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GONG Chu, On Crime Cases Interpretation and Illegal Verbal Evidence Exclusion

2020-05-26


论涉外刑案翻译与非法言词证据排除

On Crime Cases Interpretation and Illegal Verbal Evidence Exclusion


摘要

作者通过分析翻译非法言词证据的定义,引出其他非法方法这一概念,以翻译作为研究切入点,对涉外刑案办理中其他非法方法问题进行了论述,主张排除非法言词证据,将实物证据作为涉外刑案审理基础,最后对改革翻译工作提出建议。


Abstract

The author introduces the concept of “Other Illegal Measures” by analyzing the definitions of “Interpretation/Interpreter” and “Illegal Verbal Evidence”, then examines the use of interpreters as an entry point to expound his views on “Other Illegal Measures” in foreign-related criminal cases. The author considers that Illegal Verbal Evidence should be excluded, while Physical Evidence shall be the basis for trial of foreign-related criminal cases. The author also proposes his suggestions on reforming interpretation work.


作者

龚楚律师

中国人民大学国际法博士

执业方向:涉外争议解决

联系方式:13590496399 (微信)


The Author

Gong Chu (Oscar)

PhD. In Law, Renmin University of China

Practice scope: Dispute resolution

Mobile: 13590496399 (WeChat)


一、 定义

I.Definitions


1. 翻译

A. Interpretation/Interpreter


我国刑诉法第108条第四款规定:诉讼参与人是指当事人、法定代理人、诉讼代理人、辩护人、证人、鉴定人和翻译人员。


Article 108 of the Criminal Procedure Law of the People’s Republic of China states that  “Participants in the proceedings” means the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and interpreters.


据此,翻译是法定诉讼参与人。翻译具有诉讼参与人相关的权利和义务,亦可能因故意做虚假翻译,意图陷害他人或者隐匿罪证而触犯刑法第305条,承担最高刑为7年的刑事责任。


Accordingly, an interpreter is a legally regulated participant in the criminal proceedings, who enjoys relevant litigation rights and assumes relevant obligations, and who may violate Article 305 by intentionally giving false translation in order to frame another person or conceal criminal evidence and hence may assume the criminal liability of up to 7 years imprisonment.


2. 非法言词证据

B. Illegal Verbal Evidence


刑诉法第50条规定:可以用于证明案件事实的材料,都是证据。证据包括:(一)物证;

(二)书证;(三)证人证言;(四)被害人陈述;(五)犯罪嫌疑人、被告人供述和辩解;

(六)鉴定意见;(七)勘验、检查、辨认、侦查实验等笔录;(八)视听资料、电子数据。


Article 50 of the Criminal Procedure Law of the People’s Republic of China states that all materials that prove the facts of a case shall be evidence and classifies evidence into eight categories. The eight categories of evidence are: (1) physical evidence; (2) documentary evidence; (3) testimony evidence; (4) statements of victims; (5) statements and exculpations of criminal suspects or defendants; (6) expert opinions; (7) Records of crime scene investigation, examination, identification and investigative experiments; and (8) audio-visual materials, and electronic data.


刑诉法第52条规定:严禁刑讯逼供和以威胁、引诱、欺骗以及其他非法方法收集证据。


Article 52 of the Criminal Procedure Law of the People’s Republic of China regulates that it shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means.


《最高人民法院、最高人民检察院、公安部、国家安全部、司法部关于办理刑事案件严格排除非法证据若干问题的规定》第1条:采用刑讯逼供等非法手段取得的犯罪嫌疑人、被告人供述,属于非法言词证据。


Article 1 of Regulations on Several Issues in Strictly Excluding Illegal Evidence in Processing Criminal Cases by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice regulates that all confessions extorted by torture or acquired by other illegal measures shall be illegal verbal evidence.


据此,犯罪嫌疑人供述是言词证据,亦是法定证据之一;以非法方法取得的,是非法言词证据。


Accordingly, a suspect’s statement is verbal evidence as well as one of the legally regulated evidences, while the suspect’s statement, if acquired by illegal measures, shall be illegal verbal evidence.


供述和辩解同为犯罪嫌疑人亲自以其言词表达的行为。因此,犯罪嫌疑人的辩解,是言词证据,亦是法定证据之一。


A suspect’s statement and exculpation are expressed both orally and personally by himself. Hence, the exculpation of a suspect shall be verbal evidence as well as one of the legally regulated evidences.


