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Study finds rights of suspects and defendants routinely violated in criminal justice system NPC urged to act now to reform Criminal Procedure Law

March 5, 2001

Last week, Human Rights in China (HRIC) sent [*] the attached letter to members of the National People’s Congress (NPC) urging them to put reform of the criminal justice system at the top of the agenda for the assembly’s current session, focusing in particular on further revisions of the Criminal Procedure Law (CPL), which was last revised in 1996.

HRIC’s study of certain key areas of operation of the CPL relating to rights protections released today, Empty Promises: Human Rights Protections and China’s Criminal Procedure Law in Practice, concludes that the implementation of the CPL has departed substantially from both the letter and the spirit of the law. Five years have passed since the revisions, and more than four years since the revised CPL came into effect on January 1, 1997, and the manifest failings of the system can no longer be ascribed to the newness of the law.

Based on three years of investigation, HRIC’s report shows that the authorities appear to have been unwilling to allow the limited safeguards in the revised CPL to have a significant impact on protecting rights in practice, and have also refused to act, whether through enacting legislation or administrative rules, to remedy deficiencies in areas where further reforms are very evidently needed.

CPL provisions aimed at safeguarding rights have been either watered down by interpretative rules issued by law enforcement agencies, or violated outright without the authors of the violations suffering any consequences. Loopholes and ambiguities in the CPL have been exploited to the full by law enforcement authorities. In certain areas, the new CPL has actually resulted in greater limitations of key rights, such as regarding defense lawyers’ access to prosecution evidence. The abuses described in this report are clear violations of international human rights standards, and undoubtedly result in many serious miscarriages of justice across the nation.

The letter, appended below, proposes to the NPC detailed recommendations for legislative, institutional and policy reforms designed to address the causes of these rights violations. It was sent by fax to NPC members from Hong Kong and to the Xinhua News Agency and the office of China’s Foreign Ministry in Hong Kong. HRIC’s report and the letter have been sent to the NPC in Beijing.

The report covers CCP control of the judiciary, the role of lawyers, pretrial detention, use of illegal evidence, discriminatory application of the law and assessment of these issues in terms of international human rights standards. The full 90-page report (in English) will be available on HRIC’s Web site soon, and is available by e-mail from HRIC on request (send a message requesting the CPL report to hrichina@glink.net.hk). The introduction and a summary of the six substantive sections is attached to this message.

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Attachment: Open Letter

Open Letter to the Delegates of the National People’s Congress
From Human Rights in China

February 27, 2001

Respected Members of the National People’s Congress,

What kind of acts should be deemed a “crime” and what kind of penalties should be imposed for that crime are essential measures of whether or not a system is civilized. On the other hand, the way decisions are made on how to determine whether a crime has been committed and how to punish the author of that crime is a key element in assessing the human rights situation of a country. The criminal procedure law is the law used to determine the culpability of individuals. Whether the criminal procedure law of a country protects certain rights of criminal suspects and defendants has long been a crucial factor in assessing the human rights situation in a particular country.

China revised its Criminal Procedure Law (CPL) in 1996 and expanded the protections for the rights of suspects and defendants, and therefore this reform was praised by the international community. Although the revised CPL still falls far short of international human rights standards, Human Rights in China (HRIC) welcomes the positive attitude of the Chinese government reflected in the revisions of the CPL. Nevertheless, a study conducted by HRIC over the past three years demonstrates that implementation of the CPL has severely departed from the letter of the law.

First of all, the judicial system has serious problems. China has not yet established an independent and impartial judiciary. The Chinese Communist Party (CCP) and government departments routinely interfere in the work of the judiciary, a practice which has often resulted in miscarriages of justice. Given such interference, the judiciary has not been able strictly to implement the CPL.

Second, Chinese lawyers have encountered a great deal of difficulty in practicing law. For instance, they have been often denied access to their clients during the pretrial stage, despite the CPL’s stipulation that lawyers should be able to represent crime suspects. Also, lawyers’ communication with clients has not been kept confidential. Meetings between lawyers and defendants or suspects are closely watched by law enforcement officers, who also listen in. Before trial, lawyers are not able to have access to all officially-collected evidence, and therefore are not able to prepare a meaningful defense. At the trial stage, lawyers are denied the chance to cross-examine witnesses, since most prosecution witnesses are not called to be present at trial. Moreover, some lawyers have been harassed, detained and even convicted of crimes for nothing but vigorously defending their clients. In short, the environment for lawyers practicing criminal law has never been worse than now.

Third, the defects of the revised CPL with regard to detention results in lengthy detention of suspects and defendants, which is unacceptable by international standards. In addition, the pretrial release system described by the CPL is generally nothing but empty words. Furthermore in judicial practice, it is commonplace that many suspects and defendants have been detained in excess of the time limits prescribed in the revised CPL. All of these practices seriously violate the personal freedom of individuals.

Fourth, the revised CPL failed to establish exclusionary rules against illegally-obtained evidence and thus continues to allow the use of illegal evidence at trial. There is overwhelming evidence to show that this institutional failure contributes to the widespread nature of the crime of torture to obtain a confession and other violations against suspects and defendants. Although the experts from the UN Committee Against Torture repeatedly recommended that China prevent use of illegal evidence at trial, China has yet to demonstrate any willingness to follow this suggestion.

Finally, there is clear discriminatory practice in the implementation of the CPL. In dealing with politically-sensitive cases, time and again China’s law implementation agencies (police, prosecution and courts) have ignored the rules of the CPL. Especially in trying political dissidents, China’s judiciary often blatantly violates procedural rules and deprives defendants of their due process rights. HRIC has studied many cases involving dissidents tried since the revised CPL came into effect, and found that at almost every stage, of the criminal process, the rights of dissident defendants were violated. This violates not only the prescriptions of the CPL, but also the equal protection clause in the Constitution of the People’s Republic of China.

