The Institutional Predicaments and Constitutional Regulation of Detainees'Right to Communicate in China
The detainees'right to communicate has always been one of the issues"circumvented"in the criminal procedural legislation of China.At present,the provisions on detainees'right to communicate are scattered and lack institutional cooperation.There are institutional omissions in terms of the review subject and examination methods,which results in the failure to effectively respond to the rights holders'need of guaranteeing communication freedom and confidentiality.To improve the system of guaranteeing detainees'right to communicate,it is necessary to place detainees'right to communicate under the protection framework of"citizens'right to communicate"stipulated in Article 40 of the Constitution,and to carry out constitutional regulation of the communication system in the field of criminal procedure,so as to solve the problems of unclear communication subjects,the expansion of examination power,and the damage to defensive interests.The constitutional regulation is carried out according to the"three-levels"review logic,that is,by initially clarifying the scope of protection of the detainee's right to communicate,and then applying the"dual review model"to cases of special crimes and ordinary criminal cases,and on such basis splitting the power of examining communication into two powers of"opening letters and reading the content of texts",so as to achieve equal emphasis on the public interest and the detainee's interests of communication.
Article 39 of Criminal Procedure LawDetainees'Right to CommunicateCommunication Freedom and ConfidentialityExamineConstitutional Regulation
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