In recent years, along with the extensive development of foreign trade activities and the integration of economic globalization, the degree is getting higher and higher. There has been a sharp increase in the number of foreigners coming to China, and more and more cases of foreigners suspected of crimes in China. Foreigners suspected of crimes in China should be investigated in accordance with the law, but the legitimate rights of foreign suspects should also be protected in accordance with the law. Foreigners are relatively unfamiliar with Chinese laws, regulations and judicial system, and are in urgent need of professional lawyers to obtain legal help and professional defense after being filed for investigation. This paper will briefly introduce how to entrust lawyers and other related issues after foreigners are suspected of committing crimes in China from the following aspects.
1. Determination of nationality of foreign criminal suspects.
After a foreigner is captured, his or her specific nationality should first be determined. According to Article 347 of the Provisions on the Procedure of Handling Criminal Cases by Public Security Organs (Order No. 127 of the Ministry of Public Security), the nationality of foreign criminal suspects shall be confirmed by the valid documents they hold at the time of entry; If the nationality is unknown, the Exit and Entry Administration department shall assist in ascertaining it. If the nationality cannot be ascertained, he shall be treated as a stateless person.
If there are provisions in the relevant judicial assistance treaties signed between China and the country of nationality claimed by the criminal suspect or in the international conventions jointly concluded and acceded to, it may also request that country to assist in identifying the identity of the criminal suspect in accordance with the provisions of the relevant judicial assistance treaties or international conventions; If there is no provision, it can be handled through diplomatic channels. If it is really impossible to find out or the relevant country refuses to assist, the public security organ may transfer the criminal suspect of foreign nationality to the people's Procuratorate for examination and prosecution according to the name self-reported.
In the process of handling criminal cases, where the public security organ finds that the criminal suspect is a foreigner enjoying diplomatic privileges and immunities, it shall report to the Ministry of Public Security at various levels and notify the Foreign affairs Office of the people's government at the same level, and the Ministry of Public Security shall transfer the criminal responsibility issue to the Ministry of Foreign Affairs through diplomatic channels.
Jurisdiction over crimes committed by foreigners.
Article 2 of the Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice on the Jurisdiction of Criminal Cases involving Foreigners (Law [2013] No. 2) stipulates that the investigation of criminal cases involving foreigners shall be carried out by the public security organ or the state security organ in the place where the crime is committed or where the criminal suspect lives. If it is necessary to arrest a criminal suspect, the public security organ in charge of investigation or the state security organ shall apply to the people's Procuratorate at the same level in the place where the arrest is made for approval; A case that needs to be transferred for examination and prosecution at the end of an investigation shall be transferred to the people's procuratorate at the same level where the investigation organ is located. When a people's procuratorate accepts a case transferred for review and prosecution by an investigation organ at the same level, and considers that it should be prosecuted by a people's Procuratorate at a higher level or another people's procuratorate at the same level in accordance with the jurisdiction provisions of the Criminal Procedure Law and the requirements of this Circular, it shall transfer the case to a people's procuratorate with jurisdiction for review and prosecution. [Quoted from: Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice on Jurisdiction over Criminal Cases involving Foreigners (Fa [2013] No. 2)]
Where a foreign person enters China's territory after committing a crime specified in an international treaty concluded or acceded to by the People's Republic of China, a public security organ at or above the level of a city divided into districts where the alien is arrested shall file a case for investigation.
Where a foreigner commits a crime on board a Chinese ship or aircraft outside the territory of the People's Republic of China, a case shall be filed and investigated by the traffic or civil aviation public security organ at or above the county level in the port of China where the ship or aircraft first berthed or landed or was at its destination after the crime is committed, or by the public security organ at or above the county level where the foreigner resides; Where there is no public security organ for traffic or civil aviation, it shall be under the jurisdiction of the local public security organ.
Where a foreigner commits a crime on an international train, a railway public security organ at or above the county level in the place of the Chinese station or destination where the train initially stops after the crime is committed or a public security organ at or above the county level where the foreigner resides shall file a case for investigation.
If a foreigner commits a crime against the State or a citizen of the People's Republic of China outside the territory of the People's Republic of China and should be punished in accordance with the Criminal Law of the People's Republic of China, the public security organ at or above the county level at the place where the foreigner enters or resides after entering the country shall file a case for investigation; If the foreigner does not enter China, the public security organ at or above the county level where the victim lives shall file a case for investigation; if there is no victim or the foreigner commits a crime against the state of the People's Republic of China, the Ministry of Public Security shall designate jurisdiction. [The content of this section is quoted from: Provisions on the Procedure of Handling Criminal Cases by Public Security Organs (2012 Revision) Order of the Ministry of Public Security (No. 127) : Chapter XII Handling Criminal Cases of Foreigners]
Iii. Relevant provisions on the adoption of compulsory measures for criminal suspects of foreign nationality
[The contents of this section refer to the Provisions of the Ministry of Foreign Affairs, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Security, and the Ministry of Justice on Several Issues concerning the Handling of foreign-related Cases (issued [1995] No. 17)].