二、 其他非法方法

II. Other illegal measures

上文所提及的其他非法方法,其含义理解不一,其范围至今未有明确规定。个案中其他非法方法的具体形态亦不同。对其他非法方法的认定和排除,实践中更涉及司法机关结合实体和程序正义的综合利益衡量。


The above mentioned “Other Illegal Measures” concept is discretionary, and the author finds no specific provision that describes the scope of this concept. “Other Illegal Measures” in individual cases can vary in specific forms. Identification and exclusion of “Other Illegal Measures” in practice largely depends on the comprehensive consideration in regard of interests, combined with substantive justice and procedural justice.


笔者认为,涉外刑事诉讼中,其他非法方法有多种形态。本文从翻译这一诉讼参与人的角度入手,进行其他非法方法的厘清和界定。


The author holds that there are various different forms of “Other Illegal Measures” in foreign-related criminal proceedings. In this article, using Interpreters as an entry point, the author undertakes to clarify and define the concept of “Other Illegal Measures.”


《最高人民法院关于适用<中华人民共和国刑事诉讼法>的解释》第398条、《公安机关办理刑事案件程序规定》(公安部令第127号)第350条规定,外国犯罪嫌疑人有获得司法机关提供翻译的权利。


Article 398 of Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China and Article 350 of the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs, regulate that a foreign criminal suspect has the right to obtain translation provided by a judicial organ.


翻译一般不能成为刑讯逼供、威胁、引诱、欺骗的主要责任者,仅可能成为次要责任者。通常情况下,翻译只负责外国犯罪嫌疑人的供述和辩解的语言转换工作。翻译在刑事诉讼中所表现的行为方式有2种:1)依法配合公检法提供翻译的作为;2)依法应提供翻译,却因客观原因未提供的不作为。


Generally, an interpreter can only be held liable as a co-party, and not as the primary party for extortion of confessions by torture, threat, enticement and deceit. Under most circumstances, an interpreter is only responsible for the language conversion of a foreign criminal suspect’s statement and exculpation. There are two ways of act by an interpreter in criminal proceedings; either by providing translation in cooperation with the justice according to law, and failing to provide translation according to law due to some objective cause.


笔者认为,涉外刑案中取得非法言词证据的其他非法方法可以主要通过翻译人员的上述两种行为方式表现出来。


The author believes that the concept of “Other Illegal Measures” in acquiring illegal verbal evidence in foreign-related criminal cases, can be observed by analyzing the two ways of act listed above.


笔者此处特别强调:主要通过翻译人员的上述两种行为方式表现出来并非将责任集中指向翻译,而是主要指向司法机关在具体聘请翻译的标准上以及对翻译的具体使用上,主观或客观上构成了其他非法方法,甚至可能构成威胁、引诱、欺骗


The author emphasizes herein, that the sentence, “Be Mainly Observed By The Two Ways Of Act” listed above does not necessarily mean that the responsibility goes to the interpreters. It could also mean that the responsibility would rather go to the judicial organs under their criterion of choosing an interpreter and their practical use of an interpreter, while “Other Illegal Measures” can be made either subjectively or objectively; even going so far as to include threat, enticement or deceit.


三、 具体分析

III. Specific analysis


1. 依法配合公检法提供翻译

A. Providing translation in cooperation with the justice according to law


涉外刑案中全程需要外语翻译参与诉讼行为,核心内容是配合公检法对犯罪嫌疑人进行讯问,并在刑事诉讼其他工作中提供翻译。


Interpreters are needed throughout the foreign-related criminal proceedings whose core task is to cooperate with the judicial organs to interrogate criminal suspects, and also to provide translations in other workings of criminal proceedings.


