Monday, December 13, 2010

Translation & Commentary: “Can Having a Lawyer Present for Interrogations Eliminate Torture?”

In its “National Human Rights Action Plan” for 2009–2010, China asserted its commitment to eliminate torture in its criminal justice system, something UN Special Rapporteur on Torture Manfred Nowak had described as “widespread” in an interview with Dui Hua following his visit to the country in 2005.

Over the past year, China took a significant step forward in the direction of combating torture by issuing two sets of detailed rules governing the exclusion in criminal trials of evidence obtained through illegal methods. While these rules provide further proof of China’s commitment to protecting the rights of criminal suspects, observers have pointed out that thorough implementation and further steps are needed before this commitment can be turned into action.

Ensuring a suspect’s right to legal counsel at all stages of the criminal investigation process is one such further step that experts cite. So, it was welcome news to see last week that prosecutors in Beijing have launched a pilot program to allow certain criminal suspects to request a lawyer’s presence during questioning carried out by investigators. The move marks another small sign of progress along China’s path towards procedural justice.

However, as legal commentator Xu Mingxuan notes in a Beijing News opinion column (translated below), the narrow application of these new measures in Beijing makes it unlikely that they will have much of a direct impact on preventing torture. For one, the rules only apply to suspects not being held in custody, a small group in a country where bail is not widely used.

Moreover, it is the initial stage of police investigation (rather than the secondary stage of investigation by prosecutors), where the danger of torture is perhaps greatest. And this danger is not limited to the interrogation room, since most criminal suspects are detained in police-run detention centers, where they appear to be most vulnerable to torture.

As Xu rightly points out, it is the “confession-centric” mentality in China’s criminal justice system that needs to change. Only then are we likely to see measures designed to protect suspects’ procedural rights truly take hold.


Can Having a Lawyer Present for Interrogations Eliminate Torture?
Xu Mingxuan
Beijing News
December 7, 2010

     Recently, the Beijing Municipality Procuratorate Second Division issued [a set of] “(Provisional) Rules for Lawyers to be Present During Interrogations.” According to reports, criminal suspects in cases in which the suspect is not being held in custody may request the presence of a lawyer at the time of interrogation. This is understood to be the first such initiative by a Beijing procuratorate, one that will gradually be expanded to include cases involving offenses by juveniles, foreigners, and individuals from Hong Kong, Macau, and Taiwan.

     Even if you’re still unfamiliar with the phrase “lawyers being present during interrogations,” surely everyone must be familiar with lines like “I have nothing to say without an attorney present” from European and American movies. This is the “right to have a lawyer present,” one of a criminal suspect’s procedural rights. The right to a lawyer’s defense and presence is, in essence, an extension of citizens’ private rights, a [way of] monitoring public authority and an effective way to prevent extraction of confessions through torture and miscarriages of justice.

     For various historical reasons, the Criminal Procedure Law that China established 14 years ago has no provision for the right to have a lawyer present. On the contrary, there is actually a provision for a “right to have law enforcement organs present.” ([According to Article 96,] “When a lawyer meets with a criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and when it is deemed necessary, send personnel to be present at the meeting.”) Many miscarriages of justice have been caused by the absence of various procedural rights in [China’s] criminal procedure system. If he had had a lawyer present, would She Xianglin [link] have been tortured and beaten until he confessed? Or take the case of Xiao Chuanguo’s hiring of thugs to attack Fang Zhouzi [link]. The facts in this case were quite clear, with a clear distinction between right and wrong. But foreign media reports deliberately emphasized that Xiao Chuanguo had made his confession of guilt without having a lawyer present. This shows that having a lawyer present during interrogations by law enforcement bodies is something that all countries recognize as a part of rule of law. Without such a system in place, no matter whether substantive justice is achieved one will be unable to avoid criticisms about procedural injustice.

     In fact, even though China’s criminal procedure legislation is relatively lagging, it doesn’t mean that nothing can be done in law enforcement practice. Several years ago, the Procedural Law Research Institution at China University of Political Science and Law received funding from the United Nations to launch a pilot program at the Haidian Branch of the Beijing Public Security Bureau in which police in selected cases were required to notify a lawyer to appear during initial questioning of a suspect. This pilot program had a positive social impact. The Beijing Municipality Procuratorate Second Division’s current launch of a system for lawyers to be present during interrogations is [an example] of China’s gradual, one-step-at-a-time progress in rule of law.

     The real reason that it has been so difficult to realize the right to have a lawyer present is the question of whether the investigating organs (public security bureaus or procuratorates) dare to accept monitoring by lawyers and shine a light on the way that cases are handled. Only by establishing the right to have a lawyer present can we abandon the longstanding “confession-centrism” of China’s law enforcement system. Shifting investigators’ focus to physical evidence and other technical evidence will destroy the institutional space in which coerced confessions and the use of violence to extract confessions can exist.

     Though this pilot effort by the Beijing Municipality Procuratorate Second Division is worthy of praise, one should recognize that the limited scope of this program means that the impact of lawyers being able to sit in on interrogations is not great. The pilot project only covers the phase in which procuratorates are carrying out their investigation [in preparation for] indictment, and lawyers cannot sit in on interrogations of suspects carried out by the police. There remains a considerable distance from standard international practice. As far as application is concerned, [the rules] are only to be used for suspects who are not being held in custody. In law-enforcement practice, most cases in which suspects are not being held in custody involve those with a good attitude toward acknowledging guilt, those facing relatively light charges, or cases involving little disagreement [over the charges]. Even if lawyers [are allowed to] sit in on interrogations [in such cases], it would be extremely difficult for lawyers to play their role in protecting human rights and eliminating confessions extracted by torture or inducement.