Tuesday, May 14, 2013

China Plots National Verdict Database

Supreme People’s Court meeting on judicial openness in Liuzhou, Guangxi, May 8, 2013. Photo credit: Gmw.cn

Appeals for public access to court documents may have gained new ground in China. Following a recent upsurge in reporting on miscarriages of justice, plans to establish a national database of court decisions became the main topic of discussion at a meeting convened by the Supreme People’s Court (SPC) on May 8 and 9. The meeting appears to be part of new SPC President Zhou Qiang’s effort to increase the transparency and credibility of the judicial system.

Calls to make court verdicts available online have been around almost as long as the Internet in China. Nearly a decade ago, legal scholars such as Peking University’s He Weifang argued that the online publication of verdicts would bring increased scrutiny and force judges to produce higher-quality judgements. Advocates of online publication also say that it will promote greater public awareness of the judicial system and its procedures.

In the years since, there has been a gradual expansion in both the number of courts that put verdicts online and the scope of decisions that are available for public viewing. In 2007, the SPC issued guidelines urging courts to increase their efforts in this regard, and courts in Henan Province have perhaps gone the farthest, publishing over 440,000 decisions on its court websites as of the beginning of this year. In February 2013, Guangdong High People’s Court President Zheng E said that Guangdong courts would start to publish “all” court verdicts online in the coming months.

In an opinion piece published in the May 12 edition of The Beijing News (translated below), lawyer Liu Changsong welcomes the plans for a national database and provides some examples of how access to court documents can make it easier for people to appeal wrongful convictions. He also cites curbing judicial corruption as an important reason to make verdicts available online.

If plans for a national database are realized, it would be a monumental showing of transparency in China’s often opaque judicial system, but there is good reason to believe that any such database would remain selective. Courts are likely to resist having their work subjected to public scrutiny, and certain types of verdicts are expected to remain outside the public domain. In particular, cases that involve crimes of “endangering state security” are less likely to become public given their political nature and tendency to be classified as involving “state secrets.” Similarly, while Chinese courts have released verdicts in cases of death with two year reprieve (as these sentences are generally commuted to life or fixed-term imprisonment), it would be surprising if they released decisions in all cases of death with immediate execution, as this would shed light on another closely guarded secret: the number of executions—believed to be in the thousands—that China carries out each year.

Although some of these exceptions may seem logical on the surface, they are not based in the law. This is because, while Chinese law allows courts to hear certain cases in closed hearings when issues such as state secrecy or privacy are involved, the law requires that all court verdicts be announced publicly, even for closed trials. Legitimate concerns about personal privacy may justify light redaction of certain court decisions, but complete exclusion or heavy culling of entire verdict categories would simply highlight the division of the legal system into two realms—one open and the other hidden—divided out of political expedience, rather than legal bounds.

Publishing Court Decisions Will Help Reduce Judicial Corruption

Liu Changsong, The Beijing News
May 12, 2013

The core motivation of making court decisions public is to allow judicial decisions to have oversight from all sectors [of society] and thereby promote judicial fairness.

Recently, the Supreme People’s Court (SPC) held a study meeting on judicial openness in Liuzhou, Guangxi, where publishing court decisions online became a hot topic of discussion. The SPC Judicial Reform Office revealed that a Chinese Judicial Decision Website may be operational within the year (via People’s Court Daily).

Publication of judicial decisions is the issue related to judicial openness that has received the most public attention. With the development of Internet technology, many have dreamed of the ability to freely search for and read online any judicial decision that they care about. Now, that dream will finally become a reality.

The reason that publication of judicial decisions has received so much attention is because of its importance. The [decisions] fully reflect the claims of each party, the court’s finding of fact, and the reasoning behind the court’s decision. They are the basis for appeal and petition when a party doesn’t agree with the decision, as well as the basis for the court’s implementation of the verdict after it takes effect. Even more, [publication of verdicts] is a basis for all sectors of society to monitor and oversee court decisions.

A well-known example can show the difficulties that arise when court decisions are unavailable. In 2005, 10 years after Nie Shubin was executed for rape and murder, the real culprit was discovered. Nie’s mother spent two years petitioning the Shijiazhuang Intermediate People’s Court and the Hebei High People’s Court to re-open the case, but both courts refused to accept the petition without a copy of the court decision. After two years of petitioning, a mysterious person sent Nie’s mother copies of the first- and second-instance decisions by courier, finally enabling her to initiate the petition process.

As Nie’s mother said: “If we’re not even clear about the court’s finding of fact, how can we petition? If we don’t even know the specific document number of the effective verdict, how can we ask for a retrial?” Of course, despite continued petitioning by Nie’s mother, for a variety of reasons there has not yet been any result in the Nie Shubin case. This is something that causes legal professionals to feel deep [regret]. That’s another issue entirely, but one can get a sense of the importance of court decisions from the fact that without a verdict it’s impossible to petition for retrial.

As a lawyer, I’ve also felt the awkwardness of not being able to access court decisions. Last year, I represented the victim’s family in a voluntary manslaughter case. After both the first- and second-instance trials, the victim’s parents did not accept the verdict and wanted to petition for a retrial. They didn’t have a copy of the verdict, so I had to use my connections to get a photocopy from the court so that we could initiate the petition process.

Of course, even the current criminal procedure law does not categorize the immediate family members of a deceased victim as a party to the case or require that they be given a copy of the court verdict. This is a gap in the legislation, but if they could easily go online to search for and copy court verdicts, this gap would be sufficiently filled.

Naturally, the benefit of publishing court decisions online would not merely be to facilitate appeals and court petitions. The core motivation is to allow all sectors [of society] to engage in oversight of judicial decisions and, thereby, promote judicial fairness. Publication of court decisions online can force courts to improve the quality of their decisions, increase the reasoning of the decisions, promote a higher degree of professionalism among judges, prevent and reduce judicial corruption, and increase the credibility of the courts.

Both the constitution and the law have clear provisions about public adjudication, so there is no legal impediment to publishing all court documents online. I understand that the SPC is presently undertaking to establish a Chinese Judicial Decision Website that when fully functional will include all types of verdicts, be updated in real time, contain clear categories, have scientific search functionality, and provide convenient statistical information and automatic analysis. At the same time, I hope that the SPC will issue an authoritative judicial interpretation on the subject of publishing all court decisions online in order to provide even stronger legal protection for judicial openness.