As promised, here is a translation of a more dim view of criminal procedure reform in China.  As I mentioned before, it’s taken from a legal blog which reposted articles representing various views on the new law. The author, a “public opinion analyst” with the People’s Daily Online,  explains that the chief objections to the new law are the (1) the detention without notice provision I discussed in the previous post (2) the threat posed by authorized secret detention to the law’s anti-torture provisions; and (3) the law’s failure to address the use of criminal prosecution to deter defense attorneys from being effective.

In the opinion of some in legal circles, although the amendments represent real progress, some elements remain questionable.  Among these, Article 73 provokes the most heated reaction.  Primarily, this law permits the public security organs to place persons suspected of threatening state security, terrorism and participation in particularly large cases of bribery, under “residential surveillance” at a designated location.  When “notification may hinder the investigation” into those suspected of threatening state security and terrorism, the authorities are not required to inform the person’s family of his or her detention.  Numerous online essays have criticized this measure as expanding the powers of the public security bureau, enhancing their crime fighting capacity, but neglecting the civil rights of suspects.

In a press interview, Professor Chen Guangzhong of China University of Politics and Law explained that the amendments retreat from previous law in three areas in which a trend toward greater state power is clear: the review of interrogations in death penalty cases,  unlimited jurisdiction in cases of first impression and special circumstances, and the requirement that witnesses may only testify with court permission.  Further, the environment for legal professionals remains hostile, a problem primarily arising from the law criminalizing “lawyer perjury.”  The efforts of attorneys to investigate, gather evidence, and defend their clients are often perceived as “opposition” by the police and public security forces, which leads these offices to use Article 38 of the Criminal Procedure Law and 306 of the Criminal Law to take “professional revenge” against criminal defense attorneys.  In recent years, there have been numerous cases of attorneys charged with perjury and many attorneys and academics have called for reform of this provision.  Some National People’s Congress Standing Committee members, for example Professor Zhou Guangquan of Qinghua University, have indicated that the perjury law should be equally extended to all parties to litigation, including public security personnel.

To varying degrees, the cases brought over the past few years reflect the absence of additional restraints on public power.  This section of the draft amendment have caused online critics to worry that the phenomena of public authority squeezing out private rights has become almost like a natural occurrence.  A portion of online opinion holds that amendments to criminal procedure law should focus on protecting, rather than weakening citizen’s “Freedom from fear.”

Although the proposal submitted to the NPC contains more than 110 articles, due to a lack of relevant background knowledge, the ordinary netizen is only able to genuinely participate in discussion of a few subjects.  However, attorneys, a few active, internet “opinion leaders,” as well as business people and members of arts, have expressed grave concern with the draft amendments.

Some representatives to the NPC, such as Professor of Law, Wang Mingwen of Xichang University,  Chi Susheng, an attorney, and Ye Qing,  Deputy Secretary of the Hubei Province Bureau of Statistics, have also expressed concern on their personal microblogs.  On his microblog, Professor Wang Mingwen wrote that “I strongly recommended eliminating the language regarding “assigned residences” from the regulation addressing residential surveillance.  The reason is that the law does not contain standards similar to those that will govern detention center investigations, and may provide a place and conditions conducive to torture, and therefore is extremely dangerous.  It is very possible that it will frustrate all of our efforts to prohibit torture and exclude illegal evidence.”

An investigation of microblogs has revealed that 97.2% express concern regarding the draft amendments.  Of these, more than 65% reported that they had little to no understanding of criminal procedure,  while those with a greater degree of familiarity occupied about 20% of voters.  Only 9% stated that they “continually research criminal procedure” and that it is “their occupation.”  This demonstrates the influence that a small number of elite opinion leaders has over public opinion and the extent to which the opinions of a less-informed public naturally change under the influence of opinion-makers’ worries.  The relevant government department must increase its work interpreting and publicizing the new law.

 

 

 

The newest edition of China Law and Policy’s weekly newsletter plopped into my gmail box yesterday as I was diligently nursing my cold with the Granada Sherlock Holmes series starring Jeremy Brett – the only true Holmes (sorry, Cumberbatch).  As if it were reading my highly influential blog, CLP riffed on changes to mainland criminal procedure law, concluding that the Courts are about to become even more secretive. The changes “decrease transparency, as cases no longer have to be tried publicly if they involve commercial secrets. Previously, cases were only kept confidential if they involved state secrets.”

