Wednesday, September 26, 2012

Court Discipline Rules Hype Up Judge-Lawyer Conflict?

Before recently passed revisions to China’s Criminal Procedure Law (CPL) take effect on January 1, 2013, four of the main bodies affected by the law—the Ministry of Public Security, Supreme People’s Procuratorate, Supreme People’s Court, and Ministry of Justice*—are expected to issue implementation regulations or interpretations governing how each will internally carry out the revised provisions. Unlike the formal legislative process, these interpretations and regulations—which could have significant consequences for the way the CPL is enforced—are not expected to go through any kind of formal public consultation.

But if the Supreme People’s Court expected that discussions surrounding its 560-article draft judicial interpretation would remain out of the public eye, it was surely disappointed when details of some of the proposed provisions leaked last month. Two items concerned with maintaining courtroom order during criminal trials have elicited howls of protest from Chinese lawyers in particular. The first provision would bar them from using email, blogs, or social media to report on trial proceedings from the courtroom, whereas the second would give judges the ability to sanction lawyers who breach court rules by prohibiting them from appearing in court for up to one year.

Critics see these provisions—particularly the latter—as further evidence of efforts by Chinese authorities to rein in defense lawyers and prevent those who engage in activism from interfering with the “efficiency” of the judicial process. Tensions between lawyers and judges have been on the rise in recent years, with the two sides going head to head in trials both big and small. Lawyers who refuse to cooperate can find themselves expelled from trial, deprived of their licenses to practice, or even subject to retaliatory prosecution.

A recent article (translated below) appearing in the Guangzhou newspaper Southern Weekly reviews the confrontational atmosphere inside the courtroom and concludes that the situation may not be as dire as some have suggested. Frustration on the part of both lawyers and judges is largely to blame for emotions running high, and, if cooler heads prevail, extreme (and impractical) measures to sanction “troublemaking” lawyers should not be necessary.

* Note: The Ministry of State Security is another key body that will be affected by the law, but it is not expected to release relevant regulations to the public.

*
Judges vs. Lawyers: An Imaginary Showdown
Liu Chang
Southern Weekly, September 4, 2012

A knowledgeable source has confirmed to Southern Weekly that Zhang Jun did in fact mention a few lawyers disrupting court order but never used the phrase “stirring up trouble in the courtroom.”

“There are definitely two sides to the problem: lawyers have shortcomings, and judges also have shortcomings; that’s how I’d put it.”

“During these difficult times, every legal professional needs to do more soul-searching.”


Every time lawyer Si Weijiang appears in court, he always brings with him a white digital clock from Ikea. One afternoon in June 2012, at the Xiaohe District People’s Court in Guiyang, a court police officer suddenly took it and dismantled it for inspection. Fortunately, this was only an ordinary digital clock; it didn’t have a recording function.

If new provisions being considered by the Supreme People’s Court (SPC) take effect, this digital clock may not even make it through the main entrance of the court.

The (Consultation Draft) of the SPC Interpretation on Certain Issues Regarding Implementation of the Criminal Procedure Law of the PRC (hereafter “Draft Interpretation”) is being circulated for opinions within the national court system.

Two provisions are brand new: First, trial participants are prohibited from using email, blogs, microblogs, or other means to report on trial activity while inside the courtroom. Second, where defense lawyers and legal counsel have been expelled from the court or otherwise punished for serious violations of courtroom order, the court may bar them for between six months and one year from appearing in court as defense lawyers or legal counsel and can even recommend to the justice bureau that they be punished with measures such as suspension or even license-revocation.

There is more controversy over the second provision, since the power to punish lawyers professionally belongs to judicial administration departments. Even judges interviewed believe there is no legal basis for courts to bar lawyers from carrying out their profession and that the provision is unfeasible and merely “words spoken in anger.”

These two new provisions have led many to reflect on some recent conflicts that have occurred between lawyers and judges. However, most judges, lawyers, and scholars interviewed believe that the antagonism between the two sides is not nearly as serious as the Internet makes it seem. Mainly, it reflects short-term, emotional confrontations between the two sides since lawyers began banding together to take a stand. [Those interviewed] call on the members of both groups of legal professionals to be more self-reflective and be more sympathetic and understanding to the other side as they drive forward together along the road towards rule of law.

Speaking to Southern Weekly, two authoritative scholars of criminal procedure expressed criticisms of the Draft Interpretation, each saying that they felt that the wording regarding courtroom discipline was inappropriate.

According to the SPC’s plans, opinions are presently being sought from within the court system through the middle of September. Then, “after further revision and request for comment from relevant departments,” [the SPC] will formally issue [the interpretation] at the end of the year.

An Overreaction?

Some lawyers have linked these two provisions on courtroom discipline to a speech given by Zhang Jun, the vice-president at the SPC responsible for criminal adjudication work.

According to a report in the Economic Observer, at the end of April 2012 Zhang Jun went to Beijing to give a lecture at one of the rotating training sessions for vice-presidents of high- and intermediate-level courts nationwide, during which he criticized a handful of “no-good” lawyers who disrupted courtroom order and some lawyers whose words served to diminish public trust in the court’s judicial process.

