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China’s lawmakers are amending the nation’s Criminal Procedure Law highlighted by the official inclusion of“respecting and safeguarding human rights” into its text. The draft amendment to the law, also called the “mini-Constitution,” took center stage at the Fifth Session of the 11th National People’s Congress (NPC) held in Beijing on March 5-14. This was the first time for China to directly address the issue by including respecting and safeguarding human rights into a law other than the Constitution.
The NPC voted on and passed the amendment on March 14.
Wang Zhenhua, deputy to the 11th NPC and Vice President of the Higher People’s Court of Liaoning Province, said the amendment will improve the country’s criminal procedural system and serve to effectively uphold the law and respect individuals’ rights. More importantly, it will promote judicial justice and regulate criminal procedures.
China’s Criminal Procedure Law was promulgated in 1979 and was amended once in 1996, said Wang Zhaoguo, Vice Chairman of the NPC Standing Committee.
In the past five years, 81 motions to amend the Criminal Procedure Law have been put forward by 2,485 NPC deputies.
Wang Zhaoguo said over the past 16 years, as the Chinese economy and society developed rapidly, new situations have emerged in regard to criminal offenses. These have imposed severe challenges on China’s social administration. As the country undergoes democratic reform and progresses in adopting rule of law while enhancing the public’s awareness of the rule of law, people impose higher demands on maintaining judicial fair- ness and protecting human rights.
Respecting rights
Wang Zhaoguo said respecting and safeguarding human rights is an important principle fixed by the Constitution. Considering that the criminal justice system involves citizens’fundamental rights such as personal freedom, explicitly writing “respecting and safeguarding human rights” into the Criminal Procedure Law will help judicial organs observe and implement this constitutional principle in criminal proceedings.
The amendment clarifies that a criminal suspect has the right to confide in an attorney if he or she is being investigated. The current law says that lawyers are limited to providing legal aid—maintaining client-attorney confidentiality is not protected.
“The involvement of lawyers earlier in the investigation can urge legal authorities to abide by the law when working a case,”Wang Zhenhua said.
The issue concerning confessions obtained through illegal interrogative means is also addressed. In the past, such a means was often used to close cases. But now, the amendment clearly states that confessions obtained illegally or through the use of force will be excluded from all legal proceedings. Any and all interrogations must now be audio or video recorded.
Shi Ying, a NPC deputy and lawyer of Liaoning Deheng Law Firm, said the police should be the first to read over and implement the new amendment. In some rural areas, he said, police even handcuff the suspects to trees for hours.
Notifying family members of suspects under investigation, should the suspects be detained, is also addressed in the amendment. The current law states that family members need not be notified if such action would hinder the investigation or the family cannot be reached. Now, families will be kept in the dark only if a relative is suspected of crimes that threaten national security or involve terrorism.
The death penalty
By law, death penalty in China can be applied to those between the age of 18 and 74 who have been convicted of serious crimes such as murder, robbery and rape. Death sentences are subject to approval by the Supreme People’s Court. On some sentences, the supreme court will impose a death sentence with a two-year reprieve, which can eventually be reduced to imprisonment of up to 20 years.
According to the amendment, the supreme court will approve or overturn death sentences after proper review. If the supreme court overrules the death sentence, it may remand the case for retrial or issue a new judgment.
During review proceedings, the supreme court shall question the defendant. The defense attorney’s opinions shall also be heard. The supreme procuratorate, the top prosecution department of the country, can then suggest to the supreme court and the latter shall also inform the supreme procuratorate of the result of review.
Lang Sheng, Deputy Director of the Commission for Legislative Affairs of the NPC Standing Committee, said China is committed to limiting the use of death penalty. The amendment to the Criminal Law adopted by the NPC in 2011 reduced the number of crimes punishable by death by 20 percent to 13, a clear indicator that the nation is trying to limit the use of capital punishment, Lang said.
‘Special’ procedures
The amendment to the Criminal Procedure Law has also added four special procedures for juveniles and other cases involving “special” circumstances.
