A series of high-profile cases involving wrongful conviction and other miscarriages of justice has increasingly forced China’s top law-enforcement officials to address this troubling issue head-on. In March, the president of Zhejiang’s High People’s Court placed much of the blame for wrongful convictions on the extraction of confessions through torture. President Xi Jinping has spoken prominently about the need for “the popular masses to feel fairness and justice in every judicial case,” and new Supreme People’s Court President Zhou Qiang has called on lawyers and scholars to help reform the criminal justice system.
Then, in mid-August, the Chinese Communist Party’s Central Politico-Legal Commission (CPLC) issued a set of 15 provisions aimed at systemic changes that could help prevent future injustice. Met with considerable fanfare by Chinese media, the provisions included a call to establish a new responsibility system in which judges, prosecutors, and police would be held accountable for life for negligent or wrongful acts that result in wrongful conviction.
Over the past two months, judicial and law-enforcement bodies throughout China have been studying the CPLC pronouncements. The Supreme People’s Procuratorate has already issued provisions for implementation. Despite all the attention, copies of the provisions have not been widely circulated. In fact, Dui Hua has only been able to find one copy online (translated below) as circulated by a local party branch politico-legal committee in Jining, Shandong Province.
On one level, much of the CPLC guidelines reiterate provisions and principles that are already part of China’s Criminal Procedure Law and related regulations. The emphasis on fully recording interrogations and excluding illegally obtained evidence reflect the growing recognition of the need to protect the rights of criminal suspects and defendants, but implementation of these important protections has yet to become routine. Likewise, the CPLC provisions emphasize the importance of keeping channels of communication open within the criminal process and acting on information in a timely manner, whether it be the opinions of defense lawyers or allegations of wrongdoing made by convicted persons.
Besides the proposed responsibility system, another theme of note in the CPLC provisions is the need to insulate the judicial process from external interference. Public opinion, petitioning, and “stability preservation” are all cited as sources of external pressure that should not be allowed to influence decisions made during the criminal process. By the same token, the guidelines also point to the possibility of less interference by local party and government officials by limiting the scope of politico-legal committees’ guiding opinions and efforts to “coordinate” opinions between law-enforcement bodies when there are disagreements about how a case ought to be handled.
There is much in these guidelines that sounds positive from the perspective of promoting procedural fairness and rule of law in China. The ultimate impact of these pronouncements, however, is likely to depend on how much weight they are given vis-a-vis other, well-established imperatives to pursue stability in the interest of the overall socio-political order, for it is the perception that these interests can trump the law and political and civil rights that contributes most to miscarriages of justice in China.
Provisions on Earnest Prevention of Miscarriages of Justice
In order to give thorough implementation to the spirit of the important written instructions given by General Secretary Xi Jinping and Comrades Meng Jianzhu and Guo Shengkun, fully realize the spirit of the Fourth Plenary Session of the Central Politico-Legal Commission, punish crime in accordance with the law, respect and safeguard human rights, increase the credibility of the judicial system, and uphold social fairness and justice, we hereby enact the following provisions on the subject of strict adherence to legal procedure and holding firm to the bottom line on prevention of miscarriages of justice.
- Except in emergencies when it is necessary to conduct on-the-spot questioning, questioning of criminal suspects or defendants ought to be carried out in case-handling locations provided for [by law and regulation]. After a criminal suspect has been transferred to a detention center for custody, questioning shall be carried out in the detention center interrogation room with simultaneous audio- or video recording of the entire process. The investigating organ may not use reasons such as recovering stolen goods or [conducting an] identification [procedure] to remove suspects from the detention center in order to conduct questioning outside the facility.
- When the investigating organ transfers a case [to prosecutors], it ought to include all evidence of the guilt or innocence of the suspect or defendant as well as of the severity of the crime. It is strictly forbidden to withhold or fabricate evidence.
- When evidence that ought to be excluded is discovered during investigation, prosecutory review, or trial, it ought to be excluded in accordance with the law and may not serve as the basis for requesting arrest approval, approving or issuing an arrest decision, transferring the case for prosecutory review, making a decision to prosecute, or issuing a verdict. Suspect or defendant confessions obtained through torture or other illegal means, or witness testimony or victim statements obtained through violence, threats, or other illegal means may not be used as the basis for conviction.
- People’s procuratorates shall conduct oversight in accordance with the law as to whether investigation activities are lawful; provide opinions and recommendations as to the collection, securing, and perfection of evidence; and, when necessary, appoint procurators to take part in discussions with the investigating organs concerning major or serious cases and re-testing or re-examination of crime scenes or items, persons, or corpses associated with a crime.
