死刑复核程序中被告人的诉讼权利问题

On the defendant's Procedural Rights in Procedure of Judicial Review of Death Penalty

死刑复核程序中被告人应当享有充分的诉讼权利,这是肯定死刑复核程序的诉讼属性、体现被告人的程序主体地位、保障死刑判决正确适用、提高死刑判决可接受性的必然要求;以国际公约的相关规定为参照,我国死刑复核程序被告人的诉讼权利处于极度匮乏状态因而亟需完善,一方面应确保被告人享有普通案件审判程序中的诉讼权利除非其自行放弃,另一方面应对被告人予以特殊的保护。具体而言应当赋予被告人关于死刑复核程序审理方式的选择权、强制辩护权、反对强迫自证其罪权、无罪推定权、免受双重危险权、申请赦免、减刑权等诉讼权利,并建立死刑延期执行制度。

The defendant in procedure of judicial review of death penalty should have adequate procedural rights, which is required to acknowledge the litigious character of the procedure of judicial review of death penalty, to reflect the role of procedural subject of defendant, to guarantee the correct application of death verdict and to make it more receiving. Referring to some relative provisions in the International Covenant on Civil and Political Rights and the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, in china the defendant＇s procedural rights in procedure of judicial review of death penalty are at the extreme deficient condition and need to be improved badly. So firstly we should ensure the defendant having proceeding rights which he should have in common procedure unless he gives up them voluntarily, secondly we should give the special protection to defendants, to be exact, we should entitle these rights to them： the choice of ways of hearing, compulsory defense, privilege against self--incrimination, the presumption of innocence, protection against double jeopardy, the application of release, commutation and establish the system of suspended execution of death penalty in order to provide enough time for the defendant to obtain judicial remedies as many as they can.