Criminal Procedure in the People’s Republic of China

Introduction

Ambiguity defines criminal procedure in China. The state has wide discretion in interpreting both substantive criminal law and the criminal procedure code. While the current Criminal Procedure Law (CPL), which went into effect on January 1, 1997, provides for protections of accused persons, the state can deny those rights under the law. In practice, those rights are often ignored even when the law does not provide discretion. This paper will examine the development of the current CPL, the rights of the accused contained in the CPL and how those rights are respected in actual practice, and the role of political repression in the criminal law system in the People’s Republic of China.

Development of the Criminal Procedure Law (CPL)

It is important to note that there are traditional and conservative views of the law that continue to influence the legal system in China, with an emphasis on the importance of the state as opposed to the individual.[i] The Nationalist government in 1935 codified a code of criminal procedure that borrowed heavily from both the Japanese and European systems of law.[ii] When the Communist Party (the Party) seized control in China, it nullified the laws of the Nationalist government that it defeated.[iii]

After the Party seized control, there was effectively no code of law in China. While the Party sought to promulgate laws it was continually derailed by its own actions in the Anti-Rightist Purge of 1957, the Great Leap Forward, and the Cultural Revolution.[iv] The political violence of these events preyed especially hard on the intellectual classes that had the ability to bring about a semblance of the rule of the law.[v]

In 1979 the first Criminal Procedure Law was passed, along with a substantive criminal code.[vi] The Party provided itself with a strong legal basis with these laws to have complete control over the detention and prosecution of criminals. This system looked a great deal like a traditional inquisitorial system of continental Europe in that a unitary government both investigated and tried criminal cases. There was no presumption of innocence, and therefore no right against self-incrimination.[vii] The emphasis of the system was to obtain confessions. As opposed to the systems in the liberal democracies of Europe, however, there was also the use of brutal police tactics to obtain those confessions: long indefinite detentions and torture.

As China became more involved with the world and sought to strengthen its economy through trade and engagement, the Party sought ways to enhance its reputation among the world community and its legitimacy with its own people: the reforms enacted in the 1997 CPL were at the forefront of this campaign.[viii] The reforms appeared far-reaching and substantial. The presumption of guilt was dropped, defendants are guaranteed legal counsel starting in preliminary investigations, and defense counsel is allowed to examine and present evidence at trial.[ix] By affording defendants legal counsel with the right to confront the state, the Party introduced an adversarial element to Chinese criminal procedure that had not previously been present.[x]

While the reforms were substantial and would have brought the Chinese system into some semblance of consistency with world norms and United Nations standards, those reforms in practice have provided little relief for those arrested in China. The government still has wide latitude in deciding when to provide the defendant with rights under the law, and in practice regularly denies those rights altogether.

Political dissidents are provided with far less rights than other defendants, and are regularly beaten and intimidated when attempting to protest government action or even when simply petitioning the government.[xi] These individuals, which the Party sees as a threat to its existence, simply exist separate from the rest of the Chinese criminal procedure laws. The police have also maintained a separate system for minor crimes called the re-education through labor camps, where individuals can be kept for up to three years with no investigation and no trial.[xii] Political prisoners and drug offenders are regularly detained and put into those camps.[xiii]

Reforms of the 1997 CPL

Right to Counsel

A key component of the reforms in the 1997 CPL is the right to an attorney. While up to the 1990s there were few lawyers being trained in China, there is now a steady climb in practicing attorneys and law schools in China.[xiv] Lawyers have traditionally been viewed in China as enemies of the state when they defend accused criminals, and that attitude lingers today - making counsel’s job difficult.[xv] The CPL provides that a lawyer may be present anytime after a first interview by the authorities with the suspect, or whenever coercive methods are used against the suspect.[xvi] The CPL further provides that attorneys can gather evidence in their own investigations, examine the evidence of the prosecution, and cross-examine witnesses.[xvii]

In practice, the Party does not allow attorneys anywhere near the access that attorneys in the United States have. The CPL provides that the Party can deny access to any defendant when the case concerns “state secrets”, a phrase that is undefined and is often enacted pro forma without regard to the actual crime the authorities have charged the defendant with.[xviii] There is no independent oversight of this determination and it cannot be appealed. Even when the trial is not designated as containing state secrets, the Party regularly simply denies access without explanation.[xix]