First, the amendment stipulates special procedures for cases involving juveniles. For juveniles, defined as any person under the age of 18, the amendment sets certain special designs for the litigation proceeding. Juveniles who commit crimes that infringe upon someone’s personal or property rights or upset social administrative order may be subject to imprisonment of up to one year. The people’s procuratorate can make conditional decisions not to initiate prosecution if the suspects show repentance.
To help convicted minors’ transition back into society after serving their sentences, the amendment also states that the criminal records of those under the age of 18 who have received sentences of less than five years will be sealed to any non-judicial body.
Wang Zhaoguo said this procedure will protect minors’ procedural rights and other legitimate rights and interests.
Second, the amendment sets up the victim-offender reconciliation mechanism for some criminal cases. According to the amendment, the mechanism applies to intentional crimes caused by private disputes subject to imprisonment for up to three years, as well as crimes of negligence subject to imprisonment for up to seven years. The mechanism will not apply to cases where the suspects or defendants have committed intentional crimes within five years. Lenient punishment will be given to the defendants if reconciliation is reached between the victims and offenders.
Wang Zhaoguo said this mechanism is to help settle disputes. And to prevent abuse of the mechanism for unfairness, adoption of this mechanism will be prudent and the scope of cases applicable to this mechanism will be limited.
Third, the amendment allows the illegally obtained assets of suspected corrupt officials or terrorists who have fled the country or died to be confiscated. Prosecutors can apply with the courts to seize the assets of those accused of major crimes related to corruption or terrorism, but it must be on the condition that the suspects are not arrested a year after an arrest warrant is issued, or they have died, and the confiscation must be in accordance with the country’s Criminal Law. This part of the amendment seeks to conform to the require- ments of the international anti-corruption convention China joined in 2005 and related anti-terrorism resolutions.
Wang Zhaoguo said criminal procedures cannot be started if the suspects run away or die, and their illegally obtained properties cannot be confiscated. With this procedure, if any corrupt officials flee away to foreign countries in the future, a Chinese court can confiscate their assets that remain in the country.
Fourth, the amendment stipulates compulsory medical treatment procedures for mentally ill persons who bear no criminal responsibility.
According to Article 18 of the Criminal Law, a mentally ill person who causes dangerous consequences at a time when he is unable to recognize or unable to control his own conduct does not bear criminal responsibility after being established through accreditation of legal procedures. The article goes on to say that“his family or guardian shall be ordered to subject him to strict surveillance and arrange for his medical treatment. When necessary, he will be given compulsory medical treatment by the government.”
But in reality, many family members or guardians of mentally ill persons fail to make effective surveillance and arrange medical treatment. As such, the amendment to the Criminal Procedure Law sets up the procedure for compulsory medical treatment of mentally ill persons.
“Transferring this responsibility from family members and guardians to judicial departments ensures the public’s safety and the mentally ill persons’ safety as well,” said Yu Guoqing, a NPC deputy. to strengthen and innovate social administration, strengthen criminal punishment procedures and safeguard stability.
He said during the drafting and revising process the NPC complied with the principle of basing any changes on China’s basic situation and promoting improvement of the criminal procedure step by step.
“Improvement of the criminal procedure and related systems shall be based on China’s basic situation, keeping up with the times but not going beyond the reality at the present stage, and should not blindly copy judicial systems and procedural systems in foreign countries,” he added.
According to Wang, improving China’s Criminal Procedure Law should help to ensure accurate and timely ascertainment of facts about crimes, correct application of the law, punishment of criminals and protection of the innocent against being investigated for criminal responsibility, respect and safeguard human rights, and protect procedural rights and other legitimate rights and interests of the people. It will also focus on solving conflicts between punishing crimes and maintaining judicial fairness and solving some prominent problems in the judicial practice.
Highlights of the Amendment
Safeguarding human rights: The amendment includes respecting and safeguarding human rights into Article 2 of the Criminal Procedure Law. It is a significant step in carrying through the principles of the Constitution and moving toward giving priority to safeguarding human rights.