Mainland-based media,blogs, and micro-blogs have been buzzing with discussion of the new amendments, though not because of its impact on civil disputes which foreign companies might be drawn into.  Instead, critics are focusing on new Article 73 and 83 which appear to specifically authorize secret detentions in the case of crimes deemed serious by the government.  I am having trouble locating a copy of the amendment in Chinese, but here is an unofficial translation from a blog, Seeing Red in China, that roughly matches the descriptions I’ve read.  Article 73 provides that

“for [suspect] allegedly involved in crimes of harming state security, crimes of terrorism, or major allegations of bribery, when monitored residency in own home may impede investigation, with the authorization of the People’s Procuratorate or public security organ on higher level, the suspect can be placed under monitored residency in a designated location, but not in detention centers or places where the case is being handled.”

While Article 83 provides that “Upon detaining a suspect, relatives of the detainee shall be notified within 24 hours unless the suspect is allegedly involved in crimes of harming state security, crimes of terrorism, and notifying family may impede investigation.”  The translations are available here.  If someone knows where to find the original Chinese, please reach out!

The upshot of these amendments is that suspects can be detained in locations known only to the government without notifying anyone in the outside world.  Inclusion of “threats to state security” on the list has many people worried.  

However, the new law also has some proponents, so, lets take a look at a pro-amendments article and a nay-amendments article taken from the blog of Zhang Yansheng, a PRC defense attorney.  First, an interview with a proponent published originally by Xin Hua.

On March 8, draft amendments to the criminal procedural law were submitted for the consideration of the 12th NPC.  It is only the second time the law has been amended since it was enacted in 1979, and the first time since the first round of amendments in 1996.  Judicial and academics circles view the amendments as the next great leap in the development of human rights in China”and it has attracted high level attention from many quarters.  Armed with questions from online users, Xinhua reporters conducted two interviews with Professor Chen Weidong of Remmin University Law School, an expert on criminal procedure reform.

 

Q:  What is your opinion of this criminal procedural reform package?

 

A: This revision contains more than 100 articles and adds 66 clauses, all of which were absolutely necessary.  They were undertaken in the spirit of balancing the need to fight crime with protecting human rights.  The revision changes the emphasis formerly placed on crime and punishment and considers both interests together.  Whether considering enforcement, evidence or trial procedural, the revisions contain the spirit of human rights protections.  In this light, the revisions represent an immense improvement in every respect.

The reform package makes criminal procedure law better, more detailed and more comprehensive.  It also treats criminal procedure law in a more scientific fashion, and greatly increases democratization and the rule of law.  I strongly believe that our judiciary is continually developing in a more humanistic and rational directions, especially in the area of human rights, which receive better protection than ever before.

 

Q:  The draft amendments contain many important elements, one of which, the prohibition on torture and other measures aimed at preventing injustice and false accusations, has attracted widespread attention.  Could you please explain this aspect of the reform package?

 

A: One of the strong points of these reforms is the prevention of torture and illegal methods of obtaining evidence which lead to the miscarriage of justice.   By preventing the use of these techniques, we also cut off the source of evidence obtained through violence.  If evidence obtained by torture cannot be used as evidence to decide cases, torture will be unlikely to occur.

In addition to adding new Article 43 which prohibits forced self-incrimination,  the following sections focus on excluding illegal evidence.  What should be explained is that confessions, victim declarations and physical evidence may be excluded, but the reforms focus on confessions.

The language of the new law refers to  “the use of torture and other illegal methods for gather evidence…”  My understanding of other illegal methods is : “methods other than torture”, and not “illegal methods included in the meaning of torture.”  If you define torture to include violent beatings  and harsh corporal punishment, the prohibition on “other illegal methods” should include methods that cause criminal suspects a high degree of physical or physiological pain.  For example,  corporal punishment,  abuse, burning and starvation should all be prohibited.  When an investigator or judicial officer ignores laws that sanction permissible methods of evidence gathering and use methods that infringe on a person’s physical and mental health or causes harm to personality, he not only infringes on human rights, he also abuses the power  of his office.

 

Q:  The draft amendments also make some changes to the rules governing defense attorneys.  What was the starting point for these reforms?

 

The defense system is an important element of our court system.  The right to a defense is the most important means for realizing a defendant’s procedural rights.  The reform package consolidates all aspects of the law governing defense attorneys and strengthens the right to a defense.

In the first place, for the first time, a criminal suspect may engage a defender from the outset of the prosecutorial process, which allows defenders to remain in step with their clients from the beginning. This change represents important progress.  Under current law,  a suspect of criminal defendant may hire an attorney nearing the investigative phases of his case to provide legal assistance, but the defender cannot actually represent the client until a case is filed in the court and during the trial.  Providing legal assistance consists only of explaining questions of law and providing legal opinions, but without the status, position, rights or duty of an attorney in litigation.  As a participant in litigation, a defense attorney exercise the responsibility of a defense attorney.