All these issues have adversely affected the CPL reforms and greatly compromised the revised CPL in terms of protecting rights of suspects and defendants. Many of the concerns of HRIC’s study were confirmed by last year’s official investigation conducted by the NPC Standing Committee on implementation of the CPL in six provinces.

The Chinese government signed the UN International Covenant on Civil and Political Rights (ICCPR) in 1997. Articles 9 and 14 of the ICCPR detail a number of due process rights that should be enjoyed by suspects and defendants. These have not yet been incorporated fully into Chinese law. HRIC urges China to ratify the ICCPR immediately and further revise the CPL in order to bring it into full compliance with the ICCPR provisions relating to the criminal justice system.

HRIC calls upon all delegates to take the opportunity of the upcoming NPC session to review the current human rights situation in China and fulfill your Constitutional duties. We present the following recommendations for your consideration:

  • The NPC should immediately ratify the ICCPR and request that the government and the law implementation agencies take practical steps to implement the treaty, especially on those provisions relating to the criminal justice system. In the meantime, the NPC should request that the relevant departments of the government conduct a thorough study of other international human rights conventions to which China is not yet a party, including the Rome Statute establishing the International Criminal Court. The government should report to the NPC the result of the study and expedite the process of integration of China’s criminal justice system into the international system.
  • The NPC should seriously consider an amendment to the Constitution to establish the independence of judiciary and eliminate the influence of the CCP and government departments over the judicial work. To give effect to this, HRIC suggests that the NPC set up an independent budget for the judiciary, both national and local, so as to eliminate the possibility of outside influence over the judiciary. In addition, the NPC should consider revising the Judges Law and provide clear rules on judicial appointment and job security for judges, and abolish the practice of Party control over the nomination and removal of judges.
  • The NPC should consider revising the Organic Law of the People’s Courts and the CPL, and abolish the adjudication committee within every court. Prohibition on the system under which the presidents and head of the chambers in people’s court engage in routine case review should also be incorporated into the revision, so that individual judges may try cases solely in accordance with the law and their conscience. In addition, the consultation practice existing between the courts of difference instances should be eradicated. No communication between judges of first instance and second instance concerning on-going cases should be allowed, so that the right of defendants to appeal is guaranteed.
  • The NPC should pass a resolution completely eliminating all kinds of administrative detention violating international human rights standards. Administrative detention often becomes a substitute for criminal penalties as well as for the coercive measures in the CPL. Among the most egregious form is Reeducation through Labor (RTL). During the past several years, international human rights groups and UN human rights mechanisms have conducted thorough studies and found that RTL violates provisions of many international human rights documents, including the Universal Declaration of Human Rights and the ICCPR, and they recommend that China abolish this system permanently. The current session of the NPC is the best moment to take action abolish RTL.
  • Considering the unsatisfactory reality of CPL implementation, HRIC urges that the NPC puts CPL implementation on its agenda and conduct a complete review of this area. At the same time, the NPC should be aware of the fact that the CPL, as amended in 1996, still falls far short of internationally recognized criminal justice standards, although the revision of the CPL represented progress in the right direction. HRIC calls upon NPC to bear in mind the following international norms not yet incorporated into the CPL, while considering further revisions of the law:
    The NPC should request that the Law Committee and the Legal Affairs Working Committee under the NPC Standing Committee form a special study group to conduct research on how to bring the CPL into full compliance with international human rights standards, and report to the next NPC session on how to revise the CPL. The research should include as wide as possible opinions from people from all walks of life, especially from legal experts and human rights advocates both internationally and domestically.

    The NPC should request that the law implementation agencies report to the NPC Standing Committee on their implementation of the CPL. Public hearings should be held on this matter, at which media coverage should be encouraged, in order to identify the elements adversely affecting the CPL implementation, so that the solutions to solve the problems can be properly identified.

    HRIC recommends the NPC to include the following principles and provisions in its future revisions of the CPL:

    • In addition to amending the Constitution, the CPL should unequivocally establish the principle of the judicial independence.
    • The CPL should adopt the right to remain silent and right against self-incrimination. Accordingly, Article 93 of the current CPL, which requires that defendants and suspects to answer interrogation truthfully, should be repealed.
    • China should establish a system like habeas corpus to ensure that everyone is entitled to take proceedings before an independent and impartial court, in order that the court may decide without delay on the lawfulness of the detention and order the person’s release if the detention is not lawful.
    • Clarify all ambiguously-framed time limits on detention and ensure that all detentions are necessary and reasonable in terms of length.
    • Guarantee the right of defendants to pretrial release under clear-cut rules and ensure that all pretrial detentions are absolutely necessary.
    • Ensure the right of defendants and suspects to meet with their counsel and the full confidentiality of such meetings. All official and non-official intervention in and censorship of communications between lawyers and clients should be eliminated.
    • Establish an exclusionary rule against illegal evidence and prohibit all practices of obtaining evidence through illegal means, in order to prevent torture or other inhumane treatment from occurring during the criminal process.
    • Establish a discovery system allowing lawyers access to all officially-collected evidence before trial in order to make it possible for defense counsel to prepare a meaningful defense.

  • HRIC recommends that the NPC review the Memorandum of Understanding (MOU) signed by the government of PRC and the Office of High Commissioner for Human Rights (OHCHR) last November and request that the government report the situation of implementation of the MOU. Considering the profound influence of the long-standing cultural tradition and ideology over the judiciary, HRIC urges that China concentrates on enhancement of human rights awareness among law implementation personnel during the cooperation with the OHCHR, and fully implement the provisions of the revised CPL with regard to protection of rights of defendants and suspects.