Not long afterwards, in early May, Zhang Jun convened a meeting of chiefs from the SPC criminal divisions, adjudication supervision division, research office, and other departments along with a group of experts and academics to discuss the first draft of the judicial interpretation of the CPL. After this meeting, the SPC Research Office put together a second draft.

On July 5, the second draft of the judicial interpretation of the CPL was sent to Xining, Qinghai, where the National Court Criminal Adjudication Work Conference was being held. There, the draft was submitted for discussion by vice-presidents responsible for criminal adjudication and criminal division heads from high-level courts nationwide.

Based on discussions at the Qinghai meeting, in mid-July Zhang Jun again held a meeting and revisions were made to the second draft. On July 30, this third draft was submitted for comment to courts throughout the country.

It is unknown how the new provisions on courtroom discipline that are now under scrutiny came to be included in the judicial interpretation currently under revision. The amendments to the Criminal Procedure Law that were passed on March 14, 2012, are the first major revision since the one in 1996 and brought changes to more than 50 percent of the law’s provisions. But not a word was changed in the section on courtroom discipline. Why weren’t these issues raised during the legislative process? It’s worth pondering the attitude of the SPC.

“The SPC’s decision may have been an intense reaction to the Xiaohe case,” was the analysis a vice-president of a basic-level court in Shandong offered Southern Weekly. The Draft Interpretation shows that on some level the SPC is backing up lower-level courts, but it may have “overreacted.”

A vice-president of a basic-level court in Hubei thinks that the most recent Draft Interpretation “is connected to the peculiar environment of the last year or so.” The “rebellious” nature of some lawyers is also due to this environment. “During this time,” [he says,] “even if what you say is correct you might be opposed, because the time is not right.”

According to the report in the Economic Observer, in Zhang Jun’s controversial speech he mentioned three cases since 2011 in Beihai, Changshu, and Guiyang. [In each case,] lawyers worked collectively to provide defense in major criminal trials.

At the Li Qinghong organized crime trial in the Xiaohe District People’s Court in Guiyang, during the first set of hearings from January 9 to 14, 2012, a new record was set for conflict between judges and lawyers: more than 10 lawyers were reprimanded, four lawyers were thrown out of the courtroom, and a National People’s Congress delegate fainted in the courtroom … [Note: Ellipsis appears in original—Ed.] The trial, which had been set to conclude before the lunar new year holiday, had to be suspended.

In Beijing, the SPC, Supreme People’s Procuratorate (SPP), and Ministry of Justice (MOJ) met to view an edited video from the Xiaohe District People’s Court. Lawyer Tian Wenchang, chair of the All-China Lawyer’s Association (ACLA) Criminal Defense Committee, says, “After the conflict, the court cut five days of hearings into a 16-minute video that showed lawyers with rather intense attitudes. Watching this led officials concerned to believe that there was a problem with lawyers stirring up trouble in the courtroom.”

After ACLA’s Criminal Defense Committee reviewed the [unedited] video footage, it produced a 30-minute version in which Tian Wenchang personally added narration and commentary and sent it to the SPC. The video revealed many problems in the courtroom, such as “not letting lawyers speak, saying either that it was irrelevant to the case or that it was repetitive; failing to acknowledge you when you raised your hand; refusing requests to speak; and kicking you out when you insisted on speaking anyway.” As China’s most prestigious criminal defense lawyer, Tian has experienced all of these situations.

Perhaps because video doesn’t do justice to reality, from June 8 to July 19, 2012, the Xiaohe court held another hearing lasting more than 40 days, and a “Central Supervisory Group” made up of individuals from the SPC, SPP, MOJ, and ACLA not only showed up but also insisted on observing the entire proceeding.

The SPC sent the head of one of its criminal divisions. According to a report in Caijing magazine, an SPC representative confirmed that their main goal was to “investigate the new Criminal Procedure Law.”

“There are definitely two sides to the problem with the Xiaohe court,” says Tian Wenchang. “There are indeed lawyers who are rather intense, but there are inevitably reasons for this. Surely, lawyers don’t go around stirring up trouble in courtrooms without reason?” He says that sometimes lawyers lose their cool, but it’s also true that some judges do not allow lawyers to speak or treat them roughly and that this makes lawyers furious: “Lawyers have shortcomings and judges also have shortcomings; that’s how I’d put it.”

Lawyer Zhang Qingsong is a representative sent by the ACLA to observe in Xiaohe. To his understanding, this draft judicial interpretation makes the SPC’s position clear: a show of support for the Xiaohe judge.

People inside the court system do not find anything unusual about many of the provisions in the Draft Interpretation regarding courtroom discipline, including having to get permission from the court to record, videotape, or film. “Courts in many countries do this,” [they say.] But most judges believe that it goes beyond the authority of judicial interpretation to have courts be able to punish lawyers by barring them from appearing in court.

“Could a prohibition imposed by a Shandong court be applicable to courts in Yunnan?” asked a vice-president of a basic-level court in Shandong. Even if the provision is passed, there are still technical issues that haven’t been resolved.

