FAIR TRIAL STANDARDS IN CHINA

By Mike McConville⁽¹⁾ and LiLing Yue⁽²⁾

A. Introduction

The concept of a right to a fair trial as an international judicial standard, as well as a legal theoretical term, has not yet been introduced to Chinese legal scholars and judicial authorities, although some of the governing principles and rules have been established by constitutional, procedural and substantive law. Most fair trial rights are protected and guaranteed by these laws, and the revised criminal procedure law has made great progress on the way towards judicial democratisation and fairness.

The former criminal procedure law was adopted on 1 July 1979, and became effective 1 January 1980. Because this code was enacted shortly after the end of the Cultural revolution, it was subject to unavoidable historical limitations. Since then, China has undergone dramatic changes in political and economic terms, and these changes have, in turn, been accompanied by new forms of crime. As a result, legal practice has had to confront new questions and problems.

These questions and problems cannot be solved by the old law. This gave special urgency to the reform work which has been undertaken in recent years. Beginning in 1991, the Legislative Affairs Section of the National People's Congress and judicial authorities, such as the Supreme People's Court, the Supreme Procuratorate and the Ministry of Public Security organised several important workshops to consider law reform. One experts' reform group was authorised by the Legislative Affairs Section to reformulate the law. As part of the process, the reform group also organised a very successful international conference in 1994 with the assistance of senior foreign law scholars. After extensive discussions, this new revised criminal procedure code was passed in 17 March 1996 and will be effective as from 1 January 1997. The main changes in this new code can be summed up as follows:

1. The constitutional principle that judicial authorities must exercise judicial power independently is incorporated into criminal procedure law;⁽³⁾

2. The principle that only courts have the power to convict someone of a crime is affirmed, and the system of exemption from prosecution is abolished;

3. Judicial supervision of the activities of procuratorates is enhanced;

4. Greater protection for the suspect and the accused is provided;

5. Victims of crimes are given more rights;

6. The system of coercive measures is improved to give more human rights guarantees;

7. The principle of the presumption of innocence is established;

8. Speedy (summary) trial proceedings are adopted;

9. An improved appellate system is introduced.

B. An Overview of the Court/Criminal Law System

1. Introduction

China is a centralised state power consisting of 31 provincial level provinces, cities and autonomous regions. Legislative power belongs to the National People's Congress (hereinafter NPC). For historical reasons, the Chinese legal system continues to reflect European legal structures. The definition of crime, the classification of crimes and sentencing powers are stipulated by criminal law.⁽⁴⁾

The law of criminal procedure was first enacted by the second session of the fifth NPC on 1 July 1979, and took effect on 1 January 1980. The law of criminal procedure was revised on 17 March 1996, and took effect on 1 January 1997. To understand Chinese criminal procedure, it is necessary to consult a wide range of material which has been produced in response to questions which have arisen as to the meaning and interpretation of sections of the code(s). This material is to be found in regulations, amendments and interpretative decisions taken by the Standing Committee of the NPC, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security.

The investigation of criminal offences in China is the responsibility of two separate organisations: the public security organ (police) and the procuratorates (prosecutors). These are legally and practically separate institutions with their own structures, organisations, powers and responsibilities. In China most criminal offences are initiated and investigated by the public security organs (police)⁽⁵⁾ Exceptions are (1) crimes of corruption, bribery, dereliction of duty by state officials; crimes committed by state officials abusing their official powers to detain persons unlawfully and which infringe rights of the person and the democratic rights of citizens; the use of torture to coerce a confession; the construction of false charges against complainants, petitioners or critics; and unlawful searches; (2) cases of complaints (or private prosecution)⁽⁶⁾ which are directly accepted by courts from complainants or alleged victims.

The procuratorates are authorised to supervise investigations. The public security organs (police) have power to detain suspects and arrest, but arrest should be undertaken only with the consent of the procuratorate or the authorisation of the courts. After the investigation is completed, the decision whether to prosecute or not is a matter for the procuratorates.

Criminal courts in China are organised on four levels⁽⁷⁾ basic people's courts; intermediate people's courts; higher people's courts and the Supreme People's court. These courts adjudicate criminal cases based on the principle that a final verdict should be arrived at after one, or at most, two trials⁽⁸⁾

Generally each court consists of four divisions: criminal, civil, economic and administrative. Apart from basic level courts, all courts have both original and appellate jurisdiction. There is a second criminal division in almost every higher level court which deals with appeals and petitions against criminal judgments which have become legally effective.

There are three special procedures within the criminal procedure law: adjudicative supervision, that is a procedure for challenging the judgments which have already become legally effective⁽⁹⁾ the review of death sentences⁽¹⁰⁾ and supplementary civil action⁽¹¹⁾

In 1994, the NPC enacted the state law of Remedy (in chapter 3) which provides for remedies in criminal cases. This applies, for example, to misconduct in the detention or arrest or individuals, and miscarriage of justice cases, or where a person has been injured or killed by torture.

C. Pretrial procedure

Under Chinese criminal procedure law, pretrial proceedings are divided into three main stages: filing a case (or initiating a case), investigation and prosecution.

1. Filing a Case

The process of filing a case derives from the law of the former Soviet Union. Filing is an essential pre-condition without which the official or formal investigation cannot be undertaken. A case can be filed only if facts of a crime exist for which criminal responsibility ought to be pursued⁽¹²⁾ This procedure was designed to protect the innocent from the very outset of proceedings and to avoid wasting the time and energy of judicial authorities.

