Monday, January 3, 2011

Translation and Commentary: Reducing Pre-trial Custodial Detention for Juvenile Suspects

In China, criminal suspects are frequently held in police custody for lengthy periods of time before facing trial. Promoting alternatives to custody, especially pre-trial detention, has become a priority for criminal justice reformers.

According to China’s Criminal Procedure Law, police have up to 30 days after detaining a suspect to request approval from the procuratorate for “formal arrest,” which allows them to keep the suspect in custody during continuing investigation in advance of trial. Under normal circumstances, the period between formal arrest and trial should be no more than three months, but if all extensions are exploited the length can stretch to more than 20 months. As trials can theoretically last six months or longer, it is possible for a suspect in a Chinese criminal trial to spend more than two years in detention before a court renders a judgment.

This reliance on pre-trial custody does not adequately protect the rights of criminal suspects. Article 9 of the International Covenant on Civil and Political Rights (which China signed in 1998 but has yet to ratify) establishes the right of a criminal suspect to be brought before a judge or judicial officer “promptly.” It also specifies that “it shall not be the general rule that persons awaiting trial shall be detained in custody,” setting up a preference for pre-trial release of suspects on bail or other form of guarantee. But bail is still not widely used in China, meaning that suspects often spend long periods of time behind bars, cut off from society and family while awaiting punishment.

The problem of pre-trial detention in China is particularly problematic for juvenile offenders. As a recent article from China Youth Daily (translated below) points out, most offenses committed in criminal cases involving juveniles are relatively minor first offenses, and most involve relatively light punishment—especially as Chinese juvenile courts focus more attention on things like rehabilitation and restorative justice for minors. Yet the rate of pre-trial detention for juveniles remains staggeringly high, exceeding 70 percent in Beijing’s Haidian District.

This is one reason why experts have been calling for a dedicated criminal procedure for use in cases involving minors in China. Measures to reduce pre-trial custodial detention are just one of many proposals raised by experts looking at how to implement such a system, a process that The Dui Hua Foundation has been seeking to facilitate in exchanges with Chinese counterparts.

With reform of the Criminal Procedure Law on the legislative agenda, there is hope in the near future that some of these proposals may go beyond limited experimentation and be promoted nationwide. As the article suggests, however, legislation is not the most significant factor determining extensive use of pre-trial custodial detention in China. Far more important is the way in which approval of arrest is used to measure police performance. If the law is changed but the incentive structure stays the same, in all likelihood law enforcement practices will continue to favor use of detention—even for juveniles.

Special Procedures Needed for Juvenile Criminal Cases, Experts Say
Reported by Li Li & Zhang Lei
China Youth Daily
December 30, 2010

During a recent conference held by the Haidian District People’s Procuratorate in Beijing on “reducing pre-trial custodial detention for juveniles,” this reporter learned that China currently treats juvenile and adult criminal suspects according to the same principle of “custody as the norm, release on bail as the exception.”

For example, during the three years from 2005 to 2007 the average arrest rate for cases handled by the Haidian District People’s Procuratorate was 71.1 percent. Moreover, once the decision has been made to [place a suspect under] formal arrest, the likelihood of release on bail pending further investigation is remote. Thus, the rate at which suspects are arrested is essentially the same as the rate of pre-trial custodial detention.

Procurator Cheng Xiaolu, of the Haidian District People’s Procuratorate “Project for Reducing Pre-Trial Custodial Detention,” says that the pre-trial custody rate for juvenile criminal suspects is lower than the average pre-trial custody rate [for all suspects], but since 80 percent of juvenile criminal cases involve minor offenses, a pre-trial custody rate of up to 70 percent for juvenile suspects is still significantly higher than the custody rate for most criminals in other countries.

According to the Criminal Procedure Law, custodial detention should also be subject to the principle of proportionality, meaning whether and for how long to detain a suspect should be considered in proportion to the seriousness of the suspected offense and the personal risk [faced by the suspect].

In the practice of law enforcement, the implementation of this [principle] has been less than satisfactory.

