Many people think that punishment is the result of a physical punishment, but I think the procedure itself is punishment.
As long as the criminal procedure is entered, especially when compulsory measures are taken, “stigmatization” has already begun. Your previously unbreakable network of relationships will be shattered in an instant, and everyone will stay away from you. For example, WeChat friends will gradually be blacked out, and even family affection will be shaken. There are a lot of families who “fly each other in a catastrophe”, which is why the stories of those who never leave are so moving. Because it is human instinct to seek advantages and avoid disadvantages.
In fact, entering the criminal procedure is the beginning of a kind of “harm”.
Although the judiciary is required to presumption of innocence, social perception often adopts the presumption of guilt. “Being investigated” and “caught” means “something is wrong”. This is the general subconsciousness of people. Many public account articles can be forwarded a lot as long as this is the subject, as if this means that there is a conclusion.
Shouldn’t it be “sentenced” that is the conclusion? Why is public opinion so often decided without review?
This is because the procedure itself is a punishment, and there is no need to have a physical conclusion.
A person was arrested and filed a case. Even if he was later found not guilty, he was not even prosecuted at all, and he did a non-prosecution. Do you think his life can go back to the past?
His job is probably gone, at least he was dismissed. If the owner of the company is involved, the most valuable reputation of the company will easily collapse, the stock will also fall sharply, and creditors will come to the door intensively. It will be even more difficult to borrow money for working capital.
In other words, even if the boss is finally found not guilty, the company may go bankrupt early because of the break of the capital chain, and even the family will be separated.
There is no job, no business, no credit, no home, how much meaning does the remaining freedom have?
This is also to remind judicial officials to be very cautious when initiating criminal proceedings, otherwise the progress of the proceedings will itself become a mountain that will crush a strong person.
Because the judiciary must remember that the procedure is the punishment.
Why does the procedure become a punishment?
One is the high conviction rate. Once in criminal proceedings, it is difficult to escape, the filtering effect of arrest and prosecution has not been fully exerted, and the substantiveness of court trials is far from being realized. Even in cases with imperfect evidence, the probability of the defendant being convicted is very high.
The second is the high detention rate. After entering the criminal proceedings, it is very likely to “go in”, but it is difficult to get out after going in. The mechanical law enforcement concept of arrest for crimes and prosecution for all arrests is still strong. “Going in” will inevitably be out of touch with social relations. Being detained in itself means increasing the conviction rate through the credit endorsement of the judiciary, which naturally tends to give people the impression that the overall situation has been determined.
Third, the cost of correcting unjust cases is extremely high. The public is also aware of this, that is, even if everyone thinks you have been wronged, the probability of getting an error correction is very small.
Fourth, the legitimacy of procedures has not been fully respected. If the criminal suspect can get sufficient help through the procedure, it is possible to prevent the unjust cases from happening in time in the procedure, but the reality is that there are many links that lack the necessary procedural rules and general attention, and sometimes even the judicial officer thinks it is very possible Even unjust cases will go on one by one. Everyone is unwilling to block them based on their own interests or convenience, or they just wait for the next person to block them. Even when some judicial officers themselves were caught in this dilemma, no peers tried to stop them.
Fifth, the concept of reverence for authority. The agencies that initiate criminal prosecutions are all public power agencies with natural credibility, and their prestige is beyond doubt. Although mistakes are sometimes made, they are generally trusted. There are very few people who dare to openly question the proceedings advanced by the judicial organs, and in fact it is difficult to achieve effective questioning, let alone prevent the proceeding of such procedures.
Sixth, social relations lack a fault-tolerant mechanism. It is difficult for us to accept a person who has made mistakes, even if the mistake itself is doubtful. There are few people who can be generous and peaceful. Everyone is always afraid that these people will get themselves into trouble. It is a common choice to protect yourself. Although these people were not convicted and prosecuted in the end, they still could not really get rid of suspicion. Just like Richard Jewell in the 1996 Atlanta Olympics bombing case, although the case was dropped, the investigators still openly said that he did it.
There are still many wrongful cases where the parties were eventually acquitted because of evidence, but those victims and their families would ask a question, that is, who would it be if it wasn’t him? Many victims will stubbornly insist that this defendant did it.
This kind of questioning is not just from the victim, but many are in the social and psychological sense. Before the real culprit is found, the “suspicion” in people’s hearts is not automatically removed because of the innocence verdict.
Why do we have such a universal presumption of guilt?
This is because the concept of procedural justice and the presumption of innocence has not been deeply rooted in the hearts of the people. People’s concern for substantive justice goes far beyond the pursuit of procedural justice. That is to say, the concept of emphasizing entities and neglecting procedures is quite common, and there is not much emphasis on the harm of violating procedures. The basic idea of the rule of law still needs enlightenment.
In practice, the presumption of guilt is more convenient, and being arrested means that he is the ultimate culprit. This understanding is relatively simple. The judicial process is more complicated, and the judicial officer is sometimes reluctant to figure it out so as to avoid trouble.
The judicial officer is also afraid of trouble. If it is easy to go forward and decriminalization is more difficult, then go forward as much as possible. As long as the rules are applied mechanically, they don’t care about other people’s lives. This also reflects a sense of superiority, as if he is always in the role of an interrogator. As everyone knows, we may become the object of judgment by others at any time.
Procedure, that is, punishment is both objective existence and realistic humanity in it, and it is a long-term reality that we can’t escape.
It also reminds judicial officials that they must consider very carefully from the beginning, not only to avoid wrong convictions, but also to avoid wrong investigations, and they should be very rigorous from the early stage of litigation. Because the process itself will bring harm.
The litigation burden of the parties should be lifted in the shortest possible time.
In the reality that wrong investigation cannot be fundamentally avoided, reducing the pretrial detention rate as much as possible, including reducing the application rate of seizure and freezing, can further reduce the degree of harm of procedural punishment.
We must not only prevent procedures from becoming punishments, but also promote procedures to protect against improper punishments.