Weaklings Bullying Each Other?

From the beginning of the Beihai case, lawyers used new media to broadcast details of the case. As for so-called “live microblogging,” in fact many lawyers post to microblogs after trial hearings conclude, but this has caused great headaches for the courts.

According to the report in the Economic Observer, in that internal speech Zhang Jun complained bitterly about some “lawyers talking nonsense.”

A knowledgeable source has confirmed to Southern Weekly that in that internal speech Zhang Jun did mention a few lawyers disrupting court order but never used the phrase “stirring up trouble in the courtroom.”

Other views raised by the top judge in his speech actually closely resonate with the expectations of lawyers, but this has gotten lost in the heat of the rhetoric.

According to the Economic Observer report, Zhang Jun was emphasizing how judges should have a trial-centered consciousness when he mentioned the problem of lawyers’ so-called “stirring up trouble in the courtroom.” He said that the facts show that one reason that judges do not have a high degree of control over trials is that judges still think and operate like inquisitors and are unable to adapt to the adversarial trial system. A second reason is that presiding judges lack relative independence.

According to the aforementioned report, what leads a few lawyers to stir up trouble is, in Zhang Jun’s view, “the lack of fair procedure and failure to do what was expected” in a few cases, “including some unfairness towards lawyers.”

However, the proposals in the Draft Interpretation regarding trial powers have been seen as showing a lack of self-reflection on the part of the courts.

“Judges first need to reflect upon whether they are being good judges, only then [should they focus on] the work of enforcing the law,” says lawyer Zhang Peihong. For example, although a lot of courtroom disciplinary measures appear to be “international norms” and their limitations applicable to “all trial participants,” if lawyers are always the ones being punished, in reality, they’re still essentially unjust.”

“The biggest problem in China’s courtrooms right now is that judges really want to be like judges in countries with mature rule of law—enjoying absolute authority and respect in the courtroom,” says lawyer Zhang Peihong. “What they don’t understand is that such authority and respect doesn’t come from the rules that [judges] themselves enact; they are earned through generation after generation of judges being more knowledgeable, more reasonable, and more humble than the other participants in the litigation process.”

Zhang Peihong has noticed an interesting phenomenon in recent years: In Chinese criminal trials, the conflicting sides in the courtroom seem to have increasingly shifted from prosecution versus defense to judges versus lawyers. Judges want to control order in the courtroom, whereas lawyers feel this leaves no way to ensure equal treatment. Lawyers feel that “live microblogging” promotes oversight of the judicial process in individual cases, but judges worry about too much interference from public opinion. Judges criticize an extremely small number of lawyers for “stirring up trouble in the courtroom” and creating hype, while lawyers take to the media and Internet to complain about judges’ unfairness in trying cases.

Judges and lawyers are oriented similarly in their struggles: it has always been difficult to achieve breakthrough in lawyers’ right to carry out defense—it must be accomplished through convincing the court—and there’s a common consensus that the status of the courts needs to be elevated.

In the view of Sichuan Judge Gao Hui [pseudonym], looking at current problems by considering the relationship between judges and lawyers only scratches the surface. At root is the problem of public trust in the judicial process. If courts and judges could have a high level of universal support from the public, then “relations between judges and lawyers would not be an issue.”

“In a country with rule of law, it’s not considered excessive to emphasize discipline in the courtroom and the authority of judges in the courtroom,” said Judge Gao Hui. “In a country that has already established modern rule of law, authority must be given to judges. But we currently lack this kind of authority.”

Lawyer Tian Wenchang has also seen signs of worsening relations between lawyers and judges. In a society under rule of law, judges and lawyers are inextricably linked. The current situation makes him worry.

“Every legal professional needs to do more soul-searching,” sighed Liu Guofeng, vice-president of the Lichuan City People’s Court in Hubei, after seeing the war of words between lawyers and judges on Weibo [a micro-blog service similar to Twitter].

Wednesday, September 19, 2012

Consensus Building on RTL Reform, Cases Highlight Abuse

Tang Hui was sentenced to 18 months of RTL for accusing police of misconduct following her daughter’s kidnapping and rape. Source: Sanxiang Metropolis Daily
The plight of 39-year-old mother Tang Hui recently catapulted the controversial system of reeducation through labor (RTL) back into Chinese headlines. Tang was sentenced to 18 months of RTL—a system that enables police to punitively detain individuals without trial for periods that generally range from one to three years—in August after she accused police of misconduct while handling of the case of her fifth-grade daughter. The 11-year-old had been kidnapped, repeatedly raped, and sold into prostitution, circumstances that rallied public support for Tang’s successful appeal of the RTL decision. Not long after her vindication, a group of Chinese lawyers circulated an open letter to the Ministry of Public Security and Ministry of Justice calling for reforms to the system.

This was not the first call for reform. The fiercest critics advocate abolition of RTL, calling it unconstitutional, a violation of the Legislation Law, and incompatible with China’s expressed goal to ratify the International Covenant on Civil and Political Rights, which China signed in 1998. Since 2003, lawmakers have twice placed a new Law on Education and Correction for Illegal Acts (违法行为教育矫治法) on the legislative agenda, but each time police opposition has prevented it from going much farther.

