Article China: Amendment of Criminal Procedure Law

(Apr. 9, 2012) On March 14, 2012, China's National People's Congress (NPC) adopted an amendment to the country's 1979 Criminal Procedure Law. The Law was first extensively revised in 1996; this second revision also affects a large number of articles, and expands the Law from 225 to 290 articles. The newly amended Law will enter in force on January 1, 2013. (Criminal Procedure Law of the People's Republic of China [2012 Amendment] (Complete Text) [in Chinese], CHINA.COM.CN (posted Mar. 18, 2012), .)

Highlights of the Amended Law

The following are key features of the revised Law in the view of some members of the NPC (Focus on Ten Highlights of the “Great Revision” of the Criminal Procedure Law [in Chinese], NPC website (Mar. 9, 2012):

  • Inclusion of the phrase “respect and protect human rights” as a general principle of the Law (art. 2);
  • Restrictions on non-notification of family members, so as “to balance the needs of investigation with criminal suspects' right of family notification” (arts. 83 ¶ 2 & 91 ¶ 2);
  • Strengthened protection of the rights of defendants and suspects and augmentation of the adversarial relationship between the defense and the prosecution (arts. 33-36);
  • Resolution of three difficulties encountered by lawyers: lack of face-to-face meetings with criminal suspects, need to consult case materials, and problems gathering and obtaining evidence, in part through better integration in the Law of provisions in the Lawyers' Law (arts. 37-40);
  • Enhancement of the summary procedures for public prosecutions, by broadening their scope of application; giving the defendant the right to choose whether or not such procedures should be applied; and obligating the people's procuratorate to send personnel to attend court when simplified procedures are used to adjudicate public prosecution cases (arts. 208, 210 ¶ 2, & 211);
  • Amplification of procedures for reconciliation to help resolve the difficult problem of execution of civil judgments supplementary to criminal cases (arts. 277-279, in the new Chapter 2, “Procedures for Reconciliation Between Parties in Public Prosecution Cases” of the new Part 5);
  • Addition of an article on protective measures for witnesses, victims, or their close relatives whose personal safety is at risk because of their testimony in cases involving, for example, crimes against state security, crimes of terrorism, or organized crime, and of an article on witness compensation for expenses related to testifying (arts. 62 and 63);
  • Strengthening of provisions on evidence, especially through the inclusion of an exclusionary rule in non-capital cases, to wit, for example, article 54, which states that confessions or witness statements obtained through torture, extortion, the use of violence, threats, or other illegal means should be excluded. If physical or documentary evidence is collected by illegal means that “severely affect judicial justice,” corrections should be made or justifications provided; otherwise, such evidence should be excluded (art. 54, ¶ 1). According to article 58, where evidence is determined through a court hearing to have been obtained illegally or where situations of collecting evidence using illegal means cannot be excluded, such evidence should be excluded. (E-mail from Paul Dalton, Senior Legal Advisor, Danish Institute for Human Rights, to China Law Discussion List, CHINALAW@HERMES.GWU.EDU, of Li Changshuan, Working Translation of Amendments to the Criminal Procedure Law of the People's Republic of China (Mar. 14, 2012) (on file with author).) These measures are seen as instrumental in changing from a situation in which “the confession is king” to one where the relationship between material evidence and oral statements is properly handled, to avert the tendency to completely rely on the latter and neglect the former (Focus on Ten Highlights of the “Great Revision of the Criminal Procedure Law, supra);
  • Limitation on remands to address the problem of cases repeatedly being sent back and dragged on indefinitely. A new provision states that when the original people's court has made a decision on a case remanded to it for a new trial, and the defendant files an appeal, “the people's court of second instance should make a judgment or order in accordance with the law and may not remand the case to the original people's court for further trial” (art. 225, ¶ 2) (Li, supra); and
  • Inclusion of special criminal procedures for juvenile offenders, such as conditional non-prosecution and a sealed criminal record system (Chapter 1, Procedures for Cases of Juvenile Crime, of the new Part 5, arts. 266-276.)

