Empty Promises: human rights protections and China's criminal procedure law in practice

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Introduction

Summary

A. Judicial Infrastructure
B. Role of Lawyers
C. Pretrial Detention
D. Evidence
E. Discriminatory Practice
F. International Standards

INTRODUCTION

More than four years have now passed since the revised Criminal Procedure Law (hereinafter “CPL”) entered into force in January 1997. While these revisions have been praised both inside China and internationally for making certain improvements to the human rights protections available to suspects and defendants caught up in China’s criminal justice system, doubts have been raised as to how successful these reforms have been in practice.

Based on three years of observation of certain key areas of operation of the CPL relating to rights protections, Human Rights in China (HRIC) concludes that the implementation of the CPL has departed substantially from both the letter and the spirit of the law. Our investigation shows that the authorities appear to have been unwilling to allow the limited safeguards in the revised CPL to have a significant impact on protecting rights in practice, and have also refused to act, whether through enacting legislation or administrative rules, to remedy deficiencies in areas where further reforms are very evidently needed.

CPL provisions aimed at safeguarding rights have been either watered down by interpretative rules issued by law implementation agencies, or violated outright without the authors of the violations suffering any consequences. Loopholes and ambiguities in the CPL have been exploited to the full by law implementation authorities. In certain areas, the new CPL has actually resulted in greater limitations of key rights.

This is particularly so as regards certain aspects of the involvement of lawyers in criminal cases. As described in Section II of this report, lawyers now generally have less access to case information gathered by the prosecution than before, and they can face criminal penalties for engaging in vigorous defense of their clients. The role of lawyers in legal defense envisaged in the revised CPL has been severely diminished by various implementation measures.

As described in Section IV, illegally-obtained evidence generally continues to be admissible in court, despite many years of criticism from legal scholars and human rights advocates pointing out how this contributes to endemic torture and ill-treatment of persons detained as part of the criminal process. [1] Proposals from both international and domestic scholars to establish an exclusionary rule in the CPL have so far been largely ignored, as have proposals to incorporate the right to remain silent and the right against self-incrimination into Chinese law.

Another element that hampers efforts to eliminate such abuses is the long periods suspects and defendants can be legally held in detention virtually incommunicado, examined in Section III. The extensive use of administrative detention, such as Reeducation through Labor (RTL), Custody and Education (C&E) and Custody and Repatriation (C&R), are at times employed by the police to avoid even the minimal rights safeguards in the CPL. [2]

A recent official report from the Standing Committee of the National People’s Congress (hereinafter “NPC Standing Committee”) confirmed many of the problems with implementation of the CPL mentioned in HRIC’s report, although unfortunately the full NPC report was not made available to the public. [3] in September 2000, the NPC Standing Committee sent inspection groups to six province-level administrations (Tianjin, Inner Mongolia, Heilongjiang, Zhejiang, Hubei and Shanxi) to review the implementation of the CPL over the past three years. These inspections raised serious concern, particularly about three main areas of CPL implementation. First, the various time limits on detention have been widely ignored. Second, torture has reached epidemic proportions, although both the CPL and the Criminal Law (hereinafter “CL”) prohibit it. Third, lawyers representing defendants or suspects in criminal cases encountered a great deal of difficulty in fulfilling their professional duties. [4]

However, HRIC believes that these problems are not merely to do with inadequate implementation of the CPL, as the NPC report indicates, but are intimately connected to serious institutional failings and lack of political will to address them. As detailed in Section I of this report, the Chinese Communist Party (CCP) continues to exercise day-to-day control over the entire law implementation apparatus in the country, severely compromising the possibility of establishing the judicial independence that is essential for fair and impartial adjudication of cases.

The impact of political control is most evident in the cases described in Section V, which demonstrate how any pretense that persons have equal protection under the law is dispensed with when the case involves a politically-sensitive issue or defendant. Such discriminatory treatment is indicative of a consistent tolerance for legal exceptionalism at all levels of the system, a phenomenon which calls into question the entire project of establishing a rule of law in China.