There are, however, signs of new momentum, including the recent announcement of a pilot project in four Chinese cities that promises to reduce the scale of RTL and introduce more reasonable procedural guarantees. Overall, consensus appears to be forming around the idea that the RTL system cannot continue in its present form and some changes will have to be made.

As the future of RTL approaches this turning point, an account from Caijing magazine (translated below) offers an inside look at the experiences of several men who were detained in Chongqing’s Fuling RTL and Drug Treatment Center for online expression. In the battle to preserve social stability, the reform of RTL might take a favored weapon out of the hands of Chinese police but, by reducing the degree of arbitrariness and abuse of citizen’s rights implicit in the system, it might also make stability more possible.

*

RTL, Twice
Xu Kai
Caijing, August 26, 2012

Gong Hanzhou, sentenced twice to RTL, and his RTL “classmates” show how local government abuses RTL as a tool of maintaining stability

On March 29, 2012, 32-year-old Gong Hanzhou received some good news while in the RTL facility. But “after a moment of elation, I grew angry enough to curse someone,” because this was followed immediately by some bad news.

The good news was he had won his second lawsuit. In his appeal against the Chongqing RTL Committee, the Chongqing Municipality High People’s Court had upheld the Chongqing No. 3 Intermediate People’s Court’s earlier decision to annul the RTL decision against him on the grounds that the evidence was insufficient and the facts were not clear.

The bad news was he received a second RTL decision from the Chongqing RTL Committee, sending him to RTL a second time based on the same facts, albeit for 18 months instead of the original two years. Counting from the date of his criminal detention on January 4, 2011, he still had more than three months to go before he would be released from the RTL facility.

Two weeks earlier, someone from Chongqing’s Qianjiang District Public Security Bureau came to talk to him and to deliver to him a RTL hearing notice in the name of the Chongqing RTL Committee, saying that he would be sent to RTL for 15 months. As far as public security was concerned, even though the first RTL decision had been annulled by the court, it could rely on the second decision without mishandling the case.

So that he could leave earlier, around March 16, 2012, Gong Hanzhou came to a written agreement with the public security authority: he would not stir up public opinion or seek state compensation. “It was only after I received the decision notice that I realized that three months had been added to the 15 months we had discussed earlier!” [Gong said.] But it was no use: he had to spend three more months in the Fuling RTL and Drug Treatment Center.

Reposting

Gong Hanzhou had once worked four years in the Qianjiang Vehicle Administration Office, and before his troubles began he had been working in a computer sales center. His RTL started with the online reposting of a photo of a naked man.

On the night of December 28, 2010, Qianjiang resident Ni Zhenhua and his girlfriend got into an argument with a street vendor after they had been drinking. Ni Zhenhua overturned the vendor’s table and smacked his refrigerator. A Qianjiang district traffic police officer responded to the call and took Ni Zhenhua to the traffic police podium at the Qianjiang District Stadium, handcuffing him to a nearby railing. In resisting his restraints, Ni Zhenhua struggled so much that he came out of his clothes.

This scene was spotted by a passerby named Chen Wei, who in turn related it to a local man named Liu Yong whom he met for dinner. Three hours later, Liu Yong passed the scene and discovered that Ni Zhenhua was still handcuffed in the same spot, so he went back to his friend’s house to grab a camera to take a photo of Ni Zhenhua. As he was leaving, Liu left his phone number with Ni Zhenhua’s girlfriend, saying: “Give me a call if you want the photo.”

One afternoon three days later, Liu Yong posted an item entitled “Qianjiang District Stadium Traffic Police Podium—Traffic Police Abuse a Drunken Man” to his Qzone [a social networking platform], attaching eight photographs. The post read: “On December 28 at 9:48 p.m., a drunken man was taken back to the Qianjiang District Stadium traffic police podium, where he was first beaten by several traffic police (see photo), then stripped of all his clothing (see photo), and handcuffed, naked, to a small iron post nearby for nearly four hours (see photo). This is a clear humiliation of his personhood!! I hope the relevant authorities will take notice! Please repost!” Then, Liu Yong sent the post URL to several QQ [on online chat tool] groups.

On January 1, 2011, Liu Yong’s brother-in-law Gong Hanzhou reposted the item to his own Qzone [page] and sent the new web address to many other friends on QQ, generating a great deal of attention and reposting.

Two days later, having heard that the police were investigating the aforementioned posts, Gong Hanzhou told Liu Yong that he was willing to share responsibility: “We’ll take the blame together.” He and Liu Yong went to the public security bureau, saying that the photographs, the text, and the posting were done by them together.

The next day, the Qianjiang District Public Security Bureau filed a case for investigation against Gong Hanzhou on suspicion of creating a serious disturbance and placed him under criminal detention. On the 7th, the bureau told Gong that his detention would be extended to February 3, 2011. On January 11th, the Chongqing RTL Committee issued RTL decision number 164, finding that Gong Hanzhou and Liu Yong “retaliated against the public security authority by using the Internet to disseminate the photos they had taken and fabricate a story to attack a functional department of the government, thereby deceiving members of the public who did not know the facts and creating an extremely bad impact on society.”

