What means are legal in anti-corruption cases?

It is reasonable as long as it does not violate the rules!

In anti-corruption investigation, one of the difficult problems to be solved urgently is the distinction between "technical investigation measures" and "modern investigation technology" and the application of norms to implement the new provisions of the Criminal Procedure Law on technical investigation measures.

First, it is necessary to distinguish between "technical investigation means" and "modern investigation technology"

As early as 20 10, the General Administration of Anti-Corruption of the Supreme People's Procuratorate launched the construction of "modernization of investigation information and equipment" in the anti-corruption departments of procuratorial organs throughout the country (hereinafter referred to as "modernization of investigation"), in order to solve the problems of exhaustion of clues, single means of investigation and case breakthrough simply relying on the confession of criminal suspects.

20 1 1 April, the Supreme People's Procuratorate held a special on-the-spot meeting on "industrialization and modernization" in Wuxi, Jiangsu Province, and promoted the successful experience of Jiangsu, Liaoning and other provinces in using modern technology in anti-corruption investigation to the whole country. Deputy Procurator-General Qiu and Chen Lianfu Special Committee made important speeches at the meeting. Since then, the General Administration of Anti-Corruption has successively held exhibitions of modern investigation equipment and product promotion conferences in Zhengzhou, Beijing and Lanzhou, and held two national training courses on anti-corruption investigation technology and information application for procuratorial organs in Xinxiang, Henan Province, and comprehensively promoted modern investigation technologies such as psychological testing technology, call sheet analysis technology, data recovery technology, network technology, electronic data collection and application technology, and information and intelligence technology.

The reason why the Supreme People's Procuratorate attaches so much importance to modern investigation technology is that the original "confession-centered" investigation mode in anti-corruption investigation has become increasingly difficult to cope with the new situation. If we can't make better use of modern investigation technology, anti-corruption investigation will be difficult.

Soon after, the Criminal Procedure Law added new provisions on "technical investigation measures", clearly stating that "technical investigation measures should be taken and handed over to relevant authorities for implementation according to regulations". This new regulation has caused many procuratorial organs in China to confuse all kinds of "modern investigation techniques" vigorously promoted by the Supreme People's Procuratorate with the "technical investigation measures" stipulated in the revised Criminal Procedure Law, and have misgivings about the application of "modern investigation techniques" that they have just begun to be familiar with. Because according to the revised Criminal Procedure Law, the procuratorial organ decided to take technical investigation measures and "hand them over to the relevant organs for execution according to regulations", all kinds of modern investigation techniques that have been used in investigation practice are operated by anti-corruption investigators or procuratorial organ technicians, including call sheet analysis, data recovery, psychological test and so on. Are the two conflicting? How to grasp the boundaries?

Judging from the judicial practice, distinguishing between "technical investigation means" and "modern investigation technology" has become one of the urgent problems to be solved in the current anti-corruption investigation. In the words of the General Administration of Anti-Corruption, it is necessary to "clarify the boundary between technical investigation and investigation technology" and clarify which investigation measures belong to "technical investigation measures" and need to be handed over to relevant authorities for implementation in accordance with regulations; What investigation measures belong to "modern investigation technology" can be implemented by the staff of procuratorial organs according to law.

Second, how to distinguish between "technical investigation measures" and "modern investigation technology"

At present, there is no legal and judicial interpretation to define the types of technical investigation measures systematically and clearly, and the dependence on technical investigation measures in anti-corruption investigation practice is increasing year by year. Therefore, we must proceed from practice, accumulate and explore the standards that distinguish "technical investigation measures" from ordinary "modern investigation techniques", and constantly revise them in practice, and then rise to legal provisions to guide judicial practice.

