III. Monitoring Compliance With Human Rights

III(b) RIGHTS OF CRIMINAL SUSPECTS AND DEFENDANTS

China's "Strike Hard" Campaign and New Scrutiny of the Criminal Justice System | Political Crimes | Arbitrary Detention in the Formal Criminal Process | Administrative Detention | Torture and Abuse in Custody | Access to Counsel and Right to Present a Defense | Fairness of Criminal Trials and Appeals | Capital Punishment | Additional Reform Initiatives and Criminal Justice Exchanges

FINDINGS

• China's criminal justice system experienced continued upheaval over the past year. After several wrongful conviction scandals, the central government permitted a broad public critique of the criminal justice system. This discourse confirmed the extent to which coerced confessions, police incompetence, pervasive presumptions of guilt, extrajudicial influences on the courts, restrictions on defense attorneys, and other problems undermine the fairness of the criminal process.
• The Chinese government continues to use administrative procedures and vaguely worded criminal laws to detain Chinese citizens arbitrarily for exercising their rights to freedom of religion, speech, and assembly. The UN Working Group on Arbitrary Detention noted in December 2004 that the Chinese government has not adequately reformed these practices.
• Many Chinese scholars and officials continue to push for reforms within the boundaries set by the Communist Party and Chinese legal culture and to engage foreign counterparts in this process. Domestic reaction to recent wrongful conviction scandals has created new momentum for some criminal justice reforms.

China's "Strike Hard" Campaign and New Scrutiny of the Criminal Justice System

The Chinese government's "strike hard" anti-crime campaigns are evolving from periodic and intense national crackdowns into a lower-intensity but permanent feature of the law enforcement landscape. This trend continued over the past year. While stressing the need to maintain "strike hard" efforts, key Chinese law enforcement officials emphasized that "strike hard" must become a "regularized" and "long-term" policy.¹ Some Chinese sources suggest the government is transforming "strike hard" in part because leaders recognize that many criminals simply wait for the periodic campaigns to end and then resume their activities.² One Chinese source also noted that the intense, short-term campaigns of the past resulted in rights abuses and injustice.³ Within this evolving "strike hard" framework, public security agencies continued to launch frequent, small-scale anti-crime campaigns targeting particular regions or crimes.⁴

Overall crime rates continued to rise in China in 2004, according to official statistics and regional reports. Public security agencies filed a total of 4.7 million criminal cases and prosecutors approved the arrest of 811,102 people in 2004, both increases of more than 7 percent over the prior year.⁵ Courts handled 644,248 criminal cases, an increase of 1.5 percent over 2003.⁶ Juvenile crime increased 19.1 percent over 2003 and is one of the fastest growing categories of crime in China.⁷ While officials published a few statistics reflecting positive trends, such as a drop in some violent crimes in 2004, leadership statements, public surveys ranking security as a major concern and regional complaints about increases in petty crime all point to a growing crime problem.⁸

In early 2005, Chinese reports on two wrongful murder convictions focused national attention on abuses in the criminal justice system.⁹ The first case involved Nie Shubin, who was executed in 1994 for rape and murder. In January 2005, a suspect detained in another case confessed to the murder and provided police with a detailed account of the crime scene. The second case involved She Xianglin, who was convicted of murdering his wife in 1994 after she disappeared. In March 2005, his wife suddenly returned to their village. Both cases reportedly involved coerced confessions, questionable investigative work, and interference by Party officials. In Mr. She's case, an appeals court rejected the trial verdict four times because of questionable evidence but eventually allowed the conviction to stand after the trial court changed his death sentence to 15 years imprisonment. As news of these cases spread, reports of other wrongful convictions emerged.¹⁰

Together, the Nie and She cases elicited a strong reaction in the Chinese news media and prompted public scrutiny of the criminal justice system. Although the Chinese government generally tightened information controls over the past year [see Section III(e)— Freedom of Expression], it permitted and in some cases encouraged public critiques of the criminal justice system as the scandals unfolded. Xinhua and the People's Daily noted that Mr. She's case had "exposed some holes in the judicial system" and prompted a "rethinking" of human rights protections.¹¹ Chinese scholars and journalists, invoking these and other wrongful conviction cases, published detailed critiques on many problems in the criminal justice system.¹² As one commentator observed, "as one case of wrongful death sentence after another is exposed, we see cursory, rushed investigations, confessions extorted by torture, unreliable polygraph reports, maliciously manufactured perjury and false evidence, suppression of evidence helpful to the accused, and so on."¹³ The two cases, news of which broke as senior officials were discussing death penalty reform, also intensified public discussion of capital punishment. These discussions offered new insights into China's criminal justice system and shaped debate over criminal justice reforms.

Law enforcement officials continued to stress the need for both greater efficiency and more accountability. Responding to criticism that the wrongful conviction cases were in part the product of poor investigative work, the Ministry of Public Security (MPS) reportedly launched a nationwide campaign to improve investigative capacity.¹⁴ China has significantly fewer police officers per capita than the international average,¹⁵ and some law enforcement agencies focused on hiring personnel and deploying more officers on the street.¹⁶ Beijing established blacklists of underperforming districts to encourage better policing.¹⁷ Senior Chinese officials also publicized efforts to crack down on corruption and abuses in the criminal justice system and stressed the need to balance "strike hard" efforts and the protection of suspect rights.¹⁸ In December 2004, the UN Working Group on Arbitrary Detention (UNWGAD) noted that official statements on the importance of human rights represented a positive development.¹⁹

Political Crimes

The Chinese government continues to imprison, detain, or otherwise harass intellectuals, reporters, dissidents, believers engaged in "illegal" religious activities, unauthorized Internet publishers, and others for the peaceful exercise of fundamental rights guaranteed under China's Constitution and the Universal Declaration of Human Rights. Although the Chinese government released a small number of political prisoners, including Rebiya Kadeer, Huang Qi, and Xu Guang, many Chinese citizens, including Yao Fuxin, Xiao Yunliang, Su Zhimin, Gong Shengliang and other members of the South China Church, Yang Jianli, Jigme Gyatso, Ngawang Phuljung, Choeying Khedrub, Tohti Tunyaz, Jin Haike, Xu Wei, Yang Zili, Zheng Houhai, Mao Hengfeng, and thousands of others continued to serve long prison or re-education through labor sentences for political offenses.²⁰ In June 2005, the Chinese government rejected a U.S. appeal for an accounting of prisoners still detained for activities related to the Tiananmen Square democracy protests.²¹ The government also launched a new crackdown on dissent that resulted in a wave of political detentions and prosecutions [see Section III(d)—Freedom of Religion and Section III(e)— Freedom of Expression].²² In many cases, police detained these and other individuals without formal charge or judicial review. Arbitrary detentions intensified during politically sensitive periods, such as the period following the death of former Chinese Premier Zhao Ziyang in January 2005, the annual meeting of the National People's Congress (NPC) in March 2005, the anniversary of the June 4th Tiananmen democracy protests, and the visit of UN High Commissioner for Human Rights Louise Arbour in September 2005.²³

Chinese authorities continue to apply vague criminal and administrative provisions to detain citizens for political offenses. In some cases, the government charges political activists with "endangering national security," "subversion," or "inciting splittism."²⁴ In other cases, public security agencies sentence political offenders to reeducation through labor (RETL) or other forms of administrative detention without trial.²⁵ After its 2004 visit to China, the UNWGAD noted that the Chinese government had made no significant progress in reforming these mechanisms:

None of the recommendations that the working group formulated in its earlier report have been followed. No definition of the term "endangering national security" in criminal law was adopted, no legislative measures have been taken to make a clear-cut exemption from criminal responsibility of those who peacefully exercise their rights guaranteed in the Universal Declaration of Human Rights, and no real judicial control has been created over the procedure to commit someone to re-education through labor.²⁶

The Chinese government took a few positive steps on issues related to political crimes. Late in 2004, the Chinese Foreign Ministry announced that the government had formed a "special task force" on ratification of the International Covenant on Civil and Political Rights (ICCPR).²⁷ In addition to the prisoner releases noted above, in January 2005, the Chinese government provided new information on paroles, sentence reductions, and potential sentence reductions for a number of Chinese political prisoners.²⁸ In April 2005, the U.S. State Department announced a Chinese government clarification that there is not a stricter standard for evaluating sentence reductions and parole for "security" crimes. Chinese authorities also pledged to conduct a national review of cases involving political acts that are no longer crimes under Chinese law.²⁹ China announced the last two steps shortly before the UN Human Rights Commission met in Geneva in March 2005.

Arbitrary Detention³⁰in the Formal Criminal Process

Despite government statements on the importance of ending unlawful extended detentions, law enforcement authorities continue to hold criminal suspects for long periods without formal charge or trial. Following a two-year campaign, courts and law enforcement agencies claimed in early 2005 that they had cleared all cases of "illegal extended detention."³¹ Such claims are impossible to verify. Even if many such cases have been cleared, Chinese authorities continue to manipulate legal rules and loopholes to "lawfully" hold criminal suspects for long periods without formal charge and trial.³² In one recent example, after investigating New York Times researcher Zhao Yan for seven months on charges of leaking "state secrets," police suddenly claimed to have found "evidence" of fraud against him. Law enforcement officials had already invoked several legal exceptions to extend Zhao's pretrial detention, and the legally permitted detention period was about to expire.³³ Under Chinese law, the new charge permitted police to reset the pretrial detention clock to zero and investigate Zhao for up to another seven months.³⁴ In practice, with no limit on the number of "new crimes" that police can assert, suspects can be held in pretrial detention for years. Chinese criminal law experts suggest that such provisions are often abused and that abuses are not limited to "sensitive" cases.³⁵

Chinese law does not meet minimal international standards for prompt judicial review of criminal detention and arrest. Under the ICCPR, anyone arrested or detained on a criminal charge must be brought before a judge or judicial officer promptly for review of the lawfulness of his detention or arrest.³⁶ In December 2004, the UNWGAD found that China's Criminal Procedure Law (CPL) and related regulations on pretrial detention fail to meet this basic standard because (1) Chinese suspects continue to be held for too long without judicial review; (2) procurators, who review arrest decisions, only examine case files and do not hold a hearing; and (3) a procurator cannot be considered an independent judicial officer under applicable international standards.³⁷

Administrative Detention

The Chinese government continues to punish large numbers of offenses administratively without effective judicial review. Public security agencies reported that they punished 5.3 million "public order" offenses in 2004, nearly eight times the number of criminal cases handled by courts.³⁸ "Public order" offenses include traffic offenses, public disturbances, prostitution, drug use, and other "minor crimes" that the Chinese government typically sanctions with administrative penalties rather than formal criminal sentences.³⁹ In some instances, public security agencies handle cases administratively because they do not have enough evidence for a formal prosecution,⁴⁰ or because it is a convenient method for detaining political offenders.⁴¹ Administrative penalties can range from a disciplinary warning or fine to detention in a RETL center for up to three years, with the possibility of a one-year extension.⁴² Forms of administrative detention include short-term detention under China's Public Order Administration Punishment Regulations, RETL, forced psychiatric commitment, "custody and education" of prostitutes and their clients, forced drug detoxification, work study schools, and detention imposed on corrupt officials under Party rules.⁴³ Although many public order cases probably do not result in a detention, at least 250,000 to 300,000 individuals are currently detained in approximately 300 centers in the RETL system alone.⁴⁴

Public security agencies administer RETL and other forms of administrative punishment without effective judicial review or the minimal protections offered defendants in China's formal criminal justice system.⁴⁵ The Chinese government argues that administrative detention decisions are subject to judicial review under China's Administrative Litigation Law (ALL), but the UNWGAD concluded that ALL review is "in light of what happens in reality, of very little value" and that "no real judicial control has been created over the procedure to commit someone to re-education through labor."⁴⁶ In its December 2004 report, the UNWGAD found RETL to be a violation of the ICCPR and applicable international standards that require prompt judicial review of the lawfulness of detentions. The UNWGAD report concluded that the Chinese government had made no significant progress in reforming the system over the past seven years.⁴⁷ It also noted that RETL violates China's own domestic law, which requires that all deprivations of freedom be authorized by national law, not administrative regulations.⁴⁸

Although the Chinese government is in the process of reforming the administrative punishment system, it is unlikely to be abolished. In August 2005, the NPC Standing Committee (NPCSC) passed a new Public Order Administration Punishment Law to replace a corresponding set of regulations.⁴⁹ The new law, which becomes effective in March 2006, contains specific statements on the protection of human rights concerns on paper, establishes a limit of 20 days detention for multiple public order offenses (as opposed to the 30 days public security officials reportedly requested), and prohibits torture and the collection of evidence through illegal means.⁵⁰ The final version of the law, however, maintains public security as the entity that adjudicates and administers punishments for public order violations within its scope, sets a maximum interrogation period of 24 hours (rather than the 12 hours proposed in an earlier draft), does not provide the accused with the right to a hearing in detention cases or the right to legal representation, and creates new categories of offenses including "inciting or plotting illegal assemblies, marches, or demonstrations."

Pressure to reform the RETL system is also building, particularly in the NPC.⁵¹ In the fall of 2004, China's Justice Minister described government efforts to make RETL more humane, but emphasized that the foundations of the current system would remain in place.⁵² The government is also reportedly considering a new "Law on the Correction of Unlawful Acts" that would provide a basis in national law for RETL.⁵³ The draft law reportedly enhances the rights of RETL detainees by setting a maximum sentence of 18 months; permitting defendants to hire a lawyer, request a hearing, and appeal sentences handed down by public security in RETL cases; and making detention centers more open and humane.⁵⁴ While the reforms could be a positive step, some observers have noted that the MPS is resisting reform efforts, and that given the rise in crime and the government's reliance on RETL to maintain public order and punish political offenders, the reforms may have little impact on RETL in practice.⁵⁵

In addition to RETL and short-term detention under the public order administration provisions, law enforcement officials have the power to forcibly commit individuals to psychiatric facilities.⁵⁶ The MPS manages a network of at least 30 ankang, or special psychiatric institutions, and in some cases uses these institutions to hold repeat petitioners or political offenders, such as human rights activist Wang Wanxing, along with genuine mental patients.⁵⁷ In 2004, the UNWGAD found that the government's system of confining mentally ill persons is a "form of deprivation of liberty and lacks the necessary safeguards against arbitrariness and abuse."⁵⁸ Treatment in these institutions is sometimes brutal.⁵⁹

Under administrative regulations, police may also forcibly commit drug users to rehabilitation centers for up to one year.⁶⁰ Repeat offenders may be sentenced to RETL terms.⁶¹ As of 2003, China maintained a network of at least 583 forced rehabilitation centers and 151 detention centers for drug users.⁶² Chinese sources report that in 2004, 273,000 addicts received treatment at forced rehabilitation centers, while 68,000 were "treated" at RETL centers.⁶³ Drug rehabilitation centers have been associated with numerous problems and abuses, including a relapse rate of over 90 percent, excessive fee collection from detainees, understaffing due to a lack of funding, and violence against detainees.⁶⁴ In June 2005, for example, a man was allegedly beaten to death in a Guangdong detoxification center.⁶⁵ According to a former detainee, the center had a reputation for irregular fatalities and had been told to improve its record. Human rights activists allege that such abuses are common.⁶⁶

Before 2003, civil affairs and public security agencies also had the power to administratively detain and repatriate indigents, migrants, and other individuals without proper residence permits under China's custody and repatriation system.⁶⁷ After a detainee died in custody in 2003, the State Council abolished this system and replaced it with a system of voluntary aid centers.⁶⁸ A surge of indigents and beggars on the streets of some large Chinese cities suggests that the new system has been implemented in some areas,⁶⁹ but a recent scandal in Jiangxi province indicates that some smaller cities still practice custody and repatriation.⁷⁰ In the Jiangxi case, county officials rounded up indigents and left them in a remote area in the middle of winter. The officials told a reporter that they had not established an aid center as required because they lacked funds and were continuing to detain and repatriate vagrants, a practice they claimed was common in many counties.⁷¹

Torture and Abuse in Custody

Although torture is illegal in China, law enforcement torture and abuse remains common. Over the past year, Western news media and NGOs continued to report the widespread use of torture to coerce confessions and to punish detainees.⁷² Prompted in part by public outrage over the Nie Shubin and She Xianglin wrongful conviction cases, Chinese news media also published reports indicating that torture and coerced confessions remain widespread,⁷³ highlighting individual cases of torture and abuse,⁷⁴ and examining the roots of the torture problem.⁷⁵ Forms of torture and abuse cited in Western and Chinese reports include beating, electric shock, and painful shackling of the limbs.

Chinese analysts blame the torture problem on a number of social, institutional, and legal factors. Social and institutional factors include a lack of legal consciousness, poor training, and weak forensic skills on the part of investigative personnel (problems that lead to an over-reliance on confessions). Prevailing social attitudes towards criminal suspects, a presumption of guilt at all stages of the criminal process, pressure from leaders and society to demonstrate progress in fighting crime and secure convictions in major cases, and the practice of tying law enforcement salaries and promotions in part to case-breaking rates are other factors that contribute to the problem.⁷⁶ Among the legal factors cited are the absence of lawyers at interrogations, a general failure to prosecute torture cases, the lack of a legal presumption of innocence and right to remain silent, and the lack of a rule requiring the exclusion of illegally gathered evidence.⁷⁷

Law enforcement agencies claim to be addressing the torture issue through well-publicized crackdowns, enhanced investigative training, and better procuratorial supervision.⁷⁸ Procuratorates nationwide reported the prosecution of 1,924 officials for torture, illegal detention, and other violations of human rights between July 2004 and July 2005.⁷⁹ In Jiangxi province, an experimental program that requires prosecutors to conduct face-to-face interviews of criminal suspects during the arrest review process reportedly uncovered several torture cases.⁸⁰ In May 2005, the Supreme People's Procuratorate (SPP) publicly claimed that it would make ending torture and coerced confessions a priority in 2005 and announced a new policy of encouraging more vigorous investigation of torture allegations and prohibiting the use of illegally obtained evidence.⁸¹ The MPS announced a requirement that police chiefs personally hear petitions on law enforcement abuse.⁸² Finally, in August 2005, UN Special Rapporteur on Torture Manfred Nowak announced that he had reached agreement with the Chinese government for a visit to China in November 2005.⁸³

Recent reports suggest that the controversy surrounding the Nie and She cases may also be creating momentum for modest legal reforms. In April 2005, Sichuan province prohibited the use of evidence acquired through illegal means and introduced a requirement that interrogations in "major cases" be taped. Under the new rule, courts must exclude coerced statements and confessions unless police provide a reasonable explanation for the alleged coercion or agree to investigate allegations of abuse.⁸⁴ In May 2005, Chinese news media reported that three district public security bureaus were taking part in an experimental program under which criminal suspects may request either the presence of a lawyer during interrogation or the taping of the interrogation.⁸⁵

The wrongful conviction cases have also helped forge a consensus among scholars and officials for making the prevention of torture a priority in upcoming amendments to China's CPL.⁸⁶ The NPC Legislative Affairs Commission is currently researching CPL amendment issues.⁸⁷ Consideration of a draft amendment proposal is tentatively scheduled for 2006, with final passage slated for 2007.⁸⁸ Several of the local experiments described above correspond to proposed amendments to the CPL, suggesting that the government is testing reforms at a local level before implementing them nationwide.⁸⁹ Some Chinese legal experts stress that to prevent abuse in practice, reforms should include enhanced rights for defense lawyers, a right to remain silent, an evidence exclusion rule that would bar all illegally obtained evidence (including evidence derived from coerced confessions) from criminal trials, and more vigorous prosecution of officials who resort to torture.⁹⁰ Reports of some public security resistance to the local experiments on lawyer access during interrogations and comments in the media indicating that scholarly expectations are too "idealistic" suggest that law enforcement agencies may resist broad rights enhancement for suspects and defendants.⁹¹

