On the Theoretical Definition and Connotation Extension of the Right to Counsel in the Investigation:Taking the Salduz Case as an Example

Abstract： The right to counsel during the investigation is an important foundation to realize the fair trial， and is the core element of the right to fair trial. The theoretical connotation and extension of the right to counsel during the investigation vary with different judicial practices over the world.

After the decision of the Salduz case entered into force， the European Court of Human Rights ultimately summarized the \"European paradigm\" of the right to counsel in the investigation： the exercise of the right to counsel in the investigation should start from the time when the public authorities of the State have a substantial impact on the situation of the person being prosecuted， the scope of exercising the right should cover three aspects： substantive law， procedural law and evidence law， and the restrictive provisions of the exercise of the right should be made in an explicit manner and the provision of minimum symmetrical measures is required. The summary of the European Court of Human Rights on the right to counsel in the investigation has not only given a positive impetus to the criminal justice reform in member states and other European countries， but also set an example of the theoretical framework for improving criminal defense systems in other countries.

Based on the judicial facts of criminal cases in China， the plea leniency system has made a practical leap from pilot testing to relevant legislation， as a system comprising dual value of substantive leniency and procedural simplicity， and has become a prominent achievement of China’s criminal judicial reform since the 18th National Congress of CPC. Speaking of practical effect， the plea leniency system has demonstrated the critical value in minimizing citizens’ burden and enhancing judicial efficiency， both in terms of the rate of application in criminal cases and the simplification of procedures in trial.

Given the fact that China is now constructing the judicial pilot testing system of lawyers’ assistance in defense through the entire procedure of criminal cases， to achieve a higher level of judicial protection of human rights， it should be clear that criminal suspects and defendants in pretrial procedures， especially in the investigation， must feel respected in the voluntariness of pleading guilty and the equality of litigation status. In this regard， the duty lawyer system is a key institutional design to realize this value of judicial protection of human rights.

Thus， the European paradigm of the right to counsel in the investigation has theoretical and practical significance for the application of the plea leniency system in China. Specifically， there are suggestions in this paper for the following aspects： exercising the right to counsel should start from the notification of the arrival of investigation rather than the notification of interrogation； the status of lawyers who offer assistance should be changed from the role of \"witness\" to \"advocate\"； the function of the right to counsel should be changed from \"symbolic presence\" to\"substantial participation\"； the remedies of the right to counsel should be changed from the procedural remand to substantive accountability. Through the above-mentioned suggestions， it can continuously promote relevant institutional mechanism of the right to counsel in the investigation of China to a maturer phase， based on which the people can feel the fairness and justice in the trial of every case.

KEY WORDS： investigation； the right to counsel； the right to a fair trial； plea leniency