【為何眾多案件的被告及家屬均拒絕「官派律師」?】【Why Defendants and their Families Resist Appointment of “Official Lawyers”?】

轉自:China Human Rights Lawyers Concern Group / 中國維權律師關注組

在香港,如符合資格的申請人成功申請法律援助計劃,其不僅獲得有水準的法律代表,同時大幅減輕其律師費用及訟費。類似的安排亦見於屬另一司法管轄權的中國大陸,該地的法援機構會為經濟有困難的被告安排律師,或者安排在人民法院或看守所派駐的值班律師。而在敏感案件中由當局指派的律師,便是人們口中所說的「官派律師」。惟根據報導,不少當事人及其親屬均對「官派律師」退避三舍。就著有關12名港人在深圳被拘留的案件,被捕人士家屬指出他們委任的律師均被當局拒絕,但他們堅持不會接受「官派律師」的委任。同樣也是法律援助的律師,為何他們在中國內地的情況會與其他司法管轄區南轅北轍?

原因(1):當事人或家屬未能相信「官派律師」會盡力辯護「官派律師」被敬而遠之的其中一個主因,是被告或家屬未能相信「官派律師」是真誠地為被告辯護。由於「官派律師」多由執法部門強烈要求下聘用的,而且他們大都出現在家屬已經為被告安排律師之後,這些行徑會令家屬嚴重懷疑「官派律師」的獨立自主,以及他們是否真誠地為被告辯護。而且,與其他司法管轄區不同,在中國大陸,「官派律師」是由執法部門(如看守所)指派。這等由刑事檢控部門指派律師為被告人辯護的機制,在先進的法治社會中可謂絕無僅有,因為刑事檢控部門負責檢控被告人,與律師為被告人辯護的工作完全衝突。

原因(2):某些「官派律師」的行徑紕漏百出,包括沒有通知審訊日期和判刑結果,以及拒絕會面箇中的例子包括近期被判「顛覆國家政權罪」罪成的「長沙富能公益案」,根據被告人之一程淵的妻子施明磊在Twitter上發布的消息,當局一直拒絕她為丈夫聘請的吳有水律師參與案件,而要求她使用「官派律師」。可是,該名「官派律師」從來沒有與她溝通過,甚至沒有向她通知被告已完成審訊以及被判刑,只有後來她聯絡檢察院才得知此事。她及後到「官派律師」的律所尋求會見,卻被要求離開律所。事實上,根據《律師法》第30條,律師應致力維護被告人的權益,而通知被告人家屬有關審訊的安排毫無疑問是被告人的權益。「官派律師」逃避會見被告家屬,拒絕向他們透露案件的所有細節,試問又怎能令家屬放心?

缺乏法理依據:被告人沒有經濟困難,家屬亦無申請「官派律師」

《中華人民共和國刑事訴訟法》第35條第1項,「犯罪嫌疑人、被告人因經濟困難或者其他原因沒有委託辯護人的,本人及其近親屬可以向法律援助機構提出申請⋯⋯指派律師為其提供辯護」。國務院公布的《法律援助條例》第11條亦清楚闡明,在刑事案件中,「官派律師」只有在被告人有經濟困難的情況下適用。

由此可見,上述條例清楚指出只有在2種情況下才可以委任「官派律師」,分別為 (1) 被告人有經濟困難;或 (2) 因其他原因沒有委託辯護人。在12名港人被捕的案件中,暫時沒有任何被告人提出過因有經濟困難而需要委託「官派律師」,而他們的家屬亦早已安排律師為他們辯護。因此,若當局仍執意該等被捕人必須使用「官派律師」,此等做法無疑扭曲了法律援助制度,變相剝奪「敏感案件」當事人及其家屬自行委託律師的權利。故此,當局應提出確切的法理依據,向外界解釋在上述情況沒有出現下,委派「官派律師」為何合法。

期望

中國多次自稱為「法治國家」,按照「依法治國」的原則實施政策,我們因此相信其所有決定必須合符法理。然而,就如以上所述,其現時強制要求12名在深圳被拘留的港人使用「官派律師」的法理基礎仍然不清晰。

中國為聯合國的其中一員,因此有責任盡力達致聯合國《保護所有遭受任何形式拘留或監禁的人的原則》所載的原則。其中,原則19清楚指出「被拘留人或被監禁人應有權接受特別是其家屬的探訪,並與家屬通信,同時應獲得充分機會同外界聯絡」。究竟現時該等被捕人士是否有權自主地選擇為他們辯護的律師?外界並不清楚。家屬為他們委任的律師,身份及辦公地處均彰彰明甚,然而當局委任的「官派律師」,外界就連其名字也不知曉。中國多番強調自己為「法治國家」,而相信在「依法治國」的政策下,盡力確保被捕人士有權力自主選擇具水準的律師為自己辯護,理應才是體現其司法系統健全的做法。惟在這宗案件中,為何拒絕家屬委任的律師?為何要求家屬接受「官派律師」?被捕人士是否知道家屬已為他們委派律師,惟仍自主選擇「官派律師」?強制委任「官派律師」的法理基礎何在?上述問題的答案至今仍是乏善可陳。

僅寄望中國致力遵從其所宣稱「依法治國」的方針,遵從聯合國闡明的國際準則以及遵守本地法律,為被捕人士致力提供一切保護,讓人們相信其司法系統能確保給予被捕人士所有辯護權,以及獲得公平、公正及公開的審判。

In Hong Kong, once eligible citizens to Legal Aid made successful applications, not only can they obtain advice from competent legal representatives, their legal fees are also greatly reduced. Similarly, legal aid agencies in the Mainland China, which is under another jurisdiction, arrange lawyers (some stationed in People’s Courts or detention centers) for defendants who are in financial difficulties. The lawyers designated by the authorities to handle sensitive cases are collectively referred to by people as “official lawyers”. However, according to reports, these “official lawyers” were not welcomed. Regarding the case of 12 Hong Kong citizens detained in Shenzhen, their families held a press conference which pointed out that their reluctance to accept the appointment of “official lawyers” even their own appointed lawyers were rejected by the authorities. Why the difference, people may ask, if the “official lawyers” are supposed to be of the nature as a legal aid lawyer?