Access to Counsel and Right to Present a Defense

Most Chinese defendants go to trial without a lawyer. Chinese law grants criminal defendants the right to hire an attorney, but guarantees pro bono legal defense only if the defendant is a minor, faces a possible death sentence, or is blind, deaf, or mute.⁹² In other cases in which defendants cannot afford legal representation, courts may appoint defense counsel or the defendant may apply for legal aid, but the law does not guarantee free legal representation.⁹³ Legal aid resources for all types of cases expanded in 2004.⁹⁴ Lawyers represent criminal defendants in at most about 30 percent of cases, however, and the rate of representation continues to drop.⁹⁵ Domestic sources cite fear of law enforcement retribution and the lack of legal protections for lawyers (along with low fees) as major factors in the low rate of representation.⁹⁶

Even when criminal defendants are able to find lawyers, they often have difficulty meeting with them. Under Chinese law, suspects have a right to meet with their lawyers after police interrogate them or from the first day of their formal detention.⁹⁷ Nevertheless, even after the first interrogation, police often manipulate legal exceptions to deny lawyers access to their clients or otherwise obstruct or encumber such access.⁹⁸ For example, Sichuan public security officials on several occasions denied requests by detained American businessman David Ji to meet with his attorneys, arguing that such meetings were "inappropriate" or "inconsistent with Chinese law."⁹⁹ Only about 14.5 percent of criminal suspects in Beijing, one of China's most legally advanced locales, met with an attorney during the first 48 hours of detention.¹⁰⁰ Although public security officials attribute the small number of lawyer meetings to low legal consciousness and economic difficulties on the part of suspects, a Beijing Youth Daily article cited police suspicion of lawyers as the major reason.¹⁰¹

Other obstacles make it difficult for lawyers to build and present an adequate defense. Legal aid organizations, which are publicly funded and supply defense lawyers in a significant portion of criminal cases, risk jeopardizing their funding if they offend local officials.¹⁰² In practice, defense lawyers cannot start building a case until the official investigation ends and a case is transferred to the procuratorate.¹⁰³ Even then, police and procuratorates often deny lawyers access to government case files and information, despite provisions in the CPL that are intended to guarantee access to those materials.¹⁰⁴ Defense lawyers must obtain permission from procurators and courts to interview witnesses and crime victims.¹⁰⁵ In addition, fewer than 5 percent of witnesses in criminal cases appear in court.¹⁰⁶ One source discussed in detail how law enforcement officials often intimidate or detain defense witnesses or witnesses who change their testimony at trial to the detriment of law enforcement.¹⁰⁷ The inability of defense lawyers to cross-examine witnesses undermines their ability to represent their clients.¹⁰⁸ One Chinese scholar involved in the discussion of upcoming amendments to the CPL suggests that a provision requiring witnesses to appear in court may be written into the law.¹⁰⁹

Finally, local authorities sometimes harass and even prosecute defense lawyers who work on sensitive cases or defend their clients too vigorously. In February 2005, for example, Shanghai authorities suspended the law license of defense lawyer Guo Guoting and later placed him under temporary house arrest.¹¹⁰ As a result, Guo was unable to appear in court on behalf of imprisoned journalist Shi Tao in late April. Law enforcement officials sometimes intimidate defense lawyers by charging or threatening to charge them with "evidence fabrication" and other crimes.¹¹¹ Most such charges prove to be groundless. According to one prominent Beijing lawyer, over 90 percent of the more than 100 lawyers accused of violating Article 306 of the PRC Criminal Law, a provision on evidence fabrication, have been cleared of wrongdoing.¹¹² Other statistics indicate that nearly 80 percent of the 500 lawyers detained, accused, or punished for all reasons between 1997 and 2002 were eventually found innocent of any wrongdoing.¹¹³ Such groundless charges put attorneys on the defensive and have a chilling effect on criminal defense work.¹¹⁴

Lawyers in China indicate that their work environment has not improved significantly. In August 2004, one Chinese publication reported that the Beijing Justice Bureau canceled a multi-year study on the work environment for Chinese defense attorneys in 2002 after results from the initial 600 responses revealed major problems.¹¹⁵ Lawyers interviewed for the article expressed doubt that the environment for defense attorneys would improve much in the near future. Chinese legal experts complain that the relative power of the prosecution and defense is too unbalanced, and that criminal courts rarely give much consideration to defense arguments.¹¹⁶

Some Chinese authorities are experimenting with local reforms to improve lawyer access to their clients and allow them to be present during interrogations.¹¹⁷ Enhanced lawyer involvement at the pre-trial stage could serve as a meaningful check on torture. More lawyer involvement could also improve an innocent suspect's chance of exoneration, since statistics suggest that Chinese suspects have a better chance of avoiding criminal sanction during the investigation stage than during the trial stage of the criminal process.¹¹⁸ The All-China Lawyers Association (ACLA) has made several recommendations to strengthen defense investigation rights and provide remedies for defense lawyers who encounter official obstacles. ACLA also recommended creating judicial checks on prosecutorial discretion in charging lawyers with evidence fabrication and other crimes, providing lawyers with limited immunity from prosecution, and delegating the responsibility for disciplining lawyers to lawyers associations.¹¹⁹ Some of these recommendations are reportedly under consideration in upcoming amendments to the Lawyers Law and CPL.¹²⁰

Fairness of Criminal Trials and Appeals

Trials in China nearly always result in convictions. The conviction rate for first-instance criminal cases was over 99 percent in 2004.¹²¹ Chinese defendants exercised their right to appeal convictions in only about 15 percent of criminal cases, and those who did appeal faced limited prospects for reversal.¹²² In total, appeals courts changed judgments in about 13.2 percent of cases they reviewed (roughly 2.1 percent of all criminal cases adjudicated in 2004).¹²³ Because many changed judgments probably involve sentence reductions, the percentage of convictions actually overturned on appeal is likely even lower.¹²⁴ In addition, under Chinese law prosecutors have the right to appeal acquittals or request "adjudication supervision" from higher courts until they obtain a guilty verdict.¹²⁵ In practice, prosecutors have an incentive to do so, since acquittals may result in official liability for wrongful detention.¹²⁶ Prosecutors may request such "adjudication supervision" as a matter of right. Defendants may only do so with the consent of the court, however, as imprisoned American businessman Jude Shao found when the Supreme People's Court (SPC) denied a petition for review of new evidence in his case.¹²⁷

Appeals courts are reluctant to overturn convictions, even when they have misgivings about evidence of guilt. In some cases, appeals courts decide instead to give relatively light sentences or, in the case of a capital crime, suspend a death sentence to "leave room for unforeseen circumstances."¹²⁸ In other questionable cases, appeals courts abuse a procedural provision that allows them to send cases back to first instance courts for retrial.¹²⁹ In part because they face potential liability and professional sanction for incorrect decisions, however, trial courts have built-in incentives not to change verdicts.¹³⁰ As a result, some cases based on questionable or incomplete evidence bounce back and forth between courts, sometimes for years, until prosecutors can dig up more evidence, the appeals court relents, or courts and prosecutors reach some compromise such as a reduced sentence.¹³¹ Chinese commentators have noted that multiple retrials can lead to wrongful convictions and advocate restricting the number of times a case can be retried or the number of times either prosecutors or defendants can request "adjudication supervision."¹³² Court sources indicate that reform of the retrial system is currently under consideration.¹³³

Senior court officials and Party political-legal committees continue to influence judicial decision-making, particularly in sensitive or important criminal cases. In the Nie Shubin wrongful execution case, for example, the original trial judge tried to deflect responsibility for the apparent wrongful conviction by telling Chinese reporters he just follows orders.¹³⁴ Domestic accounts of other wrongful convictions and sensitive cases highlight continuing Party interference.¹³⁵

Capital Punishment

Chinese criminal law includes approximately 68 capital offenses, the majority of which are non-violent crimes such as bribery and embezzlement.¹³⁶ The Chinese government has reportedly established an "execute fewer, execute cautiously" policy, and at least one Chinese source suggests that the number of executions has dropped in recent years.¹³⁷ The government, however, publishes no official statistics on the number of executions, which it considers a state secret.¹³⁸ Several Chinese sources have hinted that the annual number of executions in China is in the thousands.¹³⁹

The Chinese government appears willing to reform death penalty practices gradually. An ongoing domestic debate over the death penalty and its scope intensified over the past year, particularly after Chinese news media publicized accounts of wrongful conviction cases.¹⁴⁰ Scholars and commentators expressed concern about wrongful executions and focused on how to prevent them.¹⁴¹ Chinese sources cite broad popular support for the death penalty and the need for a deterrent against crime as justifications for maintaining it.¹⁴² The government has indicated that while it will maintain capital punishment for the foreseeable future, it will work to ensure fair application of the death penalty by refining death penalty review procedures and gradually reducing application of the death penalty in favor of long-term imprisonment.¹⁴³ Some reform advocates suggest that the government could start this process by eliminating capital punishment for economic crimes, or by eliminating the immediate execution of death sentences in favor of suspended death sentences.¹⁴⁴

In March 2005, SPC President Xiao Yang declared that the SPC will take back the power of reviewing all death penalty decisions next year.¹⁴⁵ Central authorities have called for a review of the necessary legislative changes in October 2005, with implementation of the reform tentatively set for sometime in 2006.¹⁴⁶ The SPC is in the process of establishing three new criminal tribunals and transferring hundreds of judges to Beijing to handle the increased caseload that will result from the reform.¹⁴⁷ Emboldened by public outrage over the Nie and She cases, commentators have called for accelerated implementation of the reform, open hearings during death penalty reviews, and a moratorium on implementation of current death sentences until the SPC can review all current cases.¹⁴⁸ Chinese experts view the return of this power to the SPC as an important step in preventing wrongful executions. While the SPC changed judgments in nearly one-third of the 300 death sentences it reviewed in 2003, provincial high courts changed judgments in only one percent of the death sentences they reviewed.¹⁴⁹

Several new reports on the use of organs removed from executed prisoners emerged over the past year. One U.S.-based NGO reported that hospitals in Guangzhou, Xucheng, and Zhengzhou continue to harvest organs from executed prisoners and sell them for profit.¹⁵⁰ Several articles in China's domestic news media noted the demand for transplants and highlighted a domestic debate over whether or not condemned prisoners should be permitted to donate their organs, suggesting that the use of prisoner organs is an issue of concern to some Chinese.¹⁵¹ One legal expert argued that organ donations by prisoners, even if voluntary on their face, should be prohibited because there is no way to rule out coercion by criminal justice officials and because the practice could encourage more executions.¹⁵² In June 2005, the Chinese government announced that it would issue a national regulation on organ transplants that would ban trading in human organs and limit the number of hospitals that are authorized to perform transplants.¹⁵³ The government did not make clear whether the new regulations would address the use of organs removed from executed prisoners.

Additional Reform Initiatives and Criminal Justice Exchanges

In addition to the reforms noted above, the Chinese government reported several criminal justice reform initiatives over the past year. In response to the rise in juvenile crime, many reports focused on reform of the juvenile justice system.¹⁵⁴ Ministry of Justice officials claimed to be engaged in an ongoing effort to improve prison management and conditions.¹⁵⁵ A new directive from the NPCSC requires expert witnesses to be independent agents, not employees of courts or other government departments.¹⁵⁶ The SPP continued a rectification campaign aimed at exposing corruption in the sentencing and parole process.¹⁵⁷ Finally, in addition to draft amendments to the Criminal Procedure Law, scholars and officials discussed amendments to several laws that affect the criminal process, including the Lawyers Law, the State Compensation Law, and the Organic Law of the People's Courts.¹⁵⁸

Prosecutors and courts also experimented with new citizen supervision mechanisms. Procuratorates nationwide reported implementing a new system of citizen ombudsmen, or people's supervisors. Under applicable regulations passed in 2004, people's supervisors review cases when procuratorates dismiss a case or decide not to prosecute, or when criminal suspects disagree with a procurator's formal arrest decision. People's supervisors may appeal to higher-level procuratorates when they disagree with a procuratorial decision.¹⁵⁹ According to the SPP, by the end of 2004, procuratorates had more than 18,962 supervisors on staff. The supervisors have reportedly reviewed a total of 3,341 cases, appealing prosecutor decisions in 152 cases.¹⁶⁰ In addition, new regulations to re-establish a system of people's assessors in the courts became effective on May 1, 2005.¹⁶¹ People's assessors are lay judges who sit on a collegial panel of three judges and in theory have an equal vote in deciding the outcome of selected criminal, civil, and administrative cases.¹⁶² As of April 2005, a total of 2,900 courts across China reportedly had selected a pool of 26,917 people's assessors.¹⁶³

Chinese scholars and officials continued to engage foreign governments and legal experts on a range of criminal justice issues over the past year. Chinese law enforcement agencies expressed a growing interest in cooperating with other countries to combat transnational crime and expanded cooperation with U.S. law enforcement agencies on money laundering, drug trafficking, and other issues.¹⁶⁴ Numerous international conferences and legal exchanges with Western NGOs, judges, and legal experts took place, including programs on pre-trial discovery, defense attorneys, evidence exclusion, criminal trials and procedure, pleas and simplified prosecution procedures, bail, sentencing, parole, capital punishment, prison reform, and other subjects.¹⁶⁵ Participants in these programs encouraged more such exchanges.¹⁶⁶

Finally, the Chinese government continued to engage the international human rights community on issues related to the criminal justice system. In addition to permitting a visit by representatives of the UN Working Group on Arbitrary Detention in September 2004, the Chinese government agreed to host the UN Special Rapporteur on Torture in November 2005.¹⁶⁷ In July 2005, the International Committee of the Red Cross established a regional office in Beijing after signing an agreement with the Chinese government.¹⁶⁸ In August 2005, China hosted a visit by the UN High Commissioner on Human Rights.¹⁶⁹ During the visit, the High Commissioner and the Chinese government signed a Memorandum of Understanding aimed at facilitating China's implementation of the ICCPR,¹⁷⁰ although that achievement was overshadowed by a contemporaneous spate of detentions.¹⁷¹ Before the UN Human Rights Commission met in Geneva in March 2005, the U.S. government noted China's commitment to open the ICRC office and receive these delegations as signs of progress in its human rights policies.¹⁷²

Notes to Section III(b)—Rights of Criminal Suspects and Defendants

1 "Xiao Yang: People's Courts Must Maintain the Strike-Hard Principle Over the Long Term," [Xiao Yang: Renmin fayuan bixu changqi jianchi yanda fangzhen], Xinhua (Online), 16 December 04; "Senior Party Official: China to Regularize Crackdown Campaign Against Crimes," Xinhua, 6 March 05 (FBIS, 6 March 05).

2 Wang Lin, "The Right Time for Replacing 'Yanda' with 'Prevent and Control,' 'Policing Revolution' Requires Lasting Effort" ['Fangkong' tidai 'yanda' zhengdangshi, 'jingwu geming' xu chijiu nuli], Southern Weekend (Online), 23 June 05; "Public Order Can't Rely Merely on Campaigns" [Zhi an bu neng guangkao gao yundong], Southern Metropolitan Daily (Online), 1 February 05; Du Yonghao, "Strike Hard Should Embody the Spirit of Rule of Law" [Yanda geng ying tixian fazhi jingshen], People's Daily (Online), 25 August 03.

3 "Crime Crackdown Must Observe Justice Principles," China Daily (Online), 18 December 04.

4 See, e.g., "Liaoning Strikes Hard at Six Kinds of Corruption in the Political-Legal Team" [Liaoning yanda zhengfa duiwu liu da fubai], Legal Daily (Online), 12 May 05; "50,000 Cases Broken in Guangdong's Hundred Days of Strike Hard" [Guangdong bairi yanda po wuwan xingan], Southern Metropolitan Daily (Online), 10 November 04; "Ministry of Public Security Requires Strike Hard Against Three Types of Criminal Activity—Criminal Organizations, Etc." [Gonganbu yaoqiu yanda hei e shili deng san lei fanzui huodong], Ministry of Public Security (Online), 5 November 04; "China to Launch 'People's War' on Drugs," People's Daily (Online), 5 April 05.

5 "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004" [Gonganbu tongbao 2004 nian quanguo gongan jiguan daji xingshi fanzui weihu shehui zhian qingkuang], Ministry of Public Security Web site, 5 February 05; Supreme People's Procuratorate Work Report [Zuigao renmin jianchayuan gongzuo baogao], 9 March 05.

6 Supreme People's Court Work Report [Zuigao renmin fayuan gongzuo baogao], 8 March 05.

7 "Juvenile Crime Up 19.1 Percent Nationally in 2004, China Prepares to Establish Juvenile Courts" [2004 nian quanguo wei chengnian ren fanzui shangsheng 19.1 percent, wo guo yunniang jianli shaonian fayuan], Southern Metropolitan Daily (Online), 14 March 05. A separate article indicates that juvenile crime as a percentage of total crime increased each year between 2000 and 2003: 2000 (11.8 percent of all crimes), 2001 (12 percent), 2002 (13.9 percent),and 2003 (18.9 percent). Zhou Kai, "Prevent Juvenile Crime Without Delay" [Yufang weichengnianren fanzui liburonghuan], China Youth (Online), 11 March 05.

8 For selected positive statistics, see "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004"[Gongan bu tongbao 2004 nian quanguo gongan jiguan daji xingshi fanzui weihu shehui zhian qingkuang], Ministry of Public Security Web site; "Ministry of Public Security Publicizes National Public Order Situation" [Gonganbu tongbao quanguo zhian qingkuang], Xinhua (Online), 27 April 05. For sources suggesting a growing crime problem, see, e.g., SPP Work Report, 9March 05; Yuan Zhengbing, Cui Zuojun, Liu Jinlin, "To Prevent Unjust Cases, Firmly Grasp the Relationship With Arresting Personnel—This Paper's Reporter Conducts a Special Interview with Supreme People's Procuratorate Vice President Zhu Xiaoqing" [Fangzhi yuan cuoan yao ba buren guan—benbao jizhe zhuanfang zuigao renmin jianchayuan fu jianchazhang Zhu Xiaoqing], Procuratorate Daily (Online), 16 May 05; "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004," Ministry of Public Security Web site; "National Statistics Bureau: Crime in China Clearly Has the Largest Effect on Public Sense of Security" [Guojia tongjiju: wo guo xingshifanzui yiran zui yingxiang qunzhong anquangan], China Youth, reprinted in Xinhua (Online), 7 February 05.

9 For two of the many detailed Chinese accounts of the Nie and She cases, see " 'Nie Shubin Murder Case' Still Unresolved" ['Nie Shubin yuan sha an' xuaner weijue], Southern Weekend(Online), 24 March 05; and Gu Yunyong, "The Unjust Case of She Xianglin Murdering His Wife: the Price of Efforts to Seek Redress and Innocence on a Common Chinese Peasant Household" [She Xianglin sha qi yuanan: yige putong zhongguo nongmin jiating de shenyuan zhilu yu qingbai daijia], Southern Metropolitan Daily (Online), 5 April 05. In April 2005, a Hubei court formally exonerated Mr. She.

10 For two of the numerous examples of such stories, see "14 Years of an Unjust Case of Wife Murder, 'Liaoning's She Xianglin' Li Huawei Obtains State Compensation" [14 nian sha qi yuanan 'Liaoning She Xianglin' Li Huawei huo guojia peichang], People's Daily (Online), 15April 05; Lei Dao, "Why No Compensation After Eight Years of Unjust Imprisonment" [Ba nian yuanyu weihe bu peichang], Legal Daily (Online), 17 April 05.