Despite this relatively bleak picture, there have been some positive developments, particularly in the willingness of legal professionals to criticize the failings of the current system and call for change. On the official side, China has gradually reformed the style of trials from inquisitorial to accusatorial model. This means judges play a more neutral role than they did under the old CPL, and the defense side is given more opportunity to challenge testimony and evidence. Recently, the courts made a brave move by stipulating that all trials, except those for which this is legally prohibited, should be open to the public and any trial violating the public trial rule shall be sent for retrial. [5]

The abuses described in this report are clear violations of international human rights standards, and undoubtedly result in many serious miscarriages of justice across the nation. China is a party to various legally binding international treaties and has contributed to formulating a number of international standards that have normative status. HRIC joins with many legal scholars inside and outside China to urge the Chinese government to begin immediately to draft and enact legislation that addresses the concerns detailed in this report. In Section VII we present a list of detailed recommendations to the Chinese authorities, and also urge the international community to do what it can to assist in the long and difficult process of bringing China’s criminal justice system into compliance with international standards.

Summaries of the five substantive sections of the report and of our assessment of the issues we raise according to international human rights law are presented below.

SUMMARY

A. Judicial Infrastructure

The institutional framework of China's criminal justice system has significantly tempered the impact of the 1996 amendments to the Criminal Procedure Law.

The power of the CCP continues to block the country's judiciary from developing a truly independent role. The Party is able to wield its influence on the judiciary in a number of ways, including the nomination of judges and prosecutors. Intervention in the judiciary's daily work is most directly exercised by the CCP through political-legal committees (zhengfa weiyuanhui) which are responsible for implementing Party policy in legal affairs.

Judicial independence and the impartiality of criminal justice are also compromised by the structure of the court system itself. For instance, adjudication committees continue to exist within every people's court and are mandated to review and decide "difficult, complicated, or major cases." The case review system, or the practice of subjecting cases and decisions for examination and approval by senior judges, also undermines judicial autonomy.

Finally, routine cooperation between the police, prosecutors and judges as well as consultation within different levels of the judiciary further militates against a criminal defendant's chances for a fair and impartial hearing or review.

Recently the authorities have claimed that they are taking steps to strengthen judicial independence in a number of ways, including by holding judges accountable for "wrongfully decided cases." However, in fact this latter measure merely increases pressure on judges to please their superiors. In sum, the efforts so far fail to recognize that the only way to bring about meaningful change to China's legal system is through substantial institutional reform guided by the principle of a true separation of powers.

B. Role of Lawyers

The 1996 CPL revisions were supposed to expand the rights of individuals suspected of criminal offenses by authorizing lawyers to provide more legal services at an earlier stage of criminal proceedings. However, defense lawyers have faced serious obstacles in bringing these amendments to life, both because of loopholes in the law itself and due to the failure of officials to allow them to exercise the rights given to them under the new CPL.

For example, officials continue to deny requests for lawyer-client meetings. Even when approved, meetings are frequently limited in frequency and duration, or subjected to conditions that severely compromise meaningful consultation. According to research carried out by HRIC, lawyers are commonly held responsible for security during meetings with clients and further told what they can and can not discuss. Attorney-client confidentiality is generally disregarded as meetings are often monitored, recorded, or held in public rooms.

Despite the promises of the new CPL, lawyers continue to experience difficulties in preparing proper defenses. In addition to limited access to detained clients, defense lawyers are restricted in their ability to review evidence collected by the prosecution, have insufficient power to collect their own evidence, and are unable to cross-examine witnesses who have provided testimony but who fail to appear in court. Mounting official hostility towards lawyers have also greatly increased the risk of representing criminal defendants. Lawyers who undertake such work are often harassed and intimidated, and sometimes detained or even convicted of crimes, merely for actively defending the interests of their clients. Lawyers have consequently been reluctant to work in criminal defense which has led to a disturbing decline in the number of criminal cases where defendants are represented by counsel.

Thus, to truly expand the rights of criminal suspects and defendants, China must also accord its lawyers the guarantee that they will be able to perform their professional duties without intimidation, harassment or unnecessary restraint.

C. Pretrial Detention

One of the most criticized aspect of the 1979 CPL was the huge discretion vested in officials to detain suspects without judicial review. In 1996, a number of important revisions to the CPL apparently brought China closer to eliminating arbitrary detention in its criminal process. The prohibition of Custody and Investigation (shourong shencha, C&I), a type of indefinite administrative detention, from the practice of crime investigation was one example of a step in the right direction.