(1) 专业资质问题

1.Professional qualification


在翻译的聘请上,以刑事侦查为例,公安机关对所选聘的翻译职业资质和专业素养无统一标准。涉外刑案个案中,频繁出现聘请在校大学生担任翻译的情况。涉外刑事诉讼是极其严肃的,作为诉讼参与人的翻译不仅要掌握足够的法律外语、专业术语,其个人还应成熟理性,在外国犯罪嫌疑人面前举止言行规范到位,知道该翻译什么,不该翻译什么,哪些供述和辩解怎么翻译,翻译到什么程度,如何用恰当的汉语表达给办案人员记录。并且,每次讯问中都必须向嫌疑人用外语宣读《犯罪嫌疑人诉讼权利义务告知书》、《认罪认罚从宽制度告知书》、《法律援助告知书》等专业司法文书,需要口译者具有极高外语水平。


Taking criminal investigation as an example for retaining an interpreter, the police do not have a unified criterion regarding the professional qualification and quality of the interpreter they will retain. In individual cases, college students are frequently retained to provide interpretation. Foreign-related criminal action is extremely serious, and requires the interpreter in the proceedings to have sufficiently grasped a foreign language in the field of law, and its technical terms. The interpreter must be mature and rational, and must conduct himself adequately in front of the foreign criminal suspect; knowing what to interpret, what not to, and how to translate the statement or exculpation of the suspect appropriately for the police to take an accurate record. Additionally, at the beginning of an interrogation, the interpreter must translate and read out loud professional judicial documents such as "Notice of Litigation Rights and Obligations of Criminal Suspects”, “Notice on Leniency System of Confession and Punishment”, and “Notice of Legal Aid”, among other things. This task requires the interpreter to have a very high level of a foreign language efficiency.


从专业翻译角度判断,在校大学生尚属半成品,质量难以过关,而翻译公司为其出具的翻译资格证明,直接被公安机关采信,并在对外国犯罪嫌疑人的侦查工作中使用该名翻译人员。笔者认为这是无效的,是不合法的。理由:目前我国的翻译公司是任何自然人都可以注册成立。任何人都可以注册成立的翻译公司给一名自然人出具其具有翻译资格的证明,不具证明力。


Judging from the perspective of professional translation, college students tend to be semi-finished products; that lack a good quality of interpretation. Yet the translation qualification certificate issued by a translation company is almost always directly accepted by the public security organ, and these modest interpreters are used in the investigation of foreign criminal suspects. I think this is invalid and illegal. The reason being that at present, any natural person can register a translation company in China. A certificate of translation qualification opened by a translation company that can be set up by any natural person does not have any power of certification.


即使翻译公司派出有翻译资质的人员配合公安机关讯问外国犯罪嫌疑人,仍然存在重大问题。比如,派出具有笔译专业资格证书的人员进行口译。笔译达标者,口语翻译未必达标,否则国家分别设置专业口译资格考试、专业笔译资格考试,有何意义?笔译执业者甚至可以是聋哑人(因为不需要听和说)。


Even if translation companies send qualified translators to cooperate with public security organs to interrogate foreign criminal suspects, there are still major problems. For example, sending a person who holds a professional qualification certificate of translation to do an interpretation. A person whose written translation being up to the standard, does not necessarily mean that their oral interpretations are up to the standard. Otherwise, what's the significance of setting up professional interpretation qualification examinations and professional translation qualification examinations in China? Translation practitioners can even be deaf or mute, because there is no need to listen and speak in working as a translator.


刑事讯问除最后一句签名确认的文字需要笔译外,全程都需要口译。那么,外国犯罪嫌疑人的供述和辩解,通过这些不合资格的翻译人员转换成汉语,因而被记录到讯问笔录中;这种言词证据存在高度不忠实于嫌疑人本人供述和辩解的可能性。不忠实于嫌疑人本人的供述和辩解的讯问笔录内容不能构成合法。那么,它们等于非法言词证据。


Criminal interrogation requires interpretation in the whole process, except for the translation of the last signed sentence. Then, the statement and exculpation of the foreign criminal suspect are transferred into Chinese by these unqualified interpreters, and are recorded in the interrogation record. This kind of verbal evidence has the possibility of being highly unfaithful to the statement and exculpation of the suspect himself. The content of the interrogation record which is unfaithful to the statement and exculpation of the suspect cannot constitute legality. Thus, they are equivalent to illegal verbal evidence.


