The draft amendment to China's Criminal Procedure Law [full text of the 1996 version], which was enacted in 1979 and amended in 1996, was submitted for a third reading last Thursday to the ongoing 5th session of the 11th National People's Congress (NPC). Let China.org.cn guide you through the highlights of the draft amendment.
The draft amendment to China's Criminal Procedure Law was submitted for a third reading last Thursday to the ongoing 5th session of the 11th National People's Congress (NPC). [File Photo]
Safeguarding human rights
The draft amendment underlines the constitutional principle of "respecting and safeguarding human rights" by ensuring that it is written into law and revising provisions concerning the exclusion of illegally obtained evidence and the notification of detainees' relatives, said Professor Chen Guangzhong, honorary dean of the Procedural Law Research Institution at China University of Political Science and Law.
It is the first time that the principle has been explicitly written into law to balance public powers and private rights since it was included in the nation's constitution in 2004.
Strict limits on unnotified detention
The draft amendment stipulates that in the event of a suspect's detention, a member of their family must be informed within 24 hours of their detention
Exceptions are made for the detention of suspects in cases which are thought to involve matters of state security or terrorism where notifying third parties could potentially hinder sensitive investigations.
Zhou Guangquan, a member of the NPC's Law Committee, commented that the timely notification of detainees' family members guarantees the legal rights of suspects.
The proposed revision also stipulates that efforts must be made to inform the families of suspects held under house arrest within 24 hours of the measure's enforcement.
Defense attorney's early engagement in legal process
The draft amendment authorizes suspects to engage the services of a defender in the event of their initial police interrogation. The amendment would replace the current Criminal Procedure Law, under which suspects are only permitted to engage the legal assistance of a lawyer when under police interrogation.
A defender is able to provide suspects with a wider range of services than the legal assistance from a lawyer, said Li Mingrong, a delegate to the on-going NPC session and deputy chief procurator of the People's Procuratorate of Fujian Province. The proposed revision also extends the time period during which a suspect can engage the services of a defense attorney which improves protection for criminal suspects and addresses potential areas of conflict between the prosecution and the defense.
Lawyers' right of access to detained clients
The draft amendment incorporates provisions from the "Lawyers' Act" to expand the rights of lawyers, stating that defense attorneys in possession of legal documents shall be granted access to detained clients within 48 hours of making such a request. In addition, it states that all such meetings will be strictly private and unmonitored.
Exceptions are made for lawyers meeting with suspects involved in cases relating to matters of national security, terrorism and serious bribery. According to the draft amendment, such meetings will require prior police approval.
Xu Zhihui, a lawyer with the Beijing-based Dingye law firm, said that the proposed provisions will address the problems encountered by lawyers with regard to meeting detained clients, accessing case materials and collecting evidence.
Application of summary procedure
Summary procedure is only applied to minor prosecuting cases under the current law, while the draft amendment gives the accused the option to apply the procedure in cases where there are clear facts, sufficient evidence and confessions.
Cai Ning, an NPC deputy and chief procurator of the People's Procuratorate of Henan Province commented that the revision offers positive solutions for improving procedural efficiency and saving judicial resources by separating simple and complicated cases.
Reconciliation in criminal cases
The draft amendment introduces the concept of reconciliation in prosecution cases involving minor infringements of personal rights, democratic rights and property rights, as well as involuntary crimes. The aim of reconciliation is to ensure that victims receive timely compensation and that parties' litigation costs are mitigated.
However, NPC deputy Li Yuefeng from Chongqing People's Procuratorate warned that reconciliation could only be applied in a small number of cases.
Special protection for witnesses
Judge and NPC deputy Xu Ruixia commented that witnesses are not afforded adequate protection under the current Criminal Procedure Law, and added that this has hindered criminal investigations.
Xu stated that if witnesses refuse to give evidence for fear of reprisals, both the justice system and social order would be compromised.
The draft amendment outlines the circumstances under which a witness should appear in court and details the rules which protect witnesses, stating that, "related authorities shall take one or more measures to protect witnesses and victims who appear in court for cases involving national security, terrorism, gang-related crimes and drug crimes. The relatives of witnesses and victims shall also be protected when their personal security may be endangered as a result of an ongoing criminal case."
Exclusion of illegally obtained evidence
The Criminal Procedure Law of 1996 stipulates that "it is strictly forbidden to extort confessions by torture and to collect evidence by means of threat, enticement, deception or other unlawful means."
However, it does not state the effect and impact of illegally obtained evidence, which, according to NPC deputy Lu Zhongmei, encourages the abuse of power during evidence gathering, leading to cases of wrongful conviction.
Under the terms of the draft amendment, confessions extorted through illegal means, such as torture, as well as illegally obtained witness testimony and victim depositions shall be deemed inadmissible during criminal trials.
Restriction of criminal retrials
The appeals court will assess the facts of the case and, in instances where cases are thought to be unclear or have insufficient evidence, the appeals court will be entitled to send such cases back to court for retrial.
According to the draft amendment, individual cases may only be sent for one retrial by the appeals court in order to ensure that remanded suspects are not detained for prolonged periods without receiving a final verdict, NPC delegate Luo Chunmei said.
Following the retrial of a case, if the appeals court considers that the case is still lacking in evidence, or its facts remain unclear, it will hear the case itself rather than once again referring the case back to the original court.
Under the current criminal procedure law, there is no stipulation as to which appeals cases should be heard by a court session and which simply require a case review.
However, the terms of the draft amendment clarify it by proposing the following appeals cases must be heard in court:
- cases in which a party involved raises an objection regarding either the facts or evidence in a case to the extent that the final outcome of the case may be affected;
- cases in which the death penalty may potentially be applied;
- cases in which the procuratorate submits a demurrer;
- and other cases which the appeals court deems necessary to be heard in court session.
Special procedures for juvenile defendants
The draft amendment proposes to establish a system in which the criminal records of juvenile defendants would remain sealed and inadmissible in any investigation, except when requested by the relevant judicial authorities during the course of an investigation.
Professor Chen Zhonglin from Chongqing University commented that, in general, juvenile defendants pose a lesser risk to society than adult defendants, and they can be effectively dealt with through education, rather than through the justice system. He added that a relaxed environment should be created for such defendants in order to realize this aim.