In practice, both police and procurators sometimes fail to file cases even where there is sufficient evidence that a crime has been committed. The most important reason for this is that under the former criminal procedure law (1979) no effective machinery for controlling such decisions was provided. The new revised code of criminal procedure (1996) has addressed this problem by authorising the procuratorates to supervise this proceeding. It provides that if the procurator thinks that the public security organ (police) should file a case, or the victim complains about the omission to file a case and start an investigation, the procurator should ask the public security organ to explain the reasons for the failure to file a case. If the procurator is not satisfied with the explanation offered, the public security organ can be ordered to file a case. After the public security organ receives such an instruction, they must file the case⁽¹³⁾

2. Case Investigation

An investigation is defined to refer to the specialised investigatory work conducted and the related coercive measures taken according to law by the public security organs and the People's procuratorates in the process of handling cases⁽¹⁴⁾ The specialised investigation works includes: interrogation of suspects, questioning of witnesses, search, seizure of material evidence, and issuing warrants for arrest.

In China, interrogation is carried out by the public security organs or procuratorates rather than by judges. The revised code of criminal procedure (1996) has retained the former rule which stated that "the suspect shall answer questions put by the investigative personnel according to the fact"⁽¹⁵⁾ It follows that Chinese criminal procedure law does not provide the suspected person with a right to remain silent.⁽¹⁶⁾ The Chinese legislature established the law in this way to serve the objective stipulated in criminal procedure law, namely: "to guarantee the accurate and timely clarification of the facts of crimes, to apply the law correctly, and to punish criminal elements to safeguard innocent people from criminal prosecution."⁽¹⁷⁾ The legislature thought that this objective would be best served if the suspect answered honestly the questions asked by the authorities. This, of course, assumes that the stated objective can be achieved in this way, or only in this way, and that answers by suspects will be honest and reliable. It needs to be mentioned that, in practice police and prosecutors may be under pressure to solve cases, and they may reflect that pressure in how they deal with suspects. The result may be that the suspect or the accused may feel pressured into cooperating through making a confession.

The same Article also provides that the suspect can refuse to answer questions which are irrelevant to the issue of guilt or innocence. It is not clear, however, what questions are irrelevant and who is competent to decide on the issue of relevance. On the one hand, it might be thought that it should be for the suspect to decide whether a question is relevant. On the other hand, police or prosecutors generally feel that they are the people best able to judge relevance. If in practice there is controversy as to the relevance of a question and the suspect does not answer, judicial authorities may be inclined to assume that the suspect is uncooperative for reasons of guilt.

There are five coercive measures provided in the criminal procedure la⁽¹⁸⁾ classified according to the degree of restriction of human freedom entailed:

(a) summoning a suspect or accused for examination⁽¹⁹⁾

(b) obtaining a surety and awaiting trial on bail;

(c) surveillance of residence;

(d) detention; and

(e) arrest.

Arrest in China is the severest measure of restriction of human freedom. According to the former criminal procedure law, arrest could be utilised where the principal facts of the offender's crime had already been clarified and where the minimum punishment was a sentence of imprisonment; or where allowing the offender to obtain a guarantor and await trial on bail, or to live at home under surveillance, would be insufficient protection for society⁽²⁰⁾ In practice, investigative personnel find difficulty in satisfying the strict conditions for an arrest, especially at the early stages of an investigation and where time is short and yet they may feel that it is important to detain the suspect. It is under these circumstances that they may be tempted to resort to administrative detention to secure their objectives and, as they see it, public protection, even though arrest conditions could not strictly be met. The revised code of criminal procedure has changed this Article insofar as it speaks of "the principal facts of whose crime have already been clarified" into "there is evidence which proves that the crime has been committed"⁽²¹⁾

In China, most arrests are approved by the People's procuratorate, with few being decided by the People's court. Unlike in western countries, arrest warrants are not issued by judges but by the people's procuratorate. The general theory in China is that the procuratorate, as the supervisory organ of laws and legal regulations, should have the power to issue arrest warrants. Until now, no objection has been raised to this principle in China. In the future, however, consideration might need to be given as to whether the procurator's role and their responsibility for criminal investigation and prosecution is compatible with a power to issue warrants and whether this acts to ensure that they take decisions in an objective and unbiased way.

After the procuratorate examines the reported arrest, they may make one of two alternative decisions: approve the arrest or refuse the arrest.

Because the criminal procedure law does stipulate the permissible period of arrest, the duration of custodial detention is dependent upon the time taken by the judicial authorities to dispose of the case. This, in turn, is covered by rules governing the permissible period of investigation, prosecution and adjudication.

According to the 1993 statistics⁽²²⁾ the courts of China tried 403,177 cases at first instance. In 334,641 cases the procuratorate issued an arrest warrant, and there were 558,008 defendants detained in custody.

Criminal detention in China is a short term restriction of an individual's freedom. Unlike the power of arrest, the power to detain a suspect in most cases is exercised by public security organs without the need for approval by the people's procuratorate. The criminal procedure law specifies seven categories of circumstance under which detention may be effected⁽²³⁾

a) If he is in the process of preparing to commit a crime, is committing a crime or is discovered immediately after committing a crime;

b) If he is identified as having committed a crime by the victim or by an eyewitness on the scene;

c) If he is discovered to have criminal evidence on his person

or at his residence;

d) If after committing the crime, he attempts to commit suicide or to escape or is a fugitive;

e) If he is likely to destroy or falsify evidence or collude with others to devise false testimony;

f) If he fails to give his true name or address or if his identity is unclear;

g) If there is strong suspicion that he is a person who goes from place to place repeatedly committing crimes.

If, following a person's detention, the public security organ thinks that it is necessary to arrest a person they should apply for the procuratorator's authorisation within three days of the original detention⁽²⁴⁾ unless special circumstances exist in which case the time allowed for seeking approval may be extended by between one and three days. When an arrest application is received, the procuratorate should decide on it within three days.

