累犯非羁押强制措施适用的问题及其解决路径

Application of Non-custodial Compulsory Measures to Recidivists and its Solution

法律、司法解释未对累犯适用非羁押强制措施作出禁止性规定,但实践中,累犯在非羁押措施上近乎零适用。有观点以累犯因符合径行逮捕条件且主观恶性、再犯可能性较之前科人员更大而直接推定有羁押必要解释之,这明显与宽严相济、少捕慎诉慎押刑事司法政策,与羁押必要性审查制度教育改造、保障人权之目的相背离。不同累犯社会危险性各不相同,侦查、司法机关应转变司法理念,坚持区分情形、区别对待,保留累犯适用羁押必要性审查之余地,并动态考察累犯社会危险性,对于没有继续羁押必要的,及时变更为非羁押措施,从而有效减少不必要羁押,推动降低诉前羁押率,进一步贯彻落实少捕慎诉慎押刑事司法政策。

Neither the law nor the judicial interpretation has made any prohibitive provisions on the application of non-custodial compulsory measures to recidivists.However,there is almost zero application of non-custodial measures to recidivists in practice.There are some opinions support that the recidivists should be detained because they meet the conditions of arrest,they are subjectively vicious,and they are in higher possibility to recidivism than that of the for⁃mer offender.Obviously the above viewpoints deviates from the criminal justice policy of combining punishment with mercy,less arrest,cautious prosecution and detention,and also deviates from the aims of educating and correcting,protecting human rights under the detention necessity review system.Different recidivists are with different social dan⁃ger,therefore,investigation and judicial organs should change the judicial concept,and adhere to the distinction of circumstances and different treatment.The detention necessity review system should be reserved while dynamic investi⁃gation and analysis on social danger of recidivists should be implemented.It is necessary to change detention to non custodial measures timely once there is no need to keep in detention so as to effectively reduce unnecessary detention,promote the reduction of pre-trial detention rate,and further implement the criminal justice policy.