笔者所办的案件中,外国犯罪嫌疑人被讯问家庭情况,问及他妻子的年龄。笔者阅卷时发现他妻子年龄被写成38岁,但是笔者事前就知他妻子年龄是44岁。试想一个犯罪嫌疑人再没记性,也不太可能说错妻子的年龄。另一个涉外刑案中,嫌疑人对律师说,警察带来的翻译对他的供述和辩解,要么截头去尾,要么就感觉翻译在乱翻(因为多次发生警察的问话跟他之前的陈述不衔接或警察就同一个问题多次反复问翻译)。


In one of the author’s cases, the foreign suspect was interrogated about his family and his wife's age. When I read the case file, I found that his wife's age was listed as 38, but I knew that his wife's age was actually 44. Even a suspect who has bad memory is unlikely to incorrectly state his wife’s age. In another foreign-related criminal case, the suspect said to the lawyer that his  statement and exculpation was not properly interpreted by the interpreter to the police. The suspect also felt that the interpreter was translating randomly, because there were many times when the police's questions did not connect with his previous statement, the suspect also noticed that the police were repeatedly asking him the same question.


另外,如前所提,涉外刑事侦查是一项严肃的工作,但现实中很多翻译不具有规范性意识,有些翻译在口译中甚至跟犯罪嫌疑人拉起家常,谈论起跟案情无关的事情。笔者在会见中就被嫌疑人投诉某一名翻译,仅进入看守所配合警察讯问他2次,就把他当成老朋友一样,跟他说私人的事情,他觉得错愕。负责讯问的刑警因为不懂外语,未能制止。


In addition, as mentioned before, foreign criminal investigation is a serious work, but in reality, many interpreters lack a sense of professionalism in interpretation work, some even going so far as to make small talk with suspects over issues that have nothing to do with the relevant case. During a visit, the author was told by a suspect that an interpreter once went to the custody house to work with the police to interrogate him. Upon seeing him, the interpreter approached him as an old friend and said personal things to him. He felt shocked. The policemen in charge of interrogation failed to stop her, because they could not understand the foreign language.


(2) 翻译被办案人员非法使用

2.Illegal use of the interpreters by the justice


除翻译自身不专业导致的各种问题之外,办案人员在讯问笔录记载之外,可能出于各种目的和原因,通过语言对嫌疑人进行威胁、引诱或欺骗,迫使嫌疑人在精神痛苦之下,违背意愿进行供述。


In addition to the various problems caused by the unprofessionalism of these interpreters, investigators may, for various purposes and reasons, threaten, entice or deceive the suspect through language; potentially forcing the suspect to make statements against his own will in mental pain. These threats, enticements, and deceits that are made verbally are definitely not recorded by the investigators.


一名专业中立、成熟理性的翻译,能在一定程度上拒绝为办案人员翻译传达此类违反办案规则的话语,保证询问笔录等侦查材料的合法性。


A professional, neutral, mature, and rational interpreter, to some extent, can refuse to convey such words that violate the rules of case handling for the investigators, and can ensure the legitimacy of investigation materials such as interrogation records.


(3) 被派遣的翻译语种不符

3.Inconsistency between the language and the interpreter


目前我国涉外刑事案件侦查、公诉、审判中,最大多数配备的是英语翻译。办案人员一旦发现外国犯罪嫌疑人会说英语,就给他配一名英文翻译。实际上会说英文不代表真正能够沟通。除了母语是英语的少数几个国家,大多数外国人的英语水平并不足以独立应对刑事诉讼。


At present, in most stages of investigation, public prosecution and trial of foreign-related criminal cases in China, English translators are retained. Once the investigators find that a foreign criminal suspect speaks some English, they assign an English translator to him. Some English language training or learning does not equate to effective and proficient communication. With the exception of a few countries whose native language is English, for most foreigners, the degree of proficiency of English is not sufficient for a suspect to deal with criminal proceedings independently.


比如笔者的一名当事人是南亚某个国家的人士,虽然在他的国家英语是较为通用的,但他的母语是普什图语,而该国的官方语言是乌尔都语。英语在该国的熟练掌握者,只有一成左右。他上学期间学的语文是乌尔都语,是学过几年英语,但如同中国人在小学或初中都学过英语一样,绝大多数该国公民并不具有英文深度会话的能力。刑侦办案人员直接为其配备英文翻译,其质量肯定远不如乌尔都语或普什图语的翻译。


For example, one of the author’s clients is a person from a country in South Asia. Although English is relatively common in his country, his mother tongue is Pashto, and the official language of the country is Urdu. In his country, only about 10% of the population is proficient in English. The suspect was primarily educated in Urdu while in school, but did receive some formal English lessons for a few years. However, like the Chinese who also receive some formal English training in primary school or junior high school, the vast majority of citizens do not have the ability to adequately converse in English. The quality of English translation directly provided by the criminal investigators is certainly not as good as that of Urdu or Pashto.