11 Li Na, "Unjust Case of Wife Murder Causes China's Judicial Realm to Rethink Protection of Human Rights" ["Sha qi" yuanan yinfa zhongguo sifa lingyu renquan baohu fansi], Xinhua, reprinted in People's Daily (Online), 6 April 05. For an English-language version of the article, see "Return of 'Murdered Wife' Calls China's Justice System Into Question," People's Daily (Online), 5 April 05.

12 See, e.g., "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved" [lüshi yanzhong de "Nie," "She" liangan: fansi cai neng dailai sifa tizhi de gaishan], Criminal Defense Net (Online), 13 April 05; "Legal Redemption for Erroneous Death Sentences" [Sixing wupan de falü jiushu], Modern Bulletin (Online), 16 March 05; Tang Weibin, Li Changzheng, "How Do Unjust Cases Come About? Following the Trail of Hubei's She Xianglin 'Wife Murder' Case" [Yuanan shi zenme zaocheng de? Hubei She Xianglin "sha qi" an zhuizong], Procuratorate Daily (Online), 8 April 05; "Analyzing the Xu Jingxiang Unjust Case"[Xu Jingxiang yuanan pouxi], China Youth Online, 10 May 05; "Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture, [Bie rangzhengyi zheduan le chibang: cong mianan kan xingxun bigong], Legal Daily (Online), 22 April 05; "Return of 'Murdered Wife' Calls China's Judicial System in Question," People's Daily (Online); "Behave Prosecutors to Protect Innocent," China Daily, 28 May 05 (FBIS, 28 May 05); Lin Wei, "Can Audio and Videotaping Really Keep Torture Under Control? " [Luyin luxiang zhenneng guanzhu xingxun bigong?], Legal Daily (Online), 7 June 05; Ge Lin, "Why a Not Guilty Verdict Is a Rarity of Rarities" [Wuzui panjue weihe fengmaolinjiao], Southern Weekend (Online), 16 June 05; Jiang Hong, "Commentary: Use Vigorous Legal Supervision to Prevent Unjust Cases" [Shelun: yong qiang you li de falü jiandu fangzhi cuoan], Justice Net (Online), 26 April05; Yuan Zhengbing, Cui Zuojun, Liu Jinlin, "To Prevent Unjust Cases, Firmly Grasp the Relation with Arresting Personnel," Procuratorate Daily (Online). For an useful collection of translations and English-language briefings on some of the topics addressed in these articles, see Human Rights in China, China Rights Forum: Law and Justice, No. 2, 2005.

13 "Legal Redemption for Erroneous Death Sentences," Modern Bulletin.

14 "Return of 'Murdered Wife' Calls China's Justice System Into Question," People's Daily (Online).

15 Shi Ting, "Police Reforms Put More Officers on the Beat," South China Morning Post, 26 March 05 (FBIS, 26 March 05).

16 Ibid. See also "Beijing to Hire 6,500 More Policemen To Save On-the-Job From Overwork," Xinhua, 5 June 05 (FBIS, 5 June 05); Zuo Guobin, "Ministry of Public Security to Raise an Army for Police Substations, 70,000 Police to Be Added at Basic Levels" [Gonganbu wei paichusuo zhaobingmaima, jiang chongshi qiwan jingli dao jiceng], CRI Online, 22 June 05.

17 Dwight Daniels, "Beijing Demands Better Policing," China Daily (Online), 9 May 05.

18 For crackdowns on abuses, see, e.g., SPP Work Report, 9 March 05; "Supreme People's Procuratorate Confirms Emphasis of Investigative Supervision This Year" [Zuigaojian queding jinnian zhencha jiandu zhongdian], Legal Daily (Online), 17 May 05; Cao Desheng, "Rights Infringements in Focus," China Daily, 27 July 05. For statements on balancing crime-fighting and human rights protection, see, e.g., Tian Yu, "Xiao Yang: Ensure in Practice That The Innocent Are Not Criminally Prosecuted" [Xiao Yang: qieshi baozhang wuzui de ren bushou xingshi zhuijiu], Xinhua (Online), 16 December 04; Yuan Zhengbing, et. al., "To Prevent Unjust Cases, Firmly Grasp the Relationship with Arresting Personnel."

19 UN Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention, Mission to China, Advance Edited Version, 29 December 04 [hereinafter UNWGAD Report], para. 68(a). UNWGAD officials interviewed more than 70 detainees according to UNWGAD's terms of reference.

20 The Commission's Political Prisoner Database includes profiles on more than 500 current and 3,000 past political prisoners. Thousands of political prisoners are detained in China's reeducation through labor system. See infra, "Administrative Punishment," and accompanying notes.

21 "China Rebuffs Call for Tiananmen Account," Associated Press, 6 June 05.

22 Over the past year, Chinese authorities detained, questioned, and then released numerous "public intellectuals" who had been critical of the government or working on sensitive issues, including Liu Xiaobo, Yu Jie, Zhang Zuhua, Jiao Guobiao, Wang Guangze, Li Boguang, Chen Min, Yang Tianshui, Li Guozhu, Guo Guoting, and others. For more details, see Section III(d)— Freedom of Expression. For a detailed discussion of the challenges faced by China's public intellectuals, see Public Intellectuals in China, Staff Roundtable of the Congressional-Executive Commission on China, Testimony and Written Statements submitted by Perry Link, Professor of Chinese Language and Literature, Princeton University; Merle Goldman, Professor Emerita of Chinese History, Boston University and Executive Committee Member, Fairbank Center for East Asia Research, Harvard University; and Hu Ping, Chief Editor, Beijing Spring.

23 "Petitioner Round-up as NPC Meets," Human Rights in China (Online), 11 March 03; "China Detains Dissidents Who Mourned Deposed Leader Zhao: Rights Group," Agence France-Presse, 30 January 05 (FBIS, 30 January 05); "Activists Under Tight Security Ahead of Tiananmen," Radio Free Asia (Online), 3 June 05; Chan Siu-sin, "Rights Activists Call Confinement 'Ridiculous,' " South China Morning Post, 8 September 05 (FBIS, 8 September 05).

24 Law in Political Transitions: Lessons From East Asia and the Road Ahead for China, Hearing of the Congressional-Executive Commission on China, 26 July 05, Written Statement submitted by Jerome A. Cohen, Professor of Law, New York University. Individuals charged with or convicted of such crimes since October 2004 include Jamal Abdulla, Nurmemet Yasin, Sonom Phuntsog, Jamphel Gyatso, Jigme Dazang, Lobsang Dargyal, Tashi Gyaltsen, Tsesum Samten, Tsultrim Phelgyal, Zhang Lin, Xu Wanping, and Zheng Yichun.

25 Human Rights in China Press Release, "Shanghai Resident Under Administrative Detention For Petitioning Over Destruction of His Home," 2 February 03; "Visitors to Memorial Ceremony Re-educated Through Labor and Arrested One by One" [Jidian de fangmin fenfen bei laojiao he jubu], Boxun (Online), 3 February 05; Forced Labor in China, Roundtable of the Congressional-Executive Commission on China, 22 June 05, Written Statement of Harry Wu, Executive Director, Laogai Research Foundation.

26 UNWGAD Report, para. 73.

27 "Foreign Ministry Spokesperson Zhang Qiyue's Press Conference," Ministry of Foreign Affairs (Online), 7 December 04.

28 Chris Buckley, "U.S. Cautious as China Offers Details on Political Prisoners," New York Times (Online), 9 February 05.

29 A Global Review of Human Rights: Examining the State Department's 2004 Annual Report, Hearing of the Subcommittee on Africa, Global Human Rights, and International Operations, House Committee on International Relations, 17 March 05, Oral Statement of Michael Kozak, Assistant Secretary of State for Democracy, Human Rights, and Labor, US Department of State.

30 The UNWGAD defines a detention as arbitrary (1) when there is clearly no legal basis for the deprivation of liberty (for example when individuals are kept in detention after the completion of their prison sentences or despite an amnesty law applicable to them, or in violation of domestic law or relevant international instruments); (2) when individuals are deprived of their liberty because they have exercised the rights and freedoms guaranteed in certain provisions of the United Nations Declaration on Human Rights (UNDHR) or the International Covenant on Civil and Political Rights; and (3) when noncompliance with the standards for a fair trial set out in the UNDHR and other relevant international instruments is sufficiently grave as to make a detention arbitrary. United Nations Commissioner for Human Rights, Fact Sheet #26, the Working Group on Arbitrary Detention.

31 Xue Yongxiu, "Extended Detention Cases in Courts at Each Level Have Been Completely Cleared" [Geji fayuan chaoqi jiya anjian quanbu qingli wanbi], China Court Net (Online), 9 March 05; State Council Information Office, "China's Progress in Human Rights in 2004," April 2005 (FBIS, 13 April 05).

32 Andrea Worden, "Legal Theatre in China: The Detention and Trial of Pro-Democracy Activist Yang Jianli," draft manuscript on file with the Commission.

33 Benjamin Kang Lim, "New York Times Chinese Researcher Accused of Fraud," Reuters (Online), 1 June 05.

34 PRC Criminal Procedure Law, enacted 1 Jan 97, art. 128. Under a variety of legal exceptions and detention extension provisions such as Articles 69, 124, 126, 127, and 140 of the PRC Criminal Procedure Law, a suspect's pre-trial detention could be extended for more than seven months even without evidence of new crimes. Worden, "Legal Theatre in China."

35 Worden, "Legal Theatre in China" (citing Chinese criminal law experts). Even SPC officials acknowledge that police and judicial officials hold suspects for periods much longer than allowed by law. Liu Yu, "Reforms for More Rights—Protecting the Rights of the Accused and Building a More Just Legal System Are the Goals of Change," Beijing Review (Online), 25 November 04.

36 International Covenant on Civil and Political Rights, arts. 9(3) and 9(4). China has signed, but has not yet ratified, the ICCPR. However, treaty signatories have an obligation to refrain from acts that would defeat the purpose of a treaty while ratification is pending. Vienna Convention on the Law of Treaties, art. 18.

37 UNWGAD Report, para. 32.

38 "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004," Ministry of Public Security (Online).

39 See, e.g., the broad-ranging and vaguely worded lists of offenses in the State Council Notice on Re-Issuing the Ministry of Public Security's Trial Methods for Implementation of Re-education Through Labor [Guowuyuan guanyu zhuanfa gonganbu zhiding de laodong jiaoyang shixing banfa de tongzhi], issued 21 January 82, art. 9; Regulations on the Handling of Re-education Through Labor Cases By Public Security [Gongan jiguan banli laojiao anjian guiding], issued 1 June 02, art. 9; PRC Public Order Administration Punishment Law, adopted 28 August 05. According to Chinese officials, 80 percent of RETL detainees are drug addicts. Chiang Hsun, "NPC To Replace 'Re-education Through Labor System,' Which Has Come Under Mounting Criticisms, with 'Illegal Conduct Correction System' In Order to Protect Human Rights," Asia Weekly, 8 May 05 (FBIS, 4 May 05).

40 Wu Yihuo, Hong Jun, "Too Few Administrative Law Enforcement Cases Transferred to Judicial Organs—Relevant Anhui Research Reveals Information: Three Major Factors Influence Effective Links Between Administrative Law Enforcement and Criminal Law Enforcement" [Xingzheng zhifa anjian yisong sifa jiguan taishao, anhui youguan yanjiuban touchu xinxi: san da yinsu yingxiang xingzheng zhifa yu xingshi zhifa youxiao xianjie], Procuratorate Daily (Online), 31 January 05.

41 Various analysts estimate that between 2 percent and 10 percent of RETL subjects are political detainees. Randall Peerenboom, "Out of the Frying Pan and Into the Fire," 98 Northwestern University Law Review 991, 1000–01 and accompanying notes (2004); Jim Yardley, "Issue in China: Many in Jails Without Trial," New York Times (Online), 9 May 05.

42 State Council Notice on Re-Issuing the Ministry of Public Security's Trial Methods for Implementation of Re-education Through Labor, art. 9; Regulations on the Handling of Re-education Through Labor Cases By Public Security, art. 9; PRC Public Order Administration Punishment Regulations [Zhonghua renmin gongheguo zhian guanli chufa tiaoli], issued 5 September 86, amended 12 May 94.

43 UNWGAD Report, 29 December 04, paras. 40, 41. Note that in August 2005, the NPC Standing Committee passed a "Public Order Administration Punishment Law" to replace the "Public Order Administration Punishment Regulations" mentioned in the UNWGAD Report. The new law is effective as of March 1, 2006, at which time the old regulations will be canceled. Public Order Administration Punishment Law, adopted 28 August 05.

44 Most sources place the number of RETL camps at around 300 and the number of detainees between 250,000 and 300,000. See, e.g., Peerenboom, "Out of the Frying Pan and Into the Fire," 1000–01 and accompanying notes (2004); Yardley, "Issue in China: Many in Jails Without Trial"; Can Siu-sin, "Critics Take Shine of Bootcamp Reforms," South China Morning Post, 21 March 05. However, a May 2005 article in Asia Weekly cites Beijing researchers as confirming that there are at least 1 million people in RETL camps. Chiang Hsun, "NPC To Replace Re-education Through Labor System."

45 Regulations on the Handling of Re-education Through Labor Cases By Public Security, art. 3; Chan Siu-sin, "Critics Take Shine of Bootcamp Reforms." In its December 2004 report, the UNWGAD found, "The operation of the laws governing decisionmaking on placement in a reeducation through labour camp is, however, highly problematic. From reliable sources, including interviews with persons affected, it is clear that in the overwhelming majority of cases, a decision on placement in a re-education center is not taken within a formal procedure provided by law. The commission vested with power to take this decision in practice never or seldom meets, the person affected does not appear before it and is not heard, no public and adversarial procedure is conducted, no formal and reasoned decision on placement is taken (or issued for the person affected). Thus, the decisionmaking process completely lacks transparency. In addition, recourse against decisions are [sic] often considered after the term in a center has been served." UNWGAD Report, para. 58.

46 Ibid., para. 56.

47 Ibid., para. 75.

48 Ibid., para. 51. Under Chinese law, penalties involving restrictions on personal freedom may only be established by law. PRC Legislation Law, adopted 15 March 00, art. 8.

49 Wu Kun, "A Powerful Weapon for Public Order Administration" [Shehui zhian guanli de you li falü wuqi], Legal Daily (Online), 1 September 05.

50 PRC Public Order Administration Law, arts. 5, 16. 79. See also, "Passage of the Public Order Administration Punishment Law, Focuses on Citizen Rights" [Zhian guanli chufafa tongguo, guanzhu gongmin quanli], Legal Daily, 29 August 05, available on People's Daily (Online), 29 August 05.

51 At the 2004 NPC session, more than 420 deputies reportedly signed a motion on reform of the RETL system. Chiang Hsun, "NPC To Replace Re-education Through Labor System."

52 Wang Yu, "China's Re-education Through Labor Management Will Enlarge Reform Efforts in Four Areas" [Wo guo laojiao guanli jiang zai si fangmian jiada gaige lidu], Legal Daily (Online), 1 December 04; Zhang Qingshui, "National Re-education Through Labor Work Conference Closes" [Quanguo laojiao gongzuo zuotanhui bimu], China Legal Publicity (Online), 2 December 04.

53 Chan Siu-sin, "Critics Take Shine of Bootcamp Reforms"; Liao Weihua, "Re-education Through Labor System Faces Reforms, Law on Correcting Unlawful Acts To Be Formulated" [Laojiaozhi mianlin gaige jiang zhiding weifa xingwei jiaozhifa], Beijing News, reprinted in Defense Lawyer Net, 2 March 05.

54 Liao Weihua, "Re-education Through Labor System Faces Reforms."

55 Chan Siu-sin, "Critics Take Shine of Bootcamp Reforms"; Yardley, "Issue in China: Many in Jails Without Trial"; Chiang Hsun, "NPC To Replace Re-education Through Labor System"; Tim Luard, "China's 'Reforming' Work Programme," BBC News (Online), 13 May 05.

56 Robin Munro, A Question of Criminal Madness: Judicial Psychiatry and Political Dissent in the People's Republic of China, September 2004 (doctoral thesis on file with the Commission).

57 Ibid., 13, 322–343; Commission Staff Interview.

58 UNWGAD Report, paras. 64, 66.

59 For a description of sometimes arbitrary and brutal treatment in these institutions, see Robin Munro, A Question of Criminal Madness.

60 Forced Drug Detoxification Measures [Qiangzhi jiedu banfa], issued 1 January 95, art. 5.

61 Regulations on the Handling of Re-education Through Labor Cases By Public Security, art. 9.

62 "Treatment Requires Psychological Support," China Daily, 25 June 05 (FBIS, 25 June 05).

63 Jiang Zhuqing , Jiao Xiaoyang, "Battles Won on Drugs, But War Rages On," China Daily, 27 May 05 (FBIS, 27 May 05). According to a Chinese source, 580,000 individuals had been "accepted" into RETL drug detention centers through the end of 2004. "A Total of 580,000 Accepted for Drug Detoxification, China's RETL Drug Detoxification Model Basically Complete" [Leiji shourong jieduzhe 58 wan, zhongguo laojiao jiedu moshi jiben chengxing], China News (Online),24 June 05.

64 Leu Siew Ying, "Addict Dies in Rehabilitation Center," South China Morning Post, 4 August05 (FBIS, 4 August 05); Leu Siew Ying, "Drug Rehabilitation Centre Inmates Sometimes Faced with Deadly Abuse," South China Morning Post (Online), 5 August 05.

65 Ibid.

66 Ibid. Key footage from a surveillance camera that had been installed to prevent abuses apparently is missing without explanation.

67 CECC, 2004 Annual Report, 5 October 04, 18.

68 Ibid.

69 Ibid.

70 Tu Chaohua, "For Urban Beautification, 7 Indigents Are Abandoned in the Wilderness" [Wei zhengdun shirong, 7 ming liulangren bei paosong huangye], China Youth Online, 7 June 05. According to the article, a January sweep of vagrants and mentally ill persons in Ganzhou city, Jiangxi province, left five people missing and presumed dead. Local officials have admitted that the roundup, which they referred to as custody and repatriation, was an "administrative mistake," but claim that they have disciplined the officials involved and closed the matter. According to a later report, one of the individuals was later found. Li Qing, Chen Xiuqi, "News Comes Out in the Chongyi Vagrant Abandonment, Secret Rule To Send Back and Forth Between Counties" [Chongyi paosong liulang qitao renyuan baolu neirong xian yu xian hu qian jingcheng qianguize], Legal Daily (Online), 15 June 05.

71 Ibid. In a subsequent commentary, a China Youth Online writer expressed concern about whether the aid system has been implemented and strongly criticized local Jiangxi officials over the incident. Yang Tao, "Civil Affairs Ministry Can't Abandon the Weak" [Minzhengbu bu neng paoqi ruozhe], China Youth Online, 9 June 05.

72 For just a few of the many Western reports on torture in China, see "Three Tibetans Jailed for Suspected Separatism," Radio Free Asia (Online), 23 October 04; "Falun Gong Practitioner Reunites with Husband After 3 years in China Labor Camp," Newsday (Online), reprinted in Lexis/Nexis, 30 September 04; Kate McGeown, "China's Christians Suffer for Their Faith," BBC News (Online), 9 November 04; "Tiananmen Protester Reports on Tortured Mao Portrait Protester," Agence France-Presse, 22 November 04 (FBIS, 22 November 04); Human Rights in China Press Release, "New Account Sheds Light on Degrading Conditions at Inner Mongolia's Chifeng Prison," 20 December 04; Human Rights Watch, "Country Summary—China," January2005; and Nora Boustany, "Rebiya Kadeer: After Horrors of Prison, Constant Kisses and Hugs," Washington Post (Online), 30 March 05.