When consultations are granted, the defense attorney faces new challenges. Consultations are limited to 30 minutes or less, and are often as short as five minutes. The prosecution has the right to be present, and in fact the prosecutors view the consultation as a good opportunity to gain evidence to help convict the defendant.[xx]

At trial, witnesses rarely testify. The state has subpoena power, but there is no law for enforcing sanctions on those that do not appear. A judge may allow witnesses to not testify for a host of reasons, including a catch-all category of “for any reason.”[xxi] Typically, the defense attorney is limited to disputing testimony that the court reads into the record; there is no evidence code that defines what can be accepted into evidence.[xxii] Not surprisingly, conviction rates are above 99 percent.[xxiii]

Lawyers for defendants often are the target of reprisals – both within the law and from extra-legal tactics. Chinese law criminalizes actions by attorneys that block justice or are likely to lead to perjury. The law does not define these phrases, and the prosecution has the discretion of charging the attorney. Getting a witness to change his story is grounds for prosecution, regardless of any evidence that shows that the prosecution obtained the statement or confession in question by coercion or torture.[xxiv] The adversary nature of the proceedings set up by the CPL of 1997 clash directly with the tradition of the Party. Confronting the prosecution on behalf of their client puts attorneys in direct conflict with the same officials who have the power to arrest and prosecute them. Attorneys face the further threat of being threatened or simply beaten.[xxv]

“Strike-Hard” Campaigns

In spite of the reforms enacted, the Chinese government has continued uninterrupted a campaign called “Strike Hard”.[xxvi] Torture is used extensively in this campaign, directed at the “three evils” of pornography, gambling, and drugs.[xxvii] This campaign is characterized by the extensive use of the death penalty: China executed more people in the 1990s than all other nations combined, with 4,327 official executions in 1996 and 3,612 in 1995.[xxviii]

These campaigns come from directives from the Party, and there is no provision of the CPL or the substantive Criminal Law code that provide for these special campaigns against crime. The Party demonstrates its lack of commitment or understanding of the principle of “the rule of law” by sidestepping the codes in favor of quick and decisive action against undesirable behavior. Their targets have included prostitutes and their clients, vagrants, the mentally ill, and violators of the official birth control policy.[xxix]

Trial procedure

At trial, there is no burden of proof in the Chinese system. There is no presumption of guilt or innocence, and the court should “seek truth from the facts.”[xxx] To bring a case, the prosecution must present the court with crime charged, the evidence they have, and the witnesses to be called.[xxxi] The court must make a determination based on that presentation. The court then hears the case, and issues a verdict. Verdicts can be appealed: there are four levels of criminal courts in China. The type of crime determines where the case begins, and then on appeal it proceeds vertically up the line.[xxxii]

Prior to the 1997 CPL, the trial system in China was criticized as one of “verdict, then trial.”[xxxiii] Before the trial, the judge would consult extensively with the investigating procuratorate, which is also the organ of justice that prosecutes cases.[xxxiv] The judge would hear one side of the evidence, and only go to trial when the evidence was certain.[xxxv] The trial almost always had a predetermined outcome: conviction. Scholars in China saw this as a problem of the inquisitorial system, and the 1997 CPL reflected those concerns by making the judge play a more neutral role and allowing for defense and prosecutors to present conflicting evidence.[xxxvi] This did little to solve the underlying problem that the Party controls the judiciary.

The case of Xie Shude illustrates how trials in China remain very difficult for a defendant. After a conviction for murder, Xie appealed his case to the High Court of Anhui Province.[xxxvii] A three judge panel of the High Court originally overturned his conviction, but then affirmed the conviction after a second trial; the High Court also sent the prosecutors sealed notes on how to improve their case.[xxxviii] Chinese officials interviewed by the N.Y. Times acknowledged that the first panel examined the case solely on legal grounds and found insufficient evidence, but that the second panel was larger in membership and likely was influenced by a desire by the provincial government to have a conviction for the crime.[xxxix]