(A) the concepts of "technical investigation measures" and "modern investigation technology"

"Technical investigation measures" belong to the legal concept. In law and investigation practice, technical investigation measures have long been expressed as "technical investigation measures", commonly known as "technical investigation means". The National Security Law of 1993 and the People's Police Law of 1995 have explicit provisions on technical reconnaissance measures, but both of them are very general-Article 10 of the National Security Law stipulates that the state security organs can adopt technology after strict approval procedures in accordance with relevant state regulations. Article 16 of the People's Police Law stipulates that public security organs can take technical reconnaissance measures according to relevant state regulations and after strict examination and approval procedures. As far as I know, only the departmental regulations formulated by the Ministry of Public Security have detailed provisions on technical reconnaissance measures, mainly including technical reconnaissance regulations, criminal special investigation rules, microphone monitoring and electronic monitoring rules, and off-line technical reconnaissance rules. But they are top secret and cannot be made public. According to the authoritative point of view, technical reconnaissance measures refer to the special investigative measures taken by state security organs and public security organs to detect crimes, including electronic monitoring, telephone monitoring, electronic monitoring, secret photography or video recording, secret acquisition of some physical evidence, postal inspection and other secret special technical means. 【 ① Interpretation of People's Republic of China (PRC) National Security Law, edited by Lang Sheng and Wang Shangxin, Law Press, 1993, p. 72; Lang Sheng, editor-in-chief: An Analysis of the Practical Problems of the People's Police Law of the People's Republic of China, China Democracy and Legal Publishing House, 1995, p. 80. In addition, there is no more detailed provision for public disclosure. The provisions on the use of technical investigation measures in anti-corruption investigation were first seen in the Notice on Issues Related to Public Security Organs Assisting People's Procuratorates in Using Technical Investigation Methods in Major Economic Cases jointly issued by the Supreme People's Procuratorate and the Ministry of Public Security 1989. It is clear in the notice that the procuratorial organs can handle cases with the assistance of public security organs and use technical investigation means after strict examination and approval of major corruption and bribery cases when investigating cases on their own. In 20 12, the criminal procedure law was revised, and the word "technical investigation measures" appeared in the legislation, which officially replaced "technical investigation measures". In the chapter "investigation" of the revised Criminal Procedure Law, "technical investigation measures" constitute the eighth section independently, and five articles (148- 152) respectively stipulate the applicable object, time limit, examination and approval, confidentiality and evidence effect of technical investigation measures, but the provisions are still very principled and not practical. [Article 15 1 of the Criminal Procedure Law stipulates disguised investigation and controlled delivery. ]

Modern investigation technology belongs to the concept of investigation. According to investigation science, investigation technology refers to the direct application of relevant theoretical principles and research results of natural science, technical science and social science in investigation activities, as well as the mechanism technology of guidance, command and logistics support of relevant discipline knowledge and principles in investigation activities. Modern investigation technology is the general name of modern scientific and technological means used by investigation organs to obtain case information, evidence and arrest criminal suspects in the process of case detection.

Conceptually, "modern investigation technology" is a larger category, which includes "technical investigation measures" and some ordinary modern investigation technologies. At present, the specific definition of technical investigation measures in legal and judicial interpretation is secret and unclear. It is this situation that makes it difficult to distinguish technical investigation measures from ordinary modern investigation methods. Specific to anti-corruption investigation, the only feasible way to distinguish between "technical investigation means" and "modern investigation technology" is to find a standard. In judicial practice, investigators use this standard to define whether a specific investigation measure is "technical investigation measure" or "modern investigation technology" and apply it correctly.

(b) Criteria for distinguishing "technical investigation measures" from "modern investigation techniques"

Combined with the experience of using various scientific and technological means in anti-corruption investigation practice, the author believes that the standard to distinguish "technical investigation measures" from "modern investigation technology" is to see whether a certain investigation measure has the characteristics of secrecy, technicality, immediacy, serious infringement and directness of proof. The investigation measures with these five attributes belong to "technical investigation measures", while the investigation measures with only some of these five attributes belong to "modern investigation technology".