不能因为小语种的翻译难找,就对所有外国犯罪嫌疑人都用英文翻译进行讯问等侦查工作。同时,也不能因为办案人员发现外国犯罪嫌疑人能讲中文,就索性直接用中文跟他沟通。中文毕竟对绝大多数外国人来说极其难学,大多数外国人只能说一些简单用语,无法深层次沟通。


The justice cannot interrogate all foreign criminal suspects in English or other main foreign languages in the world, just because minority language interpreters are difficult to retain. Also, the justice cannot simply communicate with a suspect in Chinese by finding that he could speak Chinese. After all, Chinese is extremely difficult for most foreigners to learn. Most foreigners can only speak simple words and cannot communicate in depth.


(4) 翻译人员具体使用问题

4.Practical use of translators


当前涉外刑案侦查工作中,刑侦办案人员对同一个犯罪嫌疑人使用3名甚至6名以上的翻译人员;且对同一个罪案的数名犯罪嫌疑人使用同一名或同一批翻译人员。我国刑事法律法规虽无明文规定不得如此,但这种杂乱无章的对翻译的使用方式,存在隐患:其一、多名不同翻译人员水平高低不同,资质有无不同。每个翻译人员对犯罪嫌疑人作案情况背景又都要重新做了解。办案人员每次都进行介绍,是重复劳动;不进行介绍,直接令其参加翻译,质量堪忧。其二、不同翻译人员对办案人员的问话以及嫌疑人的供述和辩解的翻译结果可能不同,导致几份询问笔录自相矛盾或互有出入。最简单的例子就是不同翻译人员把嫌疑人提及的同一人的名字写成几种文字组合,甚至张冠李戴。其三、一名翻译同时面对二名以上的同案犯罪嫌疑人,容易在口译过程中对一名嫌疑人泄露另一名嫌疑人的情况。比如,2名同案犯被收押后不久,另一名同案犯因证据不足被释放。如果未被释放的该名嫌疑人通过翻译的不专业、不规范言行知道同伙已因证据不足被释放,那么他马上就能知道针对他自身的某一项犯罪行为,会因无人对质,而无法被追究,因此马上改变口供。


At present, when investigating foreign-related criminal cases, investigators use three or more translators for the same criminal suspect, and use one or more translators for several criminal suspects of the same crime case. There are hidden dangers in the disorderly use of so many translators. Firstly, different translators have different language levels and professional qualifications. Every translator needs to understand the background of the crime committed by the criminal suspect. An investigator’s work is doubled when he is forced to explain the case background to the translators. If an investigator does not ensure that the translator understands the merits of the case, the quality of the translation is at risk. Secondly, different translators may have different translation results in the interrogation, as well as the statement and exculpation of the suspects, which may lead to contradictions or differences in several interrogation transcripts. The most common risk occurs when different translators interpret the name of the same person mentioned by the suspect in different ways. Third, when a translator faces two or more suspects in the same case at the same time, it is easy for him to disclose the situation of one suspect to another during the interpretation process. For example, shortly after two accomplices were taken into custody, one of them was released for lack of evidence. If the suspect under custody knows that his accomplice has been released due to insufficient evidence through the translator’s unprofessional interpretation, he will immediately know that a certain criminal charge against him will not be investigated due to no confrontation, so he will immediately change his confession.


2. 依法应提供翻译,却因客观原因未提供

B. Failing to provide translation according to law due to some objective cause


翻译公司是以营利为目的的民企企业,公检法要求其提供翻译服务通常一定会配合提供。但在刑事侦查等活动中,由于办案人员办理涉外罪案的经验不足,兼之发现外国犯罪嫌疑人能简单用普通话或方言沟通,于是在讯问之外的其他侦查工作中,不配备翻译。除讯问笔录外,刑侦工作中还有大量文件资料需要嫌疑人本人签名。由于翻译不在场,嫌疑人往往在完全不明白该文件是什么性质、什么内容的情况下进行签字画押。如:扣押笔录、现场辨认笔录、物证资料、赃物称量结果、等等。


Translation companies are private enterprises with the purpose of making profits who surely will cooperate to provide the judicial organs with translators. However, in criminal investigations and in other activities, due to a lack of experience in handling foreign-related crimes, and also due to the fact that judicial officials find that foreign suspects can sometimes simply communicate in Mandarin or some Chinese dialect, they do not ask for an interpreter from the translation companies to assist in non-interrogation work. This is relevant because, in addition to the interrogation record, there are a lot of documents and materials in the criminal investigation work that require the signature of the suspect. In the absence of an interpreter, suspects often sign documents without understanding the nature and content of the document. Examples include seizure records, on-site identification records, material evidence data, stolen goods, and weighing result records to name a few.