73 See, e.g., "Suggestions for Enhancing the Rights of Lawyers" [Wei zhengjin lüshi quanli jianyan xiance], China Legal Publicity (Online), November 2004; "Return of 'Murdered Wife'Calls China's Judicial System in Question," People's Daily (Online); Lin Wei, "Can Audio and Videotaping Really Keep Torture Under Control? " Legal Daily (Online); Guo Hengzhong, "Coercing Confessions Through Torture Seriously Violates Human Rights, Perfecting the System Should Be a Matter of Vital Urgency" [Xingxun bigong yanzhong qinfan renquan, wanshanzhidu ying shi dangwuzhiji], Legal Daily (Online), 24 June 05.

74 See, e.g., "Sichuan Investigates and Prosecutes a Case Where Torture Led to Person's Death" [Sichuan chachu yiqi xingxun bigong zhiren siwangan], China Youth Online, 18 November 04; Zhou Wenying, Zou Shilai, "Jiangxi Fuzhou: Make Inquiries a Required Procedure in Examining Arrests" [Jiangxi Fuzhou: ba xunwen zuowei shencha daibu bijing chengxu], Procuratorate Daily (Online), 4 January 05; Liu Li, "Sixty Officials Charged with Dereliction of Duty, Abuse of Power," China Daily (Online), 26 January 05; "Detention Discipline Incites Detainees to Whip Convict for Six Hours, Leading to His Death" [Kanshousuo guanjiao zhizhi zai ya renyuan bianda fanren 6 xiaoshi zhi qi siwang], Boxun (Online), 8 February 05 (citing a Heilongjiang Daily story on the case); Wan Xingya, "Civil Servants Violating Human Rights" [Gongzhi renyuan qinfan renquan fanzui], China Youth Online, 27 July 05 (noting that between July 2004 and July 2005, procuratorates prosecuted 1,751 officials for human rights violations, including illegal detentions, torture, and other violations); " 'Nie Shubin Murder Case' Still Unresolved," Southern Weekend; "Murdered Wife Lives, Proves Husband's Innocence," China Daily (Online), 4 April 05; "14 Years of an Unjust Case of Wife Murder, 'Liaoning's She Xianglin' Li Huawei Obtains State Compensation," People's Daily; Lei Dao, "Why No Compensation After Eight Years of Unjust Imprisonment," Legal Daily; Fei Zhiyong, "Supreme People's Procuratorate Publishes Three Criminal Cases of Serious Infringements on Human Rights Involving Confessions Coerced Through Torture, etc." [Zuigaojian gongbu xingxun bigong deng 3 qi yanzhong qinfan renquan fanzuian], Procuratorate Daily (Online), 27 July 05.

75 See notes for the following paragraph for examples of these discussions.

76 See, e.g., Fu Kuanzhi, "Three Essential Elements That Must Be Put Forth to Put a Stop to Torture" [Dujue xingshi bigong xu jubei sange yaosu], Procuratorate Daily (Online), 11 August 04; Li Jinlin, "China Law Society Opens Research Forum on the Torture Problem"[Zhongguo faxuehui zhaokai xingxun bigong wenti yanjiu zuotanhui], Procuratorate Daily (Online), 30 January 05; "Return of 'Murdered Wife' Calls China's Judicial System in Question," People's Daily; Cheng Jishan, "Radical Policies to Eliminate the Extortion of Confessions Through Torture" [Xiaochu xingxun bigong de zhiben zhice], Legal Daily (Online), 13 April 05;"Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture," Legal Daily; Guo Hengzhong, "Coercing Confessions Through Torture Seriously Violates Human Rights, Perfecting the System Should Be a Matter of Vital Urgency"; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net.

77 Ibid. Under current Chinese law and judicial interpretations, judges have the discretion to exclude illegally obtained evidence, and such evidence may not form the basis for a judgment. However, they are not required to exclude such evidence. SPC Interpretation on Several Issues Regarding Implementation of the PRC Criminal Procedure Law [Zuigao renmin fayuan guanyu zhixing zhonghua renmin gongheguo xingshi susongfa ruogan wenti de jieshi], issued 29 June 98. One Procuratorate Daily article argues that illegally obtained evidence should not be excluded, provided the evidence can be verified. Fu Kuanzhi, "Three Essential Elements That Must Be Put Forth to Put a Stop to Torture."

78 For law enforcement emphasis on supervision, see e.g., "Return of 'Murdered Wife' Calls China's Judicial System in Question," People's Daily; "China Exclusive: All 3,000 Police Chiefs to Hold Face-to-Face Meetings With Petitioners," Xinhua, 18 May 05 (FBIS, 18 May 05); Jiang Hong, "Commentary: Use Vigorous Legal Supervision to Prevent Incorrect Cases"; and SPP rectification campaigns noted earlier in this section.

79 Cao Desheng, "Rights Infringements in Focus."

80 "Jiangxi Fuzhou: Make Inquiries a Required Procedure in Examining Arrests," Procuratorate Daily (Online). Prosecutors typically only review a paper file of cases when approving the formal arrest of criminal suspects.

81 "Supreme People's Procuratorate Confirms Emphasis of Investigative Supervision This Year" [Zuigaojian queding jinnian zhencha jiandu zhongdian], Legal Daily (Online), 17 May 05.

82 "China Exclusive: All 3,000 Police Chiefs to Hold Face-to-Face Meetings With Petitioners in 3 Months," Xinhua.

83 Bradley S. Klapper, "UN: China Allows First Probe on Torture," Associated Press, 23 August 05, reprinted in Washington Post (Online), 23 August 05.

84 "Confessions Extracted Through Torture May Not Be Used as Evidence: On May 1, Sichuan Province Experiments With 'Several Opinions Regarding the Standardization of Criminal Evidence Work' " [Bichulai de kougong bu neng zuowei zhengju, Sichuan sheng 5 yue 1 hao qi shixing "Guanyu xingshi zhengju gongzuo de ruogan yijian"], Procuratorate Daily (Online), 13April 05. Several Chinese legal scholars have expressed concern that the rule does not go far enough, and that external checks on abuse and better evidentiary standards are necessary. Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law" [Difang de xingshi zhengju guifan ruhe baozhang xingshi susongfa de zhixing],Legal Daily (Online), 22 April 05. In the first case under the new rules, a Chengdu court reportedly held a hearing on a defendant's complaint that police coerced his confession through torture and found that the allegation was unsubstantiated. Gu Ping, Li Zhen, "Is It Torture or Not? Police Go To Court to Present Evidence" [Shifou xingxun bigong, jingcha chuting zhizheng], Procuratorate Daily (Online), 6 June 05.

85 Scholars from the Procedural Research Center at the Chinese University of Politics and Law in Beijing designed the project and chose Haidian district, Beijing; Baiyin district, Gansu; and Jiaozhu city, Henan, as the three pilot districts. "When Suspects Are Interrogated, They May Request Audio or Videotaping" [Xianyiren shoushen ke shenqing luyin luxiang], Legal Daily (Online), 8 May 05. Under the program, suspects are reportedly informed of their rights and given the choice of having a lawyer present free of charge, having the interrogation audiotaped or videotaped, or proceeding without any of the above. "Beijing Haidian Police Experiment With Having Lawyers Present During Interrogation, Take Strict Precautions Against Torture" [Beijing haidian jingfang shixing lüshi pangting shenxun zhi, yanfang xingxun bigong],China East Day (Online), 20 May 05.

86 Liao Weihua, "Many Sides Promote the Ten-year Major Amendment of the Criminal Procedure Law, Consensus on Guarding Against Confessions Coerced Through Torture" [Duofang tuidong xingsufa shinian daxiu, fangfan xingxun bigong cheng gongshi], Beijing News (Online), 13 July 05.

87 Ibid.

88 Ibid.

89 For a discussion of corresponding amendments to the PRC Criminal Procedure Law that are under consideration, see Liao Weihua, "Many Sides Promote the Ten-year Major Amendment of the Criminal Procedure Law"; "China's 'Criminal Procedure Law' Will Again Undergo Large-Scale Amendment [Zhongguo "xingshi susongfa" jiang zaici jinxing daguimo xiuding], Procuratorate Daily (Online), 12 October 04; Li Yu, "Reforms for More Rights," Beijing Review (Online), 25 November 04. Several Chinese sources suggest that the Sichuan evidence experiment will accelerate the implementation of a similar rule at the national level. Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law"; "Lawyers at Interrogations Can Protect Suspect's Rights and Interests, Represents Rule of Law Progress" ["lüshi zai chang" ke baohu xianyiren quanyi, biaozhi fazhi jinbu], Beijing Times, available on ACLA Defense Lawyer Net, 23 May 05.

90 See, e.g., "Suggestions for Enhancing the Rights of Lawyers," China Legal Publicity (Online); Li Yu, "Reforms for More Rights"; Cheng Jishan, "Radical Measures to Policies Eliminate The Extortion of Confessions Through Torture"; Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law"; "China Needs Better Enforcement of Ban on Torture—Lawyers," Wall Street Journal (Online), 14 April 05; Guo Hengzhong, "Coercing Confessions Through Torture Seriously Violates Human Rights, Perfecting the System Should Be a Matter of Vital Urgency"; Wang Changfeng, "Assistance of Lawyers From the First Moment" [Di yi shijian hou de lüshi bangzhu], Legal Daily (Online), 2 June 05.

91 Liao Weihua, "Many Sides Promote the Ten-year Major Amendment of the Criminal Procedure Law."

92 PRC Criminal Procedure Law, arts. 33, 34; Regulations on Legal Aid, issued 16 July 03, art. 12.

93 PRC Criminal Procedure Law, art. 34; Regulations on Legal Aid, chapter 2.

94 State Council Information Office, "China's Human Rights Progress in 2004," April 2005(FBIS, 13 April 05).

95 Chinese sources generally cite a figure of 30 percent for defense representation. See, e.g., "Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture," Legal Daily; Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication' " [lüshi huyu: quxiao "lüshi weizhengzui"], Legal Daily (Online), 1 June 05; Wang Changfeng, "Assistance of Lawyers From the First Moment"; Wang Yu, Yu Nayang, "Lawyers: We Are Fighting For Our Own Rights" [lüshi: Women bu shi zai wei ziji zheng quanli], Legal Daily (Online), 16 June 05. However, one source cites figures as low as a 20 percent. Liao Weihua, "Lawyers Right to Be Present Should Be Guaranteed in Amendments" [lüshi zaichangquan ying xiufa quebao], Beijing News (Online), 17 May 05. According to one Western researcher, Chinese counterparts privately suggest that the official 30 percent figure for defense representation is too high. Commission Staff Interview.

96 Ibid.

97 PRC Criminal Procedure Law, art. 96.

98 Commission Staff Interview; UNWGAD Report, para. 36; "Lawyers Law Prepared for Changes" [lüshifa yunniang bianlian], Beijing News (Online), 16 May 05; Wang Changfeng, "Assistance of Lawyers From the First Moment"; Hu Cong, "Tighter Rein on Law Enforcement Demanded."

99 Commission Staff Interview. The public security authorities reportedly argued that such meetings were "inappropriate" or "inconsistent with Chinese law."

100 Tan Weiping, "Beijing: More Than 80 percent of Criminal Defendants Don't See a Lawyer Within 48 Hours" [Beijing: guo 8 cheng xianfan 48 xiaoshi nei jianbudao lüshi], Beijing Youth Daily, reprinted in ACLA Defense Lawyer Web site, 31 May 05. Another survey reportedly revealed that only 4.6 percent of suspects were able to meet with their lawyers within the first three days of detention. Wang Changfeng, "Assistance of Lawyers From the First Moment."

101 Tan Weiping, "Beijing: More Than 80 percent of Criminal Defendants Don't See a Lawyer Within 48 Hours."

102 Commission Staff Interview.

103 Law in Political Transitions, Written Statement submitted by Jerome A. Cohen. Under Article 36 of the CPL, the defense may not examine and duplicate official materials related to the case until after the case is transferred to the procuratorate for prosecution.

104 Commission Staff Interview. See also, e.g., UNWGAD Report, para. 35; "Lawyers Law Prepared for Changes," Beijing News; "Suggestions for Enhancing the Rights of Lawyers," China Legal Publicity; Wu Nanlan, "Groups Call for Lawyers' Right to Investigate," China.org, 23 May05 (FBIS, 24 May 05).

105 PRC Criminal Procedure Law, art. 37.

106 Li Weihua, "Deep Analysis of 'Today's Court Hearings Have No Witnesses' " ["Jinri tingshen wu zhengren" de shenceng pouxi], Democracy and Law, No. 4 (2005), reprinted in Guangming Net (Online), 3 April 05; Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law"; Ji Xiangde, "Commentary: Let Witnesses Come to Court and Testify, Most Needed Are Systemic Guarantees," Procuratorate Daily (Online), 7 December 04 (noting that only 5 percent of witnesses appear at criminal trials, and citing the shocking example of Nanning, Guangxi province, where the rates of witness attendance at criminal trials were 0.33 percent, 0.7 percent, and 1.27 percent for the years 2000, 2001, and2002, respectively).

107 According to the report, police have even tortured witnesses in some cases. Li Weihua, "Deep Analysis of 'Today's Court Hearings Have No Witnesses.' "

108 Under the CPL, "the testimony of a witness may be used as the basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides." PRC Criminal Procedure Law, art. 47.

109 Wan Xingya, "Requirement That Witnesses Appear in Court to Testify Will Be Written into the New Criminal Procedure Law" [Zhengren yao chuting zuozheng jiang xiejin xin xingshi susongfa], China Youth Daily, reprinted in Defense Lawyer Net, 8 August 05.

110 Guo had represented journalists, Falun Gong practitioners, and imprisoned attorney Zheng Enchong. The Shanghai Justice Bureau reportedly accused Guo of "on several occasions adopting positions and making statements contrary to the law and the Constitution" and "defiling and slandering" the Communist Party and government. Reporters Without Borders Press Release, "Lawyer for Several Journalists and Cyberdissidents Banned From Practising for One Year," 4 March 05; Bill Savadove, " 'Accidental Activist' Under House Arrest," South China Morning Post, 16 March 05 (FBIS, 16 March 05).

111 Jian Fa, "Independence Called for Lawyers," Beijing Review, October 2004; UNWGAD Report, para. 37; Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication."'

112 Wang Ying, "The Irregular Publication of a Criminal Defense Lawyer Work Environment Survey Report" [Xingbian lüshi zhiye zhuangkuang diaocha baogao de fei zhengchang gongbu], 21st Century Business Herald (Online), 11 August 04. According to the Legal Daily, of 23 cases of lawyer evidence fabrication that have actually gone to trial, the lawyer was found innocent or the case was withdrawn in 11 cases; the lawyer was found guilty in 6 cases; the lawyer avoided criminal punishment in 1 case; and 5 cases have not yet been concluded. Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication.' "

113 Jian Fa, "Independence Called for Lawyers."

114 Although there was domestic discussion of removing Article 306 from the Criminal Code last year, there has been no news of further steps to repeal the controversial provision. During a recent NPCSC inquiry, lawyers renewed their calls for repeal of Article 306. Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication.' " For a compilation of more than 27 cases involving lawyer detentions, see Stacy Mosher, "In Custody, Lawyers in Detention," China Rights Forum, No. 2, 2005, 100–5.

115 Wang Ying, "The Irregular Publication of a Criminal Defense Lawyers Work Environment Survey Report." According to the article, the initial results are said to have "shocked people," with one observer noting that the problems were worse than they thought possible. In response, the Beijing Justice Bureau reportedly blocked publication of the initial survey results and refused applications to continue the research program in 2003 and 2004.

116 "Lawyers Law Prepared for Changes," Beijing News; " 'Nie Shubin Murder Case' Still Unresolved," Southern Weekend; "What It Means to Be a Lawyer: A Special Interview With Zhang Sizhi" [Zuo yige lüshi gai zuo de shiqing: zhuanfang Zhang Sizhi], Southern Window, reprinted in Sina.com, 15 October 04.

117 Yan Yongwei, "Liaoning Establishes Provisions Requiring Case Handling Organs to Guarantee Arrangements for Lawyer Meetings Within 48 Hours" [Liaoning chutai guiding yaoqiubanan jiguan baozhang lüshi huijian 48 xiaoshi nei anpai], Legal Daily (Online) 16 November 04; "When Suspects Are Interrogated, They May Request Audio or Videotaping," Legal Daily.

118 Prosecutors approved the arrest of 811,102 suspects and refused to approve the arrest of 67,904 suspects in 2004. Suspects thus had a 7.7 percent chance that prosecutors would reject public security applications for a formal arrest in 2004. Prosecutors decided to indict 867,186 suspects and refused to indict 21,554 suspects in 2004. Once prosecutors approved an arrest, therefore, suspects had only a 2.4 percent chance that prosecutors would decide not to proceed to trial. SPP Work Report, 9 March 05. By contrast, criminal courts of first instance convicted defendants in 99 percent of cases. See infra, Fairness of Criminal Trials and Appeals.

119 "Suggestions for Enhancing the Rights of Lawyers" China Legal Publicity. See also Wang Yu, Yu Nayang, "Lawyers: We Are Fighting For Our Own Rights"; Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication.' "

120 "Lawyers Law Prepared for Changes," Beijing News; "China's 'Criminal Procedure Law' Will Again Undergo Large-Scale Amendment," Procuratorate Daily.

121 Criminal courts of first instance completed the trials of 770,947 defendants in 2004 and found only 2,996 defendants (0.4 percent) not guilty. An additional 12,345, or 1.6 percent, of defendants "avoided criminal punishment." SPC Work Report, 8 March 05. Some Chinese commentators questioned whether high convictions rates should be viewed as a sign of law enforcement effectiveness. Wang Songmiao, "Commentary: Looking at 100 percent Conviction Rates Discriminately" [Pinglun: bianzheng kandai 100 percent de youzui juelü ], Procuratorate Daily(Online), 25 May 05.

122 Criminal courts heard 644,248 first instance criminal cases in 2004 and completed appeals in 96,204 criminal cases. SPC Work Report, 8 March 05. "2004 Situation of the Adjudication of Second Instance Cases in the Nation's Courts" [2004 quanguo shenli gelei ershen anjianqingkuang], China Court Web site, 4 October 05.

123 Appeals courts changed the original judgment in 12,730, or 13.2 percent, of all cases heard on appeal. In addition, courts changed judgments in 1,371 criminal cases that were given an additional rehearing under court adjudication supervision procedures. In total, appeals courts canceled 2.1 percent of the first instance verdicts in the 644,248 total criminal cases adjudicated in 2004. SPC Work Report, 8 March 05. In China, prosecutors may appeal a "not guilty" verdict, but given the conviction rate of more than 99 percent in first instance cases, it is assumed that almost all of the 96,204 cases heard on appeal involved guilty verdicts at the trial level. In addition to changing the verdict in 12,730 cases, appeals courts sent 6,198 cases back to trial courts for retrial.

124 In at least one prior year in which a similar number of cases were "changed" or sent back for retrial, court statistics indicate that the total conviction rate in all cases, including appeals and rehearings, was over 99 percent. 2002 China Law Yearbook [2002 Zhongguo falü nianjian], (Beijing: Legal Press, 2003), 144, 1240. This suggests that few verdicts are "changed" to not guilty and that few defendants are exonerated after retrials. As discussed later in this section, recent Chinese media accounts also suggest that trial courts commonly reconvict defendants on retrial.

125 PRC Criminal Procedure Law, arts. 182, 203–7.

126 Under Chinese law, procuratorates may be required to pay criminal compensation for wrongful arrest and prosecution if defendants are found not guilty. PRC State Compensation Law, enacted 12 May 1994, art. 15.