The amended Law also contains expanded provisions on residential surveillance (essentially house arrest) with the addition of four new articles (arts. 72-74 & 76); the new article 76 allows the enforcement authority to impose “electronic monitoring, irregular inspections, and other surveillance measures” on persons under residential surveillance. (Li, supra.) The Law also adds a sixth item to the list of restrictions imposed on persons made subject to the measure: the obligation to surrender to the enforcement authority passports or similar documents, identification documents, and driver's licenses (art. 75, ¶ 1, item 6).

Controversial Sections

As Chinese law expert Stanley Lubman notes, “the amendment does create or modify rules that constitute advances toward legality in the sector of Chinese law that has, up to now, been the most backward of all.” (Stanley Lubman, China's Criminal Procedure Law: Good, Bad and Ugly, CHINA REALTIME REPORT (Mar. 21, 2012 at 9:11 p.m.) However, he and other commentators have pointed out several aspects of the amended Law that raise concerns. Thus, “At the end of the day, the new law will strengthen the protection of 'ordinary' criminal suspects' rights in a number of significant areas, while at the same time weakening the rights of certain categories of criminal suspects on a scale worthy of a police state.” (Bjarne Andreasen & Paul Dalton,ANALYSIS: China Improves Legal Protection for the Majority and Introduces More Control of the Few, The Danish Institute for Human Rights website (Mar. 30, 2012).)

First, the procedures on detention of criminal suspects and notification of family members may be problematic. The new article 83, unlike the earlier provision (art. 64), does not contain a clause stating that the authorities must produce a detention warrant, although it states more clearly that the suspect should be placed in a detention facility. The requirement to inform family members within 24 hours of taking a person to custody is retained, as are the exceptions to that rule (where there is no means of notification or where it would “impede the investigation”), but under the new provision there is no requirement to indicate the person's whereabouts to the relatives, although the grounds of “impeding the investigation” are somewhat narrowed to “where crimes endangering state security or crimes of terrorism are suspected” (art. 83).

As Lubman has pointed out, in past practice, despite the law on the books, “the police have caused the 'disappearance' of criminal suspects and activists. In the recent past the police have held dissidents such as Ai Weiwei and human rights lawyer Gao Zhisheng in undeclared locations for months without notifying family members.” (Id.) Under the amended Law, he adds, “law enforcement agencies would still have the power to detain persons suspected of crimes related to national security or terrorism in a designated location of the agencies' choice for up to six months” and they would “be allowed to deny suspects' access to a lawyer for the duration of the detention.” (Id.)

Another criticism is that the Law now provides that cases involving trade secrets may be conducted in a closed hearing, should the party apply for it. Lubman notes that the content and scope of the term “trade secrets” is not made clear in the amendment. (Id.)

A third source of potential concern is the treatment of the death penalty under the amended Law. While a number of significant positive changes have been made, including “expanded access to legal aid, recorded interrogations, longer trials, mandatory appellate hearings, and more rigorous death penalty review,” certain questions remain. (China's New Criminal Procedure Law: Death Penalty Procedures, DUI HUA HUMAN RIGHTS JOURNAL (Apr. 3, 2012).) For example, it is unclear whether Supreme People's Court justices will be required to meet defendants in person or if interviews might be remotely arranged with provincial-court officials as proxies. Another question is whether defense lawyers will only be allowed to present written submissions or be guaranteed a face-to-face meeting with the justices and, if the latter, whether there will there be a more formal process than the “petitioner” channel currently in place. (Id.)

Issuance of Companion Rules and Documents for the New Law

In a statement issued on March 22, 2012, the Supreme People's Procuratorate (the highest-level state organ responsible for prosecution) indicated that it plans to draft new rules or modify existing explanatory documents to complement the newly revised Criminal Procedure Law. Among the issues to be addressed are “technological investigative methods, home surveillance for occupational crimes, information sharing and cooperation among procuratorates, courts and detention centers, the exclusion of illegally obtained evidence and simplified court hearing procedures.” (China to Modify More Rules in Line with Criminal Procedure Law Revision, XINHUA (Mar. 22, 2012).)

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