According to the former criminal procedure law, the period for which a suspect or defendant could be detained prior to formal arrest was limited to a maximum of ten days. However, the public security and the procuratorate felt that ten days were insufficient to enable the authorities to obtain relevant evidence and decide whether arrest is necessary. To overcome this, an administrative measure was used to take a person into custody. One of the measures commonly used under the security administration punishment regulations was "detention for examination" (this may also be translated as "shelter and investigation"). According to these regulations, this measure should be used only where the identity or residence of the suspect is in doubt or where the suspect is moving from place to place to commit crimes. The purpose of this measure is said to be to facilitate investigation in cases where the detention period stipulated in the law of criminal procedure is inadequate. These administrative regulations provide that this measure normally should not exceed one month, but that it may be extended for two further months with the approval of the public security organs.

The revised code of criminal procedure introduces two main changes to this legal regime. First, the administrative provisions relating to detention have been incorporated into law by providing for detention where the suspect has not given his or her true name or address or identity, or where there are strong grounds for suspecting that the person to be detained is repeatedly travelling from place to place committing crimes. Second, the period of detention (prior to the need for an arrest) has been extended from a maximum of 10 days to a maximum of 30 days.

After a defendant has been detained or arrested, the police or prosecutor is under a duty to notify the family of the detained person or their employer within 24 hours of the detention or arrest, giving the reasons for detention and the place of custody except "in circumstances where notification would hinder the investigation or there is no way to notify them.⁽²⁵⁾

Persons awaiting trial may be released in one of two ways: where they obtain a surety and await trial on bail, or where they are placed under surveillance in their home. These measures are designed and applied to the persons where it is certain they would not disturb the course of the investigation, they would appear from trial, where they do not represent a danger to the community, where the charge is minor or where the defendant is sick or pregnant. In practice, most suspects or defendants awaiting trial are arrested or detained and taken into custody.

In contrast to the former law, whose lack of detail led the judicial authorities to hesitate in applying it, the revised code of criminal procedure is highly detailed. The new law contains detailed provisions regulating the application of bail, the obligations of sureties, suspects and accused, as well as imposing time limits.

In China, until now, there has been no mechanism or procedure (such as habeas corpus) by which the detainee can challenge continued arrest or detention. The revised code of criminal procedure law has, however, addressed this omission. It provides that: 1) when the judicial authorities have found that the coercive measure is not appropriate, they should withdraw or change it as soon as possible.⁽²⁶⁾ 2) if the legally prescribed time limit for the coercive measure has already expired, the suspect, accused or the legal representative or relatives of the defence have the right to ask for cancellation of the measure⁽²⁷⁾ and 3) after the suspect's first time to be interrogated or to have a coercive measure.⁽²⁸⁾

The new State Remedy Law provides that, where the judicial authorities have arrested or detained illegally, the victim can file for compensation.

The Chinese Criminal Procedure Law declares that "the use of torture to coerce statements and the collection of evidence by threats, enticement, deceit or other unlawful methods is strictly prohibited."⁽²⁹⁾ This provision is, however, declaratory in the absence of rules excluding evidence extracted by these methods from being used at trial.

3. Prosecution

The Chinese procurator is authorised to supervise investigations conducted by the police.⁽³⁰⁾ In reviewing and approving arrests, a People's procuratorate must ascertain whether the investigative activities were lawful. Unlike the position in many other countries, the Chinese police are independent of the prosecutor. The procuratorate exercise their supervisory powers through approval or denial of a proposed arrest and by reviewing the case before making a decision on whether or not the suspect should be prosecuted. The prosecutor has the power to investigate in cases where the investigative personnel (police or prosecutor) may have committed a crime, e.g. as by torturing the suspect.⁽³¹⁾ In practice, unlawful behaviour on the part of investigative personnel is difficult to regulate. It is arguable that the very absence of an exclusionary rule of evidence is in itself an encouragement to investigative personnel to resort to illegal methods where they think this will be more effective or efficient in collecting the necessary evidence.

Under the former law of criminal procedure (Articles 101-103) the procurator was given a power to exempt individuals from prosecution where criminal punishment was not required or appropriate. The power exercised by the procurator was in the form of a written decision and while its effect was to exempt the accused from punishment it also amounted to a finding of guilt. The existence of this power created three potential problems: first, it could be applied against individuals who deserved to be acquitted of the charge; second, it exempted from prosecution some individuals whose cases should have been prosecuted and transmitted to court; and third, the decisions relating to exemption were made against individuals who did not have the benefit of advice from defence counsel. The revised code of criminal procedure has abolished this special power of procurators and at the same time given the procuratorate discretion in minor cases.

4. Defence

Historically, the legal representatives of the defence were not in a position to act as a restraint on any illegal behaviour by investigative personnel. This is because, under the former Chinese criminal procedure law, the accused could consult defence counsel only after the court had decided to have a trial and adjudicate the case.⁽³²⁾

The defendant's right to defence and to have a defender (who may be but need not be a lawyer) is provided for in the constitution law⁽³³⁾ and by criminal procedure law.⁽³⁴⁾ Before the revised code of criminal procedure, the legislative and practical problem was that defence counsel was involved at too late a stage to prepare an adequate defence for the defendant. This also meant that there was not enough time to prepare and collect evidence which might be favourable to the accused. In practice, there were even occasions on which there was insufficient time to go through the file which the court handed to the lawyers or for lawyers to visit their clients. Moreover, for specified categories, such as economic crimes or complicated and serious cases, it was unrealistic to expect defence counsel to prepare an adequate defence in a period of less than seven days.

The revised code of criminal procedure has altered this state of affairs. Under the new law, a defendant may retain defence counsel when the case is transferred from the investigative organs to the procuratorate in order to decide whether to bring a charge.⁽³⁵⁾ In addition, after the first time the accused is interrogated by investigative personnel or from the date they have used a coercive measure, the accused can retain a lawyer to offer legal advice, or to serve as the representative in the proceedings to apply for bail.