At the same time that Gong Hanzhou was being sent to RTL, the drunk and disorderly Ni Zhenhua was also sent to RTL for 18 months and Liu Yong was sent to RTL for two years. Because of the Ni Zhenhua photo incident, Qianjiang District Public Security Bureau Chief Song Zhijun and Traffic Patrol Unit head Liu Yonghua were removed from duty and transferred out of the public security system; the political commissar of the Traffic Patrol Unit was given an internal party warning; and the officer involved, Li Yongjiu, was placed under public order detention for seven days and transferred out of the police force.

“Classmates”

The Fuling RTL and Drug Treatment Center where Gong Hanzhou was sent is managed by the Chongqing Justice Bureau. There are two main buildings at the RTL center. One is a dormitory, with each floor housing 84 individuals; two floors making up a squadron and four floors making up a brigade. The other building is a workshop—a very long factory building.

At the beginning, Gong Hanzhou and Liu Yong underwent training with the 4th Brigade, consisting of marching and lining up in formation. This was supposed to last for 40 days, but they did it for more than three months.

Since Gong Hanzhou was considered to have been a victim of injustice, his days inside were relatively easy. He didn’t work in the workshop and didn’t spend even a single day there. Instead, he helped cadres in the dormitory to organize the files on people sent to RTL. He also didn’t need to study. “I had the privilege of not having to study because I was working for the cadres,” he said.

RTL is a form of compulsory education, and people sent to RTL address each other as “classmates.” Because he was helping the guards to organize documents, Gong Hanzhou made a tally and found that the majority of his “classmates” were there for theft or fighting: half for theft, 30 percent for fighting, and the rest for things like petitioning and having one’s home demolished. He learned that one “classmate,” because of his previous record of being sent to RTL and placed under public order detention, had been sent for one year of RTL after stealing a packet of instant noodles. Also, because the facility served both as an RTL facility and as a drug treatment center, there were many people there in drug rehabilitation.

Other than his brother-in-law Liu Yong, he encountered other “classmates” who were there for online expression. One of them was thorny Fang Hong. Fang Hong, known online as “Bamboo-Shoot Fang,” had lampooned Chongqing’s then-senior leader on his Tencent microblog, for which he was sent to one year of RTL for spreading rumors.

In the RTL facility, Gong Hanzhou also came to know a university student known as Ren Jianyu the “Village Official,” who had been sent to two years of RTL for harmful speech after posting a large number of microblog posts on his Tencent microblog and Qzone. Earlier in July 2009, after graduating from the Chongqing University of Arts and Sciences, Ren Jianyu had been selected by Chongqing Municipality to serve as a university student “village official” in Yushan Town, Pengshui County. His performance was very good during this time, and at the end of his term, in August 2011, he was hired as a civil servant by Pengshui County. But during the “public notice period” after his hiring, he was sent for RTL by the Chongqing RTL Committee.

Labor

The main components of the RTL system are labor and education. But the great majority of those sent to RTL slack off during their labor. When Gong Hanzhou’s “classmate” Fang Hong didn’t want to work, there wasn’t much the RTL facility could do about it.

Fang Hong, age 45, is a resident of Fuling District, Chongqing, and an internally retired employee of the Fuling District Forestry Bureau. His brigade produced Christmas lights for a Shenzhen lighting company, with 27 people assigned to a team. Each day, each person was responsible for soldering 6,500 lights, and points would be deducted if they did not meet their target. Fang Hong said only two or three of the 27 were able to meet the target, and the rest were all docked points. The regulations say that for each 10 points docked, RTL will be extended by one day.

Fang Hong told the RTL guards that he didn’t care about an extension and that they were welcome to dock his points. But in the end his RTL was not extended. “The RTL guards were relatively lenient,” he said.

Liu Yong also produced lights for three months, and before that he spent seven or eight months making packaging for drinking straws and paper-based packaging for a pharmaceutical company.

These companies that cooperate with the RTL facility would send representatives to be stationed there and take responsibility for quality control. “Before, when things were better, the center could earn tens of thousands of yuan each day,” said Fang Hong. “But now I think they’re lucky if they don’t lose money, the losses are so great. Each person only gets paid a stipend of eight yuan each month, whether or not they do a good job.”

According to regulations, RTL facilities should pay wages to people in RTL. Fang Hong, Gong Hanzhou, and Liu Yong only received the eight-yuan monthly stipend. Cash cannot be used to make purchases in the RTL facility, instead a stored-value card is used, to which a maximum of 500 yuan may be added each month. The RTL facility provides meals, alternating daily between meat and eggs. Payment is necessary for extra portions.

Here, relatives can visit once every two weeks, and one phone call is allowed every two weeks.