- People’s procuratorate shall strictly ensure the standards for arrest review, prosecutory review, and prosecutory appeal. In cases that do not meet the statutory requirements for arrest or prosecution, it shall withhold arrest approval or issue a decision not to prosecute in accordance with the law. Appeal shall be made in accordance with the law in cases that meet the conditions for prosecutory appeal, especially when the innocent are found guilty, the guilty are found innocent, or the sentence is either unusually light or unusually heavy.
- Firmly adhere to the principle of judgment on the basis of evidence. When a witness who ought to appear in court in accordance with the law refuses to appear or appears but refuses to testify without good reason and the court has no way to confirm the veracity of his or her testimony, the testimony of that witness may not be used as the basis for conviction. Any evidence that has not been presented, examined, and cross-examined in court and verified through these court investigation procedures may not be used as the basis for conviction.
- Strictly implement the legal standard of proof. When there is only a defendant’s confession and no other evidence, the defendant cannot be convicted or given criminal punishment. In cases where there is insufficient evidence to convict, the presumption of innocence shall be adhered to and the defendant pronounced innocent in accordance with the law, standards cannot be lowered to issue a verdict with a “margin of error.” When evidence to convict is truthful and sufficient but there are doubts concerning evidence with implications for sentencing, a sentence favoring the defendant shall be issued.
- When people’s courts, people’s procuratorates, or public security organs handle criminal cases, they must take facts as the basis and law as the criterion and cannot issue judgments or decisions that violate the provisions of the law due to pressure caused by public-opinion hype, disruptive petitioning by a parties to the case or their relatives, “case-solving deadlines,” or local “stability preservation.”
- Earnestly safeguard the rights of defense lawyers to meet [with clients], read case files, carry out investigations, and obtain evidence, and to raise questions, cross-examine evidence, and debate in court. During the phases of concluding the investigation, prosecutory review, and final review of death sentences, people’s courts, people’s procuratorates, and public security organs ought to hear defense lawyers’ opinions in accordance with the law. With respect to the defense arguments and evidentiary materials submitted in defense by defendants and their defense counsel, people’s courts ought to give them serious review and provide an explanation in the court decision as to why they were accepted or rejected.
- People’s procuratorates and people’s courts ought to conduct timely review in accordance with the law when receiving allegations or petitions that may truly involve miscarriage of justice. After review, if a criminal verdict or decision is found to be in error, prosecutory appeal or request for retrial shall be made in accordance with the law. People’s procuratorates shall immediately rectify mistaken decisions made in a criminal case by itself or by its subordinate procuratorates in accordance with statutory procedures.
- Prisons or other penalty-enforcement organs may not withhold petitions, allegations, or accusation materials made by offenders and ought to transmit them or request the relevant authority to handle them in a timely manner. The relevant authority ought to conduct a serious review and handle [the petition, allegation, or accusation] in a timely manner and notify the prison or other penalty-enforcement organ of its decision. When offenders make petitions or allegations, it shall not affect their eligibility for sentence reduction or parole.
- Establish a strong case-management responsibility system in which the collegiate bench as well as individual judges, procurators, and police officers are held equally accountable and judges, procurators, and police officers are held accountable for life for the quality of the way a case is handled insofar as the purview of their duties is concerned. Responsibility for unlawful acts related to the handling of cases by judges, procurators, and police officers shall be pursued in accordance with the relevant laws and provisions.
- Clarify the standards for [what constitutes] a miscarriage of justice as well as procedure for and agent who can initiate remedial action and establish a strong mechanism for pursuing responsibility in miscarriages of justice. Acts such as coercion of confession through torture, use of violence to obtain evidence, and withholding or fabricating evidence shall be severely punished in accordance with the law.
- Establish a strong, scientific, and rational system for case-management performance evaluation that adheres to judicial rules; do not one-sidedly pursue targets such as a case-solution rate, arrest rate, prosecution rate, or conviction rate.
- Party politico-legal committees at all levels ought to support the independent and fair exercise of judicial and procuratorial powers by the people’s courts and people’s procuratorates and support each politico-legal unit in carrying out its work in an independently responsible and coordinated manner in accordance with the constitution and laws. In cases where the facts are unclear or the evidence is insufficient, do not coordinate [opinions between law enforcement bodies]; when coordinating [opinions regarding] cases, generally refrain from making specific opinions regarding the determination or substantive handling of a case.