23 June 2009

News on Revised State Compensation Law Draft

There were a number of reports (e.g., here) over the past couple of days regarding the National People's Congress Standing Committee's second reading of the draft revised State Compensation Law, legislation that has some interesting ramifications for criminal justice matters in China. (Note: Civil law is not an area I feel comfortable opining on at any length, so I'm basically just going to lay out the facts as I understand them.)

The first issue concerns death or disability suffered while in detention. The draft legislation being reviewed would put the burden on the detention center or prison to prove that an individual's death or disability was not a result of its negligence. This seems pretty straightforward, but it actually appears to me to be a fairly big step forward to shift the burden of proof to state institutions here. We'll see if the provision survives into the final legislation.

A second revision concerns the scope of eligibility for compensation on the grounds of wrongful detention. Currently, as I understand it, individuals are only eligible to request compensation if they are detained or arrested for a crime they did not commit. The legislation under consideration would expand eligibility to include anyone detained or arrested whose case was subsequently dropped, whom prosecutors declined to indict, or who was acquitted by a court.

This is very interesting and strikes me as quite a broad definition of "wrongful." I don't know how this compares with similar laws in other countries, but it seems potentially revolutionary for China. For one thing, it seems designed to encourage increased use of non-custodial measures such as bail or—dare I say it, given the fate of Liu Xiaobo—"residential surveillance." This would complement anticipated revisions to the Criminal Procedure Law that are also expected to place more emphasis on the use of bail.

It's important to note, though, that law enforcement agencies have secured safety provisions that would deny compensation to those whose unlawful behavior, if not punished in the formal criminal justice process, is handled through administrative sanctions—presumably including "re-education through labor." So, it's probably too early to send your condolences to China's police over the imposition of restrictions on their broad powers.

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