So-called “reeducation” is the compulsory study that people sent to RTL are required to do. According to Liu Yong and others, there are two main parts to the education. One is political study, where they talk about revolutionary heroes like Pan Dongzi [a character in a 1974 film depicting the life of a 10-year-old boy determined to join the Red Army], Liu Hulan [a young woman who carried out secret operations on behalf of the Communist Party during the Civil War], and Qiu Shaoyun [a soldier with the Chinese Volunteer Army during the Korean War who is considered a martyr for deciding to remain hidden during an attack rather than betray the location of his fellow soldiers]. The second is legal education, including the constitution and criminal law. The classes are taught by instructors who are hired by the RTL facility according to police hiring quotas.

Time spent in the classroom is minimal compared to that spent laboring. Fang Hong only went to one class, Gong Hanzhou never went to class, and in more than a year Liu Yong only went to class three times.

Besides the instructors, there are also RTL police who are primarily there to maintain order in the dormitory and the workshop.

Fang Hong discovered that the police in the RTL facility also feel as if there’s something fundamentally wrong with the system, making it difficult to manage. What’s more, they get paid less than other police and there are no opportunities for promotion, so there’s a lot of grumbling.

Maintaining Stability

Gong Hanzhou’s ability to win two lawsuits was due in no small part to the help of police at the RTL facility.

“From top to bottom, these cadres all knew about the injustice that had been done to me,” [said Gong.] After he went in, cadres and police officers actively helped him to file suit with the Chongqing No. 3 Intermediate People’s Court. When the second RTL decision was handed down, they said: “We’ve never seen this kind of second RTL before.”

In order to deal with his case, the number of telephone calls Gong Hanzhou made each month far exceeded the limit, and cadres and police officers helped him to the best of their ability.

With the help of his father, in November 2011 Gong filed suit against the Chongqing RTL Committee, requesting that the RTL decision against him be annulled. The defendant in this administrative lawsuit was the Chongqing RTL Committee, but the actual respondents were the heads of the Legal Affairs Unit and the Letters and Visits Section of the Qianjiang District Public Security Bureau. After the Chongqing No. 3 Intermediate People’s Court, which is located in Fuling, accepted the case, it issued a ruling in favor of Gong Hanzhou. When the other side appealed, the Chongqing Municipality High People’s Court upheld the lower court’s ruling.

But the arbitrary nature of the RTL system revealed itself: Gong Hanzhou was sent to RTL a second time, being released only on June 25 of this year (after reductions).

After his release, Gong Hanzhou sought out a lawyer and made plans to file suit challenging the legality of the second RTL decision. Earlier, after his own release from RTL, Fang Hong had, with the help of a lawyer, filed a successful administrative lawsuit against the Chongqing RTL facility.

Afterwards, Chongqing police sought out Gong Hanzhou, saying: “We’ll fix our own mistakes; there’s no need to get other people involved.” The police promised to annul the second RTL decision and provide compensation in accordance with the State Compensation Law. Gong Hanzhou demanded that his “brother-in-law Liu Yong be released,” and on August 9, with four and a half months left to serve, Liu Yong was allowed to serve his RTL outside the facility. The decision stated: In light of the real difficulties faced by Liu Yong’s family, he is hereby immediately released to serve outside the facility.

On August 19, after [online] calls made by lawyers and other legal professionals on microblogs, Ren Jianyu called his father and girlfriend from the detention center, saying: the police had come to discuss his terms for release.

Wednesday, September 5, 2012

(En)countering Torture in China [Part 2 of 2]

Work is underway to root out torture in China, but in order to evaluate current initiatives, it’s important to consider how torture operates. Back in 2006, Beijing Kingdom Law Firm (北京市京鼎律师事务所) conducted a study of torture and other illegal conduct in eight cases—those of Du Peiwu (杜培武), Jin Weiguang (靳伟光), Li Jiuming (李久明), She Xianglin (佘祥林), Sun Wangang (孙万刚), Wang Shuhong (王树红), Xu Jingxiang (胥敬祥), and Zhu Shengwen (朱胜文)—in an effort to shape revisions to the Criminal Procedure Law. The study found 10 legislative flaws and systemic loopholes that demonstrated why de jure prohibitions on torture have not been realized in practice.

The following list provides the 10 flaws along with illustrative case excerpts translated from Kingdom Law Firm’s report.

  1. Serious flaws exist in the detention system: All alleged torture occurred outside detention centers.

    Case 1 – Zhu Shengwen [said he] suffered two bouts of torture … (1) In the building where the special group investigating his case was stationed, Zhu endured beatings, electric batons, electrocution, and other forms of torture through the course of a nine-month interrogation. In accordance with instructions communicated on three occasions by the special group, Zhu “confessed” to three crimes. (2) The second session occurred after Zhu was transferred to the dungeon of Bei’an prison [in Heilongjiang]. In an underground prison cell measuring less than two square meters, Zhu was detained for 40 days. He was guarded and tortured by two prisoners who had been sentenced to life imprisonment. Finally, under the “inspiration” of these two prisoners, and in order to survive and await a chance to appeal, Zhu Shengwen was again forced to admit [the crime].

