Opening to Reform?
An Analysis of China's Revised Criminal Procedure Law

In March 1996, China's national legislature approved sweeping revisions to the Criminal Procedure Law ("CPL"), the basic statute governing the Chinese criminal justice process. These revisions, which became effective on January 1, 1997, will mean major changes, at least on paper, in the way in which criminal cases in China are investigated, prosecuted and tried. They thus have important implications for China's observance of international standards regarding the treatment of suspected criminals and the right to a fair trial.

Opening to Reform? examines the history of the CPL, the factors leading to its revision, and the drafting process. It then analyzes the extent to which the revised CPL meets international human rights standards. It concludes that in four major areas -- pre-trial detention, the right to counsel, nonjudicial determinations of guilt and trial proceedings -- the revisions should result in better protection of defendants' rights, although they do not fully satisfy the requirements of international law. It also points to several other key issues where the revisions have meant little or no progress toward bringing the Chinese criminal justice process into conformity with international standards. Finally, the report recommends a multifaceted approach -- combining informed critique of Chinese law and practice with targeted engagement by legal professionals, academics and other outsiders -- to promote greater respect for human rights in the Chinese criminal justice system.

Analysis of the Revisions

Pre-Trial Detention
The most encouraging of the revisions with respect to pre-trial detention is the incorporation of "shelter and investigation" into the CPL. "Shelter and investigation" was a widely used -- and abused - - administrative measure whereby the Chinese police unilaterally detained suspected criminals for extended periods with little or no access to the outside world. Under the revised CPL, persons originally subject to "shelter and investigation" can now be detained for a maximum of thirty-seven days before approval must be obtained from the prosecutor for formal arrest. The revisions also for the first time place limits on non-custodial forms of detention (such as house arrest) and restrict the ability of the police and state prosecutor to extend detention indefinitely by citing a need for "supplementary investigation."

Right to Counsel
The revised CPL marks a major step toward expanding the right to counsel in the Chinese criminal justice system. In the past, criminal defendants in China were notified of their right to hire a lawyer only seven days before the beginning of trial. Given so little time to prepare, defense counsel played virtually no role in the trial proceedings. Under the revised CPL, all suspected criminals are to be notified of their right to counsel at the point when their cases are transfered from the police to the prosecutor for a decision on whether or not to seek a trial. Together with changes in the trial system (see below), this should enable defense lawyers to prepare and present a more effective case on behalf of their clients.

Most suspects will now also have a right to counsel after the first time they have been questioned by the police or placed in some form of pre-trial detention. While the role and powers of defense lawyers during this earlier phase are limited, access to counsel will not only facilitate the preparation of a defense but also hopefully curb mistreatment of detainees. However, the denial of legal assistance until after the initial questioning by police means that there will continue to be a significant risk of coerced confessions before a lawyer gains access to his or her client.

Together with the recently enacted Lawyers Law, the revised CPL also expands legal aid. Courts are now required to appoint counsel for all defendants facing the death penalty. Indigent defendants are likewise entitled to free or subsidized legal services. It is not clear, however, whether counsel will be available to these defendants prior to the trial stage.

The revised CPL is notable for breaking down the long-standing barriers to the involvement of defense lawyers in pre-trial proceedings. However, it contains other provisions contrary to international law which have the potential to vitiate the progress thus made. The revised law fails to establish a clear duty to notify suspects of their right to counsel in the investigation stage. More ominously, it gives the police unreviewable power to block a suspect's access to counsel in cases involving ill-defined "state secrets." Even in those cases where the police do not invoke "state secrets," they can insist that they be present at meetings between suspects and their counsel.

Nonjudicial Determinations of Guilt
Another important respect in which the revised CPL improves rights protection is by limiting nonjudicial determinations of guilt. Under the original CPL, prosecutors had the power to "exempt from prosecution" defendants whose crimes were minor or involved a variety of mitigating circumstances. Although couched in terms of leniency, these decisions constituted a unilateral determination of guilt without benefit of a trial. Moreover, as an unreviewable exercise of prosecutorial discretion, "exemption from prosecution" was rife with potential abuse of defendants' rights.

The revised CPL eliminates the term "exemption from prosecution" and explicitly states that no person should be determined guilty except pursuant to a lawful court verdict. It does retain some vestiges of the measure with respect to minor crimes, where prosecutors can now make a decision "not to prosecute." The impact of such decisions on defendants is not yet clear, but the scope of prosecutors' discretion "not to prosecute" is considerably narrower than their former power to "exempt from prosecution," which could apply to any alleged crime.

While the revised CPL sharply limits prosecutorial determinations of guilt, it should be noted that the revisions do not affect a second, major form of nonjudicial determination of guilt, so-called "reeducation through labor." As an administrative, rather than criminal, sanction, "reeducation through labor" is imposed not by courts but by committees dominated by the police. It is thus subject to none of the procedural requirements or supervisory mechanisms contained in the CPL, though it is a harsh sanction (one to four years' in length) and is carried out in conditions largely indistinguishable from prison camps.

Trial Proceedings
The revision of the CPL will mean far-reaching changes in the Chinese criminal trial system. Under the original law, the court president had the power to take "difficult, complicated, or important" cases out of the hands of the trial court and submit them to the court's top decision-making body, the adjudication committee. The revised CPL provides that it will now be up to the trial court itself to decide whether it needs to refer a case to this higher body. The revisions also eliminate the prior practice whereby the courts conducted a thorough pre-trial examination of criminal cases that essentially amounted to a determination of guilt prior to trial. Under the revised CPL, the court's pre- trial role will be limited to a procedural review of the materials submitted by the prosecutor.