Reason (1): Distrust by defendants or family members that “official lawyers” are defending in good faith

On one hand, these lawyers generally all “appeared” after the family members had already arranged a lawyer for the defendant. On the other hand, the law enforcement agencies required the family members to hire “official lawyers” and dismiss the lawyer(s) they had originally hired. These practices made people highly doubtful about the independence of these “official lawyers” and whether they are sincerely defending. Moreover, “official lawyers” are assigned by law enforcement agencies (such as detention centers) in Mainland China. This mechanism in which the criminal prosecution department appoints a lawyer to defend the defendant is unusual in an advanced society under the rule of law, because the criminal prosecution department is responsible for prosecuting the defendant and completely conflicts with the work of lawyers defending the defendant.

Reason (2): The works of “official lawyers” are full of flaws: failing to notify the date of the trial and sentence, and refusing to meet

One of the defendants, Cheng Yuan in “Changsha Funeng Charity Case”, has recently been convicted of “subversion of state power”. According to his wife, Shi Minglei, the authorities have refused her lawyer Wu Youshui hired for her husband, instead asking an “official lawyer” to intercept the case. However, that lawyer never communicated with Shi, not even the news that her husband had completed the trial and was sentenced. It was only when she contacted the prosecutor’s office has she learned this. She later went to the law firm of this lawyer to request a meeting, which was in vain. In fact, according to Article 30 of “Lawyers Law of the People’s Republic of China”, lawyers should strive to protect the rights of the defendant, who undeniably enjoys the rights to notify his/ her family of the arrangements for the trial. If the “official lawyers” deliberately evaded meetings and refused to disclose all the details of the case to them, how can one gain reassurance?

Lacking Legal Basis: Neither defendant faced financial difficulties, nor family members apply for an “official lawyer”

Article 35, Item 1 of “Criminal Procedure Law of the People’s Republic of China” stated, “where a criminal suspect or defendant has not retained a defender for financial hardship or other reasons, the criminal suspect or defendant or his or her close relative may file an application with a legal aid agency.” Also, Article 11 of the “Legal Aid Regulations” promulgated by the State Council also clearly states that in criminal cases, “official lawyers” are only applicable when the defendant has financial difficulties.

Hence, the above regulations clearly state that “official lawyers” can only be appointed under two circumstances: (1) the defendant has financial difficulties; or (2) defending lawyers are not appointed for whatever reasons. For the case of 12 Hong Kong residents, both grounds are lacking. Therefore, if the authorities still insist that the detainees must use “official lawyers”, such practices will undoubtedly distort the legal aid system and deprive the parties of “sensitive cases" and their families of the right to appoint lawyers by themselves. Therefore, the authorities should provide a legitimate basis of the appointment of “official lawyers” in such circumstances.

Expectation

China has claimed itself as a “Country of Rule of Law” time and again. In accordance with its principle of “governing the country by law”, we believe that all its decisions must be lawful. Yet, as aforementioned, the fact that currently relevant authorities mandatorily demanded the 12 Hong Kong detainees in Shenzhen to appoint “Official Lawyers” is not premised on sound legal foundation.

As a member of the United Nation, China is therefore obligated to strive to achieve the principles enunciated in “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”. Principle 19 therein clearly states that “A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world”.

It is greatly wondered that whether the detainees have the right to autonomously elect defence lawyers. The names and offices of lawyers appointed by their family members are open and disclosed. In stark contrast, the names of the Official Lawyers are not known to the outside world, save to mention their offices and contact methods.

Warranting detainees the rights to autonomously elect competent lawyers to defend for themselves is the only way to align with China’s repetitive claims that it is a country of rule of law and it governs the country pursuant to laws. However, in the current case, multiple unanswered questions pose significant scepticism towards the comprehensiveness of China’s legal system. It is hoped that China would comply with its “governing the country” through complying with its domestic laws and also international standards published by the United Nations, to provide all protection to detainees, so as to plant confidence among people regarding its legal system that it fully provides detainees the right of defence, and to be subject to fair, just and open trial. //

資料來源 Source:

全文請參閱本組網頁:https://bit.ly/3hLazTG

立場新聞有關12名在深圳被拘留的港人的家屬記者會報導:https://bit.ly/2RAyj1W

《中華人民共和國律師法》:https://bit.ly/3mvYLYM

自由亞洲電台有關「長沙富能公益案」報導:https://www.rfa.org/……/ren……/gf1-09112020080543.html

施明磊有關「長沙富能公益案」推特:https://twitter.com/MindyShi227/status/1303891048683286529

《中華人民共和國刑事訴訟法》:https://www.pkulaw.com/chl/5a06769be1274052bdfb.html

《中華人民共和國法律援助條例》:http://www.moj.gov.cn/……/2017-01/27/643_149062.html

聯合國《保護所有遭受任何形式拘留或監禁的人的原則》:https://www.un.org/……/treaty/files/A-RES-43-173.shtml

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