with the continuous development of the national economy, the continuous advancement of the process of governing the country according to law, the continuous improvement of the human rights situation and the deepening of citizens' awareness of the rule of law, equality and justice, the legal provisions, institutional guarantees and actual enjoyment of the rights of criminals, a citizen with a special legal status, have attracted more and more attention from all walks of life. In recent years, the protection of the rights of criminals in China has gradually entered the track of legalization, especially the promulgation of the White Paper on the Reform of Criminals in China in 1992 and the successive promulgation of the Prison Law in 1994. The prison-based execution organs have taken a solid step of epoch-making significance in giving criminals humanitarian treatment, respecting their personality and safeguarding their legitimate rights and interests. Criminals enjoy legal rights corresponding to their special status, and it is an inevitable requirement for a society ruled by law to recognize and protect their rights. To grasp the rights of criminals as a whole, we must have a clear understanding of such issues as what rights criminals should enjoy, the current situation of their rights and how to effectively safeguard their legitimate rights. The clarification of these issues will certainly help law enforcers to further establish the concept of human rights protection; It is helpful to improve the quality of criminal reform; It is helpful to promote the realization of penalty function to the maximum extent. Therefore, this paper tries to explore the rights of criminals as a whole, with a view to providing some help to scientifically understand the current situation of criminals' legal rights in China.
1. According to China's Constitution, Prison Law and other laws and regulations, the rights enjoyed by criminals in China constitute
(1) the right to equality. Although criminals have committed crimes, as citizens, they still enjoy the equal rights stipulated by the Constitution and laws, which is determined by the principle that all citizens are equal before the law. The equal rights of criminals mainly include: 1. The right to appeal. Including: the right to appeal in criminal, civil and administrative proceedings and the right to appeal in administrative punishment; 2, the right to sue and report. Criminals have the right to report and accuse the judicial organs, execution organs and their staff of dereliction of duty and infringement; 3. Rights as participants in litigation. Criminals who participate in litigation in the process of serving their sentences still enjoy a series of litigation rights in accordance with the law, such as the right to defense, the right to appeal, the right to apply for withdrawal, the right to apply for expert evaluation and so on. In particular, if a criminal commits a new crime or is prosecuted for remaining or missing a crime while serving his sentence, the criminal, as a defendant, enjoys the right to defense and the right to appeal.
(2) political rights. The political rights of citizens refer to the right of citizens to participate in the political life of the country. Criminals who have not been deprived of political rights should enjoy the political rights stipulated by the Constitution and laws according to law. For example, according to the National People's Congress Standing Committee (NPCSC)'s "Several Provisions on Direct Election of People's Congresses below the County Level" and "Joint Notice on the Right to Vote of Criminals Serving Sentences and Detainees" of March 5, 1983, criminals who have not been deprived of their political rights can exercise their right to vote, but they can stop exercising their right to vote because they are under investigation, prosecution and trial.
(3) personal rights. Personal rights in a broad sense include the right to life, the right to separation of powers, the right to personality, the right to health and the rights related to personal freedom, such as the right to correspondence and the right to freedom of religious belief. The personal rights of criminals in China are as follows: 1. The right to life. If a criminal has not been deprived of his life according to law, then his right to life should be recognized and protected, and no one can arbitrarily deprive him, including those who are sentenced to death with a reprieve; 2. Right to health. Since criminals have not been deprived of their lives, they should enjoy the right to health while serving their sentences. In China, criminals' right to health includes food, clothing, shelter, medical treatment and health care. Criminals who participate in labor have the right to labor protection according to law; Criminals who do suffer from serious diseases may be temporarily executed outside prison if they meet the conditions; 3. The right not to be tortured or subjected to corporal punishment or abuse. China's laws expressly prohibit the supervisors of the regulatory authorities and the personnel entrusted by the regulatory authorities to beat, corporal punishment or abuse the supervised persons, and prohibit them from ordering the supervised persons to beat, corporal punishment or abuse other supervised persons; 4. Right to inviolability of personal dignity. The Prison Law stipulates in the general provisions that the personality of criminals shall not be insulted; The prison people's police shall not commit acts that insult the personality of criminals; 5. Right of correspondence and meeting. During the period of serving a sentence, a prisoner may, in accordance with relevant regulations, correspond with others and meet with relatives and guardians; 6. Freedom of religious belief. China's constitution stipulates that citizens have the right to freedom of religious belief, and the white paper "The Situation of Reforming Criminals in China" also declares: "Criminals have the right to believe in religion", but the criminal's right to believe in religion refers to "allowing religious criminals to maintain their original religious beliefs during their detention". The right to freedom of religious belief is different from that of ordinary citizens in scope.
(4) property rights. According to the laws of our country, the lawful property of criminals is inviolable, and supervisors are not allowed to demand and occupy it; Moreover, the prisoners' non-daily necessities are kept by the regulatory authorities on their behalf, and will be returned when they are released. When criminals have legitimate uses, they can be allowed to receive them. In addition, criminals also enjoy inheritance rights and some property rights in intellectual property rights according to law.