The revised code of criminal procedure has also addressed the issue of the defendant who cannot afford legal representation. Where an indigent person is prosecuted and has no one to act on his or her behalf, the people's court may appoint a lawyer with the responsibility of giving legal advice to act for the defence of the indigent.⁽³⁶⁾ A lawyer must also be appointed where the accused is blind, deaf, or mute, or is a minor or in a case involving the death penalty.⁽³⁷⁾ The court should remunerate appointed counsel for their services, but the rates of court remuneration are normally less than those for privately retained counsel. In some cities, courts have made an agreement with law firms under which the law firms promises to provide pro bono lawyers for indigent defendants, and the firm rather than the court compensates the lawyer.

In China, there is a right to counsel for appeal purposes and also at special procedures in which there is a post-conviction review of the case. In order to guarantee effective assistance by defence counsel, the criminal procedure law has provided that "during the adjudication process, the defendant may refuse to have a defender continue to defend for him or her and may also retain another defender to defend for him or her.⁽³⁸⁾

Defence counsel are required to keep confidential state secrets, business secrets, and matters of personal privacy with which they might come into contact in their work.⁽³⁹⁾

D. Trial Procedure

1. Jurisdiction

Jurisdiction over criminal cases in China is divided into two categories: one concerns the competence of different levels of court; the other concerns different levels of "region".

Basic level courts handle almost all criminal cases tried at first instance, except for those where higher level courts are given original jurisdiction by law.⁽⁴⁰⁾ Intermediate courts have jurisdiction over appeals from the basic level courts, as well as original jurisdiction over three kinds of cases: counter-revolution and endangering state security; cases in which a sentence of life imprisonment or the death penalty is available; and cases in which foreigners commit crimes.⁽⁴¹⁾ High People's courts deal with appeal cases from the intermediate courts and try first instance cases which are considered serious and important at the provincial level.⁽⁴²⁾ The Supreme People's Court exercises appellate jurisdiction as well as original jurisdiction in very important cases at the national level.⁽⁴³⁾ It also has the very important role of promulgating judicial interpretations and other interpretative decisions to provide general rules and guidance for courts to follow in adjudicating cases.

Criminal jurisdiction follows one general principle: a criminal case is under the jurisdiction of the court in the place in which the crime was committed.⁽⁴⁴⁾ However, if it is more appropriate for the court in the place of the defendant's residence to adjudicate the case, jurisdiction may be taken by the court in the place of the defendant's residence.⁽⁴⁵⁾

When cases over which several courts at the same level have jurisdiction are to be adjudicated, they will be dealt with by the court which has first accepted the case.⁽⁴⁶⁾ This usually happens when the accused has committed several crimes or one crime was committed in different places. To assist the collection of evidence and also for the convenience of the parties, such cases are transferred for adjudication to the court in the principal place of the crime.

Courts at higher levels may instruct courts at lower levels to adjudicate cases where jurisdiction is unclear and also may instruct courts at lower levels to transfer cases to other courts for adjudication.⁽⁴⁷⁾ In practice, this power may be exercised to guarantee a fair trial where the court at higher levels recognises that local bias may affect the decision of the case.

2. Composition of the court

According to the "Organic law of the People's Courts of the People's Republic of China (hereinafter OLPC),⁽⁴⁸⁾ courts may be composed in two ways: by a single judge or by a panel of judges. Adjudications by a single judge are normally confined to minor cases, such as private prosecutions and other minor criminal cases which can be conducted by summary trial.⁽⁴⁹⁾ Most cases are tried by a panel of judges, which comprises several judges or judges with lay assessors. When basic level courts or intermediate courts at first instance hear cases, the panel should be composed of three judges or judges with a lay assessor. When High Courts or the Supreme Court try cases at first instance, the panel should be composed of three to seven judges or judges with assessors.⁽⁵⁰⁾ In appeal cases, there are no assessors, the panel comprising three to five judges. In addition, the Judicial Committee gives advice on judicial work and also has the power to discuss important and difficult cases. A ruling by the judicial committee must be followed by the panel of judges.⁽⁵¹⁾

3. Adjudication

In advance of trial, a public prosecution is initiated by the procurate sending all matters relating to the case, including the file of evidence and the indictment to the court that has jurisdiction over the case.

The first step in adjudication occurs when the court examines the case in order to decide whether to accept the case for trial. According to the former law of criminal procedure, the court should accept the case only where the facts of the crime are clear and the evidence is complete. Where this standard was not satisfied, the court was required to return the case to the procuratorate for supplementary investigation, or request the procuratorate to withdraw prosecution.⁽⁵²⁾ Because judges could make such rulings only through a detailed examination of the file of evidence, there was a danger that they might come to the trial convinced of the correctness of the prosecution and thus less able to listen to trial evidence in an objective and unbiased manner. In this way, the main emphasis of the trial might be on proving what had been assumed rather than on objectively reviewing the evidence at trial.

The revised criminal procedure law has altered the position in some ways. Instead of requiring the court to decide whether the "facts of the crime are clear and the evidence complete", the revised code provides that after the court reviews the case, the court accept the case for trial if there are clear charged facts of a crime with attached lists of evidence, witnesses, copies of real evidence and photographs mentioned in the indictment.⁽⁵³⁾

The law of the constitution, civil and criminal procedure provides that the people's courts are to adjudicate all cases in public unless otherwise provided by this law. These exceptions are as follows: cases involving state secrets or the private affairs of individuals and some juvenile delinquency cases. To enforce this provision, court rules state that when a case is to be conducted in public, the press can witness, record, take a video or photograph and televise proceedings, provided that the reporter obtains permission to enter the courtroom.

