IV. Guarantee of Human Rights In China's Judicial Work


The aim and task of China's judicial work is to protect the basic rights, freedoms, and other legal rights and interests of the whole people in accordance with law, protect public property and citizens' lawfully-owned private property, maintain social order, guarantee the smooth progress of the modernization drive, and punish the small number of criminals according to law. All this shows that China attaches great importance to human rights protection in the administration of justice.

China's public security and judicial organs follow the following principles in carrying out their duties: (1) All citizens are equal in regard to the applicability of law. In accordance with the law, each citizen's legal rights and interests shall be protected, and any citizen's offenses against the law and his criminal activities shall be looked into; (2) China's public security and judicial organs shall base themselves on facts and regard the law as the criterion in the conduct of all cases; (3) The procuratorate and the court shall independently exercise their respective procuratorial and judicial authority. They shall only obey the law and not be interfered with by any administrative organ, social organization or person. While dealing with criminal cases, the people's court, the people's procuratorate and the public security organ shall divide their work according to law, cooperate with and moderate one another. They should exercise their authority only within the scope of their own responsibilities and are not allowed to supersede one another. Procuratorial organs shall oversee whether the activities in public security organs, courts, prisons and reform-through-labor institutions are legal. These principles of justice are clearly stipulated in China's law, and they provide the legal guarantee for safeguarding human rights in the state's judicial activities.

In every link of the work of public security and judicial organs and in the judicial procedure, China's law provides definite and strict stipulations to protect and guarantee human rights in an effective way.

1. Detention and Arrest

China's Constitution provides that it is prohibited to take people into custody illegally or to deprive or limit citizens' personal freedom in other illegal ways. Without the permission or decision of the people's procuratorate or the decision of the people's court, and the dispensation of public security organs, no citizen can be arrested. In order to guarantee the proper use of the compulsory measure of arrest and to prevent infringement of the right of innocent people, the Constitution and the law vest procuratorial organs with the authority of investigation and approval before any arrest is made. According to law, public security organs have the authority to detain. If the internee is not convinced by the detention, he may appeal to the public security or procuratorial organs. If suspects detained by public security organs need to be arrested, this should be approved by the people's procuratorate; if the people's procuratorate does not approve the arrests, the public security organs should release them upon receiving notice from people's procuratorates. China's procuratorial organs and people's courts should promptly investigate and deal with cases involving staff members in governmental departments and other citizens depriving or limiting citizens' personal freedom.

China's Law of Criminal Procedure provides specific regulations on the deadline for handling criminal cases. At the same time, special regulations have been formulated on the deadline for major and complicated cases according to actual conditions. The Supplementary Regulations on Deadline in Handling Criminal Cases, issued by the Standing Committee of the National People's Congress in July 1984, provides extension and calculation of the deadline for investigation and detaining, the deadline for the first trial and second trial, and the deadline for supplementary investigation of major and complicated cases.

2. Search and the Obtaining of Evidence

China's Constitution provides that it is prohibited to illegally search a citizen's body, and to illegally search or intrude into citizens' houses. The Law of Criminal Procedure provides that in order to search for criminal evidence and seize criminals, public security organs can search the body, articles, residence and other places concerned of the accused as well as those who may hide criminals or criminal evidence, but should do it strictly according to legal procedure. Procuratorial organs should strictly supervise law enforcement in the investigating activities of public security organs.

As a matter of principle and discipline for China's public security and judicial organs in handling cases, it is strictly prohibited to extort confessions by torture. Whenever a case of violating this principle and discipline occurs, it should be dealt with according to law. In 1990, China's procuratorial organs filed for investigation 472 cases which involved extorting confessions by torture. This has not only protected citizens' personal rights effectively, but also taught law enforcement officials a lesson.

3. Prosecution and Trial

Whether a case should be prosecuted after investigation or exempt from prosecution should be decided by procuratorial organs after overall and careful examination according to legal procedure; this is to ensure the timeliness, accuracy, and legality of a punishment, and at the same time, to prevent innocent citizens from unjust prosecution and prevent citizens' rights from infringement. In 1990, after examining cases to be prosecuted or exempt from prosecution, which were referred to them by investigating organs, the procuratorial organs at various levels in the country decided to exempt 3,507 people from prosecution.

The people's courts carry out a public trial system. Cases should be tried publicly, except those involving state secrets or individual privacy and involving minors, which according to law shall not be heard publicly. The main points of a case, the name of the accused, the time and place of the trial should be announced before the hearing, and visitors should be allowed into the court. During the hearing, all the facts and evidence on which the case on file is based should be investigated and checked in court. All activities in court should be carried out publicly except when the case is being reviewed during court recession. These include issuing the indictment by the public prosecutor, court investigation, questioning witnesses, debate and the final statement by the accused. The verdicts in all cases, including cases of non-public trial in accordance with law, should be pronounced publicly.