However, the pretrial detention currently prescribed in the CPL still falls far short of recognized international standards. For instance, an overwhelming majority continue to await trial in custody. Non-custodial detentions such as “taking a guarantee and awaiting trial” (qubao houshen) remain the exception rather than the rule. Because the CPL does not specifically prohibit authorities from using different types of detention consecutively or in succession, detention may—and frequently is—prolonged beyond legal time limits.

Furthermore, legal recourse remains unavailable to individuals who want to contest the deprivation of their liberty, and there are virtually no legal or other consequences for officials who ignore or misuse the laws regarding pretrial detention. The extensive loopholes contained in the law itself and in interpretations issued by law implementation agencies allow the authorities enormous latitude to detain people for as long as they see fit.

Finally, the widespread use of extra-judicial measures to detain suspects indicates that China is still a long way from a system that protects the rights of suspects and defendants. Such practices effectively allow law implementation agencies to circumvent the minimal safeguards for the rights of defendants contained in the revised CPL. Indeed, the 1996 revisions to the CPL on the issue of pretrial detention were more a confirmation of the pre-existing system than a meaningful reform.

D. Evidence

Despite the 1996 revisions, the CPL fails to adequately protect critical procedural rights for criminal suspects and defendants. This oversight has cultivated an environment where torture is relied upon as a convenient tool to solve and prosecute crimes.

Although the use of torture to extract confessions has been prohibited in China, neither the CPL nor any other law expressly and unequivocally bars the use of confessions obtained through torture in court proceedings. Current law only prohibits the conviction of an individual solely on the basis of a confession obtained through torture.

Furthermore, as many Chinese legal scholars have pointed out, the absence of the right to remain silent and the right against self-incrimination in Chinese law are key contributing factors in the law implementation agencies’ reliance on torture as a “crime solving” technique. Since it obliges criminal suspects to answer all questions from the investigation authorities, the CPL effectively puts suspects and defendants at a greater risk of torture and ill-treatment. Even under the 1996 revisions, no criminal suspect may refuse to speak or decline to answer on the basis that he or she might help the prosecution’s case. In fact, many officials have objected to incorporating such rights into Chinese law on the grounds that they would hinder the state’s ability to punish crimes and prosecute cases efficiently. However, without such procedural rights, China will not be able to effectively uphold the rights of persons accused of crimes.

E. Discriminatory Practice

Although Chinese domestic law guarantees equal treatment for all citizens, substantial evidence suggests that a number of people in China are singled out for “special treatment” and are routinely denied many of the rights guaranteed under the CPL. These people include those who seek to form opposition parties, organize independent trade unions and members of unregistered religious groups such as the recently-banned Falungong spiritual movement. Many of the principles and protections outlined in the CPL simply are not applied to these “politically disadvantaged” defendants.

Based on a detailed analysis of cases of dissident defendants, HRIC concludes that the CPL is applied in a discriminatory fashion in politically sensitive cases, both by central and local authorities. For instance, dissident defendants are routinely denied the right to retain counsel. In some cases, authorities blatantly deny this right on the grounds that the case involves “state secrets.” In other cases, lawyers are dissuaded from representing such clients by both political pressure as well as onerous regulations that govern the handling of such cases. These defendants are also denied a range of other rights including the right to family notification of arrest or detention, the right to a public trial, the right to present a defense as well as the right to appeal.

Such clear and consistent violations of procedural rights, committed by authorities across the country and sometimes evidently authorized at the highest levels of the power structure, call into question the leadership’s commitment to equal protection of the law for all citizens.

F. International Standards

As this report makes clear, both as written and as implemented, the CPL still falls far short of international standards in a range of critical areas. China continues to flout the universally-recognized right to a fair trial despite its obligation to uphold this legal entitlement. Although the Chinese government pays lip service to the right to legal counsel and the right to equal treatment under the law, it fails to fully uphold these principles in practice. In fact, an alarming number of criminal suspects and defendants continue to face arbitrary detention, torture and violation of their due process rights without the prospect of any form of judicial review. Without an independent and impartial judiciary, China appears limited in its ability to protect fully the rights of those caught in its criminal process. This raises concerns that individual rights continue to be disregarded in a China that has learned to “talk the talk” but still refuses to “walk the walk.”