Next, with respect to the heated reactions of attorneys who have encountered difficulties while acting as defense counsel, the amendments implement a comprehensive set of reforms.  For example, in the past, an attorney needed approval to see his client.  Now, however, with the exception of persons suspected of threatening state security, terrorism and especially large cases of bribery, if an attorney has professional identification, a law firm certificate, and a client letter of authorization or Legal Aid public letters, the detention center is required to arrange a meeting within 48 hours.

 

Another improvement is that client-attorney meetings may be unsupervised.  This is not just an advance in protecting the right to a defense and a restriction on excessive investigative power, but also represents an advance for attorneys’ ability to review evidence and conduct their own investigations.  Under the amended law, once a case is filed, defense attorneys can examine case documents and evidence, and, if they discover that the Public Security Bureau or the National Police are withholding exculpatory evidence or evidence indicating a lesser degree of culpability, an application can be made to the courts to investigate and obtain the materials, thereby preserving an attorney’s right to gather evidence for his client.

 

Q:  The draft amendments also add a new section called “special

procedures.”  Can you please explain the starting point for these reforms

 

A:  Four kinds of special procedures required development and were designed according to the special circumstances of the cases they address.  In the past, our trial system had only one common procedure: all cases were subject to criminal procedure law in the first instance, second instance and trial supervisory system, however, in special cases, for example in the case of the compelling the mentally ill to take medication or cases involving juveniles, criminal procedure law was often ill-adapted to the needs of the case.  The amendments add four special procedures to be followed in cases involving (1) juvenile defendants, (2) the settlement of criminal prosecutions, (3) fugitive and deceased suspects and defendants and property confiscation, and (4) the mentally ill who cannot be held criminally responsible.  Together, they form China’s special procedure law.

 

Q:  How do the new amendments address the area of legal assistance?

 

A:  For many years, the area of legal assistance has experienced little development.  These reforms expand the group of people eligi ble for assistance and expands the scope of legal assistance.  Not only will the indigents, minors and deaf-mutes be eligible, but also persons with limited mental capacity.  This is the major subject of expansion.  In addition, under current law, only defendants subject to the death penalty may request appointment of counsel, while the new law permits defendants who face the possibility of life imprisonment to request legal assistance.

The scope legal assistance is even more important.  Prior to these reforms,  representation was limited to the trial phase of criminal proceedings when the court appointed counsel, but now assistance may begin during the investigative phase, an huge step forward.  Under applicable conditions, suspects without attorneys of their own will be provided with legal assistance during the Public Security Bureau’s investigation,  the National Police review, initiation of prosecution and trial.  So, I can optimistically predict that after the reformed criminal procedure law is passed and implemented, China’s legal assistance system will stand on much firmer ground.

Notably, the good professor did not discuss Articles 73 or 83. Next up, an anti-amendment view, with some interesting observations about how public opinion has been shaped.  

Home sick today, so its less “translation by train,” than “translation a-bed while catching up with the 11th Doctor.”  In case you’re interested, my diet on a sick day is reduced to whatever the local bodega has to offer up: in this case, Choco Leibniz and hearty bean soup, which is still better than my sister, who would be eating tuna out of a can by now.  Anyway, with a little more time at hand, I’ve done a longer translation about proposed changes to Chinese lending law.

Not surprisingly, the former-Communist state restricted private lending in a variety of ways. PRC law only permits commercial banks and certain other approved financial institutions to extend commercial loans.  The People’s Bank of China, the main financial regulatory agency, the China Banking Regulatory Commission, and presumably the CCP, have tremendous influence over lending by these institutions, which they used to reduce lending to small and medium sized companies (and real estate ventures) and to fight inflation recently.  Starved for cash, SMEs and others turned to the private lending market.  Under regulations enacted in 1991, however, PRC law limits private loan interest rates to no more than four times the relevant bank rate.  Sources indicate that “excessive rates” won’t be enforced by the government.  Nevertheless, as reported in this article, actual interest charged may be 6 to 8 times greater than the bank  rate.  Needless to say, the number of debt disputes reaching the courts are rising likely due to this, as well as a general lack of regulation.  Following several high-profile problems in 2011, including a credit crunch in entrepreneurial Wenzhou city, where in 2011

one-fifth of the city’s 360,000 small- and medium-sized enterprises (SMEs) have stopped operating due to cash shortages, and nearly 100 business owners disappeared or declared bankruptcy to invalidate debts owed to individual creditors from the private lending market, according to the city’s council for SMEs

the Government acted.  While measures were taken to alleviate the immediate crisis, analysts indicate that long-term structural problems under gird the issue.  Here’s Forbes‘ take on it.  I’m getting tired, so lets get on with it – the translation below discusses a proposal for reforming the private lending industry in some (to my amateur eyes) minor ways.  It summarizes and quotes remarks made by Qi Qi, representative to the National People’s Congress currently meeting in Beijing and Chief Judge of the Zhejiang Provincial Supreme (or “High”) Court.  I’d love to read an explanation of how the legislative process over there works and whether Qi Qi’s statements should be understood as the dominant opinion of policy makers, the outcome of debates within the government, his own personal opinion or the views of some other group or faction, etc.  The original article is in Caijing.

