HRIC, March 2001 CPL Report 1 Empty Promises: Human Rights Protections and China’s Criminal Procedure Law in Practice A REPORT BY HUMAN RIGHTS IN CHINA MARCH 2001 Human Rights in China (HRIC) is an international, non-profit organization founded by Chinese scholars in March 1989 with offices in New York and Hong Kong. HRIC monitors the implementation of international human rights standards in the People’s Republic of China, carries out human rights advocacy and education among Chinese people inside and outside the country and assists victims of human rights violations in China. The group puts out regular press releases, a quarterly English journal, China Rights Forum, Chinese-language human rights education materials and books, and occasional reports. It also regularly submits information to U.N. bodies and conducts other international advocacy activities. HRIC’s mandate includes all rights recognized by international instruments, including both civil and political rights and economic, social and cultural rights. Its objectives are to facilitate the development of a grassroots human rights movement in China and to promote international scrutiny of China’s human rights situation. Head office: 350 Fifth Avenue, Room 3309-10, New York, NY 10118 Tel: (212) 239-4495; fax: (212) 239-2561 Branch office: 8/B Tung Lee Commercial Building, 95 Jervois Street, Hong Kong Tel: (852) 2710-8021; fax: (852) 2710-8027 e-mail: [email protected] Web site: http://www.HRIChina.org HRIC, March 2001 CPL Report 2 I. Introduction More than four years have now passed since the revised Criminal Procedure Law (hereinafter “CPL”) entered into force in January 1997. While these revisions have been praised both inside China and internationally for making certain improvements to the human rights protections available to suspects and defendants caught up in China’s criminal justice system, doubts have been raised as to how much impact these reforms have had in practice. Based on three years of observing the CPL’s operation in certain key areas related to rights protections and interviews with over sixty legal professionals, Human Rights in China (HRIC) concludes that the implementation of the CPL has departed substantially from both the letter and the spirit of the law. Our investigation shows that the authorities appear unwilling to allow the limited safeguards in the revised CPL significantly to protect rights in practice. Furthermore, they have 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 implementation 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 implementation authorities. In certain areas, the new CPL has actually resulted in greater limitations of key rights. This is particularly so as regards certain aspects of the involvement of lawyers in criminal cases. As described in Section III of this report, lawyers now generally have less access to case information gathered by the prosecution than before, and they can face criminal penalties for engaging in vigorous defense of their clients. The role of lawyers in legal defense envisaged in the revised CPL has been severely diminished by various implementation measures. As described in Section V, illegally-obtained evidence generally continues to be admissible in court, despite many years of criticism from legal scholars and human rights advocates pointing out how this contributes to endemic torture and ill-treatment of persons detained as part of the criminal process.1 Proposals from both international and domestic scholars to establish an exclusionary rule in the CPL have so far been largely ignored, as have proposals to incorporate the right to remain silent and the right against self-incrimination into Chinese law. Another element that hampers efforts to eliminate abuses is the long periods suspects and defendants can be legally held in detention virtually incommunicado, examined in Section IV. The extensive use of administrative detention, such as Reeducation through Labor (RTL), Custody and Education (C&E) and Custody and Repatriation (C&R), are at times employed by the police to avoid even the minimal rights safeguards in the CPL.2 A recent official report from the Standing Committee of the National People’s Congress (hereinafter “NPC Standing Committee”) confirmed many of the problems with implementation of the CPL mentioned in HRIC’s report, although unfortunately the full NPC report was not made 1 See Human Rights in China (HRIC), Impunity for Torturers Continues Despite Changes in the Law: Implementation of the Convention Against Torture in the PRC, April 2000; and Amnesty International, Torture: A Growing Scourge in China—Time for Action, February 2001. 2 See Human Rights in China, Not Welcome at the Party: Behind the “Clean-up” of China’s Cities—A Report on Administrative Detention under Custody and Repatriation, September 1999, and Detained at Official Pleasure: Administrative Detention in the PRC, June 1993. HRIC, March 2001 CPL Report 3 available to the public.3 In September 2000, the NPC Standing Committee sent inspection groups to six province-level administrations (Tianjin, Inner Mongolia, Heilongjiang, Zhejiang, Hubei and Shanxi) to review the implementation of the CPL over the past three years. These inspections raised serious concern, particularly about three main areas of CPL implementation. First, they found various time limits on detention have been widely ignored. Second, torture has reached epidemic proportions, although both the CPL and the Criminal Law (hereinafter “CL”) prohibit it. Third, lawyers representing defendants or suspects in criminal cases encountered a great deal of difficulty in fulfilling their professional duties.4 However, HRIC believes that these problems are not merely to do with inadequate implementation of the CPL, as the NPC report indicates, but are intimately connected to serious institutional failings and lack of political will to address them. As detailed in Section II of this report, the Chinese Communist Party (CCP) continues to exercise day-to-day control over the entire law implementation apparatus in the country, severely compromising the possibility of establishing the judicial independence that is essential for fair and impartial adjudication of cases. The impact of political control is most evident in the cases described in Section VI, which demonstrate how any pretense that persons have equal protection under the law is dispensed with when the case involves a politically-sensitive issue or defendant. Such discriminatory treatment is indicative of a consistent tolerance for legal exceptionalism at all levels of the system, a phenomenon which calls into question the entire project of establishing a rule of law in China. Despite this relatively bleak picture, there have been some positive developments, particularly in the willingness of legal professionals to criticize the failings of the current system and call for change. On the official side, China has gradually reformed the style of trials from an inquisitorial to accusatorial model. This means judges play a more neutral role than they did under the old CPL, and the defense side is given more opportunity to challenge testimony and evidence. Recently, the courts made a brave move by stipulating that all trials, except those for which this is legally prohibited, should be open to the public and any trial violating the public trial rule shall be sent for retrial.5 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. With thousands of executions being carried out annually, for many people this is a matter of life and death. China is a party to various legally binding international treaties and has contributed to formulating a number of international standards that have normative status. HRIC joins with many legal scholars inside and outside China in urging the Chinese government to begin immediately to draft and enact legislation that addresses the concerns detailed in this report. In Section VIII we present a list of detailed recommendations to the Chinese authorities, and also urge the international community to do what it can to assist in the long and difficult process of bringing China’s criminal justice system into compliance with international standards. Summaries of the five main sections of the report are presented below. They are followed by a Background section that is composed of two brief supplementary sections, the first outlining 3 See Hou Zongbin, “Problems in the Implementation of the Criminal Procedure Law that Cannot be Ignored” (xingshi susongfa guanche shishi cunzai burong hushi de wenti), Xinhua News Agency report, December 28, 2000. 4 Ibid. 5 See Supreme People’s Court: Several Rules on Strict Implementation of Public Trial System (zuigao renmin fayuan guanyu yange zhixing gongkai shenpan zhidu de ruogan guiding), issued on March 9, 1999. HRIC, March 2001 CPL Report 4 issues involved in the preparation of this report and the second detailing regulatory developments since the implementation of the CPL. A. Executive Summary -Judicial Infrastructure The institutional framework of China's criminal justice