(5) Social, economic, cultural and educational rights. Including the right to work, the right to rest, the right to get material help, the right to education and the rights in science and culture, etc.: 1. According to the provisions of the Constitution, any citizen, including criminals, has dual rights and obligations, so criminals should also have the right to work. Articles 4, 8 and 72 of the Prison Law are the specific provisions of criminals' right to work. 2. Right to rest. Criminals who are workers also enjoy the right to rest. The Prison Law stipulates that the working hours of prisoners in prisons shall be implemented with reference to the relevant state regulations on working hours, and prisoners have the right to rest on legal holidays and rest days; 3. The right to material help. Articles 37 and 73 of the Prison Law clearly stipulate the conditions for criminals and released prisoners to get material help. 4. Right to education. According to the constitution, education also has dual attributes. For criminals, on the one hand, this is a right and an important content of the criminal's right to development; On the other hand, it is an obligation and has the mandatory nature of transformation; 5. The right to cultural activities. Criminals enjoy certain rights to engage in scientific research, literary and artistic creation and recreational activities according to law. According to the Prison Law, prisons can reward criminals who have made inventions, made technological innovations, or imparted production techniques with certain results. Prisons should organize prisoners to carry out appropriate sports activities and cultural and recreational activities.
(6) marriage and family rights. Including the freedom of marriage of criminals, the right of legal marriage and family not to be illegally violated and other rights related to marriage and family. According to the relevant provisions of China's marriage law, freedom of marriage includes freedom of marriage and freedom of divorce. In terms of marriage, although some administrative regulations or other internal norms in our country prohibit criminals from getting married during the execution outside prison, whether they can get married in prison is not prohibited by law, and there are also examples of criminals getting married in prison in practice. In terms of divorce, criminals enjoy complete substantive and procedural rights, and their freedom of divorce is not subject to any interference.
(7) other rights. In addition to the above rights, China's laws also stipulate other rights of criminals, such as the right of criminals to accept goods and money in accordance with relevant regulations; If the term of imprisonment expires or is ruled to be paroled, he has the right to be released or paroled according to regulations and obtain the corresponding certificate; Female offenders, juvenile offenders and ethnic minority offenders enjoy some special rights. In addition, whether commutation and parole belong to the rights of criminals is controversial at present. I think commutation and parole of criminals are a criminal reward for the performance of the prison people's police in reforming criminals, which is implemented according to relevant laws and regulations and does not have the freedom of rights, so it is not a right enjoyed by criminals themselves.
Second, the current situation and shortcomings in safeguarding the legitimate rights and interests of criminals
From the founding of the People's Republic of China in 1949 to the present, especially since the reform and opening up, with the continuous development of China's economy and society and the deepening of the concept of human rights, the issue of protecting the rights of criminals has attracted increasing attention from all walks of life, and the state has successively signed a series of guidelines and international normative documents on the rights of criminals, such as the Minimum Standard Rules for the Treatment of Prisoners; The Covenant on Civil and Political Rights; Declaration on the Protection of Everyone from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; The Principles of Medical Ethics concerning the tasks of medical personnel, especially doctors, in protecting prisoners or detainees from torture and other cruel, inhuman or degrading treatment or punishment, and the United Nations Standard Minimum Rules for Juvenile Justice (Beijing Rules), etc., and participated extensively in international exchanges and cooperation on the protection of criminals' rights. The state has also successively enacted the Prison Law, revised the Criminal Law, the Criminal Procedure Law and other relevant laws and regulations. The Ministry of Justice has carried out a large-scale institutional reform of prisons across the country, adjusted the layout of prisons, and basically separated prisons from enterprises. These measures have greatly improved the environment for the reform of criminals, enhanced their enthusiasm for reform, and made important contributions to the security and stability of the country. Although we have made great achievements in safeguarding the rights and interests of criminals, we also see that there are many shortcomings in protecting the rights and interests of criminals, which need to be constantly improved. Mainly manifested in the following aspects:
(1) There is still a big gap from the norms of international criminal protection rights. Although China has joined many international conventions or treaties on the protection of criminals, it has made great achievements in the protection of criminals' rights, and the quality of criminals' reform has also been greatly improved. These achievements are obvious to all and have been recognized by most countries in the world. It is a good proof that individual countries have repeatedly rejected human rights proposals against China at United Nations human rights conferences. However, we should also see the actual problems. Because our country is still in the primary stage of socialism, the material foundation is still weak, the development of productive forces is not balanced, and the living conditions of prison criminals are still far from the internationally accepted requirements. For example, the living conditions, living standards and medical treatment levels are still relatively low, which cannot be ignored.