According to statistics from the Haidian District People’s Procuratorate, 18 percent of all individuals in cases accepted in 2005 involved juvenile suspects who were sentenced to suspended sentences or punishments other than imprisonment, were not subject to indictment, or had their cases withdrawn. In 2006, the proportion rose to 28.1 percent.

“This means that for those two years there were at least 209 individuals—around 23 percent of juvenile suspects—who should not have been held in custodial detention,” says Cheng Xiaolu. Of those juvenile suspects arrested who were then sentenced to fixed-term imprisonment of three years or less, the majority posed no risk to society and custody was unnecessary.

Reducing Custodial Detention is Law Enforcement Reform Trend

For a long time, public security organs have used the rate at which arrests are approved as an indicator of the quality of their work. This creates objective reasons for public security to request arrest in cases where arrest is unnecessary, and procuratorates often tend to approve arrest in order to [promote] harmony between police and prosecutors.

For juveniles, however, custodial detention is a separation from guardians, relatives, and friends and an interruption of their normal process of socialization before it has completed. This can damage juveniles’ physical and mental health and have an impact on their subsequent growth and development. At the same time, custodial detention can lead juvenile offenders to become habitual offenders or recidivists. Criminology research shows that the majority of adult habitual offenders and recidivists committed crimes as juveniles. Their inability to “grow out of” their criminal behavior as they get older is closely linked to their previous detentions.

“The goal of pre-trial custodial detention is to ensure that the judicial process proceeds smoothly,” says Prof. Wang Minyuan, director of the Procedural Law Research Institute at the Chinese Academy of Social Science Law School. “For the sake of promoting a civilized and scientifically-developed procedural system, as long as non-custodial measures do not affect the judicial process, it is better not to use detention.”

In 2007, the Haidian District People’s Procuratorate and Sweden’s Raoul Wallenberg Institute of Human Rights and Humanitarian Law signed a cooperative agreement for a program entitled “Reducing Pre-Trial Custodial Detention” in hopes of researching ways to reduce pre-trial custody within the framework of current legal provisions.

Starting with research on reducing pre-trial custodial detention for juvenile criminal suspects, this program attempts to safeguard the rights of criminal suspects by reducing the number of individuals subject to pre-trial custody and shortening the period of detention.

“The problem of custodial detention is difficult in terms of both the practice and theory of law enforcement. It’s closely linked to citizens’ rights as well as to trends and patterns in the whole criminal procedure [system],” says Prof. Chen Weidong, director of the Procedural System and Law Enforcement Reform Research Center at the Renmin University Law School, who added that reducing custodial detention is the trend in law enforcement reform.

Bail Should be Rule, Custody the Exception

Cheng Xiaolu says, “Actually, as many as 90 percent of juvenile defendants are sentenced to light punishments like suspended sentences, fixed-term sentences of three years or less, short-term detention of between six and 12 months, or fines. These juvenile suspects are generally first-time or casual offenders who would be subject to strict discipline if released on bail. So the personal risks they face and their threat to society are both small, as is the chance that they will escape after receiving education.” Reducing pre-trial custodial detention for this 90 percent of juvenile suspects is extremely feasible.

However, China currently lacks dedicated procedural legislation for use in juvenile criminal cases.

At present, provisions concerning investigation, prosecution, and sentencing in juvenile criminal cases are scattered among several laws, regulations, and judicial interpretations. No independent, full, and scientific legal system exists. Whether substantively or procedurally, the relevant legislation does not treat juveniles differently [from adult suspects]. Substantively, the law does not set out different conditions for the release on bail or arrest of juveniles compared to adults, something that is not conducive to the legislative spirit behind the protection of minors.

“In terms of the criteria for custodial detention,” says Cheng Xiaolu, “we ought to make release of juvenile suspects on bail the rule and detain only when there is no other alternative, having set out specific circumstances under which custody may be carried out.”

It is understood that reform of the criminal procedure law has already been placed on the agenda for the National People’s Congress. Many experts and scholars believe that it is imperative to establish a dedicated criminal procedure for juveniles.