With the exception of juvenile delinquency cases, there is no provision to protect the accused from media coverage which might prejudice the verdict. Press publicity of cases and its potential for affecting the course of justice is a matter for debate in every country. On one side, there is the importance of press freedom; on the other, is the interest of the accused, victim, witnesses and other participants. In China, there have been occasions when, after the accused was subjected to a coercive measure, the case was reported in the newspaper or on TV. Because the media has its own concern and interests, there is a danger that the views of both the public and the judge may be consciously or unconsciously influenced.

Normally, the trial of a case consists of five stages: i) opening the trial; ii) court examination; iii) court debate; iv) final submission of defendant; v) deliberation and the announcement of the judgment.

Trials open with the chief judge (or adjudicator) of the collegiate or panel bench making certain announcements.⁽⁵⁴⁾

The second stage of the trial begins with the prosecutor reading out the indictment, on which the defendant and victim can comment. The prosecutor and judge can also question the defendant. In addition, other parties (including victim etc.) and defence counsel, may also request permission from the chief judge to put questions to the defendant. The revised code of criminal procedure has changed the role of judge from being actively involved in the trial to just supervising the proceedings.

As regards the attendance and examination of witnesses, the criminal procedure law provided that: "only after the testimony of witnesses on all sides has been heard and has undergone verification may it be used as a basis for determining a case".⁽⁵⁵⁾ From this, we can see the importance placed on direct and oral testimony by the Chinese legislature. However, prior to the new code of procedure, things were different in practice because witnesses seldom appeared in court to give oral testimony. Instead, in most cases, statements of witnesses were read by the judge or lay assessors before the trial in the absence of the witnesses. There were many reasons for this practice. Some witnesses do not respect the fact that attending court and giving testimony is both a legal and social obligation. Some prospective witnesses also believe that appearing as witnesses could involve them in unpleasant consequences: not only would testifying interrupt their work or study, but it might also lead to reprisals from criminals or their associates. So far as judges are concerned, they are used to relying on the written form of testimony and view the trial simply as a forum for reviewing this testimony. There are also financial considerations: courts hesitate to summon witnesses and to compensate them for the expenses incurred because some courts are themselves experiencing financial difficulties. Some steps have been taken to encourage witnesses to appear at trial. Thus, for example, the revised code of criminal procedure has added a new amendment to try to protect those witnesses who give evidence in the court from criminals or their associates.⁽⁵⁶⁾

While the law provides that "anyone with knowledge about the circumstances of the case has the duty to testify, those with physical or mental handicaps or those of a young age who cannot distinguish right from wrong or cannot accurately express themselves cannot be witnesses",⁽⁵⁷⁾ when witnesses refuse to testify in court, there are no coercive means available to compel them to give evidence.

While Chinese criminal procedure law does not state in clear terms that the accused has a right to be tried without undue delay, several provisions of this code impose time limits once a court decides to accept a case for trial. Normally, in a first instance trial, judgment should be given within one month, with the maximum not to exceed one and one half months, though there is the possibility for further extension for another month⁽⁵⁸⁾ under Article 126.

Delays are caused by different events which take place during trials rather than by the nature of the charge. The causes of delay include: i) if it becomes necessary to notify new witnesses to come to court, to obtain new material evidence or to make a new expert evaluation or inspection; ii) if prosecutors discover that a case in which they initiated a public prosecution requires supplementary investigation and present a proposal to this effect to the court; or iii) if the adjudication cannot be conducted because of a party's application for withdrawal.⁽⁵⁹⁾ Except in the case of supplementary investigation, there is no provision for delay and any delay should be limited to the normal period of time in trial. Whilst delay is related to the duration of detention, the accused has no right to request that delay is reviewed.

If, after the initiation of a public prosecution or during the trial, the prosecutor wishes to add new defendants or charges, the prosecutor can temporarily withdraw the prosecution and make a new supplementary prosecution and the judge can also ask them to do so. Where this occurs, it may be difficult for defence counsel or the accused to prepare a defence to the amended prosecution.

There is no provision concerning trial in absentia. Every trial must take place in the presence of the accused. If the accused cannot attend court by the reason of illness, the hearing of the case is postponed until the accused is fit to attend. If the accused dies during the trial, the whole proceedings should be terminated.

According to Chinese criminal law,⁽⁶⁰⁾ a mentally ill person is not to be held criminally responsible for causing damaging consequences at a time when he or she is unable to recognise or unable to control his or her own conduct. The decision whether the person who committed the criminal act is suffering from mental disability is that of a forensic expert or the doctor appointed by the court. If the mental problem of the accused originates during the trial, the hearing should be postponed and the accused should be sent to hospital until recovery.

In China, there are many national minorities, as well as numerous dialects and provision has been made for such groups. In order to guarantee that the accused understands the trial proceedings, the law of criminal procedure has provided that "citizens of various ethnic groups all have the right to conduct proceedings in their native spoken and written language. The people's courts, the procuratorate and the public security organs shall provide interpreters for participants in proceedings who are not proficient in the spoken and written language commonly used in the locality. In areas inhabited by a concentrated minority ethnic group or by several ethnic groups, hearings shall be carried out in the spoken language commonly used in the locality, and written judgment, announcements and other documents shall be issued in the written language commonly used in the locality."⁽⁶¹⁾

The revised code of criminal procedure has added a new amendment which incorporates the presumption of innocence. It states that "without the People's court making a verdict according to the law, no one shall be convicted".⁽⁶²⁾ This represents a radical change to the Chinese legal system which operated without a presumption of innocence since the People's Republic of China was set up in 1949.