127 PRC Criminal Procedure Law, arts. 203–4. A court has the discretion to decide whether an adjudication supervision petition from a defendant meets the legal requirements for a retrial. In contrast, Article 205 requires a retrial when a people's procuratorate requests adjudication supervision.

128 Ge Lin, "Why a Not Guilty Verdict is a Rarity of Rarities."

129 See, e.g., Liu Binglu, "Misuse of Retrials Is a Major Reason for Unjust Cases" [Lanyong fahui chongshen shi zhi yuanan zhuyin], Beijing News (Online), 4 April 05; Che Hao, "Looking at 'Repeat Prosecutions' in the Criminal Process as 'Judicial Marathons' " [Cong 'sifa malasong' kan xingsuzhong de 'chongfu zhuisu'], 21st Century Business Herald (Online), 6 December 04; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net; Ge Lin, "Why a Not Guilty Verdict is a Rarity of Rarities."

130 Liu Binglu, "Misuse of Retrials Is a Major Reason for Unjust Cases"; "Don't Allow the Wings of Justice To Break: Using Unjust Cases to Look at Confessions Extorted Through Torture," Legal Daily; Veron Mei-Ying Hung, "Judicial Reform in China: Lessons from Shanghai," Carnegie Endowment for International Peace, No. 58 (April 2005), 17.

131 For examples of such cases, see Tang Weibin, "Hebei She Xianglin 'Wife Murder' Case: One Unjust Case, Three Points to Rethink" [Hebei She Xianglin "shaqi" an: yi qi yuanan, san dianfansi], People's Daily (Online), 8 April 05. For other examples, see "Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture" Legal Daily; "Why Aren't Eight Years of Unjust Imprisonment Being Compensated? " Legal Daily; Wang Ying, "The Irregular Publication of a Criminal Defense Lawyer Work Environment Survey Report"; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net; "Analyzing the Xu Jingxiang Unjust Case," China Youth Online.

132 See, e.g., Liu Binglu, "Misuse of Retrials Is a Major Reason for Unjust Cases"; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net.

133 Tian Yu, "Court Reforms in 2005: People's Assessors Begin Work May 5" [2005 nian fayuan gaige: renmin peishenyuan 'wuyi' shanggang], People's Court Net (Online), 14 February 05.

134 " 'Nie Shubin Murder Case' Still Unresolved," Southern Weekend (quoting the judge in the original case as stating, "Now, I can't say whether this case was correct or not. It's determined by what the leaders say. Whatever the leaders say is what I decide."); Commission Staff Interview.

135 Tang Weibin, Li Changzheng, "How Do Unjust Cases Come About? Following the Trail of Hubei's She Xianglin 'Wife Murder' Case"; Wang Yijun, Yang Siyuan, "Xu Jingxiang, From A Sentence of 16 Years to Innocence and Liberation," [Xu Jingxiang: cong panxing 16 nian dao wuzui jiefang], China Youth Online, 10 May 05; "14 Years of An Unjust Case of Wife Murder, 'Liaoning's She Xianglin' Li Huawei Obtains State Compensation," People's Daily; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved, "Criminal Defense Net. For a recent discussion of Party interference based on a detailed study of courts in Shanghai, see Hung, "Judicial Reform in China: Lessons from Shanghai," 17.

136 "China Hints at Death Penalty Reform," China Daily, 10 March 05 (FBIS, 10 March 05).

137 For an explicit reference to the "execute fewer, execute cautiously" policy by a public security official, see Yang Zhongmin, "Substitute Death Sentences That Are Immediately Executed With Suspended Sentences" [Yi 'sihuan' tidai 'sixing liji zhixing'], Southern Weekend (Online), 17 March 05. According to one Chinese source, the number of death sentences in China has dropped every year since 1997 except in 2001, the year China launched a new "strike hard" campaign, and the number of death sentences in 2004 was a little more than half the highest yearly total recorded previously. "SPC Draws Up Draft to Take Back Death Penalty Review Power, Cautiously Using the Death Penalty is in Accord With the Spirit of the Law" [Gaofa si shouhui sixing fuhequan, shenyong sixing fuhe lifa jingshen], People's Daily (Online), 18 November 04.

138 "PRC Foreign Ministry Spokesman Defends Keeping PRC Execution Statistics Secret," Agence France-Presse, 5 February 04 (FBIS, 5 February 04).

139 Domestic sources that hint at the annual number of executions conflict. In March 2004, an NPC delegate suggested that Chinese courts issue death sentences for immediate execution in "nearly 10,000 cases per year." "41 Representatives Jointly Sign Proposal for the Supreme People's Court to Take Back the Power of Death Penalty Approval" [41 daibiao lianming jianyi, zuigao renmin fayuan shouhui sixing hezhun quan], People's Daily (Online), 10 March 04. A recent Chinese report indicated that provincial high people's courts review nearly 90 percent of all death sentences, which means that about 10 percent of such reviews are conducted by the SPC. "Conference on Ways for the Supreme People's Court to Take Back the Power of Death Penalty Review Opens" ["Zuigao renmin fayuan shouhui sixing fuhequan zhi duici" yantaohui zhaokai], Defense Lawyer Net, 1 June 05. According to the 2004 Supreme People's Court Work Report, the SPC reviewed 300 death sentences in 2003. SPC Work Report, 9 March 04. Taken together, these figures suggest that China issues about 3,000 death sentences annually.

140 For the debate over the death penalty, see, e.g., "Special Program: Should the Death Penalty Continue or Be Abolished? Experts, Netizen Views Collide" [Tebie cehua: sixing shi cun shifei? Zhuanjia, wangyou guandian pengzhuang], People's Daily (Online), 20 January 05; "Opinions Differ: Debate Over Death Penalty Reform Followed With Interest" [Yijian buyi, sixinggaige lunzhen ling ren guanzhu], China News Weekly, reprinted in Southern Weekend (Online), 31 January 05; Hu Cong, "Court Gets Back Power of Death Reviews," China Daily, 14 March05 (FBIS, 14 March 05); "Legal Redemption for Erroneous Death Sentences" [Sixing wupan de falü jiushu], Modern Bulletin (Online), 16 March 05; "Experts Recommend That Death Penalty Reviews Establish Hearing Phase to Avoid Judicial Corruption" [Zhuanjia jianyi sixing fuhe she tingzheng huanjie bimian sifa fubai], Beijing Youth Daily, reprinted in People's Daily (Online), 28 March 04.

141 Ibid.

142 Yang Tao, "In Abolishing or Retaining the Death Penalty, We Can't Ignore Public Opinion" [Sixing cunfei buke hushi minyi], China Youth Online, 26 January 05; "Eliminating the Death Penalty Means Weakening the Cost of Retribution for Wrongdoing" [Feichu sixing yiwei zhe xueruo zuifan wei zuinie suo fuchu de daijia], Beijing News, reprinted in Peoples Net (Online), 6 February 05; "Who Will Benefit From Reducing Capital Punishment," Beijing Review (Online), 16 February 05.

143 "Eliminating the Death Penalty Means Weakening the Cost of Retribution for Wrongdoing," Beijing News; "China Hints at Death Penalty Reform," China Daily; "Backgrounder: Death Penalty in China," Xinhua, 14 March 05 (FBIS, 14 March 05); "China Not to Abolish Death Penalty: Premier," Xinhua, 14 March 05 (FBIS, 14 March 05); "Supreme People's Court Demands Strict Grasp of 'Death Penalty' " [Zuigaofa yaoqiu yange bahao "sixing" guan], People's Daily (Online), 20 July 05.

144 "Who Will Benefit From Reducing Capital Punishment? " Beijing Review; Hu Cong, "Court Gets Back Power of Death Reviews"; Yang Zhongmin, "Substitute Death Sentences That Are Immediately Executed With Suspended Sentences" [Yi "sihuan" tidai "sixing" liji zhixing], Southern Weekend (Online), 17 March 05.

145 See e.g., "Central Government To Take Back Power to Review Death Sentences Next Year," Chengdu Daily (Online), 13 August 05. While the CPL requires the SPC to review all death sentences, the SPC has delegated this power in cases involving rape, murder, and certain other crimes to provincial high courts. Chinese experts have long argued that this system is both unlawful and problematic, since high courts serve as both courts of second instance and reviewing courts. For a more detailed discussion of expert objections to high court review of death sentences, see CECC, 2004 Annual Report, 24 and accompanying notes.

146 "Change of Review on Death Penalty Vital," China Daily, 4 March 05 (FBIS, 4 March 05);"Next Year, Hopefully a Special Death Penalty Review Tribunal Will be Established" [Mingnian youwang zhuanshe sixing fuheting], Beijing News (Online), 3 March 05; "SPC May Establish Review Division in Beijing to Take Back the Power of Death Penalty Review" [Zuigaofa keneng zai Beijing shi fuchating shouhui sixing fuhequan], Beijing News (Online), 14 April 05.

147 "Central Government To Take Back Power to Review Death Sentences Next Year," Chengdu Daily; Supreme People's Court Will Add Three Criminal Tribunals to Cope With Reclaiming the Death Penalty Review Power" [Zuigao renmin fayuan jiang zengshe 3 ge xingting yingdui sixing fuhequan shouhui], China Youth Daily (Online), 27 September 05.

148 Guo Guangdong, " 'Provincial Level' Rights to Review Death Sentences Should Be Given an 'Abrupt Death' " ["Shengji" sixing hezhuquan ying yu "turang siwang"], Southern Weekend (Online), 14 October 04; Zhao Ling, " 'Nie Shubin Wrongful Murder Case' Unresolved." For open hearings, see, e.g., Zhou Baofeng, "Is Returning the Power of Death Penalty Review to the Supreme Court Enough? "[Sixing hezhunquan huigui zuigao fayuan jiu gou le ma?], Southern Weekend (Online), 28 October 04; "Experts Recommend That Death Penalty Review Establish Hearings Phase to Avoid Judicial Corruption," Beijing Youth Daily. Under the current system, the court reviewing the death sentence typically only reviews a paper file of the case.

149 "Opinions Differ: Debate Over Death Penalty Reform Followed With Interest," China News Weekly.

150 "Guangzhou Hospital Expands the Use of Prisoners' Organs for Transplant Operations," Laogai Research Foundation (Online), 31 March 05; "The Harvesting of Executed Prisoners' Organs: Behind the First Mafia Case in Central China," Laogai Research Foundation Web site, 17 May 05.

151 Guo Hengzhong, "Experts Appeal for Quick Legislation on Human Organ Transplants" [Zhuanjia huyu jinkuai jiu renti qiguan yizhi lifa], Legal Daily (Online), 3 June 05; Li Qing, Huang Hui, "Why It Is Difficult For Condemned Prisoners to Donate Organs If They Wish" [Sixingfan juan qiguan wehe nanruyuan], Legal Daily (Online), 31 May 05; "Two Condemned Prisoners Vie With Each Other to Donate Their Kidneys to a Poor Student" [Liangming sixingfan zhengxiang wei yi pinkun xuezi juanxian shenzang], China Youth Online, 20 April 05.

152 Guo Hengzhong, "Experts Appeal for Quick Legislation on Human Organ Transplants."

153 "Trading of Human Organs Prohibited," Xinhua (Online), 5 June 05.

154 See, e.g., Xu Lai, "My Country Has Already Established 2,400 Juvenile Tribunals, Is Presently Looking at Establishing Juvenile Courts" [Wo guo yi jianli shaonian fating 2400 yu ge, zhengzai yunniang chengli shaonian fayuan], China Legal Publicity (Online), 2 November 04; "Strengthen Juvenile Crime Research, Protect the Healthy Maturation of Juveniles" [Jiaqiangqingshaonian fanzui yanjiu, baohu qingshaonian jiankang chengzhang], Legal Daily (Online), 18 October 04.

155 "Prisoner Escape Rate Down 96.7 Percent in Decade in China," Xinhua, 9 December 04 (FBIS, 9 December 04); "Ministry of Justices Opens Second Work Conference on the Expansion of Prison System Reforms" [Sifabu zhaokai di er ci jianyu tizhi gaige kuoda shidian gongzuo huiyi], China Legal Publicity (Online), 24 January 05.

156 "Urgent: Chinese Top Legislature Passes Decision on Expert Witness Management," Xinhua, 28 February 05 (FBIS, 28 February 05).

157 "Procuratorial Organs Ferret Out Illegal Sentence Reductions, Parole, and Medical Releases Involving More Than 17,000," CCTV International, reprinted in People's Daily (Online),29 October 04.

158 Qin Ping, " 'Major Amendment' or 'Minor Adjustment' to the State Compensation Law"[Guojian peichangfa shi "daxiu" haishi "xiaobu"], Legal Daily (Online), 29 July 05; Cui Li, "Lawyer's Law Amendments Near Completion" [lüshifa xiugai jin weisheng], China Youth Daily, reprinted in Defense Lawyer Net, 18 May 05; Liao Weihua, "Court Set Up Hopefully to Be Separated From Administrative Regions" [Fayuan shezhi youwang yu xingzhengqu huafenli], Beijing News (Online), 29 November 04.

159 Regulations on the Implementation of People's Supervisor System (Trial Implementation) [Guanyu shixing renmin jianduyuan zhidu de guiding (shixing)], issued 2 September 03, amended 7 July 04.

160 SPP Work Report, 9 March 05.

161 Directive on the Perfection of the People's Assessor System [Guanyu wanshan renmin peishenyuan zhidu de jueding], issued 28 August 04.

162 Ibid. According to the Directive, judges must form a panel with people's assessors for all criminal, civil, and administrative cases with considerable social repercussions or cases where litigants request the presence of the people's assessors. In other cases, parties may apply for people's assessors to serve. It is unclear whether courts have the discretion to deny such applications.

163 Li Xiao, "27,000 People's Assessors to Begin Work 'May 1' " [Zhunbei gongcuo jiuxu 2.7 wan ming peishenyuan "wuyi" shanggang], Fuzhou Daily, 3 March 05.

164 For Chinese attention to the need for international cooperation generally, see e.g., "Chinese Top Legislator Calls for Int'l Efforts to Curb Organized Crime," Xinhua, 13 September 04 (FBIS, 13 September 04); Li Weiwei, "Four Major Trends in the Trafficking in Women and Children, Public Security Organs Face Three Challenges" [Guaimai funü ertong chengxian 4 da dongxiang, gongan jiguan mianlin 3 ge tiaozhan], Xinhua, reprinted in Procuratorate Daily (Online), 15 February 05. For expanded cooperation with US law enforcement agencies, see Matt Pottinger, "US and China Bridge Divisions to Fight Crime," Wall Street Journal, 3 March 05, A11.

165 Commission Staff Interviews. For news reports on some of these programs, see, e.g., Jiang Anjie, Zhao Yang, "17th International Penal Law Conference Opens in Beijing" [Di shiqi jie guoji xingfaxue dahui zai jing zhaokai], Legal Daily (Online), 13 September 04; "US-China 'Criminal Defense Lawyer Training' Opens in Guangzhou" [Zhongmei "xingshi bianhu lüshi peixun guanmohui" zai Guangzhou zhaokai], People's Daily (Online), 1 November 04; Liu Li, "All Rise: China Beijing Gets Taste of US Courtroom," China Daily (Online) 13 May 05; "World Legal Professionals Gather for Beijing Conference," Xinhua (Online), 5 September 05. Some Western NGOs reported obstacles with implementing criminal justice and other legal programs beginning in early 2005. Commission Staff Interviews and Correspondence.

166 Commission Staff Interviews and Correspondence.

167 Bradley S. Klapper, "UN: China Allows First Probe on Torture."

168 "The ICRC in China," International Committee for the Red Cross Web site, 20 July 05.

169 "China and UN Rights Office Agree on Cooperation To Help Country Implement, Ratify Rights Covenants," United Nations Press Release, 31 August 05.

170 The cooperation program outlined in the Memorandum reportedly includes the projects to assist China find alternative measures to imprisonment; help the country revise its Criminal Procedure Law, its Lawyers Law, and any other related laws and regulations, facilitate capacity building of civil society, and incorporate human rights education into school and public service curricula. Ibid.

171 As the UN High Commissioner arrived in China, authorities detained writer Liu Xiaobo, Internet dissident Liu Di, and political theorist Zhang Zuhua, and raided the office of the Empowerment and Rights Institute, a human rights advisory group. "HRIC Statement on UN High Commissioner for Human Rights Visit to China," Human Rights in China Press Release, 31 August 05. According to other reports, police also detained and beat AIDS activist Hu Jia. "Chinese Police Beat Up AIDS Activist During UN Rights Visit," Radio Free Asia (Online), 31 August 05.

172 China made these commitments in negotiations with the United States. A Global Review of Human Rights: Examining the State Department's 2004 Annual Report, Hearing of the Subcommittee on Africa, Global Human Rights, and International Operations of the House Committee on International Relations, 17 March 05, Oral Statement of Michael Kozak.

Notes to Section III(b)—Rights of Criminal Suspects and Defendants

1 "Xiao Yang: People's Courts Must Maintain the Strike-Hard Principle Over the Long Term," [Xiao Yang: Renmin fayuan bixu changqi jianchi yanda fangzhen], Xinhua (Online), 16 December 04; "Senior Party Official: China to Regularize Crackdown Campaign Against Crimes," Xinhua, 6 March 05 (FBIS, 6 March 05).

2 Wang Lin, "The Right Time for Replacing 'Yanda' with 'Prevent and Control,' 'Policing Revolution' Requires Lasting Effort" ['Fangkong' tidai 'yanda' zhengdangshi, 'jingwu geming' xu chijiu nuli], Southern Weekend (Online), 23 June 05; "Public Order Can't Rely Merely on Campaigns" [Zhi an bu neng guangkao gao yundong], Southern Metropolitan Daily (Online), 1 February 05; Du Yonghao, "Strike Hard Should Embody the Spirit of Rule of Law" [Yanda geng ying tixian fazhi jingshen], People's Daily (Online), 25 August 03.

3 "Crime Crackdown Must Observe Justice Principles," China Daily (Online), 18 December 04.

4 See, e.g., "Liaoning Strikes Hard at Six Kinds of Corruption in the Political-Legal Team" [Liaoning yanda zhengfa duiwu liu da fubai], Legal Daily (Online), 12 May 05; "50,000 Cases Broken in Guangdong's Hundred Days of Strike Hard" [Guangdong bairi yanda po wuwan xingan], Southern Metropolitan Daily (Online), 10 November 04; "Ministry of Public Security Requires Strike Hard Against Three Types of Criminal Activity—Criminal Organizations, Etc." [Gonganbu yaoqiu yanda hei e shili deng san lei fanzui huodong], Ministry of Public Security (Online), 5 November 04; "China to Launch 'People's War' on Drugs," People's Daily (Online), 5 April 05.

5 "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004" [Gonganbu tongbao 2004 nian quanguo gongan jiguan daji xingshi fanzui weihu shehui zhian qingkuang], Ministry of Public Security Web site, 5 February 05; Supreme People's Procuratorate Work Report [Zuigao renmin jianchayuan gongzuo baogao], 9 March 05.

6 Supreme People's Court Work Report [Zuigao renmin fayuan gongzuo baogao], 8 March 05.

7 "Juvenile Crime Up 19.1 Percent Nationally in 2004, China Prepares to Establish Juvenile Courts" [2004 nian quanguo wei chengnian ren fanzui shangsheng 19.1 percent, wo guo yunniang jianli shaonian fayuan], Southern Metropolitan Daily (Online), 14 March 05. A separate article indicates that juvenile crime as a percentage of total crime increased each year between 2000 and 2003: 2000 (11.8 percent of all crimes), 2001 (12 percent), 2002 (13.9 percent),and 2003 (18.9 percent). Zhou Kai, "Prevent Juvenile Crime Without Delay" [Yufang weichengnianren fanzui liburonghuan], China Youth (Online), 11 March 05.

