检察机关指定居所监视居住的讯问风险及防控

Prevention of the Procedural Risk in the Home Residential Surveillance Designated by Procuratorial Organ

2012年我国对《刑事诉讼法》之指定居所监视居住进行了修改。因立法定位矛盾、立法设计粗疏,导致检察机关指定居所监视居住讯问存在程序风险。如立法设计违反程序法定原则、控辩失衡、保障性措施缺失等。为此,应加强对指定居所监视居住讯问的风险控制:首先明确讯问地点,杜绝"谈话式"讯问;在辩护权行使上,保障指定居所监视居住期间律师会见、增加律师在场权的兜底条款;在讯问保障上,确保讯问笔录与录音录像一致、讯录分离、执法记录仪与录音录像的配套、完善司法责任制考核。

The system of designated home residential surveillance has been amended in 2012Criminal Procedure Law. But the procedural risks still exists in the home residential surveillance designated by procuratorial organ because of the conflicts in legislative orientation and rough design in legislation. For example the interrogation in designated home residential surveillance violated the procedural legal principles and desirable balance between the prosecution and the defense, and the protecting measures are still missing. Therefore, it is necessary to strengthen the risk control in the designated home residential surveillance. Firstly, the place and timing of the interrogation should be determined. Secondly, the meeting between counsel and the accused should be protected and the save clause for lawyers presence right should be added. Thirdly, for the protection of interrogation, the interrogation record and the video/audio recordings should be consistent, interrogation and record should be separated, add the match of the site enforcement recorder and video/audio recordings, and the assessment of judicial responsibility should be completed.