不仅如此,刑侦人员在翻译不在场的情况下,甚至会直接添加一些文字。嫌疑人签名画押后,案卷移送到检察院和法院,容易被识别为嫌疑人已经充分明白并承认这些文字内容。


Additionally, criminal investigators will sometimes add words directly into the documents, in the absence of an interpreter. After a suspect signs and surrenders his fingerprint, the case file is transferred to the procuratorate and the court, and the two judicial organs will assume that the suspect has fully understood and recognized these words.


笔者在案卷中多次发现此类侦查文件,无翻译签名,有嫌疑人签字画押,却附有刑侦人员自行添加的文字。


The author has encountered documents like these many times; where criminal investigators will add certain texts, and make the suspect sign the document without the signature of a translator.


四、 评论和建议

IV. Comments and suggestions

1. 关于翻译

A. Regarding interpreters


专业口译工作极为严肃,译者应严守专业规范,一切以依法办案为中心,做好传话筒。口译人员应当忠实传达办案人员的提问,拒绝配合警方对嫌疑人进行威胁、引诱、欺骗,高度重视嫌疑人的供述和辩解,必须做到如实翻译,不能掐头去尾,不能添油加醋,不能曲解杜撰。


Professional interpretation work is very serious, and interpreters should strictly abide by professional norms; focusing at all times on processing a case according to law and being a good megaphone. Interpreters should faithfully convey the questions of the investigators, and should refuse to cooperate with the police in threatening, enticing and deceiving suspects. Interpreters should also attach great importance to the statements and exculpations of suspects. Most importantly, interpreters must translate truthfully and fully without embellishing or distorting.


笔者建议:


(1) 口语翻译的选聘标准目前可以设定为:外语专业硕士研究生、国家口译资格证书持有者。

(2) 在大专院校开设法律外语口笔译专业,方向细化(刑事、民事、其他)。

(3) 建立有资质的法律外语翻译人员数据库;鉴于翻译公司的设立并无特许限制,翻译人员可不从翻译公司调派,可直接聘请个人,杜绝翻译公司为赚取最大差价派遣低水平翻译人员。

(4) 翻译人员一旦被公检法选聘为诉讼参与人,其所在单位必须无条件配合。

(5) 为提高办案质量,保证流程顺畅,一个罪案由一名翻译全程跟进。

(6) 为避免交叉干扰,一个罪案的几名同案犯不得使用同一名翻译。

(7) 全国统一翻译制作多语种的司法文件的外语版本,供各地公检法部门下载使用,讯问前直接宣读或让嫌疑人自行阅读,确保其知晓诉讼权利义务。


The author suggests that:


1. At present, the selection criteria for oral translation workers should be set as: postgraduate students of foreign languages, and national interpretation qualification certificate holders.

2. In colleges and universities, interpretation and translation classes for legal foreign languages are to be set up with an emphasis on criminal, civil and other law specialties.

3. Establish a database of qualified legal foreign language translators/interpreters. Since the establishment of translation companies in China is not limited by special licensing, interpreters should be recruited from various sources, not only from translation companies. Independent interpreters can be retained directly, thus to prevent translation companies from sending low-level translators in order to earn the maximum price difference.

4. Once an interpreter is selected as a participant in the proceedings by the justice, his current working unit must cooperate unconditionally.

5. In order to improve the quality of case handling and ensure a smooth process, the same interpreter should be assigned for the duration of the case.

6. In order to avoid cross interference, several suspects of one crime should not be provided the same interpreter.

7. The multilanguage versions of the judicial documents shall be uniformly translated and provided to judicial organs at all levels of the country for downloading and use. Before interrogation, these documents should be read out to the suspect, or the suspect should be allowed to read the documents on his own, to ensure that he knows his litigation rights and obligations.