Arrest and Interrogation

To make an arrest, the CPL requires that the authorities have a warrant, but it does not set forth the procedure for obtaining one.[xl] Once an arrest warrant is issued, the police have 7 days to make an arrest.[xli] Prior to the 1997 CPL pre-trial detention was lengthy, and the limit provided by the law was regularly extended or ignored. Under the 1997 CPL investigations must be completed within one month; that time limit can be reset each time the authorities began a “new” investigation into the detained individual, rendering the limit almost meaningless.[xlii]

The CPL 1997 requires that a search warrant be presented to the individual whose belongings are to be searched before the search can be carried out (a requirement not found in American law).[xliii] Police can execute warrantless searches when making arrests. The dearth of material discussing evidence gained through illegal searches puts in doubt that this requirement is respected or enforced.

Once in detention, the CPL prohibits the use of coercion or torture of any kind.[xliv] The defendant is required, however, to answer all questions posed by the authorities completely and truthfully. The American principle of the right to remain silent is seen as conflicting with the Chinese tradition of cooperation with authority, although it has began to percolate into China, partially through the influence of American police films.[xlv]

An important revision in the 1997 CPL was the elimination of the dreaded “Shelter and Investigate” practice. This was a form of administrative detention, rather than an arrest, which allowed the authorities to act without being constrained by any restrictions the law placed on the treatment of individuals arrested.[xlvi] In its place, the 1997 CPL provides for other procedures the police can use to ensure cooperation while investigating, including a form of bail.[xlvii] The 1997 CPL is silent, however, on another system for detaining suspects outside of the law: the “Re-education Through Labor” system.

Re-education through Labor

Re-education through Labor camps have long been a part of the Chinese criminal system. Individuals that commit crimes that are considered minor by the government often face being interned in a forced labor camp, and as noted above, there is no judicial oversight of this determination.[xlviii] It is thus not surprising that many dissidents end up in these camps, where they can be conveniently kept under the control of the government and intimidated by physical abuse and the threat of further internment in the future. There are currently 300,000 individuals being held in these camps.[xlix] Of those prisoners, around 10 percent are political prisoners and forty percent are drug offenders.[l] Falun Gong members report guards torturing them with cattle prods to coerce renunciations of the movement.[li]

The original intent of the camps was to provide a separate system from the criminal code for offenses considered too minor for prosecution, similar to misdemeanor counts in the United States. The 1957 “decision” creating the camps outlined fou r types of offenders that would be eligible for the camps: 1) those who engage in “hooliganism, commit larceny, fraud”, 2) Counterrevolutionaries, 3) “employees of government organs [that] have refused to work”, and, 4) those “who refuse the work assigned to them”.[lii] The system has since evolved into a mechanism for controlling crime, and especially drug abusers, who are expected to “kick their habits” while interned.[liii] The camps now have people serving sentences of up to four years, which is more than many “major crimes” handled through the regular CPL, and human rights groups have found many problems with both the practice of prosecutors simply sending prisoners to the re-education camps if they do not have enough evidence for a trial, as well as the treatment of prisoners in the camps.[liv]

Brutal repression of ethnic minorities is common in the camps. Ethnic Uighars in the Xinjiang Uighur Autonomous Region (XUAR) and Tibetans have been brutalized in these camps: “few political prisoners escape” torture and beatings.[lv] Amnesty International also reports that Tibetans often die from severe beatings, and torture is carried out on both Tibetans and Uighars through beatings with electric batons.[lvi]

Conclusion

Outside of the re-education camps, there is other repression of political dissidents. As peasants attempt to force local corrupt governments to change, the state is using its police to harm and intimidate those attempting to organize protests. After unrest in the city of Taishi this fall, police from surrounding cities were brought in to quash demonstrations.[lvii] A local activist was beaten unconscious by the police and then released.[lviii] While such actions are common in countries ruled by authoritarian regimes, it is important to remember such actions by the government when discussing the criminal procedure in a nation, as they show that there is no true respect for the rule of law. It can be ignored when inconvenient.

There is hope in China that true reform may be forthcoming. The Chinese government has stated this year that the reform of the CPL to fit UN standards for fair trials and the procedure of executions is a top priority.[lix] Commentators also recognize the ideas embodied by the 1997 CPL were revolutionary changes, and place hope in the increasingly global role China is playing economically to be a catalyst for citizens to dema

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[i] Geoffrey MacCormack, The Spirit of Traditional Chinese Law 60-63 (1996).

