Chinese Commentary Condemns the Practice of "Multiple Retrials" in Criminal Cases

December 20, 2004

In a December 6 commentary published in the 21st Century Business Herald, a Chinese legal scholar criticizes the common practice of "repeat prosecutions" and "repeated re-trials" of the same individual in China. He calls for "suitable restrictions" on the state’s prosecution power and on the number of times that a retrial may be held.

The scholar examines the bribery case of Tan Shouxiang. The case has continued for nearly four years. Chinese courts tried and convicted Tan three times, but each time the court of second instance sent the case back for retrial because of "unclear facts." Criticizing such "judicial marathons," the commentator argues that (1) multiple prosecutions and retrials imply that no limits exist on the state’s prosecutorial power; (2) multiple orders by courts of second instance for retrials imply a presumption of guilt and suggest that courts are not impartial adjudicators; and (3) as it presently exists, the system is incompatible with a rule of law system that protects human rights. The scholar calls for amendments to the criminal procedure law that would limit the total length of time an individual could be prosecuted for the same crime. He also advocates limiting the number of times that a court of second instance could cancel a judgment and order a retrial. He concludes that courts must do more to balance the relative power of state prosecutors and defendants in the trial process.

Criminal courts in China rarely acquit defendants. According to official statistics, the conviction rate in Chinese criminal courts exceeded 99 percent in 2003. Moreover, under China’s Criminal Procedure Law, prosecutors may appeal acquittals and also request "adjudication supervision." Along with the provisions on retrial highlighted in Tan’s case, such provisions allow prosecutors to continue to prosecute a defendant until they convict him or her. In fact, they have an incentive to do so, since under China’s State Compensation Law acquittals may result in official liability for wrongful detention and arrest. Perhaps because of the limited prospects for success and finality, only about 15 percent of criminal defendants exercise their right to appeal their convictions. For more on these issues, see the criminal justice section of the 2004 CECC Annual Report.