8 For selected positive statistics, see "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004"[Gongan bu tongbao 2004 nian quanguo gongan jiguan daji xingshi fanzui weihu shehui zhian qingkuang], Ministry of Public Security Web site; "Ministry of Public Security Publicizes National Public Order Situation" [Gonganbu tongbao quanguo zhian qingkuang], Xinhua (Online), 27 April 05. For sources suggesting a growing crime problem, see, e.g., SPP Work Report, 9March 05; Yuan Zhengbing, Cui Zuojun, Liu Jinlin, "To Prevent Unjust Cases, Firmly Grasp the Relationship With Arresting Personnel—This Paper's Reporter Conducts a Special Interview with Supreme People's Procuratorate Vice President Zhu Xiaoqing" [Fangzhi yuan cuoan yao ba buren guan—benbao jizhe zhuanfang zuigao renmin jianchayuan fu jianchazhang Zhu Xiaoqing], Procuratorate Daily (Online), 16 May 05; "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004," Ministry of Public Security Web site; "National Statistics Bureau: Crime in China Clearly Has the Largest Effect on Public Sense of Security" [Guojia tongjiju: wo guo xingshifanzui yiran zui yingxiang qunzhong anquangan], China Youth, reprinted in Xinhua (Online), 7 February 05.

9 For two of the many detailed Chinese accounts of the Nie and She cases, see " 'Nie Shubin Murder Case' Still Unresolved" ['Nie Shubin yuan sha an' xuaner weijue], Southern Weekend(Online), 24 March 05; and Gu Yunyong, "The Unjust Case of She Xianglin Murdering His Wife: the Price of Efforts to Seek Redress and Innocence on a Common Chinese Peasant Household" [She Xianglin sha qi yuanan: yige putong zhongguo nongmin jiating de shenyuan zhilu yu qingbai daijia], Southern Metropolitan Daily (Online), 5 April 05. In April 2005, a Hubei court formally exonerated Mr. She.

10 For two of the numerous examples of such stories, see "14 Years of an Unjust Case of Wife Murder, 'Liaoning's She Xianglin' Li Huawei Obtains State Compensation" [14 nian sha qi yuanan 'Liaoning She Xianglin' Li Huawei huo guojia peichang], People's Daily (Online), 15April 05; Lei Dao, "Why No Compensation After Eight Years of Unjust Imprisonment" [Ba nian yuanyu weihe bu peichang], Legal Daily (Online), 17 April 05.

11 Li Na, "Unjust Case of Wife Murder Causes China's Judicial Realm to Rethink Protection of Human Rights" ["Sha qi" yuanan yinfa zhongguo sifa lingyu renquan baohu fansi], Xinhua, reprinted in People's Daily (Online), 6 April 05. For an English-language version of the article, see "Return of 'Murdered Wife' Calls China's Justice System Into Question," People's Daily (Online), 5 April 05.

12 See, e.g., "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved" [lüshi yanzhong de "Nie," "She" liangan: fansi cai neng dailai sifa tizhi de gaishan], Criminal Defense Net (Online), 13 April 05; "Legal Redemption for Erroneous Death Sentences" [Sixing wupan de falü jiushu], Modern Bulletin (Online), 16 March 05; Tang Weibin, Li Changzheng, "How Do Unjust Cases Come About? Following the Trail of Hubei's She Xianglin 'Wife Murder' Case" [Yuanan shi zenme zaocheng de? Hubei She Xianglin "sha qi" an zhuizong], Procuratorate Daily (Online), 8 April 05; "Analyzing the Xu Jingxiang Unjust Case"[Xu Jingxiang yuanan pouxi], China Youth Online, 10 May 05; "Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture, [Bie rangzhengyi zheduan le chibang: cong mianan kan xingxun bigong], Legal Daily (Online), 22 April 05; "Return of 'Murdered Wife' Calls China's Judicial System in Question," People's Daily (Online); "Behave Prosecutors to Protect Innocent," China Daily, 28 May 05 (FBIS, 28 May 05); Lin Wei, "Can Audio and Videotaping Really Keep Torture Under Control? " [Luyin luxiang zhenneng guanzhu xingxun bigong?], Legal Daily (Online), 7 June 05; Ge Lin, "Why a Not Guilty Verdict Is a Rarity of Rarities" [Wuzui panjue weihe fengmaolinjiao], Southern Weekend (Online), 16 June 05; Jiang Hong, "Commentary: Use Vigorous Legal Supervision to Prevent Unjust Cases" [Shelun: yong qiang you li de falü jiandu fangzhi cuoan], Justice Net (Online), 26 April05; Yuan Zhengbing, Cui Zuojun, Liu Jinlin, "To Prevent Unjust Cases, Firmly Grasp the Relation with Arresting Personnel," Procuratorate Daily (Online). For an useful collection of translations and English-language briefings on some of the topics addressed in these articles, see Human Rights in China, China Rights Forum: Law and Justice, No. 2, 2005.

13 "Legal Redemption for Erroneous Death Sentences," Modern Bulletin.

14 "Return of 'Murdered Wife' Calls China's Justice System Into Question," People's Daily (Online).

15 Shi Ting, "Police Reforms Put More Officers on the Beat," South China Morning Post, 26 March 05 (FBIS, 26 March 05).

16 Ibid. See also "Beijing to Hire 6,500 More Policemen To Save On-the-Job From Overwork," Xinhua, 5 June 05 (FBIS, 5 June 05); Zuo Guobin, "Ministry of Public Security to Raise an Army for Police Substations, 70,000 Police to Be Added at Basic Levels" [Gonganbu wei paichusuo zhaobingmaima, jiang chongshi qiwan jingli dao jiceng], CRI Online, 22 June 05.

17 Dwight Daniels, "Beijing Demands Better Policing," China Daily (Online), 9 May 05.

18 For crackdowns on abuses, see, e.g., SPP Work Report, 9 March 05; "Supreme People's Procuratorate Confirms Emphasis of Investigative Supervision This Year" [Zuigaojian queding jinnian zhencha jiandu zhongdian], Legal Daily (Online), 17 May 05; Cao Desheng, "Rights Infringements in Focus," China Daily, 27 July 05. For statements on balancing crime-fighting and human rights protection, see, e.g., Tian Yu, "Xiao Yang: Ensure in Practice That The Innocent Are Not Criminally Prosecuted" [Xiao Yang: qieshi baozhang wuzui de ren bushou xingshi zhuijiu], Xinhua (Online), 16 December 04; Yuan Zhengbing, et. al., "To Prevent Unjust Cases, Firmly Grasp the Relationship with Arresting Personnel."

19 UN Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention, Mission to China, Advance Edited Version, 29 December 04 [hereinafter UNWGAD Report], para. 68(a). UNWGAD officials interviewed more than 70 detainees according to UNWGAD's terms of reference.

20 The Commission's Political Prisoner Database includes profiles on more than 500 current and 3,000 past political prisoners. Thousands of political prisoners are detained in China's reeducation through labor system. See infra, "Administrative Punishment," and accompanying notes.

21 "China Rebuffs Call for Tiananmen Account," Associated Press, 6 June 05.

22 Over the past year, Chinese authorities detained, questioned, and then released numerous "public intellectuals" who had been critical of the government or working on sensitive issues, including Liu Xiaobo, Yu Jie, Zhang Zuhua, Jiao Guobiao, Wang Guangze, Li Boguang, Chen Min, Yang Tianshui, Li Guozhu, Guo Guoting, and others. For more details, see Section III(d)— Freedom of Expression. For a detailed discussion of the challenges faced by China's public intellectuals, see Public Intellectuals in China, Staff Roundtable of the Congressional-Executive Commission on China, Testimony and Written Statements submitted by Perry Link, Professor of Chinese Language and Literature, Princeton University; Merle Goldman, Professor Emerita of Chinese History, Boston University and Executive Committee Member, Fairbank Center for East Asia Research, Harvard University; and Hu Ping, Chief Editor, Beijing Spring.

23 "Petitioner Round-up as NPC Meets," Human Rights in China (Online), 11 March 03; "China Detains Dissidents Who Mourned Deposed Leader Zhao: Rights Group," Agence France-Presse, 30 January 05 (FBIS, 30 January 05); "Activists Under Tight Security Ahead of Tiananmen," Radio Free Asia (Online), 3 June 05; Chan Siu-sin, "Rights Activists Call Confinement 'Ridiculous,' " South China Morning Post, 8 September 05 (FBIS, 8 September 05).

24 Law in Political Transitions: Lessons From East Asia and the Road Ahead for China, Hearing of the Congressional-Executive Commission on China, 26 July 05, Written Statement submitted by Jerome A. Cohen, Professor of Law, New York University. Individuals charged with or convicted of such crimes since October 2004 include Jamal Abdulla, Nurmemet Yasin, Sonom Phuntsog, Jamphel Gyatso, Jigme Dazang, Lobsang Dargyal, Tashi Gyaltsen, Tsesum Samten, Tsultrim Phelgyal, Zhang Lin, Xu Wanping, and Zheng Yichun.

25 Human Rights in China Press Release, "Shanghai Resident Under Administrative Detention For Petitioning Over Destruction of His Home," 2 February 03; "Visitors to Memorial Ceremony Re-educated Through Labor and Arrested One by One" [Jidian de fangmin fenfen bei laojiao he jubu], Boxun (Online), 3 February 05; Forced Labor in China, Roundtable of the Congressional-Executive Commission on China, 22 June 05, Written Statement of Harry Wu, Executive Director, Laogai Research Foundation.

26 UNWGAD Report, para. 73.

27 "Foreign Ministry Spokesperson Zhang Qiyue's Press Conference," Ministry of Foreign Affairs (Online), 7 December 04.

28 Chris Buckley, "U.S. Cautious as China Offers Details on Political Prisoners," New York Times (Online), 9 February 05.

29 A Global Review of Human Rights: Examining the State Department's 2004 Annual Report, Hearing of the Subcommittee on Africa, Global Human Rights, and International Operations, House Committee on International Relations, 17 March 05, Oral Statement of Michael Kozak, Assistant Secretary of State for Democracy, Human Rights, and Labor, US Department of State.

30 The UNWGAD defines a detention as arbitrary (1) when there is clearly no legal basis for the deprivation of liberty (for example when individuals are kept in detention after the completion of their prison sentences or despite an amnesty law applicable to them, or in violation of domestic law or relevant international instruments); (2) when individuals are deprived of their liberty because they have exercised the rights and freedoms guaranteed in certain provisions of the United Nations Declaration on Human Rights (UNDHR) or the International Covenant on Civil and Political Rights; and (3) when noncompliance with the standards for a fair trial set out in the UNDHR and other relevant international instruments is sufficiently grave as to make a detention arbitrary. United Nations Commissioner for Human Rights, Fact Sheet #26, the Working Group on Arbitrary Detention.

31 Xue Yongxiu, "Extended Detention Cases in Courts at Each Level Have Been Completely Cleared" [Geji fayuan chaoqi jiya anjian quanbu qingli wanbi], China Court Net (Online), 9 March 05; State Council Information Office, "China's Progress in Human Rights in 2004," April 2005 (FBIS, 13 April 05).

32 Andrea Worden, "Legal Theatre in China: The Detention and Trial of Pro-Democracy Activist Yang Jianli," draft manuscript on file with the Commission.

33 Benjamin Kang Lim, "New York Times Chinese Researcher Accused of Fraud," Reuters (Online), 1 June 05.

34 PRC Criminal Procedure Law, enacted 1 Jan 97, art. 128. Under a variety of legal exceptions and detention extension provisions such as Articles 69, 124, 126, 127, and 140 of the PRC Criminal Procedure Law, a suspect's pre-trial detention could be extended for more than seven months even without evidence of new crimes. Worden, "Legal Theatre in China."

35 Worden, "Legal Theatre in China" (citing Chinese criminal law experts). Even SPC officials acknowledge that police and judicial officials hold suspects for periods much longer than allowed by law. Liu Yu, "Reforms for More Rights—Protecting the Rights of the Accused and Building a More Just Legal System Are the Goals of Change," Beijing Review (Online), 25 November 04.

36 International Covenant on Civil and Political Rights, arts. 9(3) and 9(4). China has signed, but has not yet ratified, the ICCPR. However, treaty signatories have an obligation to refrain from acts that would defeat the purpose of a treaty while ratification is pending. Vienna Convention on the Law of Treaties, art. 18.

37 UNWGAD Report, para. 32.

38 "Ministry of Public Security Publicizes the Situation of the Nation's Public Security Organs Striking at Crime and Preserving Social Order in 2004," Ministry of Public Security (Online).

39 See, e.g., the broad-ranging and vaguely worded lists of offenses in the State Council Notice on Re-Issuing the Ministry of Public Security's Trial Methods for Implementation of Re-education Through Labor [Guowuyuan guanyu zhuanfa gonganbu zhiding de laodong jiaoyang shixing banfa de tongzhi], issued 21 January 82, art. 9; Regulations on the Handling of Re-education Through Labor Cases By Public Security [Gongan jiguan banli laojiao anjian guiding], issued 1 June 02, art. 9; PRC Public Order Administration Punishment Law, adopted 28 August 05. According to Chinese officials, 80 percent of RETL detainees are drug addicts. Chiang Hsun, "NPC To Replace 'Re-education Through Labor System,' Which Has Come Under Mounting Criticisms, with 'Illegal Conduct Correction System' In Order to Protect Human Rights," Asia Weekly, 8 May 05 (FBIS, 4 May 05).

40 Wu Yihuo, Hong Jun, "Too Few Administrative Law Enforcement Cases Transferred to Judicial Organs—Relevant Anhui Research Reveals Information: Three Major Factors Influence Effective Links Between Administrative Law Enforcement and Criminal Law Enforcement" [Xingzheng zhifa anjian yisong sifa jiguan taishao, anhui youguan yanjiuban touchu xinxi: san da yinsu yingxiang xingzheng zhifa yu xingshi zhifa youxiao xianjie], Procuratorate Daily (Online), 31 January 05.

41 Various analysts estimate that between 2 percent and 10 percent of RETL subjects are political detainees. Randall Peerenboom, "Out of the Frying Pan and Into the Fire," 98 Northwestern University Law Review 991, 1000–01 and accompanying notes (2004); Jim Yardley, "Issue in China: Many in Jails Without Trial," New York Times (Online), 9 May 05.

42 State Council Notice on Re-Issuing the Ministry of Public Security's Trial Methods for Implementation of Re-education Through Labor, art. 9; Regulations on the Handling of Re-education Through Labor Cases By Public Security, art. 9; PRC Public Order Administration Punishment Regulations [Zhonghua renmin gongheguo zhian guanli chufa tiaoli], issued 5 September 86, amended 12 May 94.

43 UNWGAD Report, 29 December 04, paras. 40, 41. Note that in August 2005, the NPC Standing Committee passed a "Public Order Administration Punishment Law" to replace the "Public Order Administration Punishment Regulations" mentioned in the UNWGAD Report. The new law is effective as of March 1, 2006, at which time the old regulations will be canceled. Public Order Administration Punishment Law, adopted 28 August 05.

44 Most sources place the number of RETL camps at around 300 and the number of detainees between 250,000 and 300,000. See, e.g., Peerenboom, "Out of the Frying Pan and Into the Fire," 1000–01 and accompanying notes (2004); Yardley, "Issue in China: Many in Jails Without Trial"; Can Siu-sin, "Critics Take Shine of Bootcamp Reforms," South China Morning Post, 21 March 05. However, a May 2005 article in Asia Weekly cites Beijing researchers as confirming that there are at least 1 million people in RETL camps. Chiang Hsun, "NPC To Replace Re-education Through Labor System."

45 Regulations on the Handling of Re-education Through Labor Cases By Public Security, art. 3; Chan Siu-sin, "Critics Take Shine of Bootcamp Reforms." In its December 2004 report, the UNWGAD found, "The operation of the laws governing decisionmaking on placement in a reeducation through labour camp is, however, highly problematic. From reliable sources, including interviews with persons affected, it is clear that in the overwhelming majority of cases, a decision on placement in a re-education center is not taken within a formal procedure provided by law. The commission vested with power to take this decision in practice never or seldom meets, the person affected does not appear before it and is not heard, no public and adversarial procedure is conducted, no formal and reasoned decision on placement is taken (or issued for the person affected). Thus, the decisionmaking process completely lacks transparency. In addition, recourse against decisions are [sic] often considered after the term in a center has been served." UNWGAD Report, para. 58.

46 Ibid., para. 56.

47 Ibid., para. 75.

48 Ibid., para. 51. Under Chinese law, penalties involving restrictions on personal freedom may only be established by law. PRC Legislation Law, adopted 15 March 00, art. 8.

49 Wu Kun, "A Powerful Weapon for Public Order Administration" [Shehui zhian guanli de you li falü wuqi], Legal Daily (Online), 1 September 05.

50 PRC Public Order Administration Law, arts. 5, 16. 79. See also, "Passage of the Public Order Administration Punishment Law, Focuses on Citizen Rights" [Zhian guanli chufafa tongguo, guanzhu gongmin quanli], Legal Daily, 29 August 05, available on People's Daily (Online), 29 August 05.

51 At the 2004 NPC session, more than 420 deputies reportedly signed a motion on reform of the RETL system. Chiang Hsun, "NPC To Replace Re-education Through Labor System."

52 Wang Yu, "China's Re-education Through Labor Management Will Enlarge Reform Efforts in Four Areas" [Wo guo laojiao guanli jiang zai si fangmian jiada gaige lidu], Legal Daily (Online), 1 December 04; Zhang Qingshui, "National Re-education Through Labor Work Conference Closes" [Quanguo laojiao gongzuo zuotanhui bimu], China Legal Publicity (Online), 2 December 04.

53 Chan Siu-sin, "Critics Take Shine of Bootcamp Reforms"; Liao Weihua, "Re-education Through Labor System Faces Reforms, Law on Correcting Unlawful Acts To Be Formulated" [Laojiaozhi mianlin gaige jiang zhiding weifa xingwei jiaozhifa], Beijing News, reprinted in Defense Lawyer Net, 2 March 05.

54 Liao Weihua, "Re-education Through Labor System Faces Reforms."

55 Chan Siu-sin, "Critics Take Shine of Bootcamp Reforms"; Yardley, "Issue in China: Many in Jails Without Trial"; Chiang Hsun, "NPC To Replace Re-education Through Labor System"; Tim Luard, "China's 'Reforming' Work Programme," BBC News (Online), 13 May 05.

56 Robin Munro, A Question of Criminal Madness: Judicial Psychiatry and Political Dissent in the People's Republic of China, September 2004 (doctoral thesis on file with the Commission).

57 Ibid., 13, 322–343; Commission Staff Interview.

58 UNWGAD Report, paras. 64, 66.

59 For a description of sometimes arbitrary and brutal treatment in these institutions, see Robin Munro, A Question of Criminal Madness.

60 Forced Drug Detoxification Measures [Qiangzhi jiedu banfa], issued 1 January 95, art. 5.

61 Regulations on the Handling of Re-education Through Labor Cases By Public Security, art. 9.

62 "Treatment Requires Psychological Support," China Daily, 25 June 05 (FBIS, 25 June 05).

63 Jiang Zhuqing , Jiao Xiaoyang, "Battles Won on Drugs, But War Rages On," China Daily, 27 May 05 (FBIS, 27 May 05). According to a Chinese source, 580,000 individuals had been "accepted" into RETL drug detention centers through the end of 2004. "A Total of 580,000 Accepted for Drug Detoxification, China's RETL Drug Detoxification Model Basically Complete" [Leiji shourong jieduzhe 58 wan, zhongguo laojiao jiedu moshi jiben chengxing], China News (Online),24 June 05.