    Case 2 – According to She Xianglin’s statement, after he was summoned for detention on suspicion of killing his wife, the special group investigating his case took him directly to a hot-springs resort where he suffered 10 days and 11 nights of torture. Two years later, when the case was returned for reinvestigation, the special group escorted She from the detention center to the hot-springs resort for another five days and six nights of interrogation. She Xianglin told [Kingdom Law Firm] that while he was detained at the resort for interrogation, he often heard screams ... According to his analysis and after-the-fact communication with other detainees, [it is believed that] special groups in charge of major cases established the hot-springs resort specifically to conduct interrogation.
  2.  
  3. Torture is a significant means for police to solve cases and earn merit: In almost all cases, the special group set up to solve the case was awarded for meritorious service and, because of this, some leaders were promoted.

    Case 1 – Du Peiwu and his defense lawyer told [Kingdom Law Firm] that [a case in which] two policemen were murdered and their bodies were dumped … created a lot of pressure for the police to solve the case. This pressure also became their incentive [since] it was customary for people to be awarded and promoted after a major case was solved. Driven by such enormous pressure and incentive, police officers relied on torture even more than usual to secure a confession.
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  5. The methods of torture are diverse and cruel to the point of depriving basic human dignity: Undergoing such cruel punishment, all of the accused preferred death over life, pleading guilty to capital crimes.

    Case 1 – After smashing Xu Jingxiang’s right ankle with a wooden club, police stomped and trampled on it with their leather shoes. They also scalded him with oil dripping from burning plastic bags. Having suffered three days and three nights of continuous torture, Xu made a confession of guilt based on hearsay and police instruction.
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  7. Evidence is fabricated to conceal torture: Fabrications—including altered interrogation records, the directed identification [of crime scenes], and illegal forensic identification—were accepted by procuratorates and courts, while statements and evidence provided by the defense were ignored.

    Case 1 – During the investigation of Du Peiwu, the Kunming Intermediate People’s Court joined police in administering a polygraph test. According to Du, after he answered several questions truthfully, one woman from the court became dissatisfied with his answers and slapped him. The court’s “assistance” continued until the polygraph determined that all of Du’s answers were “lies.”

    Case 2 – When Wang Shuhong was detained, his family and people from nearby villages proactively went to police to provide information regarding the case, but were threatened by a police officer who said: Isn’t it enough that Wang Shuhong’s [in detention]? You all want to come here as well? Even when the case was returned for supplementary investigation, investigators ignored the problems reported by the villagers.

    Case 3 – If the defendants or their defense lawyers insisted in their claims that torture was used, the judges would adjourn the trial or stop such claims. If the defense was particularly adamant, it was common for prosecutors to deal with cross-examination and the trial participants by presenting statements provided by public security stating that no illegal acts were committed during the investigation stage. People’s courts would adopt the prosecutor’s “explanation” without conducting any investigation.
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  9. Evidence of torture is difficult to preserve and allegations of torture are not acknowledged by the courts.

    Case 1 – In order to prove that Du Peiwu was never tortured, the prosecutor played a video during the hearing that showed the entirety of one of Du’s interrogations. In response, the defense lawyer argued that this was an attempt to prove the civility of all interrogations with one relatively civilized interrogation. The torture that accounts for one third of all interrogations was intentionally evaded. Unfortunately, the collegial panel did not take any measures in regard to the defense lawyer’s aforementioned argument and instead identified it as “the defense lawyer’s pure speculation” and did not accept it.

    Case 2 – Du Peiwu told [Kingdom Law Firm] that, during the second hearing, he brought a bloody shirt, which he had secretly kept, into the courtroom by wrapping it around his waist. He then presented it to the judge … who merely said “just put down the shirt” and asked the bailiff to take it away without initiating any examination of the evidence. After the hearing, Du repeatedly asked the court to return the bloody shirt that he had painstakingly preserved, but the court’s final response was that it had been “incinerated.”

    Case 3 – During [Li Jiuming’s] trial of first instance, the questioning stage was simply omitted, no evidence was presented, and lawyers were not permitted to conduct cross-examination. In fact, courts not examining key evidence, and in particular the phenomenon of [courts] not examining evidence of torture presented by defendants and their defense lawyers, accounted for nearly 100 percent of the cases in this study.
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  11. Investigative organs selectively transfer evidence: Confessions and evidence of guilt were submitted while evidence of innocence was concealed.

    Case 1 – Sun Wangang’s defense lawyer found just two records of Sun’s confession of guilt in the case file. It was exactly these two records, however, that had been transferred to the procuratorate. When the case was reviewed by the provincial procuratorate, in consideration of the possibility of torture, the [officials] handling [the case] submitted these two records for judicial verification and found that Sun’s signatures [had been falsified].
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  13. Procuratorial oversight is lacking: Procuratorates ignored the illegal conduct of police and the appeals of the accused and even cooperated with investigative organs to intentionally conceal evidence.

