Criminal Justice Section, 2002 CECC Annual Report

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Executive Commission on China

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Criminal Justice

CECC 2002 Annual Report

Criminal Justice

The Chinese government revised the Criminal Procedure Law in 1996 and the Criminal Law in 1997.(89) The revisions promised increased protection for criminal suspects and defendants and a fairer trial process.(90) The amendments to the Criminal Procedure Law included an expansion of the right to counsel, a more meaningful role for defense attorneys during the pre-trial and trial stages, and other measures to address the problem of "decision first, trial later" (xian ding hou shen).(91) The amended Criminal Law abolished the provision on "analogy" contained in the 1979 Criminal Law. Under this provision, a person could be punished for an act that was not explicitly prohibited by law at the time the act was committed by providing for punishment according to the closest analogous provision of the Criminal Law.(92) The revised Criminal Law also replaced "counterrevolutionary" crimes with "crimes of endangering national security" as part of an effort to depoliticize criminal law, at least on paper.(93)

But as this report notes repeatedly, a wide discrepancy often exists in China between the law on paper and the law in practice. Criminal suspects and defendants frequently do not enjoy in practice the enhanced protections found in the revised laws. Although the revisions to the Criminal Procedure Law and the Criminal Law reflect progress toward internationally recognized criminal justice standards as set forth in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international human rights documents, the Chinese criminal justice system still falls far short of international standards.

Absence of an Independent Judiciary

Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights mandate that every individual is entitled to a fair and public hearing by an independent and impartial tribunal.(94) However, the lack of an independent judiciary is a fundamental problem that China must address before it can meet international human rights standards. The Communist Party exerts significant control over the court system. Party political-legal committees often select judges - decisions that are then simply rubber-stamped by the relevant provincial or local people's congresses, which have the formal power to appoint judges.(95) Most senior judges and members of the courts' adjudication committees are Party members.(96) The adjudication committees supervise the work of the court and have the ultimate power to decide any case before the court.(97) Moreover, judges often confer with the relevant political-legal committee in politically sensitive or difficult cases.(98) As long as the Party controls the courts, a fair and impartial judicial process and protection of the fundamental rights of criminal defendants will remain elusive, particularly in cases of political dissidents or others deemed to be threats to "national security."

Right to Counsel and Right to Present a Defense

Under the 1979 Criminal Procedure Law, a defendant had no right to legal counsel prior to seven days before the start of the trial. Under the revised Criminal Procedure Law, defendants may retain counsel much earlier in the criminal process - after the first interrogation or from the day he or she is first subjected to "coercive measures" (e.g., pre-arrest detention (juliu) and arrest (daibu)).(99) Although a significant improvement over the 1979 Criminal Procedure Law, the revised law fails to conform to international standards. For example, it still leaves a suspect without counsel during a "first interrogation." Given the widespread problem of torture, coupled with the fact that the law requires suspects to answer investigators' questions "truthfully," the absence of counsel at the first interrogation is a serious deficiency in China's criminal process.(100)

Although defense lawyers are entitled under the Criminal Procedure Law to meet with their clients during the investigation of an alleged crime, in practice lawyers are frequently denied access to their clients.(101) In cases involving "state secrets," a term that public security authorities construe expansively, a lawyer must first obtain approval from the relevant investigating authority before meeting with his or her client.(102) The authorities frequently invoke "state secrets" to deny suspects access to a lawyer during the investigation phase.(103) When actually allowed to meet with their clients, defense lawyers generally get only one brief meeting, which is usually monitored and sometimes recorded by investigators.(104) Article 96 of the Criminal Procedure Law permits such monitoring, "depending on the circumstances and necessities of the case."