64 Leu Siew Ying, "Addict Dies in Rehabilitation Center," South China Morning Post, 4 August05 (FBIS, 4 August 05); Leu Siew Ying, "Drug Rehabilitation Centre Inmates Sometimes Faced with Deadly Abuse," South China Morning Post (Online), 5 August 05.

65 Ibid.

66 Ibid. Key footage from a surveillance camera that had been installed to prevent abuses apparently is missing without explanation.

67 CECC, 2004 Annual Report, 5 October 04, 18.

68 Ibid.

69 Ibid.

70 Tu Chaohua, "For Urban Beautification, 7 Indigents Are Abandoned in the Wilderness" [Wei zhengdun shirong, 7 ming liulangren bei paosong huangye], China Youth Online, 7 June 05. According to the article, a January sweep of vagrants and mentally ill persons in Ganzhou city, Jiangxi province, left five people missing and presumed dead. Local officials have admitted that the roundup, which they referred to as custody and repatriation, was an "administrative mistake," but claim that they have disciplined the officials involved and closed the matter. According to a later report, one of the individuals was later found. Li Qing, Chen Xiuqi, "News Comes Out in the Chongyi Vagrant Abandonment, Secret Rule To Send Back and Forth Between Counties" [Chongyi paosong liulang qitao renyuan baolu neirong xian yu xian hu qian jingcheng qianguize], Legal Daily (Online), 15 June 05.

71 Ibid. In a subsequent commentary, a China Youth Online writer expressed concern about whether the aid system has been implemented and strongly criticized local Jiangxi officials over the incident. Yang Tao, "Civil Affairs Ministry Can't Abandon the Weak" [Minzhengbu bu neng paoqi ruozhe], China Youth Online, 9 June 05.

72 For just a few of the many Western reports on torture in China, see "Three Tibetans Jailed for Suspected Separatism," Radio Free Asia (Online), 23 October 04; "Falun Gong Practitioner Reunites with Husband After 3 years in China Labor Camp," Newsday (Online), reprinted in Lexis/Nexis, 30 September 04; Kate McGeown, "China's Christians Suffer for Their Faith," BBC News (Online), 9 November 04; "Tiananmen Protester Reports on Tortured Mao Portrait Protester," Agence France-Presse, 22 November 04 (FBIS, 22 November 04); Human Rights in China Press Release, "New Account Sheds Light on Degrading Conditions at Inner Mongolia's Chifeng Prison," 20 December 04; Human Rights Watch, "Country Summary—China," January2005; and Nora Boustany, "Rebiya Kadeer: After Horrors of Prison, Constant Kisses and Hugs," Washington Post (Online), 30 March 05.

73 See, e.g., "Suggestions for Enhancing the Rights of Lawyers" [Wei zhengjin lüshi quanli jianyan xiance], China Legal Publicity (Online), November 2004; "Return of 'Murdered Wife'Calls China's Judicial System in Question," People's Daily (Online); Lin Wei, "Can Audio and Videotaping Really Keep Torture Under Control? " Legal Daily (Online); Guo Hengzhong, "Coercing Confessions Through Torture Seriously Violates Human Rights, Perfecting the System Should Be a Matter of Vital Urgency" [Xingxun bigong yanzhong qinfan renquan, wanshanzhidu ying shi dangwuzhiji], Legal Daily (Online), 24 June 05.

74 See, e.g., "Sichuan Investigates and Prosecutes a Case Where Torture Led to Person's Death" [Sichuan chachu yiqi xingxun bigong zhiren siwangan], China Youth Online, 18 November 04; Zhou Wenying, Zou Shilai, "Jiangxi Fuzhou: Make Inquiries a Required Procedure in Examining Arrests" [Jiangxi Fuzhou: ba xunwen zuowei shencha daibu bijing chengxu], Procuratorate Daily (Online), 4 January 05; Liu Li, "Sixty Officials Charged with Dereliction of Duty, Abuse of Power," China Daily (Online), 26 January 05; "Detention Discipline Incites Detainees to Whip Convict for Six Hours, Leading to His Death" [Kanshousuo guanjiao zhizhi zai ya renyuan bianda fanren 6 xiaoshi zhi qi siwang], Boxun (Online), 8 February 05 (citing a Heilongjiang Daily story on the case); Wan Xingya, "Civil Servants Violating Human Rights" [Gongzhi renyuan qinfan renquan fanzui], China Youth Online, 27 July 05 (noting that between July 2004 and July 2005, procuratorates prosecuted 1,751 officials for human rights violations, including illegal detentions, torture, and other violations); " 'Nie Shubin Murder Case' Still Unresolved," Southern Weekend; "Murdered Wife Lives, Proves Husband's Innocence," China Daily (Online), 4 April 05; "14 Years of an Unjust Case of Wife Murder, 'Liaoning's She Xianglin' Li Huawei Obtains State Compensation," People's Daily; Lei Dao, "Why No Compensation After Eight Years of Unjust Imprisonment," Legal Daily; Fei Zhiyong, "Supreme People's Procuratorate Publishes Three Criminal Cases of Serious Infringements on Human Rights Involving Confessions Coerced Through Torture, etc." [Zuigaojian gongbu xingxun bigong deng 3 qi yanzhong qinfan renquan fanzuian], Procuratorate Daily (Online), 27 July 05.

75 See notes for the following paragraph for examples of these discussions.

76 See, e.g., Fu Kuanzhi, "Three Essential Elements That Must Be Put Forth to Put a Stop to Torture" [Dujue xingshi bigong xu jubei sange yaosu], Procuratorate Daily (Online), 11 August 04; Li Jinlin, "China Law Society Opens Research Forum on the Torture Problem"[Zhongguo faxuehui zhaokai xingxun bigong wenti yanjiu zuotanhui], Procuratorate Daily (Online), 30 January 05; "Return of 'Murdered Wife' Calls China's Judicial System in Question," People's Daily; Cheng Jishan, "Radical Policies to Eliminate the Extortion of Confessions Through Torture" [Xiaochu xingxun bigong de zhiben zhice], Legal Daily (Online), 13 April 05;"Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture," Legal Daily; Guo Hengzhong, "Coercing Confessions Through Torture Seriously Violates Human Rights, Perfecting the System Should Be a Matter of Vital Urgency"; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net.

77 Ibid. Under current Chinese law and judicial interpretations, judges have the discretion to exclude illegally obtained evidence, and such evidence may not form the basis for a judgment. However, they are not required to exclude such evidence. SPC Interpretation on Several Issues Regarding Implementation of the PRC Criminal Procedure Law [Zuigao renmin fayuan guanyu zhixing zhonghua renmin gongheguo xingshi susongfa ruogan wenti de jieshi], issued 29 June 98. One Procuratorate Daily article argues that illegally obtained evidence should not be excluded, provided the evidence can be verified. Fu Kuanzhi, "Three Essential Elements That Must Be Put Forth to Put a Stop to Torture."

78 For law enforcement emphasis on supervision, see e.g., "Return of 'Murdered Wife' Calls China's Judicial System in Question," People's Daily; "China Exclusive: All 3,000 Police Chiefs to Hold Face-to-Face Meetings With Petitioners," Xinhua, 18 May 05 (FBIS, 18 May 05); Jiang Hong, "Commentary: Use Vigorous Legal Supervision to Prevent Incorrect Cases"; and SPP rectification campaigns noted earlier in this section.

79 Cao Desheng, "Rights Infringements in Focus."

80 "Jiangxi Fuzhou: Make Inquiries a Required Procedure in Examining Arrests," Procuratorate Daily (Online). Prosecutors typically only review a paper file of cases when approving the formal arrest of criminal suspects.

81 "Supreme People's Procuratorate Confirms Emphasis of Investigative Supervision This Year" [Zuigaojian queding jinnian zhencha jiandu zhongdian], Legal Daily (Online), 17 May 05.

82 "China Exclusive: All 3,000 Police Chiefs to Hold Face-to-Face Meetings With Petitioners in 3 Months," Xinhua.

83 Bradley S. Klapper, "UN: China Allows First Probe on Torture," Associated Press, 23 August 05, reprinted in Washington Post (Online), 23 August 05.

84 "Confessions Extracted Through Torture May Not Be Used as Evidence: On May 1, Sichuan Province Experiments With 'Several Opinions Regarding the Standardization of Criminal Evidence Work' " [Bichulai de kougong bu neng zuowei zhengju, Sichuan sheng 5 yue 1 hao qi shixing "Guanyu xingshi zhengju gongzuo de ruogan yijian"], Procuratorate Daily (Online), 13April 05. Several Chinese legal scholars have expressed concern that the rule does not go far enough, and that external checks on abuse and better evidentiary standards are necessary. Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law" [Difang de xingshi zhengju guifan ruhe baozhang xingshi susongfa de zhixing],Legal Daily (Online), 22 April 05. In the first case under the new rules, a Chengdu court reportedly held a hearing on a defendant's complaint that police coerced his confession through torture and found that the allegation was unsubstantiated. Gu Ping, Li Zhen, "Is It Torture or Not? Police Go To Court to Present Evidence" [Shifou xingxun bigong, jingcha chuting zhizheng], Procuratorate Daily (Online), 6 June 05.

85 Scholars from the Procedural Research Center at the Chinese University of Politics and Law in Beijing designed the project and chose Haidian district, Beijing; Baiyin district, Gansu; and Jiaozhu city, Henan, as the three pilot districts. "When Suspects Are Interrogated, They May Request Audio or Videotaping" [Xianyiren shoushen ke shenqing luyin luxiang], Legal Daily (Online), 8 May 05. Under the program, suspects are reportedly informed of their rights and given the choice of having a lawyer present free of charge, having the interrogation audiotaped or videotaped, or proceeding without any of the above. "Beijing Haidian Police Experiment With Having Lawyers Present During Interrogation, Take Strict Precautions Against Torture" [Beijing haidian jingfang shixing lüshi pangting shenxun zhi, yanfang xingxun bigong],China East Day (Online), 20 May 05.

86 Liao Weihua, "Many Sides Promote the Ten-year Major Amendment of the Criminal Procedure Law, Consensus on Guarding Against Confessions Coerced Through Torture" [Duofang tuidong xingsufa shinian daxiu, fangfan xingxun bigong cheng gongshi], Beijing News (Online), 13 July 05.

87 Ibid.

88 Ibid.

89 For a discussion of corresponding amendments to the PRC Criminal Procedure Law that are under consideration, see Liao Weihua, "Many Sides Promote the Ten-year Major Amendment of the Criminal Procedure Law"; "China's 'Criminal Procedure Law' Will Again Undergo Large-Scale Amendment [Zhongguo "xingshi susongfa" jiang zaici jinxing daguimo xiuding], Procuratorate Daily (Online), 12 October 04; Li Yu, "Reforms for More Rights," Beijing Review (Online), 25 November 04. Several Chinese sources suggest that the Sichuan evidence experiment will accelerate the implementation of a similar rule at the national level. Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law"; "Lawyers at Interrogations Can Protect Suspect's Rights and Interests, Represents Rule of Law Progress" ["lüshi zai chang" ke baohu xianyiren quanyi, biaozhi fazhi jinbu], Beijing Times, available on ACLA Defense Lawyer Net, 23 May 05.

90 See, e.g., "Suggestions for Enhancing the Rights of Lawyers," China Legal Publicity (Online); Li Yu, "Reforms for More Rights"; Cheng Jishan, "Radical Measures to Policies Eliminate The Extortion of Confessions Through Torture"; Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law"; "China Needs Better Enforcement of Ban on Torture—Lawyers," Wall Street Journal (Online), 14 April 05; Guo Hengzhong, "Coercing Confessions Through Torture Seriously Violates Human Rights, Perfecting the System Should Be a Matter of Vital Urgency"; Wang Changfeng, "Assistance of Lawyers From the First Moment" [Di yi shijian hou de lüshi bangzhu], Legal Daily (Online), 2 June 05.

91 Liao Weihua, "Many Sides Promote the Ten-year Major Amendment of the Criminal Procedure Law."

92 PRC Criminal Procedure Law, arts. 33, 34; Regulations on Legal Aid, issued 16 July 03, art. 12.

93 PRC Criminal Procedure Law, art. 34; Regulations on Legal Aid, chapter 2.

94 State Council Information Office, "China's Human Rights Progress in 2004," April 2005(FBIS, 13 April 05).

95 Chinese sources generally cite a figure of 30 percent for defense representation. See, e.g., "Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture," Legal Daily; Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication' " [lüshi huyu: quxiao "lüshi weizhengzui"], Legal Daily (Online), 1 June 05; Wang Changfeng, "Assistance of Lawyers From the First Moment"; Wang Yu, Yu Nayang, "Lawyers: We Are Fighting For Our Own Rights" [lüshi: Women bu shi zai wei ziji zheng quanli], Legal Daily (Online), 16 June 05. However, one source cites figures as low as a 20 percent. Liao Weihua, "Lawyers Right to Be Present Should Be Guaranteed in Amendments" [lüshi zaichangquan ying xiufa quebao], Beijing News (Online), 17 May 05. According to one Western researcher, Chinese counterparts privately suggest that the official 30 percent figure for defense representation is too high. Commission Staff Interview.

96 Ibid.

97 PRC Criminal Procedure Law, art. 96.

98 Commission Staff Interview; UNWGAD Report, para. 36; "Lawyers Law Prepared for Changes" [lüshifa yunniang bianlian], Beijing News (Online), 16 May 05; Wang Changfeng, "Assistance of Lawyers From the First Moment"; Hu Cong, "Tighter Rein on Law Enforcement Demanded."

99 Commission Staff Interview. The public security authorities reportedly argued that such meetings were "inappropriate" or "inconsistent with Chinese law."

100 Tan Weiping, "Beijing: More Than 80 percent of Criminal Defendants Don't See a Lawyer Within 48 Hours" [Beijing: guo 8 cheng xianfan 48 xiaoshi nei jianbudao lüshi], Beijing Youth Daily, reprinted in ACLA Defense Lawyer Web site, 31 May 05. Another survey reportedly revealed that only 4.6 percent of suspects were able to meet with their lawyers within the first three days of detention. Wang Changfeng, "Assistance of Lawyers From the First Moment."

101 Tan Weiping, "Beijing: More Than 80 percent of Criminal Defendants Don't See a Lawyer Within 48 Hours."

102 Commission Staff Interview.

103 Law in Political Transitions, Written Statement submitted by Jerome A. Cohen. Under Article 36 of the CPL, the defense may not examine and duplicate official materials related to the case until after the case is transferred to the procuratorate for prosecution.

104 Commission Staff Interview. See also, e.g., UNWGAD Report, para. 35; "Lawyers Law Prepared for Changes," Beijing News; "Suggestions for Enhancing the Rights of Lawyers," China Legal Publicity; Wu Nanlan, "Groups Call for Lawyers' Right to Investigate," China.org, 23 May05 (FBIS, 24 May 05).

105 PRC Criminal Procedure Law, art. 37.

106 Li Weihua, "Deep Analysis of 'Today's Court Hearings Have No Witnesses' " ["Jinri tingshen wu zhengren" de shenceng pouxi], Democracy and Law, No. 4 (2005), reprinted in Guangming Net (Online), 3 April 05; Qin Ping, "How Local Criminal Evidence Standards Guarantee Implementation of the Criminal Procedure Law"; Ji Xiangde, "Commentary: Let Witnesses Come to Court and Testify, Most Needed Are Systemic Guarantees," Procuratorate Daily (Online), 7 December 04 (noting that only 5 percent of witnesses appear at criminal trials, and citing the shocking example of Nanning, Guangxi province, where the rates of witness attendance at criminal trials were 0.33 percent, 0.7 percent, and 1.27 percent for the years 2000, 2001, and2002, respectively).

107 According to the report, police have even tortured witnesses in some cases. Li Weihua, "Deep Analysis of 'Today's Court Hearings Have No Witnesses.' "

108 Under the CPL, "the testimony of a witness may be used as the basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides." PRC Criminal Procedure Law, art. 47.

109 Wan Xingya, "Requirement That Witnesses Appear in Court to Testify Will Be Written into the New Criminal Procedure Law" [Zhengren yao chuting zuozheng jiang xiejin xin xingshi susongfa], China Youth Daily, reprinted in Defense Lawyer Net, 8 August 05.

110 Guo had represented journalists, Falun Gong practitioners, and imprisoned attorney Zheng Enchong. The Shanghai Justice Bureau reportedly accused Guo of "on several occasions adopting positions and making statements contrary to the law and the Constitution" and "defiling and slandering" the Communist Party and government. Reporters Without Borders Press Release, "Lawyer for Several Journalists and Cyberdissidents Banned From Practising for One Year," 4 March 05; Bill Savadove, " 'Accidental Activist' Under House Arrest," South China Morning Post, 16 March 05 (FBIS, 16 March 05).

111 Jian Fa, "Independence Called for Lawyers," Beijing Review, October 2004; UNWGAD Report, para. 37; Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication."'

112 Wang Ying, "The Irregular Publication of a Criminal Defense Lawyer Work Environment Survey Report" [Xingbian lüshi zhiye zhuangkuang diaocha baogao de fei zhengchang gongbu], 21st Century Business Herald (Online), 11 August 04. According to the Legal Daily, of 23 cases of lawyer evidence fabrication that have actually gone to trial, the lawyer was found innocent or the case was withdrawn in 11 cases; the lawyer was found guilty in 6 cases; the lawyer avoided criminal punishment in 1 case; and 5 cases have not yet been concluded. Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication.' "

113 Jian Fa, "Independence Called for Lawyers."

114 Although there was domestic discussion of removing Article 306 from the Criminal Code last year, there has been no news of further steps to repeal the controversial provision. During a recent NPCSC inquiry, lawyers renewed their calls for repeal of Article 306. Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication.' " For a compilation of more than 27 cases involving lawyer detentions, see Stacy Mosher, "In Custody, Lawyers in Detention," China Rights Forum, No. 2, 2005, 100–5.

115 Wang Ying, "The Irregular Publication of a Criminal Defense Lawyers Work Environment Survey Report." According to the article, the initial results are said to have "shocked people," with one observer noting that the problems were worse than they thought possible. In response, the Beijing Justice Bureau reportedly blocked publication of the initial survey results and refused applications to continue the research program in 2003 and 2004.

116 "Lawyers Law Prepared for Changes," Beijing News; " 'Nie Shubin Murder Case' Still Unresolved," Southern Weekend; "What It Means to Be a Lawyer: A Special Interview With Zhang Sizhi" [Zuo yige lüshi gai zuo de shiqing: zhuanfang Zhang Sizhi], Southern Window, reprinted in Sina.com, 15 October 04.

117 Yan Yongwei, "Liaoning Establishes Provisions Requiring Case Handling Organs to Guarantee Arrangements for Lawyer Meetings Within 48 Hours" [Liaoning chutai guiding yaoqiubanan jiguan baozhang lüshi huijian 48 xiaoshi nei anpai], Legal Daily (Online) 16 November 04; "When Suspects Are Interrogated, They May Request Audio or Videotaping," Legal Daily.

118 Prosecutors approved the arrest of 811,102 suspects and refused to approve the arrest of 67,904 suspects in 2004. Suspects thus had a 7.7 percent chance that prosecutors would reject public security applications for a formal arrest in 2004. Prosecutors decided to indict 867,186 suspects and refused to indict 21,554 suspects in 2004. Once prosecutors approved an arrest, therefore, suspects had only a 2.4 percent chance that prosecutors would decide not to proceed to trial. SPP Work Report, 9 March 05. By contrast, criminal courts of first instance convicted defendants in 99 percent of cases. See infra, Fairness of Criminal Trials and Appeals.