During the judicial process the people's court makes it a point to collect the evidence as comprehensively as possible according to legal procedure. With no other evidence except the confession of the accused as a basis, the accused cannot be pronounced guilty or sentenced; without the confession of the accused but with ample and reliable evidence, the accused can be pronounced guilty and sentenced.

The accused has the right to defense. According to the Law of Criminal Procedure, the accused, besides exercising his right to defend himself, can also entrust a lawyer, or close relatives, or other citizens to take up the defense on his behalf. When the public prosecutor institutes a case before the court, if the accused does not entrust his defense to a lawyer, the people's court can appoint one for him. During the trial, the accused has the right to terminate a lawyer's action in his defense and entrust another to take it up. After the people's court decides to hear a case, a duplicate copy of the indictment should be made available to the accused at least seven days before the opening session of the court in order that he may learn what crime or crimes he is being prosecuted for and the reasons why he is being prosecuted, and that he has enough time to prepare his defense and get in touch with his lawyer. During the prosecution, the people's court should strictly comply with the regulations of the Constitution and the Law of Criminal Procedure, and earnestly guarantee the right of the accused to defense.

The accused has the right to appeal to a higher court and the right of petition. In deciding cases the Chinese courts follow the system whereby the court of second instance is the court of last instance. According to law, if a party refuses to accept the judgement and ruling of the first trial, he may appeal to a higher people's court; if he remains unconvinced by the judgement and ruling which are legal in effect, he may petition to people's courts or procuratorial organs. Appealing to a higher court will not increase the punishment.

China's Criminal Law has special regulations on juvenile crime and criminal responsibility. Those who have reached the age of 14 but not of 16 should be responsible for crimes of murder, serious injury, robbery, arson, hardened thievery and other felonies against public order; those who have reached the age of 14 but not of 18 should receive lenient punishment or mitigated punishment if they commit crimes; as for those who are exempt from punishment because they have not reached the age of 16, their parents or guardians should be ordered to subject them to discipline, and if necessary the government can take them away for custody and education.

Lawsuit procedures and judicial activities are strictly supervised as to their legality. In 1990, China's procuratorial organs put forward suggestions for the correction of illegal practice in 3,200 instances, thereby effectively guaranteeing citizens' legal rights and interests in lawsuits and judicial activities.

China, like most countries in the world, maintains capital punishment, but imposes very stringent restrictive regulations on the use of this extreme measure. China's Criminal Law states, "Capital punishment is applied only to criminals who are guilty of the most heinous crimes." It also provides that capital punishment is not applied to criminals who have not reached the age of 18 when they commit crimes or to women who are pregnant when they are on trial. China's Law of Criminal Procedure provides for a special review procedure in cases of capital punishment. That is, the judgement in cases of capital punishment, except for those made by the Supreme People's Court according to law, should be reported to the Supreme People's Court or to a high people's court authorized by it after the second, or final, instance; only after all the facts, evidence, convictions, sentences and trial procedures are comprehensively investigated and checked and approved can the judgement take legal effect. After the examination and approval, if a lower people's court finds that there may be mistakes in a judgement, it should stop enforcement of the punishment and immediately report to a higher people's court with the authority of examination and approval, or to the Supreme People's Court, in order that a ruling may be made by it.

China's law also provides a system allowing a two-year reprieve in carrying out a death sentence. That is, in cases where criminals should receive the death penalty but the sentence need not be carried out at once, capital punishment can be announced with a two-year reprieve and reform through forced labor, in order to observe the offender's behavior. If the offender sincerely repents and mends his ways, after the twoyear reprieve expires, the punishment can be reduced to life imprisonment; if a criminal really repents, mends his ways and performs meritorious services after the two-year suspension expires, his punishment can be reduced to a set term of imprisonment from 15 years to 20 years. Practice has shown that most of the criminals who are given the death penalty with reprieve have had their punishment reduced to life imprisonment or a set term of imprisonment, after expiration of the two-year reprieve. The system of announcing the death sentence with a two-year reprieve and forced labor, as provided in China's Criminal Law, is an original creation in the application of capital punishment. It is an effective system by which strict control is exercised over the use of capital punishment in China.