Article 2 of the Provisions of the Ministry of Foreign Affairs, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Security, and the Ministry of Justice on Several Issues Concerning the Handling of Foreign-Related Cases (Issued [1995] No. 17) stipulates: In case of any of the following circumstances, public security organs, state security organs, people's procuratorates, people's courts, and other competent authorities shall report the relevant facts, the handling of the case, and the caliber of their statements to the competent authorities at the next level within 48 hours of accepting the case or taking measures, and at the same time notify the foreign affairs office of the people's government at the same level.
1. Cases of administrative detention, criminal detention, judicial detention, detention for review, arrest, residential surveillance, bail pending trial, detention of passports, departure within a specified period, or expulsion of foreigners;
2. Cases in which foreign ships damaged or stranded in China's internal waters or territorial waters, accidents involving maritime traffic and pollution, smuggling and other illegal or contravention of international conventions have been detained or other compulsory measures taken by the competent authorities of China;
3. Cases in which foreign fishing vessels illegally fishing in waters under my jurisdiction, resulting in collisions or maritime disputes, are detained by law enforcement authorities authorized by me;
4. Cases of foreign ships detained or auctioned by our courts due to economic disputes;
5. Death incidents or cases of foreigners in China;
6. Cases involving civil and economic disputes involving foreigners in China;
Seven. Other cases considered worthy of notification.
The Foreign Affairs office of the people's government at the same level shall, upon receipt of the notification, immediately report it to the Ministry of Foreign Affairs. The outcome of the case should also be reported to the Ministry of Foreign Affairs as soon as possible after the conclusion of the case.
It can be seen that if a criminal suspect of foreign nationality needs to take detention, residential surveillance, bail pending trial, it shall be approved by the person in charge of the county public security organ, and the relevant case and handling situation equal to the adoption of compulsory measures within 48 hours of the level of the provincial public security organ, and notify the Foreign affairs office of the people's government at the same level;
The public security department or bureau of the relevant province, autonomous region or municipality directly under the Central Government shall, within the prescribed time limit, notify the foreign national's embassy or consulate in China of the foreign national's name, sex, time of entry, passport or certificate number, time and place of occurrence of the case and relevant information, the main facts of the suspected crime, the compulsory measures taken and the legal basis thereof. Also report to the Ministry of Public Security.
Countries that have diplomatic relations with China but have not established embassies or consulates in China may notify the embassies or consulates of the countries in charge of them; If there is no escrow country or the escrow country is unknown, the notification may not be made. The public security bureau of a sub-provincial city with a heavier task of consular notification may exercise the function of consular notification upon approval by the provincial (autonomous region) Public Security Department.
If an alien dies during the investigation or execution of criminal punishment by a public security organ, the public security organ of the relevant province, autonomous region or municipality directly under the Central Government shall notify the embassy or consulate of the alien's country in China and report the death to the Ministry of Public Security.
Where it is necessary to detain, live under surveillance or obtain bail for foreign criminal suspects in cases involving state security or cases involving diplomatic relations between States or other major and complex cases, they shall be approved by the head of the provincial public security organ, and the relevant facts and handling of the case shall be reported to the Ministry of Public Security within 48 hours of the adoption of compulsory measures. At the same time, the Foreign Affairs Office of the people's government at the same level will be notified.
When compulsory measures are taken against criminal suspects of foreign nationality, they may, with the approval of the provincial public security organ, detain their passports in accordance with law, issue to themselves a certificate of passport detention, and promptly report the relevant situation to the Ministry of Public Security and the Foreign Affairs offices of the people's governments at the same level.
Iv. How do foreign criminal suspects entrust Chinese lawyers?
How should foreigners get help from lawyers after being caught suspected of committing crimes in China? In the investigation stage of a case, the foreign criminal suspect himself, his guardian and his close relatives have the right to entrust a lawyer to provide legal help, conduct interviews, represent appeals, charges, and defend on behalf of other activities. According to the provisions of Article 359 of the Decree of the Ministry of Public Security (No. 127) on the Procedures for Handling Criminal Cases of the Public Security Organs (2012 Revision), foreign criminal suspects who entrust defenders shall entrust lawyers practicing in law firms of the People's Republic of China. It can be seen that foreigners suspected of committing crimes in China can only hire lawyers who are qualified as chinese lawyers and practice in Chinese law firms to defend them.