Taking the investigation measures taken against mobile phones as an example, the technology of monitoring mobile phone calls and intercepting mobile phone short messages belongs to technical investigation measures because of its confidentiality, technicality, immediacy, serious infringement and direct proof. Because both methods use special technology, they secretly and instantly obtain the personal privacy of the respondents, which seriously violates human rights. According to the revised Criminal Procedure Law, the total memories and mobile phone messages obtained in accordance with legal procedures can be used as evidence, while the total memories and mobile phone messages can often directly prove the facts of the crime, which belong to direct evidence in terms of evidence attributes. In contrast, although the mobile phone positioning technology and the call list analysis technology are secret and technical, the former only exposes the activity place of the respondents, while the latter only reflects the relative person with whom they are talking, and does not directly and completely expose their personal privacy. Weighing the fight against crime and the protection of human rights, in the face of the social needs to curb corruption, as a national public official, it should not belong to the ordinary sense that the investigation organ infringes on citizens' personal privacy. Faced with the suspicion of guilt, the security of non-core personal information of national public officials should be transferred to the investigation requirements of moderate transparency of their personal lives, so as to meet the supervision of procuratorial organs and the public on the legality of their duties and the integrity of their personal lives. In this sense, these two technologies are not seriously infringing. In addition, the location of the investigated object and the caller's information reflected by the call sheet analysis technology can not directly prove the criminal facts. From the evidence attribute, it belongs to indirect evidence and does not have the directness of proof. Moreover, both of these technologies belong to evidence retrieval afterwards, not immediate evidence interception, not instantaneous.

From this example, it is not difficult to see that both the investigation measures for mobile phones, the monitoring of mobile phone calls and the interception of mobile phone short messages belong to "technical investigation measures" because they are secret, technical, immediate, serious infringement and direct proof; The mobile phone positioning technology and call list analysis technology should belong to "modern investigation technology" because they are only secret and technical, but not immediate, serious infringement and direct proof. Therefore, modern technologies applied to anti-corruption investigation and even all investigation activities can be distinguished by this standard. Starting from the practice of anti-corruption investigation, this is also a feasible method to distinguish technical investigation measures before the legal and judicial interpretations are clearly defined.

(3) Specific contents of "technical investigation means" and "modern investigation technology" in anti-corruption investigation practice.

1. Technical investigation measures. Due to the late application of technical investigation measures in the investigation practice department and the procuratorial technical department of procuratorial organs, there is no clear regulation and systematic classification of technical investigation measures at present, and the work mainly focuses on the classification and regulation of technical investigation means by the technical investigation department of public security organs. However, at present, the classification and content of technical investigation means by the technical investigation department of public security organs are still top secret, so the author believes that the basic principles that should be grasped in anti-corruption investigation are: among the investigation means, those that are confidential, technical, immediate, seriously invasive and directly provable should be taken as technical investigation measures. In this sense, technical investigation measures should include: microphone monitoring; Telephone monitoring of landline and mobile phone, interception of mobile phone short messages; Hidden camera shooting and close-range recording in fixed places; Traceless secret inspection and place search after technology unlocking; Hacking technology is applied to mobile phones, computers and networks after strictly performing legal procedures.

2. Modern investigation technology. Among the modern technologies applied in anti-corruption investigation practice, in addition to the technical investigation measures listed above, modern investigation technologies mainly include: psychological testing technology, video monitoring technology, document (including handwriting) inspection technology, network technology, electronic forensics and electronic data recovery technology, call record analysis technology, full-time synchronous audio and video recording technology, mobile phone positioning technology, information and intelligence technology, etc. These techniques do not have the characteristics of secrecy, technicality, immediacy, serious invasion and directness of proof at the same time, and should be defined as modern investigation techniques.

The third is the standardized application of "technical investigation means" and "modern investigation technology"

In anti-corruption investigation, the standardized application of "technical investigation means" and "modern investigation technology" has become a credit that all anti-corruption police officers must complete. This is not only related to the correct use of public power to ensure that the investigation power is not abused, but also determines the improvement of investigation efficiency and level in future anti-corruption investigation activities.

(1) Normative application of technical investigation measures [Because the specific provisions of public security organs and state security organs on technical investigation measures are still top secret, this paper cannot classify technical investigation measures, discuss in detail how to standardize and apply each type of technical investigation measures, and cannot cite actual cases to illustrate them. Therefore, we can only take technical investigation measures as a general concept to discuss its normative application in the practice of duty crime investigation. ]