NPC Representative Proposes Raising Upper Limit on Private Loan Interest Rates and Legalizing Inter-company Loans.

 

National People’s Congress representative and Chief Judge of the  Zhejiang Province Supreme Court Chief Judge, Qi Qi, stated that, in light of the vigorous market for private loans in recent years,  he proposes quickly formulating appropriate law and regulation which would raise the maximum interest level for private loans and  confirm the legality of company funds transfers for use on the private loan market.

 

Chief Judge Qi stated that Zhejiang’s small, medium and micro business now regularly participate in private loan transactions, and that the Court continues to handle an increasing number of private lending disputes.  In 2011, the national courts handled more than 600,000 cases of this kind, involving a total of 114.3 billion yuan.  The 2011 case load represents a 38% increase over 2010.  Zhejiang courts are dealing with more than 90,000 cases involving private loan disputes, approximately 15% of the national total.

 

“To a great degree, the private loan market has expanded small, medium and micro enterprise access to financing, however, there are hidden transaction risks not easy to control.  Also, regular loans are interwoven with illegal ones, leading to regional financial risk.”  In light of these facts, Chief Judge Qi stated that “now there is an urgent need to develop law and regulation that brings increased transparency to the private lending sector.”

 

Under current law, the interest rate of private loans cannot exceed four times the interest rate of similar bank loans.  Rates more than 4 times  the bank rate are not protected under law.  However, this limit was established more than 20 years ago, in 1991, by the Supreme Court, and is now out of step with the current changes in economic development.  For example, in Zhejiang province, the interest rate for short term loans of 10 – 15 days has already reached six to eight times the bank rate, and sometimes rises even higher.

 

“National economic and financial development does not proceed evenly, a fact that we must face.  Our proposal raises the upper limit on interest rates from the current legislated level or allows different interest rates for different regions and conditions.  For example, the rules would allow different rate limits for the Eastern and Western regions, as well as short and long term loans,” he said.

 

Chief Judge Qi also explained that new legislation would recognize the legality of company funds transfers to make and receive loans.  Under current law and judicial interpretation, inter-company loans are still ineffective.  To circumvent the law prohibiting their entry into the private lending market, some companies place their funds in the names of individuals.  As a result, contracts that should bind two companies become debt between individual, natural persons.  In light of these developments, restrictions on company funds must be loosened by passing legislation to permit the transfer of company funds for use in private loans and to allow the legal existence of intercompany loans under certain conditions and limits.

 

Judge Qi proposed quickly enacting law and regulation, such as a “Lender Code of Conduct” or similar standards for private commercial lending, as well as laws addressing lender qualifications, fund sources, loan size, interest rates, guarantees, and registration requirements, as well as necessary supervision.  He also indicated that regulation would differentiate between private commercial and consumer loans.

OK.  Hope my good, but not perfect translation was useful.  Suggestions, corrections, comments and discussion are welcome.  But for now, I am taking up my sonic screwdriver, downing some aspirin and turning on netflix.

Having done a bit of criminal defense work over the last few years,  I’m familiar with the changes Scalia and the Court have wrought on confrontation clause jurisprudence since Crawford v. Washington.  Without getting into questions like “what’s a testimonial statement”  or a “firmly rooted hearsay exception,” suffice it to say that witnesses against a criminal defendant must testify in court (and be subject to cross-examination) more frequently than in the past.  China is also moving in this direction, but reform efforts seem to be starting from quite a different baseline.

A bit of background: The National People’s Congress is currently in session in Beijing.  It meets every year in early March, and this year, drafts of amendments to Chinese criminal procedure law have been circulated.  I’m not familiar with the actual legislative process over there, however, things have reached the point where Wang Zhaoguo, Vice-chairman of the Congress standing committee, summarized the proposed amendments in either a public speech or written report.  Caixin has provided the text here.  I’ve translated* the portion of the Vice Chair’s explanation concerning witnesses and excluding illegal evidence.  Are they ready for Wong Sun and fruit of the poisonous tree? Read on.