To entrust a lawyer for defense, you need to handle authorization and entrustment. If a close relative needs to hire a lawyer for a foreigner detained in China after he or she is suspected of committing a crime, he or she shall submit a power of attorney and proof of his or her relationship with the detained party. Article 403 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China (Interpretation [2012] No. 21) stipulates: "A power of attorney sent or entrusted to a chinese lawyer or Chinese citizen by a foreign party from outside the territory of the People's Republic of China, as well as a certificate of relationship with the foreign party provided by his guardian or close relative, must be certified by the notary office of the country where he is located, certified by the central competent authority for foreign affairs or its authorized authority of the country where he is located, and certified by the Chinese embassy or consulate in that country. Except where there is a mutual certification exemption agreement between our country and that country." Therefore, power of attorney and proof of relationship sent from outside the region are subject to notarization and two authentication procedures.
Notarization, certification procedures and mailing of letters all take a very long time, which will certainly affect the timely access of foreign suspects to legal help. It can be seen that in practice, it is not the best policy to be completely in accordance with the law. In addition, the power of attorney directly signed by the foreign criminal suspect himself does not need to go through the notarization and certification process, and can be used directly.
The question is, in practice, Chinese and foreign suspects are often detained, how to directly sign the power of attorney? According to Article 36, paragraph 3, of the Vienna Convention on Consular Relations to which my country is a party, "Consular officials have the right to visit, speak with or communicate with nationals of the sending State who are imprisoned, detained or detained, and to represent them legally. Consular officers shall also have the right to visit nationals of the sending State who are imprisoned, detained or detained under a judgment in their jurisdiction. However, a consular officer shall refrain from taking action on behalf of a imprisoned, detained or detained national who expressly objects to such action ". It can be seen that the ambassador or minister of the diplomatic and consular missions of the foreign nationals involved in the case can appoint lawyers on behalf of the suspects in the name of the diplomatic and consular missions. In practice, the embassy of the suspect's country of nationality in China can issue an official letter of meeting with the lawyer. The entrusted lawyer can meet the client with the lawyer's practice certificate, the letter of introduction and the official letter of meeting. In the process of meeting with the client, the lawyer will prepare the relevant authorization letter for the subsequent procedure, and after obtaining the consent of the suspect, the client will sign it, and then he can use the authorization letter signed by the client directly to meet the client.
5. Provisions on meeting foreign criminal suspects in China's criminal procedure.
According to the Notice of the Ministry of Public Security, the Ministry of Foreign Affairs, the Supreme People's Court and the Supreme People's Procuratorate on Handling Issues Concerning Interviews with Detained Foreign Nationals and Communications Between Foreign Nationals and the Outside World (June 29, 1981) and the Provisions on Several Issues Concerning the Handling of Foreign-Related Cases issued by the Ministry of Foreign Affairs, the Supreme People's Court and the Supreme People's Procuratorate in 1995 (hereinafter referred to as the "Relevant. In general, interviews are permitted with convicted and unconvicted ordinary criminal offenders and convicted criminals for crimes against state security. A criminal suspect or defendant accused of endangering state security who has not been sentenced may also be granted an interview without hindering investigation or trial. The scope of persons who can meet with the foreign criminal is limited to the immediate family members, guardians and members of the diplomatic and consular missions of their countries in China. Non-above personnel request visitation, need to be approved by the higher competent authority. If the time limit of the meeting is stipulated in the consular treaty signed between the country of the party concerned and China, it shall be handled in accordance with the provisions of the treaty; if there is no treaty, it shall be arranged as soon as possible.
Before the conclusion of the investigation by the public security organs, foreign diplomatic and consular officials in China shall have the right to request visits to their citizens under residential surveillance, detention or arrest, and the public security organs that initiate the investigation shall promptly arrange for such visits. During the period of investigation and detention by public security organs, criminal suspects of foreign nationality may, with the approval of public security organs, meet with their close relatives and guardians and communicate with the outside world. During the trial, if a foreign defendant is in custody and his guardian or close relative applies for an interview, he may apply to the people's court accepting the case, and provide proof of his relationship with the defendant in accordance with the provisions of Article 403 of the Supreme People's Court's Interpretation of the Application of the Criminal Procedure Law of the People's Republic of China (Interpretation [2012] 21). If the people's court, after examination, finds that it does not impede the trial of the case, it may approve it. If the defendant refuses to accept visits or meetings, arrangements may not be made, but a written statement shall be issued by the defendant himself.