Prohibiting self-incrimination: No one shall be forced to testify against himself/ herself. It is the judicial department’s duty to prove whether a person is guilty, instead of coercing a confession out of the suspect. Restricting torture for testimony: Illegally obtained evidence shall be excluded from legal proceedings. This will restrict illegally obtained evidence and extorted testimony in China.
Prohibiting “secret arrest”: Improvement shall be made in the conditions for arrest and the procedure for the people’s procura- torate to examine and approve arrests, and standards shall be set for notifying family members of a relative’s arrest.
Rights of lawyers: The rights of lawyers in meeting with suspects, referring to records and entering the criminal procedure during the investigation period shall be safeguarded. It makes clear that criminal suspects can entrust defendants during the investigation period.
Limiting power: The amendment limits the power of the police and procuratorate, improves stipulations on interrogating suspects and the accused, and enhances supervision over investigation activities.
Reviewing and approval of death penalty: The amendment strengthens provisions on public trial, clarifies the scope of public trial during the second instance and provides more detailed provisions on the reviewing and approval procedure of death penalty.
Opinions on the Amendment
To collect public opinion, the draft amendment to the Criminal Procedure Law was posted on the website of the NPC from August 30 to September 30, 2011.
Within the month, 7,489 people raised 80,953 opinions, of which 49,922 approved of the draft, accounting for 61.7 percent; 17,178 proposed suggestions for revision, accounting for 21.2 percent; and other opinions accounted for 17.1 percent. The Office of the NPC Standing Committee also received 323 letters for suggestions, most of which agreed upon the draft.
Evolution of the Criminal Procedure Law
When the People’s Republic of China was founded in 1949, no criminal procedure law was formulated. The Constitution and some other laws stipulated the system of judicial departments and some principles and proceedings on criminal procedure. In 1979 China promulgated the Criminal Procedure Law, which took effect on January 1, 1980.
The Fourth Session of the Eighth NPC held on March 5, 1996, made the first amendment to the Criminal Procedure Law. It stated “no person shall be found guilty without being judged as such by a people’s court according to law.”
The Fifth Session of the 11th NPC held on March 5, 2012, made the second amendment to the Criminal Procedure Law. It included respecting and safeguarding human rights into the law.
The NPC voted on and passed the amendment on March 14.
Wang Zhenhua, deputy to the 11th NPC and Vice President of the Higher People’s Court of Liaoning Province, said the amendment will improve the country’s criminal procedural system and serve to effectively uphold the law and respect individuals’ rights. More importantly, it will promote judicial justice and regulate criminal procedures.
China’s Criminal Procedure Law was promulgated in 1979 and was amended once in 1996, said Wang Zhaoguo, Vice Chairman of the NPC Standing Committee.
In the past five years, 81 motions to amend the Criminal Procedure Law have been put forward by 2,485 NPC deputies.
Wang Zhaoguo said over the past 16 years, as the Chinese economy and society developed rapidly, new situations have emerged in regard to criminal offenses. These have imposed severe challenges on China’s social administration. As the country undergoes democratic reform and progresses in adopting rule of law while enhancing the public’s awareness of the rule of law, people impose higher demands on maintaining judicial fair- ness and protecting human rights.
Respecting rights
Wang Zhaoguo said respecting and safeguarding human rights is an important principle fixed by the Constitution. Considering that the criminal justice system involves citizens’fundamental rights such as personal freedom, explicitly writing “respecting and safeguarding human rights” into the Criminal Procedure Law will help judicial organs observe and implement this constitutional principle in criminal proceedings.
The amendment clarifies that a criminal suspect has the right to confide in an attorney if he or she is being investigated. The current law says that lawyers are limited to providing legal aid—maintaining client-attorney confidentiality is not protected.
“The involvement of lawyers earlier in the investigation can urge legal authorities to abide by the law when working a case,”Wang Zhenhua said.
The issue concerning confessions obtained through illegal interrogative means is also addressed. In the past, such a means was often used to close cases. But now, the amendment clearly states that confessions obtained illegally or through the use of force will be excluded from all legal proceedings. Any and all interrogations must now be audio or video recorded.
