Rights of Defendants in Criminal Proceedings

(Caixin Online) Throughout the past decade, criminal proceedings in China have undergone several reforms. The Criminal Procedure Law of China was initiated in 1979, followed by amendments made in 1997. However, an adversarial system between the prosecution and the defense has not been achieved. Under the current criminal justice system, such safeguards are absent in public security organs, procuratorial organs and people's courts. Guarantees are still needed to ensure the rights of the defendants at every stage of criminal proceedings.

Step 1 - Filing a Case

There is no supervision in the initiation of a prosecution, said Liu Mei, director of the Criminal Procedural Law Research Institution at China University of Political Science and Law (CUPL). Procedures to correct or change an administrative case or a civil case that has been mistakenly filed as a criminal case have not yet been written into the law, a gaping legal loophole prone to abuse.

A typical example comes from the case of Qiao Hongxia, a businesswoman from Lanzhou, Gansu Province in north central China. Her company in Lanzhou and the state-owned Qingdao Acuma Co., Ltd. brought a civil action against each other in the local courts. In its final verdict, Gansu Higher People's Court ruled in favor of Qiao. But Aucma successfully instituted a criminal suit against Qiao. Qingdao police detained Qiao for suspicion of fraud and then sentenced her to life imprisonment before the case was dismissed under the intervention of the Supreme Court and Supreme Procuratorate.

Step 2- Investigation

Once a case has been placed on file in criminal proceedings, an investigation is launched immediately. Police have search and seizure powers, including criminal detention and arrests Among them, only warrants for arrest require the approval of a People's Procuratorate while the investigatory personnel exercise all other powers alone. Without the supervision of the third party, the rights of the suspect are not protected. As a result, suspects may face flagrant abuse of police powers. Du Peiwu, a policeman in Yunan Province, for example, was wrongly convicted for a murder based on his a false confession extracted after torture. Only when the real perpetrator confessed was Du's innocence proved.

Professor Liu Genju of CUPL attributed extractions of confession by torture to two reasons. For one, defendants in China are denied the right to remain silent. Or rather, they are required by the law to answer the investigatory personnel's questions "truthfully." For another, the principle of exclusion of illegally obtained evidence has not been established. Generally, the defendant confession and other materials accessed via improper means can also be presented in court.

Step 3 - Right to Legal Assistance

During investigations, access to competent legal assistance is still difficult. Attorneys can not enjoy all the powers of prosecutors, and are without the ability to collect evidence or examine the case record. They are merely allowed to provide legal advice, appeal to the court on behalf of the defendant and apply for bail.

The activities of attorneys under most conditions, including meetings with their client, entail the involvement or approval of the investigatory personnel, according to the law. This is in conflict with their adversarial roles.

Step 4- Detention

At least 85 percent criminal cases in China involve detention. Furthermore, long-term periods of custody are common during investigations, prosecutions and trials. Even within the range of the current law, extended periods of detention without making any official court decision is habitual in current practices. Liu Mei of CUPL said the maximum period for criminal internment is 37 days and the time limit for investigatory detention should not exceed seven months. If the procuratorate believes a supplementary investigation necessary, detention before trial can last nearly 15 months.

Extended detention is meant to be a procedural precaution for exceptional cases but has become common practice in the justice system.

Step 5- Examination and Prosecution

Based on the conclusion of an investigation, a People's Procuratorate will examine the case and then refer it to the People's Court.

China's Criminal Procedural Law states that conditions for the initiation of public prosecution and adjudication by courts are the same, "if the facts of a crime are clear and the evidence is reliable and sufficient." In other words, once a suspect is sued by public prosecutors, enough evidence has been amassed for conviction, which leads to the question that to what extent suspects can defend themselves.

Step 6- Evidence Collection by Attorneys

A criminal suspect in a case of public prosecution shall have the right to an attorney from the date on which the case is transferred for examination before prosecution, states the law. The defense is entitled to fully intervene in proceedings for the collection of evidence. In current practices however, the defense meets many obstacles. Due to the law, the approval of witnesses, related organizations and individuals is necessary for evidence collection by the defense. Though the defense attorney is allowed to apply for evidence collection through the People's Procuratorate, if the necessary approval is not given, the application has no other course, said Professor Lu Min from CUPL.

Without the enforcement of legal rights, attorneys find themselves in a weak position to perform their duties. During trial, defense counsels do not have full access to case files because when initiating a public prosecution, and the prosecutor is not obliged to transfer case files. A fair defense is limited by a lack of court material.

Step 7 - Trial Procedure

Once the Procuratorate initiates public prosecution after examination, the case comes before the court for adjudication. Generally, a court hearing includes a judicial inquiry, hearing and final statement of the defendant. As part of the judicial inquiry, cross-examination is a key stage.

However, very few witnesses in China are willing to appear in court. Instead, records of their testimony are read out in court. The defense is barred from cross-examining the witness.

During appeal, the panel often opens no court session, seriously limiting the defendant's right. The judge's decision can be made even without meeting the defendant.

Step 8 - Closing a Case

The existing law allows retrial if the appeals court finds that facts are not clear or evidence insufficient. However, the legal rule goes against "presumption of innocence." Insufficient evidence should quash the allegation and lead to a not guilty verdict.