2. 关于非法言词证据

B. Regarding illegal verbal evidence


根据笔者的工作实践,绝大多数涉外刑案的刑侦案卷都存在翻译问题,污染了犯罪嫌疑人的供述和辩解。


According to the author's work practice, many foreign-related criminal investigation files have translation problems, which pollute the statement and exculpation of the criminal suspects.


(1) 依法排除非法言词证据

1. Exclusion of illegal verbal evidence according to law


公安机关应遵照《公安机关办理刑事案件程序规定》第66只有犯罪嫌疑人供述,没有其他证据的,不能认定案件事实的规定办案。


The public security organ shall handle the case in accordance with the provisions of Article 66 of the Provisions on the Procedure of Handling Criminal Cases by the Public Security Organs. Article 66 states that if there is only the statement of the criminal suspect, and no other evidence exists; the facts of the case cannot be determined.


检察院应按照最高检《关于在刑事执行检察工作中防止和纠正冤假错案的指导意见》主动强化排查非法言词证据。


The procuratorate should actively strengthen the investigation work of illegal verbal evidence in accordance with the Guidance on Prevention and Correction of Unjust, False, and Wrong cases in Prosecutorial Work in Criminal Prosecution Enforcement.


法院应按照以下文件审判:刑诉法第187条第2款提及的非法证据排除;《最高人民法院关于适用<中华人民共和国刑事诉讼法>的解释》第8节第95-103条集中规定的非法证据排除要求;《最高人民法院关于建立健全防范刑事冤假错案工作机制的意见》第6定罪证据不足的案件,应当坚持疑罪从无原则,依法宣告被告人无罪,不得降格作出留有余地的判决。定罪证据确实、充分,但影响量刑的证据存疑的,应当在量刑时作出有利于被告人的处理。


The court shall try in accordance with the following documents: Paragraph 2, Article 187 of the Criminal Procedure Law of the People’s Republic of China, mentioning the "exclusion of illegal evidence"; Section 8, Article 95-103 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, setting forth requirements of the "exclusion of illegal evidence"; Article 6 of the Opinion of the Supreme People's Court on the Establishment and Improvement of the Working Mechanism for Preventing Unjust, False and Wrong Criminal Cases that regulates: in any case that lacks insufficient evidence for a crime, the principle of "in dubio pro reo" shall be adhered to, the defendant shall be acquitted according to law, and a judgment of "leave room" shall not be made. If the evidence of conviction is true and sufficient, but the evidence affecting the sentencing is in doubt, it shall be dealt with in favor of the defendant during the sentencing.


(2) 以实物证据为判决基础

2. Based on physical evidence


根据《最高人民法院关于建立健全防范刑事冤假错案工作机制的意见》,办案人员应当重证据,重调查研究,切实改变口供至上的观念和做法,注重实物证据的审查和运用。


According to the Opinion of the Supreme People's Court on the Establishment and Improvement of the Working Mechanism for Preventing Unjust, False and Wrong Criminal Cases; the investigators should pay more attention to evidence, investigation and research, practically change the concept and practice of "confession first", and pay attention to the examination and application of physical evidence.


比如涉外贩毒罪案中,公安机关当场查获嫌疑人携带毒品后,便可立案。嫌疑人既已被查获毒品实物证据,即使口供被依法排除,凭借实物证据亦足以定罪。


For example, in foreign-related drug trafficking crimes, the public security organ can file a case after a suspect is found carrying drugs on the spot. Even if verbal evidence is excluded according to law, the physical evidence is enough to convict him; being the case that the suspect has already been seized with the drugs.


五、 总结

V. Conclusion


随着我国对外开放的进一步加深,国际往来的日益频繁,涉外刑事案件数量日渐增多,需要改变粗放型的侦查、起诉、审判模式。第一步就是要理顺刑事诉讼中的翻译问题,最大限度杜绝供述和辩解内容污染,确保证据合法,提高办案质量。


With the deepening of China's opening up, the expansion of international exchanges, and the increase of foreign criminal cases, we need to reform and improve the current mode of investigation, prosecution, and trial. The first step is to straighten out translation problems in criminal proceedings, thereby putting an end to the pollution of statements and exculpations, and ultimately ensuring the legality of evidence and improving the quality of handling these types of cases.