Shi Ying, a NPC deputy and lawyer of Liaoning Deheng Law Firm, said the police should be the first to read over and implement the new amendment. In some rural areas, he said, police even handcuff the suspects to trees for hours.
Notifying family members of suspects under investigation, should the suspects be detained, is also addressed in the amendment. The current law states that family members need not be notified if such action would hinder the investigation or the family cannot be reached. Now, families will be kept in the dark only if a relative is suspected of crimes that threaten national security or involve terrorism.
The death penalty
By law, death penalty in China can be applied to those between the age of 18 and 74 who have been convicted of serious crimes such as murder, robbery and rape. Death sentences are subject to approval by the Supreme People’s Court. On some sentences, the supreme court will impose a death sentence with a two-year reprieve, which can eventually be reduced to imprisonment of up to 20 years.
According to the amendment, the supreme court will approve or overturn death sentences after proper review. If the supreme court overrules the death sentence, it may remand the case for retrial or issue a new judgment.
During review proceedings, the supreme court shall question the defendant. The defense attorney’s opinions shall also be heard. The supreme procuratorate, the top prosecution department of the country, can then suggest to the supreme court and the latter shall also inform the supreme procuratorate of the result of review.
Lang Sheng, Deputy Director of the Commission for Legislative Affairs of the NPC Standing Committee, said China is committed to limiting the use of death penalty. The amendment to the Criminal Law adopted by the NPC in 2011 reduced the number of crimes punishable by death by 20 percent to 13, a clear indicator that the nation is trying to limit the use of capital punishment, Lang said.
‘Special’ procedures
The amendment to the Criminal Procedure Law has also added four special procedures for juveniles and other cases involving “special” circumstances.
First, the amendment stipulates special procedures for cases involving juveniles. For juveniles, defined as any person under the age of 18, the amendment sets certain special designs for the litigation proceeding. Juveniles who commit crimes that infringe upon someone’s personal or property rights or upset social administrative order may be subject to imprisonment of up to one year. The people’s procuratorate can make conditional decisions not to initiate prosecution if the suspects show repentance.
To help convicted minors’ transition back into society after serving their sentences, the amendment also states that the criminal records of those under the age of 18 who have received sentences of less than five years will be sealed to any non-judicial body.
Wang Zhaoguo said this procedure will protect minors’ procedural rights and other legitimate rights and interests.
Second, the amendment sets up the victim-offender reconciliation mechanism for some criminal cases. According to the amendment, the mechanism applies to intentional crimes caused by private disputes subject to imprisonment for up to three years, as well as crimes of negligence subject to imprisonment for up to seven years. The mechanism will not apply to cases where the suspects or defendants have committed intentional crimes within five years. Lenient punishment will be given to the defendants if reconciliation is reached between the victims and offenders.
Wang Zhaoguo said this mechanism is to help settle disputes. And to prevent abuse of the mechanism for unfairness, adoption of this mechanism will be prudent and the scope of cases applicable to this mechanism will be limited.
Third, the amendment allows the illegally obtained assets of suspected corrupt officials or terrorists who have fled the country or died to be confiscated. Prosecutors can apply with the courts to seize the assets of those accused of major crimes related to corruption or terrorism, but it must be on the condition that the suspects are not arrested a year after an arrest warrant is issued, or they have died, and the confiscation must be in accordance with the country’s Criminal Law. This part of the amendment seeks to conform to the require- ments of the international anti-corruption convention China joined in 2005 and related anti-terrorism resolutions.
Wang Zhaoguo said criminal procedures cannot be started if the suspects run away or die, and their illegally obtained properties cannot be confiscated. With this procedure, if any corrupt officials flee away to foreign countries in the future, a Chinese court can confiscate their assets that remain in the country.
Fourth, the amendment stipulates compulsory medical treatment procedures for mentally ill persons who bear no criminal responsibility.