*Translation By Train promises good, but not flawless translation – please feel free to send me suggestions and corrections!

(2) The evidentiary system

The evidentiary system is basic to criminal procedure and plays a key role in ensuring case quality, correctly adjudicating guilt and imposing an appropriate punishment.  The chief elements of the draft amendments are improving the system for excluding illegal evidence and strengthening the system for protecting witnesses while requiring them to appear in court.

First, improving the system for excluding illegal evidence:  Existing Criminal procedural law already contains strong prohibitions on the use of torture and other illegal methods to gather evidence.  To better systematically check the use of torture and other illegal methods for gathering evidence, uphold the fair administration of justice, and protect the legitimate rights of parties to criminal cases, it is necessary to establish clear rules in law to exclude illegal evidence.  In accordance with this principle, the draft amendments add rules that prohibit forcing any person to incriminate him or herself.

At the same time, the amendments clearly establish specific standards for excluding illegally gathered evidence.  Confessions extracted from suspects or defendants using torture or similar methods, as well as witness testimony and victim declarations obtained through violence or threats, should be excluded. Since unlawfully obtained physical or documentary evidence has the potential to seriously pervert the course of justice, there should be a correction** or reasonable explanation provided.  In the absence of correction or reasonable explanation, the evidence should also be excluded.  The amendments also impose a duty on the People’s Court, People’s Procuratorate and Public Safety offices to exclude illegal evidence and establish an investigative procedure for excluding evidence during a case.

**Not sure what “correction” means here.

Finally, to systemically prevent the occurrence of torture, the draft amendments provide that a suspect must be taken to a detention center promptly after detention and arrest.  Detention centers will be required to implement an interrogation system that includes the use of video and sound recording.

(2) Clearly defining when witness must attend court and strengthen witness protection:  A witness’s live testimony in court plays an important role in verifying evidence, establishing the facts of the case and reaching a correct judgment.  The draft amendments provide that, if the prosecutor, party, defense counsel or other legal representative objects to a witness’ statement and the evidence will have a significant impact on the defendant’s judgment or sentence, and the People’s Court agrees that it is necessary, the witness must appear in court to testify.  Further, if the witness fails to appear without proper reason, the Court may compel his or her presence and, in serious cases, may punish the witness with up to 10 days detention.

The draft amendments also propose additional measures for strengthening protections for witnesses, experts and victims.  In prosecutions for endangering national security, terrorism, organized crime or cases involving drugs, appearing in court entails risks to the personal safety of victims, witnesses and their close family. For these cases, the People’s Court, People’s Procuratorate and Public Security Division must take measures to ensure their security.  In the event a victim, witness or expert believes her testimony places her at risk, she can also request protection.

I readily admit that I don’t know how often a witness is required to confront the target of his/her accusations under current Chinese law, but the implication of this speech/document seems to be that it is a rare occurrence.

Here’s a translation of a short article published in Caijing about the health care system in China.  The subject of the article, Yao Yuzhou (pictured here), is a party official from Tongling City, located in Anhui Province, which is apparently suffering a shortfall of adequately trained doctors.  After reading the article, I’m left with a number of questions – Is this a local, regional or national problem? Are there private hospitals/clinics? Is the shortfall because of inadequate pay or prestige? Maybe Tongling just isn’t a happening place, so no docs want to move there?  What are people doing when they can’t see a doctor?  What happens when one of the less competent docs messes up? compensation? how?

NATIONAL PEOPLE’S CONGRESS REPRESENTATIVE YAO YUZHOU: A THREE-TIER MEDICAL SYSTEM IS NEEDED TO ADDRESS THE INADEQUATE SUPPLY OF  HEALTH CARE

On March 9, The China Broadcast Network reported on a statement made by Yao Yuzhou,  National People’s Congress Representative and Party Secretary of Tongling City, who addressed the difficulty faced by ordinary people in obtaining medical care.  Mr Yao asserted that there is an urgent need to construct a medical system that adequately serves cities, counties, towns and villages, and the necessity of increasing training and equalizing medical resources.

Mr. Yao stated that hospitals, for some period of time, had a number of doctors whose registration exceeded their actual diagnostic ability.  To address this problem, he placed emphasis on two major points: first, the construction of a comprehensive, three-level medical system with city  and regional hospitals, as well as community and village clinics.  Second, Mr. Yao stated that an increased effort to train and educate doctors was needed to address skill gaps and improve service.

Mr. Yao  explained that at present there are between 100-1000 adequately performing doctors.  When there are 10,000, the medical system will be able to satisfy patients’ needs.   At present, the number of doctors  commonly recognized as competent is still insufficient.