In criminal cases, there are different degrees of proof in different stages of the proceedings as provided by criminal procedure law. The main principle is: whether the facts and circumstances of the crime are clear, whether the evidence is reliable and complete. There is a heated debate concerning this topic: for example, what is the criterion for "clear", "reliable" and "complete". Scholars explain this rule by establishing four detailed provisions: i) evidence which would be used to decide the case has been clarified; ii) facts relevant to the case have been proved by evidence; iii) any doubts between the evidence and facts has been removed; and iv) the conclusion is the only one possible and proved beyond reasonable doubt.

According to the former criminal procedure law, victims are not parties but, like witnesses, only one of the participants. Victims do not enjoy the rights of other parties: they have only weak rights, such as the right to ask for reconsideration if the justice authorities decide not to file a case.⁽⁶³⁾ During the trial itself, the victim can have a representative and, with the permission of the chief judge, can ask the accused questions.

In order to protect the victim's right, the Chinese legislature has made some amendment to old law. This has been achieved by including the victim in the category of parties.⁽⁶⁴⁾ As a result, they enjoy all the rights of parties, including the right to demand that adjudication personnel withdraw from handling the case.⁽⁶⁵⁾ Victims also have the right to ask the procuratorate to appeal if they do not agree with the first instance judgments of the local courts at various levels.⁽⁶⁶⁾ They also have the right to authorise their representative to participate in the proceedings.⁽⁶⁷⁾ Victims may also directly initiate prosecutions where the procuratorate has decided to not commence any prosecution.

4. Independence of judges

The Constitutional law and the Organic law of the courts state that "the people's courts exercise judicial power independently in accordance with the provisions of the law and are not subject to interference by any administrative organ, public organisation or individual".⁽⁶⁸⁾ The revised criminal procedure law has also incorporated this principle.⁽⁶⁹⁾

From the above provision, it is clear that the definition of judicial independence in China is different from that in other countries. In China, what is important is the independence of courts rather than that of judges. In practice, this presents a number of issues, such as: a) the judge or the collegiate bench who presides over a trial cannot make an independent decision on guilt and punishment. Ordinarily, the judge is obliged to report the case to the president of the chamber, or one of the presidents of the court in charge of criminal cases⁽⁷⁰⁾ and ask for guidance as to whether the decision is proper. The president may refer the case to the adjudicative committee. The revised criminal procedure law has made a slight change to confirm that the collegiate bench has power to make decisions independently, except in difficult, complicated and serious cases. In the event of a wrong decision, the court should be responsible for the mistake. The new Judge Law⁽⁷¹⁾ has provided that where neglect of duty has resulted in a mistake and caused the parties substantial suffering, it should be punished. However, it is not clear how any court can punish an individual judge for a decision which is not the responsibility of the judge; b) as mentioned before, after the adjudication committee has made a decision, the collegiate bench which tried the case must implement the decision of this committee. The decision which the committee has made is normally based on an oral presentation by the judge who handled the case. Although the majority view of the committee prevails in theory, in practice, the opinion of the president (who chairs the committee), will have the greatest weight; c) although the law affords the judge the right to decide the case without interference from administrative organs and individuals, in practice the relationship between the leadership of party and judicial independence remains to be clearly settled.

The qualifications for a judge are laid down by the Judge Law:⁽⁷²⁾ a judge must be of Chinese nationality, have reached the age of 23, must respect constitutional law, have good political professional quality and also have good character, health, and have graduated from law school or have knowledge of the law, and have worked for two years. Those who hold an LLB and have been working for one year or who have an LLM or PhD are eligible without the requirement to have worked for a period of time.

The Judge Law also provides that two kinds of people cannot be selected as a judge: those who have a criminal record, and those who have been dismissed from their job.⁽⁷³⁾

5. Appeal

The appeal system in China is dealt with in part three, chapter 3 of the criminal procedure law which is entitled "Second Adjudication Procedure". As mentioned in the Part B, the law of criminal procedure provides for a single appeal. Under the appeal system, the court is required to "conduct a complete review of the facts determined and of the law applied in the judgment of first instance."⁽⁷⁴⁾

There are two kinds of appeal provided by criminal procedure law. First, an appeal may be initiated by or on behalf of the defendant. This means that an appeal can be lodged by the defendant's legal representative, defence counsel, or by his or her close relatives. In the case of a complaint (private prosecution), the person who has initiated the prosecution has a right to an appeal. Second, an appeal (or protest) may be launched by the procuratorate.

According to the criminal procedure law, an appeal of a protest that challenges a judgment should be lodged within ten days, but an order must be challenged within five days.⁽⁷⁵⁾

A defendant may lodge an appeal either orally or in writing on the basis that he or she does "not agree with the judgment or disagrees with the orders of first instance of the local courts at various level".⁽⁷⁶⁾ A procuratorate may only initiate the protest in writing and on the basis that "a judgment or order of first instance of a court at the same level contains actual error".⁽⁷⁷⁾

Under the former criminal procedure law, there was no express provision requiring an open hearing which would offer an opportunity for the parties and their lawyers to argue the appeal before the appellate court. Accordingly, in practice, most appeals were decided entirely on the basis of the court's files. There were practical considerations underlying these arrangements. In a country such as China, the location of courts of first instance are often far away from the location of appellate courts, making attendance by all of the relevant parties impractical.