Technical investigation measures are a double-edged sword. If used correctly, it can effectively crack down on and curb criminal activities, while if used improperly, it will seriously infringe on the legitimate rights and interests of citizens. The Prism program implemented by the National Security Agency is an example. The Rules of Criminal Procedure of the People's Procuratorate (Trial) promulgated by the Supreme People's Procuratorate on 20 12 and 10 (hereinafter referred to as the Rules of Criminal Procedure) further stipulates technical investigation measures (Articles 263-267), and strict compliance with the revised Criminal Procedure Law and criminal procedure rules is the prerequisite for standardizing the application of technical investigation measures. However, in view of the fact that the current laws and judicial interpretations are too general in technical investigation measures, the demand for the application of technical investigation measures in judicial practice is increasingly urgent. One of the ways to solve this contradiction is to learn from the relevant practices in previous investigation practice and refer to the corresponding international practices, and then explore a set of effective specific operating procedures, and then rise to legal norms (for trial implementation) to guide judicial practice, and then modify and fix them after testing.

Since the implementation of the revised Criminal Procedure Law for more than two years, the applicable standards of technical investigation measures mastered by the anti-corruption department of procuratorial organs in practice can be summarized as follows:

1. Use principle. (1) approval principle. Article 148 of the revised Criminal Procedure Law and Article 263 of the Criminal Procedure Rules stipulate that the use of technical investigation measures must go through strict examination and approval procedures. In the investigation practice, every time a technical investigation measure is used, it must be submitted in writing to the deputy procurator-general in charge of anti-corruption investigation for approval, and an internal legal document must be formed, indicating the scope, object, starting and ending time and type of technical investigation. (2) the principle of necessity. Technical investigation measures can only be used when general investigation measures are difficult to achieve the purpose of investigation. (3) the principle of relevance. The object of technical investigation measures can only be aimed at criminal suspects and the main relevant personnel of the case, and the scope of application of technical investigation measures is limited to the content related to the purpose of investigation. (4) the principle of felony. In anti-corruption investigation, technical investigation measures are only applicable to major corruption and bribery cases involving more than100000 yuan. 5] Specific charging principle. The crimes that the anti-corruption department of the procuratorial organ can decide to take technical investigation measures include: corruption and bribery, unit bribery, bribery, introduction bribery, unit bribery, and bribery by using influence (the procuratorial organ does not need to take technical investigation measures when pursuing).

2. Application and approval. (1) Applicable subject: the case handling office of the anti-corruption bureau of the people's procuratorate at the prefecture level or the anti-corruption bureau of the people's procuratorate at the grass-roots level. (2) Form and content of application: To apply for using technical investigation measures, the investigation department must submit a written application, specifying: (1) the starting and ending time, area, object, type, work content of using technical investigation measures and the case-handling department that cooperates with the implementation of technical investigation measures. (2) The necessity of using technical investigation measures. (3) Preliminary evidence to prove the criminal suspect's duty crime. (3) Subject of examination and approval: An application is filed by the Anti-Corruption Bureau of the people's procuratorate at the prefecture level or the Anti-Corruption Bureau of the grass-roots procuratorate, which is reviewed by the director of anti-corruption of the people's procuratorate at the prefecture level and submitted to the deputy procurator-general in charge for approval (the same as the current examination and approval procedures for public security technical investigation). [The technical investigation measures used by the anti-corruption department of the procuratorial organ at or above the provincial level shall be applied by the case handling office of the anti-corruption bureau of the procuratorial organ at or above the provincial level, and shall be reported to the competent deputy attorney general for approval after being audited by the anti-corruption director. ]

3. Specialized agencies. The Anti-Corruption Bureau of the people's procuratorate at or above the prefecture level shall set up a special group or determine fixed personnel to be specifically responsible for the examination and approval of technical investigation measures, improve the supervision of technical investigation measures in the whole process of investigation, and ensure that procuratorial organs, public security organs and state security organs can cooperate conveniently, efficiently and smoothly in anti-corruption investigation. Anti-corruption departments of procuratorial organs at all levels should gradually cultivate compound talents who know both investigation and technology, and strengthen team building.

4. Statutory time limit. Technical investigation measures shall take effect within three months from the date of issuance by the competent deputy procurator-general. If it is not necessary to continue to take technical investigation measures, it must be lifted in time; For complex and difficult cases, if technical investigation measures are still needed after the expiration of the time limit, a petition report on extending the time limit of technical investigation measures shall be made within ten days before the expiration of the time limit of technical investigation measures, explaining the extension period and reasons, and the validity period can be extended only after the original examination and approval procedures are performed according to law, and each time shall not exceed three months.

