31 August 2011

Lawyers Express Criticism of Criminal Procedure Law Revision Draft

Yesterday, the controversial draft revision of China's Criminal Procedure Law (CPL) was finally published on the National People's Congress. As usual, Forgotten Archipelagoes has provided a set of useful links to relevant documents, including a chart comparing the current and proposed texts side by side.

My last post on the subject of the draft's troubling "residential surveillance" provisions seems to have sparked a strong protest. Outside China the issue has been covered widely by the international media (a recent example from Reuters), while, after a short delay, the issue is now being discussed on microblogs and BBSes inside China as well.

Since the publication of the text yesterday afternoon, a number of commentators have given critical assessments. The general feeling is, as one lawyer put it, "The bright spots are all very theoretical, while the regressions are all very concrete." For example, Zhang Peihong, a criminal defense lawyer perhaps best known for representing Stern Hu during the Rio Tinto trial, published the following 18 points on his Weibo account.

The NPC has given the public until the end of September to comment on the CPL revision draft. It will be worth watching whether and how public criticism of some of the draft's provisions has an impact on the legislation.

1. Considering that it's taken 14 years to revise and that it won't be revised again for another long while, you'll have to forgive me for my disappointment after having read the entire CPL draft revision. Around 2000 or so, I recall seeing the first draft containing opinions and recommendations from a group of scholars (running to about 600-700 articles). Honestly, this current draft doesn't measure up to what came out a decade ago, either in terms of its concepts or its measures.

2. Its normal for legislation to get tangled up in trying to balance "protection of society" with "safeguarding human rights," but it's an undeniable fact that China's CPL over-emphasizes "protection of society" while ignoring—even infringing on—"human rights." In the face of this grim situation, the draft offers no answer as it elaborates on the "mandate and basic principles" of the criminal procedure law.

3. For a long time, there has been an abnormal system that has never been fixed—namely, the procuratorate's so-called "power of legal oversight" over the courts. In a trial between prosecution and defense, the procuratorate is one of the competitors—how can they then also act as a check on the referee during the contest? This pernicious influence from the former Soviet Union seriously influences the court's independence. Unfortunately, the draft retains this.

4. I also want to say something about the system of the court of second instance issuing the final verdict. In truth, even considering the workload and pressure already facing the judicial system, we should change to a three-stage trial system. In light of present realities, we can set up an independent hearing procedure prior to the third trial stage to consider whether or not the case needs to be heard. This would help to reduce the amount of litigation-related petitioning and protect the legal rights of defendants. Unfortunately, the draft makes no mention of this.

5. A bright spot is that lawyers have been clearly granted the role of "defense counsel" during the investigative stage. But when you look closely at the draft, you find that what defense counsel is able to do [at that stage] is not much more than "lawyers providing legal assistance" have been allowed to do up to now. In other words, the significance of this change lies merely in the change of phrase from "lawyer" to "defense counsel." This so-called bright spot just got darker.

6. On the issue of meetings [between lawyers and suspects], the CPL draft incorporates some provisions from the new Lawyers Law, meaning that in the majority of cases lawyers can expect to arrange meetings within 48 hours [of detention]. But in the second part of the same article [i.e., Article 37 of the draft], it also says that in major criminal cases involving more than one suspect, like corruption, permission must still be sought from the investigating organ. I ask you: What corruption case isn't "major"? What corruption case doesn't involve more than one suspect? This is truly a setback.

7. It's never been made clear whether the defense counsel's responsibility is to prove [innocence] or to rebut [the prosecution's charges]. Since the new Lawyers Law eliminated the word "prove" from the provision describing the responsibility of defense lawyers, this revision does the same for the CPL [in Article 35]. But it's still not clear whether this means that the defense counsel's responsibility is to rebut the charges and not to prove innocence, because of a tautological error in the original text.

8. As expected, there's no provision giving criminal suspects and defendants a "right to remain silent" during the criminal proceedings. Therefore, it's hard to expect much from the new provisions about "no person may be compelled to incriminate himself" [Article 49] or "evidence obtained illegally should be excluded" [Article 53]. In particular, the prosecution can simply switch personnel to "resolve" the problem of illegal evidence. In fact, this is the same as no exclusion of illegal evidence. That's no good!

9. Release on guarantee pending further investigation should be the standard practice in the majority of cases. Pretrial incarceration should be used with great caution. We've always done the opposite, and to cover up our mistakes we sentence the innocent to suspended sentences. This results in many murky cases. Looking at the draft, it seems the legislative organ isn't interested in changing this situation. Otherwise, all they'd have to do is change Article 64's "may" [release on guarantee] to "shall" [release on guarantee].

10. Residential surveillance, in my experience, has basically become a synonym for disguised detention. Many suspects would rather be arrested and sent to detention centers, rather than sleep with police investigators or even military police. The draft further intensifies the original provisions, in effect legalizing past mistakes. Already this year we've seen the harm caused by this provision in a number of individual cases. Put simply: it's extremely terrifying.

11. There's a very irrational change in the area of time limits. An earlier judicial interpretation says that "if the last day of the period is a holiday, the time limit will expire on the first day after the holiday." Now [the draft] says [in Article 101(4)] that detainees do not get an extension because of holidays. The problem is that if a verdict is handed down before the holiday and the time limit expires during the holiday but the lawyer has no way to meet [with the defendant] because of the holiday, how can you prepare an appeal? This provision betrays ulterior motives!

12. Investigators are all laughing at the extension of the period of criminal summons from 12 hours to 24 hours [in Article 106(2)]. As everyone knows, the first 24 hours undergoing investigation are tough on a criminal suspect. Given people's physiological cycles, this provision can be seen as an endorsement of disguised torture.

13. Let's now look at the problem of Article 117's provision concerning "shall truthfully answer" investigators' questions. "Truthfully answer" means one must speak in a way that is "not contrary to the facts." If a criminal suspect is guilty, then clearly to answer truthfully would be "self-incrimination." So then how are we supposed to understand Article 49's provision concerning "no person may be compelled to incriminate himself"?

14. Whether you accept it or not, technical and secret investigations have always existed—from ancient times to the present, in foreign countries and here in China. The problem is what sort of restrictions to place on [these investigations]. If you say [in Article 150] that a county-level public security official can authorize wiretaps and secret surveillance, that's too frightening! I think that only the provincial-level public security organ or the county-level people's congress standing committee should be able to authorize such measures.

15. [Requiring] witnesses and police to testify in court is a bright spot. But the provisions [in Article 186] aren't clear enough. For example: "People's police officers should testify in court as a witness about criminal activity witnessed in the course of carrying out their duties, in accordance with the above provision." Well, what if he carried out torture? Should he appear in court to face cross-examination? The draft is so considerate!

16. No longer can there be an endless cycle of appeal and remand for retrial. The CPL revision draft states [in Article 224(2)] that the court of second instance must issue a decision [on an appeal of a case that has already been sent back once for retrial]. This is a small improvement. At least we won't see any more poor bastards sentenced to death four times for the same case, each time having the case sent back for retrial.

17. I'm cautiously optimistic about the draft's first-ever mention of "settlement agreements between the parties" [in Articles 274-276]. I have reservations, though, about whether it's necessary to include this process in the criminal procedure law.

18. Looking at the CPL draft overall, the public security system has turned the tables on their attackers and scored a big victory. The procuratorate has held their ground, particularly since some of extremely unreasonable provisions haven't been eliminated -- so they've held steady. As for the courts, well when it's come to this point, anything's okay with them. But lawyers? What happened to the lawyers?

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