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.  

Advertisements