5. Use of evidence. If the materials collected by technical investigation measures according to law are used as evidence, legal documents approving the technical investigation measures shall be attached, and defense lawyers may consult, extract and copy them according to law. For the physical evidence, documentary evidence and other evidence collected by technical investigation measures, investigators shall make corresponding explanatory materials, indicating the time, place, quantity, characteristics of obtaining evidence and the approving organ and type of technical investigation measures, and sign and seal them. If the evidence obtained by technical investigation measures may endanger the personal safety of specific personnel, involve state secrets or expose investigation secrets, or seriously damage business secrets and personal privacy, protective measures such as not exposing the identity of relevant personnel and technical methods shall be taken. If necessary, it is suggested that cross-examination should not be conducted in court, and the judge should verify the evidence outside the court.

6. Confidential work. Anti-corruption investigators shall perform confidentiality obligations on state secrets, business secrets and personal privacy that they know in the process of taking technical investigation measures; Materials unrelated to the case obtained by technical investigation measures shall be reported in time, destroyed after approval, and the destruction records shall be kept. Evidence, clues and other materials obtained by technical investigation measures can only be used for criminal investigation, prosecution and trial, and shall not be used for other purposes.

(B) the standardized application of modern investigation technology

Frankly speaking, investigation itself is a violation of human rights. For example, obtaining household registration information to understand the family members of the respondents, obtaining bank deposit information to understand the economic situation of the respondents and other conventional investigation methods are also violations of human rights in a broad sense and personal privacy of the respondents, but the degree of infringement is relatively weak. If ranked according to the degree of infringement, coercive measures directly deprive and restrict personal freedom, and the degree of infringement is the most serious; Technical investigation measures infringe personal privacy and business secrets, and the degree of infringement is slightly weaker than compulsory measures; Modern investigation technology is relatively weak, which is basically the same as conventional investigation methods such as collecting household registration information and collecting deposit information. Therefore, in practice, we can consider the application of modern investigation techniques, just like conventional investigation methods, which can be implemented after fulfilling internal work procedures, that is, controlling cases well. If the program requirements are too cumbersome, it will tie your hands and feet and easily miss the fighter. When using modern investigation techniques, case handlers should pay attention to making work records as internal working documents for future reference. The application of modern investigation technical norms should pay attention to proficiency, flexibility and comprehensive application, and form a combination of various techniques and tactics in order to seek the goal of maximizing investigation results.

At present, the modern investigation techniques successfully used in anti-corruption investigation mainly include: (at the request of the author, omitted).

Four, the main problems and solutions in the application of "technical investigation measures" and "modern investigation technology".

For a long time, the main mode of anti-corruption investigation by procuratorial organs used to be "one pen with one mouth". Facing the increasingly complex, diverse and hidden situation of corruption and bribery, it is increasingly difficult for a single investigation method to cope with the new work situation. Over-reliance on confession and the traditional anti-corruption investigation mode centered on interrogation derived from it are increasingly inadequate in the face of the new provisions of the Criminal Procedure Law to protect human rights. For the anti-corruption department of procuratorial organs, it is urgent to combine modern investigation technology with traditional investigation technology. Regrettably, the procuratorial organs in many areas are still in a relatively primary stage in this regard. Frankly speaking, at present, the application level of modern investigation technology by procuratorial organs at the city and county levels in China is relatively low, and the work of some hospitals of provincial people's procuratorates is only better. Looking at the overall situation, there are many problems to be solved in the process of changing from a single investigation method to a diversified investigation method.