The revised law provides defense counsel greater access to evidence in the possession of the authorities, at least in theory. In practice, the Supreme People's Procuratorate (China's chief prosecutorial authority) has interpreted the relevant provisions of the new law to require access only to formal documents in the file, such as copies of the detention and arrest notices.(105) There is no requirement that prosecutors provide defense counsel access to physical evidence, documentary evidence, crime-scene records, or statements by witnesses or the victim that are in their possession. Moreover, the revised law severely restricts the ability of defense lawyers to collect their own evidence.(106) Another long-standing problem unresolved by the revised Criminal Procedure Law is the absence of witnesses at criminal trials.(107) Although the law requires the testimony of witnesses to be cross-examined at trial, witnesses in criminal cases frequently do not appear in court.(108) Thus, in most trials defense lawyers are faced with the difficult task of trying to contradict written testimony.

Professor Jerome Cohen of New York University Law School told a Commission roundtable that there are disturbing disincentives for lawyers to engage in the practice of criminal defense law. Criminal defense lawyers have encountered intimidation and harassment from the police and prosecutors as they attempt to assist their clients under the revised Criminal Procedure Law.(109) Some defense lawyers have even faced criminal prosecution for zealous representation of their clients. For example, Zhang Jianzhong, a well-known lawyer who has represented some high-profile defendants in major corruption cases, has been detained since May 2002 under circumstances that remain murky. While Mr. Zhang has purportedly been charged with providing a false statement in a commercial case, members of the local criminal defense bar and other observers believe that the authorities are punishing Mr. Zhang for his vigorous criminal defense work.(110) Criminal defense lawyers have also been targeted for prosecution under Article 306 of the Criminal Law, which prohibits a lawyer from forcing or inducing a witness to change his or her testimony or falsify evidence. Any lawyer who counsels a client to repudiate a forced confession, for example, risks prosecution under this provision.(111)

Torture

The use of torture to obtain confessions during the investigation stage of the criminal process is still widespread in China. Article 43 of the revised Criminal Procedure Law prohibits the use of torture to coerce confessions, but in contravention of the UN Convention Against Torture, the Criminal Procedure Law does not prohibit the use of confessions obtained by torture from being admitted as evidence in court.(112) To curb the high incidence of torture during the investigation stage, many scholars and Chinese reformers advocate the adoption of a rule making illegally obtained evidence inadmissible at trial, as well as rules guaranteeing the right to remain silent and the right against self-incrimination. Professor Murray Scot Tanner of Western Michigan University told a Commission roundtable he believed that although significant progress on the torture problem may be possible within China's current authoritarian political system, more fundamental improvements must "await a liberalization and democratization of that system."(113) Professor Tanner explained that over the past several years, a growing number of officials and scholars within China's law enforcement system (including public security authorities and prosecutors) have begun to criticize China's serious torture problem and to call for reform. For example, Professor Cui Min of the Chinese People's Public Security University has written that as long as confessions coerced by torture are admissible for convictions, the Criminal Procedure Law's prohibition against using torture to coerce confessions exists in name only.(114)

Administrative Sanctions

One of the most highly touted reforms under the revised Criminal Procedure Law was the abolition of the form of arbitrary detention known as "custody and investigation" (shourong shencha), under which the police could detain suspects virtually indefinitely, without trial or judicial review.115 Chinese public security authorities, however, still use other forms of administrative sanctions. Under "re-education through labor" (laojiao), for example, an individual can be "sentenced" by public security authorities to three years in a labor camp, with a possible one-year extension, for allegedly committing a variety of relatively minor offenses, such as drug use, prostitution, or offenses deemed to "disturb public order."(116) Suspects assigned to re-education through labor are not entitled to a trial, and therefore do not enjoy even the minimal procedural safeguards provided by the Criminal Procedure Law.(117)