Notwithstanding these practical problems, the revised criminal procedure law amends the appeal process by providing that the appellate court should organise a collegiate bench to hear appeals openly. Where the collegiate bench decides that the facts are clear by reading the file, interrogating the defendant and hearing the opinion of other parties and participants, they can decide not to have an open hearing. If the appeal case is initiated by the procuratorate through a protest, the appellate court should hear the case openly. The new law further provides that the appellate court hear the appeal or protest case where the original case was decided or at the location of the first instance court.⁽⁷⁸⁾

To ensure that defendants are not discouraged from appealing, the criminal procedure law provides that, where an appeal is brought by a defendant, the appellate court may not increase his or her sentence.⁽⁷⁹⁾ Where, however, the procuratorate or private prosecutor present the protest or complaint, it remains open to the appeal court to impose a heavier sentence. Even in the case of a defendant appeal, it does not follow that the defendant is entirely free of the risk of an enhanced sentence being imposed because an appeal court, concerned over the lightness of a sentence, may remit the case to the first instance court for retrial on the ground that "the facts of original judgment are unclear or evidence is insufficient". Alternatively, the appellate court could ask the procuratorate to initiate the protest, thereby allowing for an increase in sentence.

5. Remedy

Apart from the ordinary procedures described above, there are several special procedures provided in the criminal procedure law. One such, 'adjudicative supervision', can be initiated even after the time limit for appeal has expired or the right to appeal has been exhausted. This procedure may be initiated in one of the following four ways: 1) parties, their legal representatives and close relatives may petition the court or procuratorate to challenge the judgment, although it should be noted that the lodging of a petition does not suspend execution of judgment;⁽⁸⁰⁾ 2) where the president of a court has discovered that the judgment made by the court has become legally effective and may be wrong on the facts or application of the law, the case must be sent for consideration to the adjudication committee;⁽⁸¹⁾ 3) the Supreme Court or a court at a higher level may order a lower court to retry a case or the higher court may retry the case itself, when it is discovered that the judgment or order which has become legally effective has been made in error; 4) and the Procuratorate may lodge a protest by way of adjudicative supervision with a court against a lower court's judgment which has become legally effective and which they believe to be in error.⁽⁸²⁾

Statistics for 1993 show that courts have accepted 29,615 criminal case petitions and have handled 31,472 cases (including cases from the year 1992). In the result, there were 18,960 cases which confirmed the original judgment; 8,155 cases in which the original judgment was varied; with other decisions being made in the residue of cases.

There are no provisions imposing time limits for the lodging of petitions, limiting the number of petitions which might be made, of fixing the cost of court fees.

We can also note that Chapter 3 of the State Remedy law, enacted in May 1994, provides for a criminal judicial remedy which includes limits on compensation, and regulates the compensation procedure.

6. Proceeding for juvenile delinquency

In China, minors under 14 years of age who engage in criminal conduct do not bear criminal responsibility. Minors who have reached the age of 14 but are under 16 and commit crime bear criminal responsibility for crimes specified in the criminal code, such as killing people, inflicting serious injury, robbery, arson, habitual theft, or other crimes seriously undermining the social order.⁽⁸³⁾

Some rules for handling juvenile delinquency cases are provided by the code of criminal procedure and in the law of Protection of Minors.⁽⁸⁴⁾ Most rules for handling juvenile cases are found in chapter 4, "Judicial Protection", of the criminal procedure code. Among the principles to be followed by judicial authorities in dealing with the juvenile cases, are: 1) the primary goals to be followed are, education, persuasion and reformation and the principle of taking education as the main method and punishment as the subsidiary shall be upheld;⁽⁸⁵⁾

2) in dealing with crimes committed by juveniles, the physical and mental characteristics of the juvenile should be taken into consideration in all cases in line with the needs of the case, and the court should set up special organs or designate special persons to handle such cases;⁽⁸⁶⁾ and 3) before trial, juveniles held in detention should be segregated from adults held in custody. Juvenile delinquents who are sentenced to fixed-term imprisonment by courts are to be housed and guarded separately from adults serving custodial sentences.⁽⁸⁷⁾

The law of criminal procedure also seeks to confer special rights on juvenile delinquents. These are: 1) the right of defence. Before trial, if the defendant is a minor who does not have the benefit of defence counsel the court shall appoint a lawyer for the defendant. This rule does not apply where the defendant has the benefit of defence counsel before trial;⁽⁸⁸⁾ 2) the right to be accompanied during interrogation and trial. When a juvenile under 18 years of age is to be interrogated or adjudicated, the legal representative of the defendant should be informed and may be present;⁽⁸⁹⁾ and 3) the right of being tried privately. According to criminal procedure law, juveniles aged fourteen or over but under the age of sixteen, should be tried in private; the cases of those aged sixteen or over but under the age of eighteen are also generally not held in public.⁽⁹⁰⁾

Since the first collegiate bench for handling juvenile delinquency cases was set up in Shanghai, Chang Nieng district, there are now over 3,000 chambers for handling minors in the whole country, including 317 criminal chambers. There are more than 7,000 judges who handle juvenile cases and 12,405 lay judges have been involved in trying juvenile cases.⁽⁹¹⁾

E. Conclusion

The rapid changes in Chinese society since 1979 have brought with them a need to rethink some of the foundation stories of the legal system. Following the enactment of the criminal law and criminal procedure law in 1979, various modifications to the law were made and, gradually with the translation of foreign law books, Chinese knowledge of foreign legal systems, and internationally respected principles, increased. In line with the modern trend towards the adoption of general, if not universal principles, international standards of justice have been taken into account by China in the process of transforming its own legal system. Thus, for example, the United Nations Treaties have already been adopted in China. At the same time, comparative research has been undertaken to inform the process of reform.