Since the substance of the case is no longer to be examined ahead of time, this must now occur at the trial itself. In contrast to proceedings under the original CPL, in which the judges took the lead in questioning the defendant and witnesses, producing evidence, and summing up the case, under the revised law the court takes a decidedly more passive role. The principal burden of producing evidence and arguing the case will now be assumed by the prosecutor and defense counsel.

The strengthening of the role of the trial court and increased emphasis on the presentation of evidence in court should result in a trial process which is more transparent and less vulnerable to decisions taken behind closed doors. Together with the expansion of the right to counsel, these changes should also give defense lawyers an opportunity to present a more meaningful case on behalf of their clients.

While these are welcome developments, there are many other respects in which trials under the revised CPL fall short of international standards. The revised law continues to allow closed trials in cases involving so-called "state secrets." Defense lawyers will play a more active role than in the past, but they will still be at a clear disadvantage relative to the prosecutor in terms of their ability of review case materials, gather evidence, and call witnesses. Most important, the Chinese judiciary is far from independent. The Communist Party maintains strict control over the appointment and removal of judges and court presidents continue to wield a wide range of powers that effectively limit the independence of the judges under their authority.

Key Issues Left Unresolved by the Revisions
In addition to the persistent problems in the four areas discussed above, the revisions to the CPL fail to address other key deficiencies in the Chinese criminal justice system. The revised CPL does not fully recognize the presumption of innocence. It does not provide adequate safeguards against the use of evidence gathered through torture and other illegal means. Appeals under the revised law will continue to be often ritualistic or even provide an avenue for the imposition of heavier sentences. Remedies for violations of suspects' and defendants' rights are weak and often invoked only at the discretion of the law enforcement bodies themselves.

The Chinese criminal justice system has long been plagued by violations of basic human rights. The revision of the CPL will by no means put an end to such violations. The revised CPL demonstrates, however, that China has begun to reorient its criminal justice system away from a dominant preoccupation with social control toward greater concern for the protection of defendants' rights. It sets a stricter standard against which the government's actions can be judged. Perhaps most significantly, some of the specific reforms contained in the revised law -- incorporation of "shelter and investigation," expansion of the right to counsel, limits on nonjudicial determinations of guilt, and establishment of a more transparent trial process -- give hope of a trend toward greater incorporation of international human rights norms into the Chinese criminal justice system.

The key question for the future is how to encourage this trend. External pressure clearly played a role in shaping key elements of the revised CPL. This demonstrates that continuous monitoring and evaluation of the Chinese criminal justice system is critically important not only in identifying and challenging violations of fundamental human rights but also in creating a base of knowledge about Chinese law and practice from which to promote China's compliance with international norms. Multilateral human rights bodies, governments, nongovernmental human rights groups and academic experts should redouble their efforts to keep the international community informed about China's achievements and failings in human rights protection.

At same time, additional energy and resources must be committed to programs of international exchange and technical assistance that will help strengthen the case within China for further reforms. One of the most striking features of the revised CPL is the degree to which awareness of international human rights norms and foreign legal experience has entered into domestic Chinese debates on criminal justice. This increased familiarity with internationally-accepted practice is a direct result of legal exchanges dating back to the late 1970s as well as China's more recent willingness to engage in dialogue on human rights issues. Foreign law schools and legal research institutes should build on these linkages in order to help their Chinese counterparts improve their capacity to teach and conduct research on human rights, particularly in the criminal justice field.

Through their scholarship and publications, these academic centers can be expected to play an important role in expanding awareness of international human rights among both policy-makers and the general public in China. However, there is also a need to work directly with the institutions that make up the criminal justice system. Several of the major reforms in the revised CPL reflect a clearer differentiation of function among the police, prosecutors, and courts. Further movement in this direction should be promoted by assisting these institutions to develop training programs which strengthen their members' sense of professional identity. While it is unlikely in the short term that political influence can be eliminated altogether from the Chinese legal system, the revision of the CPL suggests that a stronger sense of professional identity may contribute to the development of more checks and balances in the criminal justice process.

Building on the revised CPL's expansion of the right to counsel, particular attention should be focused on enhancing the ability of Chinese lawyers to provide effective services to criminal defendants. Chinese lawyers retooling their skills to take a more active role in the criminal process could learn much from their counterparts elsewhere in the world. Foreign lawyers and bar associations should seek opportunities to contribute to professional development programs in China. Their experience will likewise be highly relevant to China's efforts to flesh out the details of the expanded legal aid system called for under the revised CPL and new Lawyers Law.

The precise nature and timing of future reforms will ultimately be determined by Chinese themselves. Outsiders can, however, play a constructive role through careful monitoring and critique of Chinese law and practice, consistent advocacy of China's observance of international standards, and imaginative programs to expand the range of information available in China on human rights and criminal justice. The progress achieved in the revised CPL suggests that, in conjunction with internal factors, such external efforts can exercise a positive influence on legal reform in China. They need to be sustained and expanded if they are to contribute to the further systemic changes required to ensure full respect for international human rights in the Chinese criminal justice process.

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