    Case 1 – Wang Shuhong quickly submitted documents to the prefecture-level procuratorate accusing the police of torture. In fact, [at that time] the real murderer had already been identified. The prefectural procuratorate went to the county public security bureau to obtain videos of [Wang’s] interrogation and came to the conclusion that [the county public security bureau] had engaged in “extortion and enticements.” Yet the procuratorate and the public security bureau reached an agreement on internal investigation. Leading departments at the prefecture level, the public security bureau, and procuratorate set up an investigation group after Wang raised his accusations, but the police who stood accused firmly denied that they had ever used torture. The investigation group finally determined that there was insufficient evidence of police torture. Later, after some new evidence was discovered, the provincial procuratorate directed the county procuratorate to investigate the case further. Ultimately, the county procuratorate requested that the case be withdrawn because “the investigation caused emotional disturbances among the entire police force.”

    Case 2 – Having confessed under torture, Sun Wangang always hoped he could bring his accusations of police torture to the procuratorate. Unfortunately, he never saw a procuratorial official before his first hearing.
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  15. Role of defense lawyers is extremely limited during the investigation phase: None of the accused was informed of their right to counsel. Only Du Peiwu, who was a police officer by profession, proactively asked for legal counsel, but he was refused.

    Case 1 – Sun Wangang told [Kingdom Law Firm] that he was only informed of his right to counsel shortly before the trial of first instance. Sun’s father then hired two lawyers introduced to him by a judge at the Zhaotong District People’s Court. Yet three days before the hearing, one of the lawyers resigned because his wife was having a baby. In desperation, Sun’s father then had to find another lawyer quickly. These two lawyers hastily met Sun Wangang, hurriedly examined the case file, and went to trial. Sun had told the lawyers the details of the torture [he endured], but, in such a short time, the lawyers had no grasp of the situation nor any evidence, so they did not raise [the allegations] in court. This defense was basically a formality.
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  17. Courts hold illegal trials leading to conviction: There is no judicial independence and court procedures—such as those regarding jurisdiction, the admission of evidence, and sentencing—are repeatedly violated.

    Case 1 – Du Peiwu said that before his trial began, the presiding judge came to the detention center where he conducted a hearing. Du told the judge his grievances, but the judge wasn’t interested in hearing Du’s pleas. Instead, the judge wanted to make a deal with Du, offering a “suspended” sentence in exchange for the murder weapon, which the police had been unable to find. … After being sentenced to death in the trial of first instance, Du Peiwu still had faith in the court and continued to tell the judge that he had been tortured, that he was innocent, and that he hoped the court could investigate and conduct a fair trial. But the judge kept bargaining with him over surrendering the murder weapon and said “brave words” like, “If I kill you with an unjust verdict, worst case scenario, I go to jail.”

    Case 2 – [She Xianglin said that] before his hearing, a judge offered this bargain: “Say what you are told to say, then I can give you life imprisonment.”

    Case 3 – The jurisdiction of these cases should belong to intermediate people’s courts, but ultimately, through the coordination of relevant departments … it was “devolved” to basic level procuratorates and courts in three of the eight cases in this study. … [This] was because the substantial facts were unclear, the evidence was insufficient, and critical flaws in the evidence could not be remedied after repeatedly remanding the cases to police for investigation. In the end, it was common for defendants whose indictments stated that they committed serious crimes to be given “lenient” fixed-term prison sentences.

    Case 4 – One judge told [Du Peiwu’s lawyer Liu Huyue] that [judges] assume enormous risks regardless of whether [they] “kill” or “release” [defendants], so they normally start out by leaving them with their lives. In fact, this situation occurred in most of the cases researched in this study … with suspended death sentences and “degradations” to fixed-term imprisonment. Through this study, we found that no matter how many times [a case] was returned for investigation or tried, the courts had actually already determined that “the facts were unclear and the evidence was insufficient,” yet because of certain pressures and risks, in these cases that obviously lacked sufficient evidence and facts to constitute a crime, the courts normally “returned the case for retrial” or, in accordance with the principle of “lenient sentences for suspected crimes” (疑罪从轻) [This “principle” is de facto not de jure; the Criminal Procedure Law stipulates that guilt cannot be determined without sufficient evidence, and thus is more prescriptive of a principle of “no convictions for suspected crimes” (疑罪从无)—Trans. Note], temporarily did not issue death sentences and gave defendants’ the chance to live to see new evidence and facts appear. Fortunately, [She Xianglin, Zhu Shengwen, Xu Jingxiang, Du Peiwu, and others] finally saw the day where the real murderers [were apprehended] or the victims “rose from the dead” thereby gaining their freedom from capital crimes. In sum, the [defendants] were deprived of their legally protected rights and interests by the law and were restored of [these rights] by murders and victims.
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  19. Public security, procuratorates, and courts coordinate the handling of cases: First, the outcome of the cases is decided, and then the trial procedure is carried out as a formality.

    Case 1 – According to Xu Jingxiang’s accounts, after the trial of first instance, the presiding judge told him: “I understand that this is unfair to you. But the [outcome] of this case has already been determined by relevant superior departments, and this is how you are to be sentenced. It’s useless for you to appeal. After so many years, you should know that the weak cannot overcome the strong.