[ii] Jianfu Chen, A Criminal Justice System for a New Millennium, in China’s Legal Reforms and their Political Limits 77, 87 (Eduard B. Vermeer & Ingrid d’Hooghe eds., 2002).

[iii] Mike P.H. Chu, Criminal Procedure Reform in the People’s Republic of China: The Dilemma of Crime Control and Regime Legitimacy, 18 Ucla Pac. Basin L.J. 157, 165-166.

[iv] Id. at 166.

[v] Id. at 167.

[vi] Id. at 167-168.

[vii] Chen, supra note 2, at 87.

[viii] Chu, supra note 3, at 173-174.

[ix] Id. at 175.

[x] Gu Minkang, Criminal Procdure Law, in Chinese Law 643, 675 (Wang Guiguo & John Mo eds., 1999).

[xi] Daniel C. Turack, The New Chinese Criminal Justice System, 7 Cardozo J. Int’l & Comp. L. 49, 59-61.

[xii] Amnesty International, People’s Republic of China – Torture A Growing Scourge in China- Time for Action 23 (2001).

[xiii] Id.

[xiv] Ping Yu, Glittery Promise vs. Dismal Reality: The Role of a Criminal Lawyer in the People’s Republic of China after the 1996 Revision of the Criminal Procedure Law, 35 Vand. J. Transnat’l L. 827, 835 (May 2002).

[xv] Gu, supra note 10652 (Wang Guiguo & John Mo eds., 1999).

[xvi] Id., at 653.

[xvii] Marc Rosenberg, The Chinese Legal System Made Easy: A Survey of Government, Creation of Legislation, and the Judicial System under the Constitution and Major Statutes of the People’s Republic of China, 9 U. Miami Int’l & Comp. L. Rev. 225, 227 (2000/2001).

[xviii] Id. at 231.

[xix] Yu, supra note 14, at 836.

[xx] Id., at 838-839.

[xxi] Id., at 845.

[xxii] Id., at 846.

[xxiii] Yardley, Desperate Search for Justice: One Man vs. China, N.Y. Times, Nov. 12, 2005, at A1.

[xxiv] Yu, supra note 14, at 856.

[xxv] Gu, supra note 10, at 675.

[xxvi] Turack, supra note 11, at 50.

[xxvii] Amnesty, supra note 12, at 8.

[xxviii] Id., at 51.

[xxix] Id., at 13-22.

[xxx] Rosenberg, supra note 17, at 259.

[xxxi] Id.

[xxxii] Id. at 260.

[xxxiii] Chen, supra note 2, at 95.

[xxxiv] Id.

[xxxv] Id.

[xxxvi] Id., at 96.

[xxxvii] Yardley, supra note 23.

[xxxviii] Id.

[xxxix] Id.

[xl] Gu, supra note 10, at 656-57.

[xli] Id.

[xlii] Id., at 662.

[xliii] Id., at 660.

[xliv] Id., at 650.

[xlv] China: Right to Remain Silent a Hot Topic, China Daily, Dec. 24, 1999, at 4.

[xlvi] Chen, supra note 2, at 84-85.

[xlvii] Id., at 86.

[xlviii] Veron Mei-ying Hung, Improving Human Rights in China: Should Re-Education Through Labor be Abolished?, 41 Colum. J. Transnat’l l. 303, 304.

[xlix] Id., at 305.

[l] Jim Yardley, Issue in China: Many in Jails without Trial, N.Y. Times, May 9, 2005, at A1.

[li] Id.

[lii] Hung, supra note 35, at 312.

[liii] Yardley, supra note, at 37.

[liv] Hung, supra note 35, at 314-315.

[lv] Amnesty, supra note 12, at 8.

[lvi] Id., at 23-24.

[lvii] Edward Cody, In Chinese Uprisings, Peasants Find New Allies: Protestors Gain Help of Veteran Activists, Wash. Post, Nov. 26, 2005, at A1.

[lviii] Id.

[lix] China Considers revising Criminal Procedure Law to Conform to UN, BBC World, Sept. 7, 2005.