According to Article 18 of the Criminal Law, a mentally ill person who causes dangerous consequences at a time when he is unable to recognize or unable to control his own conduct does not bear criminal responsibility after being established through accreditation of legal procedures. The article goes on to say that“his family or guardian shall be ordered to subject him to strict surveillance and arrange for his medical treatment. When necessary, he will be given compulsory medical treatment by the government.”
But in reality, many family members or guardians of mentally ill persons fail to make effective surveillance and arrange medical treatment. As such, the amendment to the Criminal Procedure Law sets up the procedure for compulsory medical treatment of mentally ill persons.
“Transferring this responsibility from family members and guardians to judicial departments ensures the public’s safety and the mentally ill persons’ safety as well,” said Yu Guoqing, a NPC deputy. to strengthen and innovate social administration, strengthen criminal punishment procedures and safeguard stability.
He said during the drafting and revising process the NPC complied with the principle of basing any changes on China’s basic situation and promoting improvement of the criminal procedure step by step.
“Improvement of the criminal procedure and related systems shall be based on China’s basic situation, keeping up with the times but not going beyond the reality at the present stage, and should not blindly copy judicial systems and procedural systems in foreign countries,” he added.
According to Wang, improving China’s Criminal Procedure Law should help to ensure accurate and timely ascertainment of facts about crimes, correct application of the law, punishment of criminals and protection of the innocent against being investigated for criminal responsibility, respect and safeguard human rights, and protect procedural rights and other legitimate rights and interests of the people. It will also focus on solving conflicts between punishing crimes and maintaining judicial fairness and solving some prominent problems in the judicial practice.
Highlights of the Amendment
Safeguarding human rights: The amendment includes respecting and safeguarding human rights into Article 2 of the Criminal Procedure Law. It is a significant step in carrying through the principles of the Constitution and moving toward giving priority to safeguarding human rights.
Prohibiting self-incrimination: No one shall be forced to testify against himself/ herself. It is the judicial department’s duty to prove whether a person is guilty, instead of coercing a confession out of the suspect. Restricting torture for testimony: Illegally obtained evidence shall be excluded from legal proceedings. This will restrict illegally obtained evidence and extorted testimony in China.
Prohibiting “secret arrest”: Improvement shall be made in the conditions for arrest and the procedure for the people’s procura- torate to examine and approve arrests, and standards shall be set for notifying family members of a relative’s arrest.
Rights of lawyers: The rights of lawyers in meeting with suspects, referring to records and entering the criminal procedure during the investigation period shall be safeguarded. It makes clear that criminal suspects can entrust defendants during the investigation period.
Limiting power: The amendment limits the power of the police and procuratorate, improves stipulations on interrogating suspects and the accused, and enhances supervision over investigation activities.
Reviewing and approval of death penalty: The amendment strengthens provisions on public trial, clarifies the scope of public trial during the second instance and provides more detailed provisions on the reviewing and approval procedure of death penalty.
Opinions on the Amendment
To collect public opinion, the draft amendment to the Criminal Procedure Law was posted on the website of the NPC from August 30 to September 30, 2011.
Within the month, 7,489 people raised 80,953 opinions, of which 49,922 approved of the draft, accounting for 61.7 percent; 17,178 proposed suggestions for revision, accounting for 21.2 percent; and other opinions accounted for 17.1 percent. The Office of the NPC Standing Committee also received 323 letters for suggestions, most of which agreed upon the draft.
Evolution of the Criminal Procedure Law
When the People’s Republic of China was founded in 1949, no criminal procedure law was formulated. The Constitution and some other laws stipulated the system of judicial departments and some principles and proceedings on criminal procedure. In 1979 China promulgated the Criminal Procedure Law, which took effect on January 1, 1980.
The Fourth Session of the Eighth NPC held on March 5, 1996, made the first amendment to the Criminal Procedure Law. It stated “no person shall be found guilty without being judged as such by a people’s court according to law.”
The Fifth Session of the 11th NPC held on March 5, 2012, made the second amendment to the Criminal Procedure Law. It included respecting and safeguarding human rights into the law.