Reform is, however, a process rather than an event and China is still at the early stages of legal system transformation. It is notorious that complex systems cannot be changed completely overnight and that incremental change is sometimes more productive than attempts at seismic and radical overhaul. And it is important that, in re-writing codes, there remains some broad correspondence between the aspirations of the law and its practical content: without this, the law itself may lose respect and the opportunity for lasting and beneficial reform would be lost. Even before further consideration is given to amendments to substantive and procedural law, other challenges remain. There is inevitably a gap between enacted law and actual practice which cannot be closed without other developments having taken place. Despite the fact that since 1979 large numbers have graduated from law school and many judicial officers have undergone training courses, there remains a severe shortage of professionally qualified judges, prosecutors and lawyers. With the development of the economy and its increasing sophistication and complexity, the demand for trained legal personnel can only increase and the process of law reform will need to continue to adapt to new economic, political and social environments. Accepting that law is an integral part of the democratic tradition, China has already taken the first significant steps in its legal reform movement towards the entrenchment of the foundational principles of civil society.

1. Professor of University of Warwick.

2. Associate Professor of China University of Political Science and Law.

3. Article 5 of the Criminal Procedure Law (hereafter CPL).

4. Adopted July 1, and effective as of 1 January 1980.

5. However espionage cases are investigated by the State Security Organs according to the NPC Standing Committee's decision regarding the Exercise by the State Security Organs of the Public Security Organs' power of investigation, detention, preparatory examination and arrest, 1983.

6. Art. 18 of CPL.

7. Organic Law of the People's Courts, art. 2.

8. Organic Law of the People's Courts, art. 12. There are also specialist courts such as military courts, railway transport courts and maritime courts. The maritime courts do not deal with criminal cases.

9. Chapter 5 of CPL arts. 203 to 207.

10. Chapter 4 of CPL arts. 199 to 202.

11. Chapter 7 of CPL arts. 77 to 78.

12. Art. 86 of CPL.

13. Art. 87 of CPL.

14. Art. 82 of CPL.

15. "When interrogating a suspect, investigation personnel shall first ask the suspect whether or not he/she has engaged in a criminal act and let him/her state the circumstances of his guilt or explain his innocence and then put the questions to him. However, he has the right to refuse to answer questions that have no relation to the case." Art. 93F of CPL.

16. It can be noted that there is no provision in the law as to the consequences that follow from a continued exercise of silence, e.g. there is no provision that expressly allows the court to draw adverse inferences from silence.

17. Art. 2 of CPL.

18. Chapter 6, arts. 50 to 76.

19. Another translation is compelling attendance for detention.

20. Art. 40 of the former criminal procedure law.

21. Art. 60 of the new revision of the criminal procedure law.

22. Legal yearbook of 1993.

23. The provisions of the revised code of criminal procedure are slightly different from those which it will replace.

24. Art. 69 of CPL.

25. Arts. 64 and 71 of CPL.

26. Art. 73 of CPL.

27. Art. 75 of CPL.

28. Art. 96 of CPL

29. Art. 43 of CPL.

30. Art. 137 of CPL.

31. Art. 136 of CPL.

32. Art. 110 of the former criminal procedure law.

33. Art. 125 of the constitutional law.

34. Chapter 4 of criminal procedure law and other provisions.

35. Art. 33 of CPL.

36. Art. 34 of CPL.

37. Id.

38. Art. 39 of CPL.

39. Art. 33 of the Lawyer Law which was enacted by the nineteenth session of the eighth NPC on 15 May 1996.

40. Art. 19 of CPL.

41. Art. 20 of CPL.

42. Art. 21 of CPL. In practice, they rarely handle first instance cases.

43. Art. 22 of CPL. Since the People's Republic of China was established, the Supreme People's Court has handled only a few criminal cases.

44. Art. 24 of CPL.

45. ⁴⁵Id.

46. Art. 25 of CPL.

47. Art. 26 of CPL.

48. This law was amended on 2 September 1983 by decision of the Standing Committee of the sixth NPC at its second meeting.

49. Art. 10 of OLPC and Art. 147 of CPL.

50. Art. - and art. 147 of CPL.

51. Art. - and art. 149 of CPL.

52. Art. 108 of the former criminal procedure law.

53. Art. 150 of CPL.

54. Art. 154 of CPL.

55. Art. 47 of CPL and art. 36 of the former CPL.

56. Art. 48 of CPL.

57. Art. 48 of CPL.

58. Art. 108 of CPL.

59. Art. 165 of CPL.

60. Art. 15 of criminal law.

61. Art. 9 of CPL.

62. Art. 12 of CPL.

63. Art. 61 of the former CPL.

64. Art. 82 of CPL, section 2.

65. Art. 28 of CPL.

66. Art. 182 of CPL.

67. Art. 40 of CPL.

68. Art 120 of the Constitutional law and art. 4 of the Organic law of courts.

69. Art 5 of CPL.

70. Who in most instances would not have been a member of the collegiate bench that heard the case.

71. It was adopted by the twelfth session of the eighth National People's Congress, 28 February 1995 and effective 1 July 1995.

72. Art. 9 of the Judge Law, chapter 4.

73. Art. 13, chapter 5 of the Judge Law

74. Art. 186 of CPL.

75. This time limit has been changed to three days for the crimes specified in the 1983 Decision on Prompt Adjudication.

76. Art. 180 of CPL.

77. Art. 181 of CPL.

78. Art. 187 of CLP.

79. Art. 137 of the former CPL and art. 192 of CPL.

80. Art. 203 of CPL.

81. Art. 205 of CPL.

82. Id.

83. Art. 14 of criminal law.

84. Adopted at the 21st meeting of the Standing Committee of the Seventh National People's Congress on 4 September 1991, promulgated by order No. 50 of the president of China on 4 September 1991, and effective as of 1 January 1992.

85. Art 38, the law of protection of minors.

86. Art. 40, the law of protection of minors.

87. Art. 41, the law of protection of minors.

88. Art. 34 of CPL.

89. Art. 14 of CPL.

90. Art. 152 of CPL.

91. Legal Daily of 18 November 1994.