director of the Office of the Judicial Reform Leading Group of the Supreme People's Court, introduced in a media interview, "In order to protect the exercise of various rights by lawyers in court proceedings, court rules stipulate that lawyers and prosecutors are treated equally in terms of court security. Lawyers have full rights to debate and defend in court, and can use their own computers to handle cases in court. If lawyers believe that judges, clerks, or judicial police violate court rules, they can report to the people's court after the end of the court proceedings."
He Xiaodian introduced that the "Court Rules" do not impose restrictions on litigants, including lawyers, from carrying electronic devices such as computers and mobile phones into the court. In accordance with relevant legal provisions, lawyers can use laptops to handle cases, but they are not allowed to use electronic devices such as computers to record, record, take photos or disseminate court proceedings. Article 19 (2) of the Court Rules and Article 307 (2) of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China both stipulate that if a person violates the rules by recording, recording, taking photos, or disseminating court proceedings, the people's court may temporarily withhold the equipment and storage media used and delete the relevant content. This further indicates that mobile phones, computers, and other devices can be carried in court, but their use is prohibited for acts that disrupt court order.
"According to the defense lawyer in the Feng Bo case, there are over 600 electronic case files in this case, which are used to store, store, read, edit, and use case materials on computers, as well as record the prosecution's key points in court proceedings. Computers are the most effective and essential basic tool for lawyers to defend in modern litigation. If it is prohibited to bring them into court, how can we ensure the legal practice of defense lawyers and the defense rights of defendants?" He Xiaodian said.
Is the trial legal if the defense counsel is not present? How to protect the practicing rights of lawyers?
The statements of the two lawyers stated that the situation they encountered in the Guest Courtyard was an extreme violation of the lawyer's right to defend. The defense counsel has been essentially deprived of the right to defend in court, and they continue to defend Feng Bo outside of court in all legal ways.
Is the court hearing legal when the defendant does not have a defense lawyer present to defend? How to safeguard the defendant's right to defense and the lawyer's right to practice?
Pengpai News has noticed that many criminal procedure law experts from across the country, including Yi Yanyou, a professor at Tsinghua University Law School, and Chen Yongsheng, a professor at Peking University Law School, have expressed surprise, denial, and anger towards the actions of the guest court.
Professor Zhang Jianwei from the Law School of Tsinghua University told Pengpai News, "The court should not have conducted a substantive trial, otherwise it is unlikely to end in half an hour. If the lawyer is not present, the trial is invalid."
According to Zhu Mingyong, Vice Dean of the Criminal Defense Advanced Research Institute at Northwest University of Political Science and Law, if the defense counsel does not appear in court, the trial cannot proceed under normal circumstances. "The defense counsel is a participant in the litigation. If there is only the prosecution and no defense in a criminal case, the court first needs to determine whether the defendant has appointed a defense counsel, as well as the current situation of the defense counsel, such as whether the commission has been terminated or whether a new commission should be made. In cases where the defendant's defense counsel is unable to enter the court due to the court's own computer ban regulations, the trial cannot proceed because the defendant's right to defense is not guaranteed. The right to defense is a constitutional right and a basic litigation right explicitly stipulated in the Criminal Procedure Law."
He Xiaodian stated that in order to ensure that lawyers practice in accordance with the law, supervise and improve litigation activities, and safeguard the procedural rights enjoyed by defendants in accordance with the law, the Supreme People's Court, either alone or in conjunction with the Ministry of Justice, has issued some normative documents such as the "Provisions on Effectively Safeguarding Lawyer Litigation Rights in accordance with the Law" and the "Notice on Safeguarding Lawyer Litigation Rights and Regulating Lawyer Participation in Trial Activities in accordance with the Law", with the ultimate goal of safeguarding the defendant's primary and core right in criminal litigation - the right to defense.
The surging news search found that the Laibin People's Procuratorate's WeChat official account had released information in August 2019. In order to implement the laws and regulations that protect the lawyer's right to practice, safeguard the lawyer's right to practice according to law, and comprehensively promote the fair and standardized justice of the procuratorial organ, the Laibin People's Procuratorate held a research forum on the protection of the lawyer's right to practice.
At that time, the then Deputy Prosecutor General Feng Jiaping emphasized that safeguarding the lawyer's right to practice was to safeguard the legitimate rights and interests of the parties involved. For complaints and complaints of infringement of the lawyer's right to practice, the procuratorial organs should accept, investigate, and handle them as soon as possible. If there were indeed errors, they should be supervised and corrected in accordance with the law, ensuring the lawyer's rights to meet, review papers, apply for collection and retrieval of evidence, be informed, and act as an agent, ensuring the smooth progress of litigation activities, promoting strict and standardized justice, civilized justice, and continuously improving judicial credibility.
Two lawyers stated that they have applied to their respective bar associations for rights protection and will apply for prosecutorial supervision from various levels of procuratorial organs, including the Laibin City Prosecutor's Office.