(2) The laws and regulations for the protection of criminals' rights and interests are not sound enough and the allocation of police force is unreasonable. It has been 13 years since the prison law was promulgated in 1994, but the detailed rules for the implementation of the prison law have not yet been promulgated. In the past ten years, the country has undergone earth-shaking changes, and many provisions of the prison law are outdated. In addition, the prison law itself is a relatively abstract provision, which is difficult to grasp in judicial practice and lacks operability. Different prisons in different regions, even in the same region, Judging from the requirements of modern prison construction, the overall police force in the prison is not enough, especially the police force resources with professional skills are quite scarce, which is far from the minimum police force allocation standard stipulated by the Ministry of Justice and the requirement of expert talents that must be equipped for criminal correction. However, due to various reasons in the system and mechanism, it is difficult for many people who want to work in the prison to come in, which directly affects the improvement of the quality optimization of police force resources. In addition, there is the problem of internal police allocation in prisons. There are too many police forces in prison organs and too few police forces at the grassroots level. The focus of prison work should be at the grassroots level. Only when the police forces at the grassroots level are guaranteed can the safety of prisons be guaranteed and the rights of criminals be truly realized.
(3) Prison hospitals (clinics) lack the ability to diagnose and treat diseases. Most prison hospitals (clinics) have poor facilities and backward instruments, and the overall medical level of medical staff is not high. There is no way to treat slightly complicated diseases, and the prisoners' right to health cannot be guaranteed fundamentally, which not only affects the prisoners' enthusiasm for reform, but also brings security risks to the reform order in the prison area. For example, the criminal XXX suffers from severe psoriasis, and his whole body is itchy and unbearable, especially in summer, and he can't sleep all night. Later, the criminal simply stayed up at night, because the rest was not good, which affected his normal work. In addition, the criminal's sentence was quite frequent, which caused great psychological pressure, and he also wanted to make a good reform. However, because the disease seriously affected his mood, it caused great harm to his body and mind.
(4) prisons can never get rid of the influence of heavy production tasks, and overtime work occurs from time to time. Although the prison system has been reformed, the separation of supervision from enterprises has been implemented, and the state has allocated full funds for the reform of prisons, but due to the heavy financial burden of the state, the financial allocation can not meet the actual requirements of prison construction, so the focus of production tasks in various prisons has not changed very much, and the superiors will still assign certain production tasks to prisons. In the assessment and promotion of leaders at all levels, the production situation of this unit is also an important assessment indicator. This practice makes leaders at all levels and even grassroots police officers dare not take labor production lightly. In the case of tight delivery time in the production task comparison, it is inevitable to work overtime, which will affect the criminals' right to rest to a certain extent.
(5) The incidents of violation of law and discipline by prison staff are endless. In recent years, the state has stepped up the investigation of prison police officers' law enforcement, and has successively promulgated many rules and regulations, such as "five prohibitions" and "six prohibitions", the implementation methods of police officers' law enforcement discipline supervision and the methods of investigating police officers' law enforcement responsibility. However, a considerable number of police officers broke the law and were punished by party discipline and political discipline, and some were even sentenced to punishment, changing their police uniforms into prison uniforms. The lesson was very painful. Prison staff's violation of law and discipline is mainly manifested in: illegal use of warning devices, causing physical injury to criminals; Taking advantage of the criminal's desire for commutation and parole to accept bribes and blackmail the criminal's family members; Take advantage of their rights to have sex with criminals' families, proper relationship and so on.
III. Reflections on Safeguarding the Legal Rights and Interests of Criminals
With the continuous strengthening of China's national strength, the deepening of reform and opening up, and the continuous advancement of the concept of human rights, ensuring the legal rights of criminals will surely become the top priority of prison work. Formulating and perfecting laws and regulations to protect criminals' rights is not conducive to improving the notarization of law enforcement and ensuring the realization of criminals' legitimate rights, but also of great significance to improving criminals' enthusiasm for reform, reducing recidivism, maintaining prison safety and national stability and serving the grand goal of building a harmonious society.
(1) Revise and improve the Prison Law and other relevant laws and regulations, so that the rights and interests of criminals can be protected according to rules. It has been 13 years since the prison law was promulgated in 1994, and it has not been revised so far, which is hard to imagine. Over the past ten years, great achievements have been made in the prison cause, and great changes have taken place in the reform situation. As an important basis for prison law enforcement, the Prison Law has not been amended, which is really incredible, and directly leads to many problems that cannot be implemented in judicial practice. In addition, the detailed rules for the implementation of the prison law, which is a supporting regulation of the prison law, has never been promulgated, resulting in great differences in law enforcement in various regions and even prisons. For example, according to Shanghai regulations, parole of criminals from other provinces and cities is limited to 18 provinces and cities such as Jiangsu and Zhejiang. In order to further make the reform of prisons keep pace with the development of the international situation and ensure that the legitimate rights of criminals have a practical legal basis, it is urgent to amend the Prison Law and formulate the Detailed Rules for the Implementation of the Prison Law.
(2) Strengthen the construction of prison hardware and software to improve the quality of life and education of prisoners. After the founding of the People's Republic of China, many prisons were built in remote and backward areas because of the needs of the situation at that time, which contributed to the stability and development of the country at that time. how many