(1) Main problems

1. There is a shortage of professionals, especially compound talents who know both investigation and technology. From the concept of technical investigation to the comprehensive application of various techniques and tactics, the level of anti-corruption investigators using modern scientific and technological services for investigation is still in a relatively primary stage. Many policemen engaged in anti-corruption investigation are relatively unfamiliar with modern electronic equipment such as computers and smart phones because of their older age, and have no concept of psychological testing technology and video surveillance technology. There are also some anti-corruption police officers who don't usually use modern communication tools such as qq, msn and WeChat, and their understanding of electronic data still stays at the level of "as long as the disk is formatted, all the data will be gone". Anti-corruption departments in some areas lack basic attention to information and intelligence work and ignore the construction of information databases. Anti-corruption investigators are either experienced old investigators who don't understand modern technology, or young investigators who can skillfully operate modern electronic equipment, and have been engaged in anti-investigation work for a short time and their professional level is not high. Compound talents who know both investigation and technology are often rare.

2. The technical force is relatively weak and scattered, and the service investigation mechanism of technical departments needs to be improved. The technical departments of procuratorial organs at all levels are largely fragmented and lack overall planning. The anti-corruption departments and technical departments of municipal procuratorial organs lack cooperation in investigation activities except synchronous audio and video recording, and the technical departments of grassroots people's procuratorates are seriously short of personnel, usually only 1-2; Compared with the strong technical support of the technical investigation and network security departments of public security organs, the technical strength of the technical departments of procuratorial organs applied to investigation is obviously weak, and the use of modern scientific and technological means to provide technical support for anti-corruption investigation has not become the routine work content of the procuratorial technical departments.

3. Poor equipment. Compared with public security organs, procuratorial organs are generally backward in investigation equipment. Many city procuratorates and grass-roots procuratorates do not have high-end specialized investigation equipment, and the modernization of investigation mainly stays at the stage of "computer replacing handwriting". The special funds for politics and law are also mainly used for purchasing printers, office desktop computers and replacing office vehicles, and there is no special fund guarantee.

4. In individual cases, the technical investigation department of the public security organ assisted in handling the case, which led to low work efficiency and the situation of running the road could not be eliminated. Due to the heavy task, the technical investigation department of the public security organs can't cooperate with the procuratorial organs in every case in time and efficiently, and the technical investigation of anti-corruption cases is carried out by people outside the procuratorial system, which leads to some places running away in the process of handling cases. Especially when the suspect is a public security policeman, it is even more difficult to carry out this work.

solution

In view of the above problems, the key to solve the application problems of "technical investigation means" and "modern investigation technology" in anti-corruption investigation is to start from three aspects: software, hardware and system construction.

1. Software construction. Attach great importance to the construction of anti-corruption investigators, vigorously cultivate the awareness of all anti-corruption investigators in applying "technical investigation means" and "modern investigation techniques", improve the level of all anti-corruption police officers in applying "technical investigation means" and "modern investigation techniques" through training, examination and training, enhance the scientific and technological content of anti-corruption investigation, and accelerate the transformation of anti-corruption investigation mode from manpower-intensive to information-intensive and technology-intensive. Strengthen the recruitment of professionals familiar with "technical investigation means" and "modern investigation technology" by the technical department of the procuratorate, strengthen the technical team of the procuratorate, and form a strong technical support for the case-handling department by the technical department.

2. Hardware construction. Seize the favorable opportunity of unified management of human, financial and material resources of procuratorial organs below the provincial level, improve the funding guarantee for the purchase of modern investigation equipment, and ensure that the special funds for political science and law are fully allocated and used to purchase modern investigation equipment. Fully learn from the advanced experience of public security organs and state security organs, fully promote the "two-oriented construction" and improve the level of investigation equipment in the shortest time. It is necessary to make overall plans, avoid redundant construction, spend limited funds on the most effective investigation equipment, and truly "focus on actual combat, highlight key points, pay attention to application, and standardize according to law."

3. System construction. Establish a long-term cooperation mechanism between the technical department and the investigation department of the procuratorate, ensure the realization of the investigation purpose in anti-corruption investigation with strong technical support, form a benign interaction between the technical department and the investigation department, and regularly feed back successful experiences and mistakes to ensure the smooth development of the work. At the same time, actively explore the cooperation mechanism with public security organs and state security organs, and seek the cooperation of state security organs in implementing "technical investigation measures" when public security police are involved in the case, and vice versa. Within the anti-corruption department, designated personnel are responsible for liaison and coordination with public security organs and state security organs to ensure the smooth implementation of "technical investigation measures".