119 "Suggestions for Enhancing the Rights of Lawyers" China Legal Publicity. See also Wang Yu, Yu Nayang, "Lawyers: We Are Fighting For Our Own Rights"; Guo Xiaoyu, "Lawyers Appeal: Abolish 'The Crime of Lawyer Evidence Fabrication.' "

120 "Lawyers Law Prepared for Changes," Beijing News; "China's 'Criminal Procedure Law' Will Again Undergo Large-Scale Amendment," Procuratorate Daily.

121 Criminal courts of first instance completed the trials of 770,947 defendants in 2004 and found only 2,996 defendants (0.4 percent) not guilty. An additional 12,345, or 1.6 percent, of defendants "avoided criminal punishment." SPC Work Report, 8 March 05. Some Chinese commentators questioned whether high convictions rates should be viewed as a sign of law enforcement effectiveness. Wang Songmiao, "Commentary: Looking at 100 percent Conviction Rates Discriminately" [Pinglun: bianzheng kandai 100 percent de youzui juelü ], Procuratorate Daily(Online), 25 May 05.

122 Criminal courts heard 644,248 first instance criminal cases in 2004 and completed appeals in 96,204 criminal cases. SPC Work Report, 8 March 05. "2004 Situation of the Adjudication of Second Instance Cases in the Nation's Courts" [2004 quanguo shenli gelei ershen anjianqingkuang], China Court Web site, 4 October 05.

123 Appeals courts changed the original judgment in 12,730, or 13.2 percent, of all cases heard on appeal. In addition, courts changed judgments in 1,371 criminal cases that were given an additional rehearing under court adjudication supervision procedures. In total, appeals courts canceled 2.1 percent of the first instance verdicts in the 644,248 total criminal cases adjudicated in 2004. SPC Work Report, 8 March 05. In China, prosecutors may appeal a "not guilty" verdict, but given the conviction rate of more than 99 percent in first instance cases, it is assumed that almost all of the 96,204 cases heard on appeal involved guilty verdicts at the trial level. In addition to changing the verdict in 12,730 cases, appeals courts sent 6,198 cases back to trial courts for retrial.

124 In at least one prior year in which a similar number of cases were "changed" or sent back for retrial, court statistics indicate that the total conviction rate in all cases, including appeals and rehearings, was over 99 percent. 2002 China Law Yearbook [2002 Zhongguo falü nianjian], (Beijing: Legal Press, 2003), 144, 1240. This suggests that few verdicts are "changed" to not guilty and that few defendants are exonerated after retrials. As discussed later in this section, recent Chinese media accounts also suggest that trial courts commonly reconvict defendants on retrial.

125 PRC Criminal Procedure Law, arts. 182, 203–7.

126 Under Chinese law, procuratorates may be required to pay criminal compensation for wrongful arrest and prosecution if defendants are found not guilty. PRC State Compensation Law, enacted 12 May 1994, art. 15.

127 PRC Criminal Procedure Law, arts. 203–4. A court has the discretion to decide whether an adjudication supervision petition from a defendant meets the legal requirements for a retrial. In contrast, Article 205 requires a retrial when a people's procuratorate requests adjudication supervision.

128 Ge Lin, "Why a Not Guilty Verdict is a Rarity of Rarities."

129 See, e.g., Liu Binglu, "Misuse of Retrials Is a Major Reason for Unjust Cases" [Lanyong fahui chongshen shi zhi yuanan zhuyin], Beijing News (Online), 4 April 05; Che Hao, "Looking at 'Repeat Prosecutions' in the Criminal Process as 'Judicial Marathons' " [Cong 'sifa malasong' kan xingsuzhong de 'chongfu zhuisu'], 21st Century Business Herald (Online), 6 December 04; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net; Ge Lin, "Why a Not Guilty Verdict is a Rarity of Rarities."

130 Liu Binglu, "Misuse of Retrials Is a Major Reason for Unjust Cases"; "Don't Allow the Wings of Justice To Break: Using Unjust Cases to Look at Confessions Extorted Through Torture," Legal Daily; Veron Mei-Ying Hung, "Judicial Reform in China: Lessons from Shanghai," Carnegie Endowment for International Peace, No. 58 (April 2005), 17.

131 For examples of such cases, see Tang Weibin, "Hebei She Xianglin 'Wife Murder' Case: One Unjust Case, Three Points to Rethink" [Hebei She Xianglin "shaqi" an: yi qi yuanan, san dianfansi], People's Daily (Online), 8 April 05. For other examples, see "Don't Allow the Wings of Justice to Break: Using Unjust Cases to Look at Confessions Extorted Through Torture" Legal Daily; "Why Aren't Eight Years of Unjust Imprisonment Being Compensated? " Legal Daily; Wang Ying, "The Irregular Publication of a Criminal Defense Lawyer Work Environment Survey Report"; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net; "Analyzing the Xu Jingxiang Unjust Case," China Youth Online.

132 See, e.g., Liu Binglu, "Misuse of Retrials Is a Major Reason for Unjust Cases"; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved," Criminal Defense Net.

133 Tian Yu, "Court Reforms in 2005: People's Assessors Begin Work May 5" [2005 nian fayuan gaige: renmin peishenyuan 'wuyi' shanggang], People's Court Net (Online), 14 February 05.

134 " 'Nie Shubin Murder Case' Still Unresolved," Southern Weekend (quoting the judge in the original case as stating, "Now, I can't say whether this case was correct or not. It's determined by what the leaders say. Whatever the leaders say is what I decide."); Commission Staff Interview.

135 Tang Weibin, Li Changzheng, "How Do Unjust Cases Come About? Following the Trail of Hubei's She Xianglin 'Wife Murder' Case"; Wang Yijun, Yang Siyuan, "Xu Jingxiang, From A Sentence of 16 Years to Innocence and Liberation," [Xu Jingxiang: cong panxing 16 nian dao wuzui jiefang], China Youth Online, 10 May 05; "14 Years of An Unjust Case of Wife Murder, 'Liaoning's She Xianglin' Li Huawei Obtains State Compensation," People's Daily; "The 'Nie,' 'She' Cases in Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be Improved, "Criminal Defense Net. For a recent discussion of Party interference based on a detailed study of courts in Shanghai, see Hung, "Judicial Reform in China: Lessons from Shanghai," 17.

136 "China Hints at Death Penalty Reform," China Daily, 10 March 05 (FBIS, 10 March 05).

137 For an explicit reference to the "execute fewer, execute cautiously" policy by a public security official, see Yang Zhongmin, "Substitute Death Sentences That Are Immediately Executed With Suspended Sentences" [Yi 'sihuan' tidai 'sixing liji zhixing'], Southern Weekend (Online), 17 March 05. According to one Chinese source, the number of death sentences in China has dropped every year since 1997 except in 2001, the year China launched a new "strike hard" campaign, and the number of death sentences in 2004 was a little more than half the highest yearly total recorded previously. "SPC Draws Up Draft to Take Back Death Penalty Review Power, Cautiously Using the Death Penalty is in Accord With the Spirit of the Law" [Gaofa si shouhui sixing fuhequan, shenyong sixing fuhe lifa jingshen], People's Daily (Online), 18 November 04.

138 "PRC Foreign Ministry Spokesman Defends Keeping PRC Execution Statistics Secret," Agence France-Presse, 5 February 04 (FBIS, 5 February 04).

139 Domestic sources that hint at the annual number of executions conflict. In March 2004, an NPC delegate suggested that Chinese courts issue death sentences for immediate execution in "nearly 10,000 cases per year." "41 Representatives Jointly Sign Proposal for the Supreme People's Court to Take Back the Power of Death Penalty Approval" [41 daibiao lianming jianyi, zuigao renmin fayuan shouhui sixing hezhun quan], People's Daily (Online), 10 March 04. A recent Chinese report indicated that provincial high people's courts review nearly 90 percent of all death sentences, which means that about 10 percent of such reviews are conducted by the SPC. "Conference on Ways for the Supreme People's Court to Take Back the Power of Death Penalty Review Opens" ["Zuigao renmin fayuan shouhui sixing fuhequan zhi duici" yantaohui zhaokai], Defense Lawyer Net, 1 June 05. According to the 2004 Supreme People's Court Work Report, the SPC reviewed 300 death sentences in 2003. SPC Work Report, 9 March 04. Taken together, these figures suggest that China issues about 3,000 death sentences annually.

140 For the debate over the death penalty, see, e.g., "Special Program: Should the Death Penalty Continue or Be Abolished? Experts, Netizen Views Collide" [Tebie cehua: sixing shi cun shifei? Zhuanjia, wangyou guandian pengzhuang], People's Daily (Online), 20 January 05; "Opinions Differ: Debate Over Death Penalty Reform Followed With Interest" [Yijian buyi, sixinggaige lunzhen ling ren guanzhu], China News Weekly, reprinted in Southern Weekend (Online), 31 January 05; Hu Cong, "Court Gets Back Power of Death Reviews," China Daily, 14 March05 (FBIS, 14 March 05); "Legal Redemption for Erroneous Death Sentences" [Sixing wupan de falü jiushu], Modern Bulletin (Online), 16 March 05; "Experts Recommend That Death Penalty Reviews Establish Hearing Phase to Avoid Judicial Corruption" [Zhuanjia jianyi sixing fuhe she tingzheng huanjie bimian sifa fubai], Beijing Youth Daily, reprinted in People's Daily (Online), 28 March 04.

141 Ibid.

142 Yang Tao, "In Abolishing or Retaining the Death Penalty, We Can't Ignore Public Opinion" [Sixing cunfei buke hushi minyi], China Youth Online, 26 January 05; "Eliminating the Death Penalty Means Weakening the Cost of Retribution for Wrongdoing" [Feichu sixing yiwei zhe xueruo zuifan wei zuinie suo fuchu de daijia], Beijing News, reprinted in Peoples Net (Online), 6 February 05; "Who Will Benefit From Reducing Capital Punishment," Beijing Review (Online), 16 February 05.

143 "Eliminating the Death Penalty Means Weakening the Cost of Retribution for Wrongdoing," Beijing News; "China Hints at Death Penalty Reform," China Daily; "Backgrounder: Death Penalty in China," Xinhua, 14 March 05 (FBIS, 14 March 05); "China Not to Abolish Death Penalty: Premier," Xinhua, 14 March 05 (FBIS, 14 March 05); "Supreme People's Court Demands Strict Grasp of 'Death Penalty' " [Zuigaofa yaoqiu yange bahao "sixing" guan], People's Daily (Online), 20 July 05.

144 "Who Will Benefit From Reducing Capital Punishment? " Beijing Review; Hu Cong, "Court Gets Back Power of Death Reviews"; Yang Zhongmin, "Substitute Death Sentences That Are Immediately Executed With Suspended Sentences" [Yi "sihuan" tidai "sixing" liji zhixing], Southern Weekend (Online), 17 March 05.

145 See e.g., "Central Government To Take Back Power to Review Death Sentences Next Year," Chengdu Daily (Online), 13 August 05. While the CPL requires the SPC to review all death sentences, the SPC has delegated this power in cases involving rape, murder, and certain other crimes to provincial high courts. Chinese experts have long argued that this system is both unlawful and problematic, since high courts serve as both courts of second instance and reviewing courts. For a more detailed discussion of expert objections to high court review of death sentences, see CECC, 2004 Annual Report, 24 and accompanying notes.

146 "Change of Review on Death Penalty Vital," China Daily, 4 March 05 (FBIS, 4 March 05);"Next Year, Hopefully a Special Death Penalty Review Tribunal Will be Established" [Mingnian youwang zhuanshe sixing fuheting], Beijing News (Online), 3 March 05; "SPC May Establish Review Division in Beijing to Take Back the Power of Death Penalty Review" [Zuigaofa keneng zai Beijing shi fuchating shouhui sixing fuhequan], Beijing News (Online), 14 April 05.

147 "Central Government To Take Back Power to Review Death Sentences Next Year," Chengdu Daily; Supreme People's Court Will Add Three Criminal Tribunals to Cope With Reclaiming the Death Penalty Review Power" [Zuigao renmin fayuan jiang zengshe 3 ge xingting yingdui sixing fuhequan shouhui], China Youth Daily (Online), 27 September 05.

148 Guo Guangdong, " 'Provincial Level' Rights to Review Death Sentences Should Be Given an 'Abrupt Death' " ["Shengji" sixing hezhuquan ying yu "turang siwang"], Southern Weekend (Online), 14 October 04; Zhao Ling, " 'Nie Shubin Wrongful Murder Case' Unresolved." For open hearings, see, e.g., Zhou Baofeng, "Is Returning the Power of Death Penalty Review to the Supreme Court Enough? "[Sixing hezhunquan huigui zuigao fayuan jiu gou le ma?], Southern Weekend (Online), 28 October 04; "Experts Recommend That Death Penalty Review Establish Hearings Phase to Avoid Judicial Corruption," Beijing Youth Daily. Under the current system, the court reviewing the death sentence typically only reviews a paper file of the case.

149 "Opinions Differ: Debate Over Death Penalty Reform Followed With Interest," China News Weekly.

150 "Guangzhou Hospital Expands the Use of Prisoners' Organs for Transplant Operations," Laogai Research Foundation (Online), 31 March 05; "The Harvesting of Executed Prisoners' Organs: Behind the First Mafia Case in Central China," Laogai Research Foundation Web site, 17 May 05.

151 Guo Hengzhong, "Experts Appeal for Quick Legislation on Human Organ Transplants" [Zhuanjia huyu jinkuai jiu renti qiguan yizhi lifa], Legal Daily (Online), 3 June 05; Li Qing, Huang Hui, "Why It Is Difficult For Condemned Prisoners to Donate Organs If They Wish" [Sixingfan juan qiguan wehe nanruyuan], Legal Daily (Online), 31 May 05; "Two Condemned Prisoners Vie With Each Other to Donate Their Kidneys to a Poor Student" [Liangming sixingfan zhengxiang wei yi pinkun xuezi juanxian shenzang], China Youth Online, 20 April 05.

152 Guo Hengzhong, "Experts Appeal for Quick Legislation on Human Organ Transplants."

153 "Trading of Human Organs Prohibited," Xinhua (Online), 5 June 05.

154 See, e.g., Xu Lai, "My Country Has Already Established 2,400 Juvenile Tribunals, Is Presently Looking at Establishing Juvenile Courts" [Wo guo yi jianli shaonian fating 2400 yu ge, zhengzai yunniang chengli shaonian fayuan], China Legal Publicity (Online), 2 November 04; "Strengthen Juvenile Crime Research, Protect the Healthy Maturation of Juveniles" [Jiaqiangqingshaonian fanzui yanjiu, baohu qingshaonian jiankang chengzhang], Legal Daily (Online), 18 October 04.

155 "Prisoner Escape Rate Down 96.7 Percent in Decade in China," Xinhua, 9 December 04 (FBIS, 9 December 04); "Ministry of Justices Opens Second Work Conference on the Expansion of Prison System Reforms" [Sifabu zhaokai di er ci jianyu tizhi gaige kuoda shidian gongzuo huiyi], China Legal Publicity (Online), 24 January 05.

156 "Urgent: Chinese Top Legislature Passes Decision on Expert Witness Management," Xinhua, 28 February 05 (FBIS, 28 February 05).

157 "Procuratorial Organs Ferret Out Illegal Sentence Reductions, Parole, and Medical Releases Involving More Than 17,000," CCTV International, reprinted in People's Daily (Online),29 October 04.

158 Qin Ping, " 'Major Amendment' or 'Minor Adjustment' to the State Compensation Law"[Guojian peichangfa shi "daxiu" haishi "xiaobu"], Legal Daily (Online), 29 July 05; Cui Li, "Lawyer's Law Amendments Near Completion" [lüshifa xiugai jin weisheng], China Youth Daily, reprinted in Defense Lawyer Net, 18 May 05; Liao Weihua, "Court Set Up Hopefully to Be Separated From Administrative Regions" [Fayuan shezhi youwang yu xingzhengqu huafenli], Beijing News (Online), 29 November 04.

159 Regulations on the Implementation of People's Supervisor System (Trial Implementation) [Guanyu shixing renmin jianduyuan zhidu de guiding (shixing)], issued 2 September 03, amended 7 July 04.

160 SPP Work Report, 9 March 05.

161 Directive on the Perfection of the People's Assessor System [Guanyu wanshan renmin peishenyuan zhidu de jueding], issued 28 August 04.

162 Ibid. According to the Directive, judges must form a panel with people's assessors for all criminal, civil, and administrative cases with considerable social repercussions or cases where litigants request the presence of the people's assessors. In other cases, parties may apply for people's assessors to serve. It is unclear whether courts have the discretion to deny such applications.

163 Li Xiao, "27,000 People's Assessors to Begin Work 'May 1' " [Zhunbei gongcuo jiuxu 2.7 wan ming peishenyuan "wuyi" shanggang], Fuzhou Daily, 3 March 05.

164 For Chinese attention to the need for international cooperation generally, see e.g., "Chinese Top Legislator Calls for Int'l Efforts to Curb Organized Crime," Xinhua, 13 September 04 (FBIS, 13 September 04); Li Weiwei, "Four Major Trends in the Trafficking in Women and Children, Public Security Organs Face Three Challenges" [Guaimai funü ertong chengxian 4 da dongxiang, gongan jiguan mianlin 3 ge tiaozhan], Xinhua, reprinted in Procuratorate Daily (Online), 15 February 05. For expanded cooperation with US law enforcement agencies, see Matt Pottinger, "US and China Bridge Divisions to Fight Crime," Wall Street Journal, 3 March 05, A11.

165 Commission Staff Interviews. For news reports on some of these programs, see, e.g., Jiang Anjie, Zhao Yang, "17th International Penal Law Conference Opens in Beijing" [Di shiqi jie guoji xingfaxue dahui zai jing zhaokai], Legal Daily (Online), 13 September 04; "US-China 'Criminal Defense Lawyer Training' Opens in Guangzhou" [Zhongmei "xingshi bianhu lüshi peixun guanmohui" zai Guangzhou zhaokai], People's Daily (Online), 1 November 04; Liu Li, "All Rise: China Beijing Gets Taste of US Courtroom," China Daily (Online) 13 May 05; "World Legal Professionals Gather for Beijing Conference," Xinhua (Online), 5 September 05. Some Western NGOs reported obstacles with implementing criminal justice and other legal programs beginning in early 2005. Commission Staff Interviews and Correspondence.

166 Commission Staff Interviews and Correspondence.

167 Bradley S. Klapper, "UN: China Allows First Probe on Torture."

168 "The ICRC in China," International Committee for the Red Cross Web site, 20 July 05.

169 "China and UN Rights Office Agree on Cooperation To Help Country Implement, Ratify Rights Covenants," United Nations Press Release, 31 August 05.

170 The cooperation program outlined in the Memorandum reportedly includes the projects to assist China find alternative measures to imprisonment; help the country revise its Criminal Procedure Law, its Lawyers Law, and any other related laws and regulations, facilitate capacity building of civil society, and incorporate human rights education into school and public service curricula. Ibid.

171 As the UN High Commissioner arrived in China, authorities detained writer Liu Xiaobo, Internet dissident Liu Di, and political theorist Zhang Zuhua, and raided the office of the Empowerment and Rights Institute, a human rights advisory group. "HRIC Statement on UN High Commissioner for Human Rights Visit to China," Human Rights in China Press Release, 31 August 05. According to other reports, police also detained and beat AIDS activist Hu Jia. "Chinese Police Beat Up AIDS Activist During UN Rights Visit," Radio Free Asia (Online), 31 August 05.

172 China made these commitments in negotiations with the United States. A Global Review of Human Rights: Examining the State Department's 2004 Annual Report, Hearing of the Subcommittee on Africa, Global Human Rights, and International Operations of the House Committee on International Relations, 17 March 05, Oral Statement of Michael Kozak.