The public security authorities frequently use re-education through labor in political cases as a convenient tool for circumventing the formal criminal process. For example, authorities gave Li Guotao, one of the organizers of the China Democracy Party, a three-year re-education through labor term for "disturbing social order" after he protested the government's crackdown on other dissidents.(118) Scholars and activists have documented the use of reeducation through labor to detain pro-democracy protesters after the Tiananmen crackdown in 1989.(119) As of early 2001, approximately 260,000 people were being held in nearly 300 re-education through labor camps.(120) Although detainees may challenge a reeducation through labor term under the 1989 Administrative Litigation Law, Veron Mei-ying Hung of the Carnegie Endowment for International Peace told a Commission roundtable that such efforts are fraught with obstacles.(121) Some legal scholars and others in China have called for the abolition of re-education through labor. Others advocate at least bringing it within the criminal justice system.(122)

"Custody and repatriation" (shourong qiansong), another widespread form of administrative detention designed to "protect urban social order," targets the urban homeless, undocumented migrant workers, and beggars. Detainees are placed in custody, without trial, until they can pay for their release or are sent home.(123) Experts estimate that this form of administrative detention affects nearly two million people every year.124 In theory, Chinese authorities consider custody and repatriation to be a form of welfare, but in practice public security authorities detain members of these marginalized groups and warehouse them in facilities, the conditions of which are essentially no different from detention centers or labor camps.(125) Because both re-education through labor and custody and repatriation are criminal penalties masquerading as administrative sanctions, imposed without judicial procedures, they conflict with basic international criminal justice standards.

Strike Hard Anti-Crime Campaigns

In response to an increase in crime and corruption over the past twenty years, the Chinese government has periodically instituted crackdowns against crime, referred to as Strike Hard anti-crime campaigns. Launched for the first time in 1983, Strike Hard campaigns are now, according to the Lawyers Committee for Human Rights, a "permanent feature of Chinese life."(126) Abuses of the criminal justice process, increased use of the death penalty, and summary executions intensify during these campaigns.(127) During the period from April to July 2001 of the most recent Strike Hard campaign, law enforcement authorities sentenced at least 2,960 people to death and executed 1,781 for crimes ranging from tax evasion to murder.(128) The use of torture in order to quickly "solve" cases increases during Strike Hard campaigns, as does the use of re-education through labor.(129)

The discussion above illustrates just a few of the problems with China's criminal justice system. Many other aspects of the system, such as pre-trial detention and appellate review of trial court decisions, fail to conform to international human rights standards. For example, detainees are denied the internationally recognized right to contest the lawfulness of their detention.(130) Moreover, criminal suspects enjoy neither the presumption of innocence nor the right to remain silent.(131) In addition, the right to a public trial is frequently not honored in China, particularly in cases involving political dissidents.(132) The Commission will be examining these and other issues relating to the criminal justice system in the coming year.

(Illustrative legal provisions include: PRC Constitution, Articles 33, 35, 37, 53, 123, 125, 126, 128, 129, 131, 133, 135; PRC Criminal Law - 1979, amended 1997; PRC Criminal Procedure Law - 1979, amended 1996; PRC State Security Law - 1993; Ministry of Public Security Rules on the Process of Handling Criminal Cases by Public Security Departments - 1998; Supreme People's Court Interpretation on Several Issues Regarding Implementation of the PRC Criminal Procedure Law - 1998; Supreme People's Procuratorate Rules on the Criminal Process for People's Procuratorates - 1998; PRC Lawyers Law - 1996; PRC Administrative Punishment Law - 1996; PRC Administrative Litigation Law - 1989; PRC Law on Protecting State Secrets - 1988; PRC Organic Law of the People's Courts - 1979, amended 1983; Security Administration Punishment Regulations - 1957, amended 1986, 1994; Detailed Rules on Implementing the Law in the Administration of Re-education Through Labor - 1992; Decision of the State Council Regarding the Question of Reeducation Through Labor - 1957; Supplementary Decision of the State Council on Re-education Through Labor - 1979; Notice of the State Council on Re-Issuing the Ministry of Public Security's Trial Methods for Implementation of Re-education Through Labor - 1982.)

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