By Shen Hui
January 29, 2012
The New York-based NGO Human Rights Watch issued its World Report 2012 on Jan 22, observing China’s human rights conditions from angles of defendant rights, judicial reform, freedom of speech and religious freedom. The report seriously lacks in objectivity and impartiality. Its conclusion intentionally distorts China’s human rights conditions. Its observation of China’s judicial reform is extremely inconsistent with facts and one-sided.
The report says the public security departments dominate the criminal justice system and rely excessively on the defendant’s confession. The weak courts and seriously limited rights of defense mean forced confession is still universal and judicial partiality is common. This is serious distortion.
It is known that China’s criminal justice system is not controlled by public security departments, but consists of investigation and procuratorial organs as well as people’s courts. China’s Criminal Procedural Law clearly stipulates the labor distribution among the three parties. They work with and check against one another.
The proposal for prosecution by public security departments must be examined by procuratorial organs before it is recommended to the court to initiate a public prosecution. The public prosecution of the investigating organs must go through the court’s open and fair trial, during which the defendant’s opinions and all kinds of testimony must be verified, before becoming part of the court’s decision.
In this process, it is common for the procuratorial organs to require public security departments to file a case (or not), the procuratorial organs decide to prosecute (or not), and the people’s courts declare the accused guilty (or not). These possibilities all restrict the power of public security departments.
In judicial practices, public security departments must follow or respond to the procuratorial organs’ procuratorial proposals and supervision of filing a criminal case. According to the Supreme People’s Procuratorate’s work report to the National People’s Congress in 2011, all procuratorial organs proposed 33,863 times and cases to correct the public security departments’ illegal practices of investigation.
The number of cases in which the procuratorial organs do not ratify an arrest, do not prosecute, withdraw a lawsuit, and the people’s courts decide the accused innocent, is increasing proportionally year by year. All of these actions are restricting the public security departments’ power effectively.
Besides, according to the seventh article of the Regulation on Exclusion of Illegal Evidence issued in June 2011, if the courts are doubtful of the legitimacy of the defendants’ confessions obtained before trial, the courts can insist that the questioners take the stand in courts. All these examples prove that China’s criminal justice system is not controlled by the public security departments. It is an integral system made up of the three parties, each with clear duties, with the people’s courts’ rights of sentencing and measurement of penalty as the core.
Excessive dependence on defendants’ confessions is decreasing remarkably. The role and rights of defense counsels are increasing steadily. Forced confession is strictly forbidden. The regulations on the exclusion of illegal evidence and on evidence in death penalty cases issued in June 2010, as well as the draft amendment to the Criminal Procedural Law released in Aug 2011, all reflect important progress in the protection of human rights. But the Human Rights Watch report fabricates and speculates on “an article of secret detention” of the draft amendment, which no longer exists.
In fact the draft amendment issued in August 2011 includes an article about notice of detention. That is big progress compared with related articles of the law in 1996. According to the 84th article of the draft amendment, the public security departments must present detention warrants when detaining anyone, who should be sent to the detention center within 24 hours after being detained. The detained person’s family should be notified about the detention reason and the detention center location within 24 hours after detention, except for serious crimes such as those endangering national security, terrorist crimes. There are exceptions, if it is impossible to notify, or if the notice may obstruct investigation.
The 64th article of the Criminal Procedural Law of 1996 only stipulated that the public security departments must present detention warrants while detaining anyone. The detained person’s family or work units should be noticed about the detention reason and detention center within 24 hours after detention, except if it is impossible to notify, or the notice may obstruct investigation. This amendment of the 84th article is just to strengthen the public security departments’ obligation to notify and protect the suspects’ families’ rights to know.
The report of Human Rights Watch does not mention progress in the draft amendment at all and only fabricates non-existent misleading articles.
In the draft amendment, forced confession is prevented; exclusion of illegal evidence and its procedure are added, standard of proof of criminal procedure is clarified; the definition of “social danger” is clarified; the obligation of persons obtaining guarantor pending trial is regulated to lower detention rate; designated monitored residence can be converted to prison term; technical investigation is authorized and regulated; the recording system in inquest is strengthened, investigation defense system is formed and clarified, the number of remand for retrial is limited, the criminal reconciliation procedure is clarified; the system of sealing up criminal record of juvenile crimes and deferred prosecution is regulated; mental illness treatment procedure is regulated, and inspection and supervision of implementation are strengthened.
These active changes reflect the main progress in China’s judicial reform in 2011. Compared with the former one in 1996, more than 60 articles are added and more than 90 articles are amended in the draft amendment.
Remarkable breakthroughs in judicial reform have been made in 2011 in measurement of penalty, State compensation, mediation, trial management and implementation procedure. It is a pity the report of Human Rights Watch turned a blind eye to all these positive steps and Chinese authorities’ effort to promote judicial reforms, and only focuses on some non-existent articles.
The author is with the Law School of Nankai University.