As someone who researches the Chinese criminal justice system and has been involved in the collection of information on individual cases, I have long awaited the day when all of China’s court decisions might become publicly available online. As this article points out, the push for online publication of court verdicts has been ongoing in China for nearly a decade. One of the main motivations is the idea that publication will raise the quality of court decisions because they will be subject to wider scrutiny by the public. Other motivations include a simple desire to increase the degree of transparency in the judicial system and make the public more aware of courts’ work and judicial procedures.
China’s courts have made much progress over the years, but we’re nowhere near universal publication—even in well-off provinces and municipalities where information technology infrastructure should be no problem. Now, however, there seems to be a renewed interest in creating a centralized database of court decisions to be managed under the auspices of the Supreme People’s Court (SPC). The court has now put a new web-based platform on line for accessing this database, and the Xinhua News Agency has circulated some interesting information about the database and its purpose.
This new platform is clearly still in its early stages. As of today, only a few dozen SPC judgments are available, though it appears that there are plans to include decisions from courts at the provincial level at least in future. It is notable, however, that the three criminal cases selected for publication on the website are death penalty review decisions, because currently the death-penalty-review stage is perhaps the least transparent of any stage in the criminal process.
According to an official from the SPC, the current thinking is that publishing selected death penalty review decisions can serve to “guide” the public’s understanding of China’s policies with respect to capital punishment and help lower courts develop more consistent standards for applying the death penalty. In the future, the official promised, death penalty decisions will also be published in certain “hot button” capital cases that have attracted public attention.
So, it seems that, as far as death penalty cases are concerned, the SPC’s intent is something significantly less than full transparency. This policy of selective publication of death penalty review decisions departs substantially from what the SPC official says about the need to publish all court decisions, regardless of quality or type. But the provisional measures governing the SPC’s publication of decisions clearly states that all of its decisions will be published online once they take legal effect, “except where the law makes special provisions.”
I assume that these “special provisions” are particularly directed at protecting so-called “state secrets.” In this light, the choice to publish only selected death penalty decisions makes certain sense, given that publishing all death penalty review decisions would essentially be equivalent to revealing the number of executions carried out in China each year. This number, currently estimated to be well into the thousands, has long been treated as a closely held state secret, and there is no indication that this policy will change anytime soon.
The publication of three death penalty review decisions—one from each of the past three years—is a far cry from full transparency. (Just for reference, Chinese press accounts confirm the execution of over 40 individuals last month alone, each of which was carried out after conclusion of the review process by the SPC.) It will be interesting to watch how open the SPC will become when it comes to revealing more about its work related to the death penalty. This database could turn out to be an invaluable resource for researchers and those concerned about how capital punishment is carried out in China. That fact, however, might be a good reason not to expect too much, too soon, from this particular promise of transparency.
03 July 2013
02 July 2013
Tang Hui's case and the public furore it created in August 2012 were instrumental in a chain of events leading up to official announcements earlier this year about the government's intention to reform the profoundly problematic laojiao system. (A very comprehensive, if not completely error-free, summary of the Tang Hui case can be found here.)
In advance of this morning's hearing, an interesting article published in the Beijing Youth Daily revealed that court officials had attempted to resolve the case out of court through mediation. (I have translated the relevant excerpt below.)
This is an illustrative account, told from Tang's perspective, of the way in which authorities attempt to use "mediation" to resolve controversies between parties without resorting to a formal judicial process. It seems that court officials nearly had an agreement from Tang (who apparently had no legal counsel in her talks with officials from the provincial high court and local public security bureau). She was willing to concede key demands—having the police put forth evidence that she had actually broken the law, for instance—but the authorities' insistence on keeping the compensation deal private was a non-starter.
It will be interesting to see whether the court is able to produce a comparable outcome by following a more open and adversarial process based in law. Even if the court ruled that the Yongzhou laojiao committee's original decision had been unlawful—a step the lower court had been unwilling to take—it would likely be unable to find legal basis for matching the 100,000-yuan "allowance" offered as part of the mediation settlement.
For Tang Hui, it seems, a non-judicial, negotiated settlement would be considered a just outcome. So would a much smaller judicial decision. The sine qua non of a justice for Tang Hui can be summed up by transposing a famous legal aphorism to slightly different circumstances: "Not only must Justice be done; it must also be seen to be done."
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Beijing Youth Daily (BYD): After your appeal, did anyone from the Hunan High Court come to talk with you?
Tang Hui (TH): Yes. At the end of May, someone from the High Court called me and asked if I’d be willing to participate in out-of-court mediation. At first, I said that if they weren’t sincere I wasn’t interested. The person from the court urged me, saying that they were sincere otherwise they wouldn’t call. I thought it over then agreed.
BYD: When did they begin the mediation with you?
TH: At that time they asked me over the phone if I wanted to go to the provincial court or did I want them to come to Yongzhou for the mediation. I said that you are all officials, and I’d feel uncomfortable making you come to me, so I’ll go to you. After ten minutes or so the person from the court called again to say that they’d come to me. They called in the morning and by four or five in the afternoon, they arrived in Yongzhou.
BYD: How many times did you meet in total?
TH: We met four times over three days. The first day was at about 5 p.m. We met in a UBC Coffee. Five people came from the Hunan High Court. I heard that one of them was the chief judge of the administrative division, two were deputies, one presiding judge, and a court clerk. I asked along some relatives and friends. We met until around 7 p.m. At the time, I wanted to see whether the laojiao committee would hand over evidence that I’d obstructed traffic and insulted officials—didn’t they say that they sent me to laojiao because I’d broken the law? The judges urged me, telling me that it was enough for them to admit their mistakes. So, later I accepted this and didn’t ask them to provide evidence. The next morning, someone from the court called me again and said they only wanted to meet with me, not with my relatives. That time I met with the chief judge and a woman who was a deputy. They said they would get the laojiao committee to apologize to me and promised me the more than 2000 yuan in compensation that I had requested plus 100,000 yuan as a living allowance. That afternoon, Luo Gongjun, head of the Yongzhou Laojiao Committee General Office, came and said he was there representing the public security bureau and that he had no personal grudge with me. He basically agreed to the three demands, but he mostly wanted to talk with me about the specific wording of the apology. He never said so explicitly at the time, but deep down I felt that he didn’t want me to make public the substance of the mediation.
BYD: Why, after meeting several times, did you not agree to the mediation?
TH: Before meeting on the third day—that day it was Luo Gongjun and someone from the provincial court. Originally, they said that the laojiao committee would show me the wording of the written apology on that day so that I could have a look before deciding on whether to accept the mediation. But that day, the person from the laojiao committee came empty-handed and I didn’t get to see a word. His explanation was that he didn’t bring [the apology] because Director Jiang from the laojiao committee was at a meeting and he hadn’t had a look to sign off on it yet. I knew that this was only an excuse, so I didn’t agree to the mediation.
BYD: Were there other reasons why you didn’t agree to the mediation?
TH: On the third day, before Luo Gongjun arrived, the chief judge from the high court administrative division explicitly told me that I shouldn’t go public about the money I was being given. I said I wasn’t interested. If they were giving me money because they were truly concerned about me and wanting to help me, well that’s something they should be praised for and something that people should know about. I couldn’t accept their money in this murky way.