4. No "Political Prisoners" in China

In China, ideas alone, in the absence of action which violates the criminal law, do not constitute a crime; nobody will be sentenced to punishment merely because he holds dissenting political views. So-called political prisoners do not exist in China. In Chinese Criminal Law "counterrevolutionary crime" refers to crime which endangers state security, i.e., criminal acts which are not only committed with the purpose of overthrowing state power and the socialist system, but which are also listed in Articles 91-102 of the Criminal Law as criminal acts, such as those carried out in conspiring to overthrow the government or splitting the country, those carried out in gathering a crowd in armed rebellion, and espionage activities. These kinds of criminal acts that endanger state security are punishable in any country. In 1980, in handling the case of the Lin Biao and Jiang Qing counterrevolutionary cliques, the special court of the Supreme People's Court strictly implemented this principle by prosecuting members of the cliques according to law for their criminal acts while leaving alone matters concerning the political line.

5. Prison Work and Criminals' Rights

At present there are in all 680 prisons and reform-through-labor institutions in China, holding 1.1 million criminals in detention. The rate of imprisonment is 0.99 per thousand of the total population. Compared with the rate of imprisonment of 4.13 per thousand in one of the Western developed countries according to 1990 statistics of its ministry of justice, China's rate is quite low.

China's prisons and reform-through-labor institutions receive, strictly according to law, criminals sent to them to enforce sentences passed by the courts. If they find the relevant legal documents not complete or the judgement not yet in effect legally, they have the legal right to refuse to take the persons in custody. Prisons and reform-through-labor institutions should notify a prisoner's family members of his whereabouts within three days after taking him into custody. According to China's law, most prisoners are allowed to serve their sentences in the area where they reside to make it convenient for their family members to visit them and for the units where they used to work to help educate them. The allegation that in China some citizens are sent to labor camps without trial or sent away in some form of exile within the country is a distortion of the system whereby prisons and reform-through-labor institutions in China take criminals into custody; it is a groundless fabrication.

In China, the rights of prisoners while serving their sentences are protected by law.

According to China's law, all prisoners, with exception of those who have been legally deprived of their political rights, have the right to vote. Prisoners also have the right to appeal, the right of defense, the right of immunity from insult to their dignity and from infringement of personal security and of legal property, the right of complaint, the right of accusation, and other civic rights which have not been curtailed by the law.

Convicted criminals, while serving their sentences, have the right to contact family members and other relatives regularly by correspondence or visits. If an important event happens in a criminal's family such as critical illness or the death of a directly-related family member, and if it is really necessary for the criminal himself to go back home to handle matters, he can be permitted to go home for a short period of time.

While serving their sentences, prisoners can read newspapers, magazines and books, watch television, listen to the radio, and take part in recreational and sports activities that are beneficial to the body and mind. In prisons and reform-through-labor institutions there are libraries where criminals can go to read. Like ordinary citizens, prisoners who are serving their sentences have the freedom of religious belief. Prisoners with religious beliefs can maintain their beliefs, and allowances are made for the customs and habits of prisoners of minority nationalities.

Prisoners are accorded the material treatment necessary in their daily lives. The state covers their living and medical expenses, and their grain, edible oil and non-staple food rations are set according to the same standards for local residents. All prisons and reform-through-labor institutions are staffed with an appropriate number of doctors; in professional medical institutions, medical facilities and hospital beds are set aside in prisoners' exclusive service; on an average, there are 14.8 hospital beds for every thousand prisoners, and those critically ill are sent to hospitals outside the prison for treatment or, on approval, may seek medical treatment on bail according to law. Prisoners' needs for medical care are guaranteed.

The people's procuratorates provide legal supervision of the protection of criminals' legitimate rights and interests. They send full-time prosecuting attorneys to jails and other places of surveillance to check whether the working and living facilities and conditions and the surveillance work are legitimate, to hear the opinions of those under surveillance, accept and look into their complaints and appeals, and deal with violations of law promptly when discovered.

The prisons and reform-through-labor institutions in China are not designed merely to punish the criminals but to educate them and turn them into law-abiding citizens by organizing them to take part in physical labor, learn legal and ordinary knowledge and master productive skills. Prisoners who have taken educational or technical training courses and passed examinations given by local education or labor departments are given certificates corresponding to their levels of education or technical grades. The validity of such certificates is recognized in society. By the end of 1990, about 720,000 certificates for literacy or diplomas for completing courses up to the college level had been issued to those serving terms in prisons and reform-through-labor institutions; over 510,000 had attended various technical training courses, and 398,000 received certificates of technical qualification. Prisoners thus find it easier to find jobs on release after serving their sentence.

China's law stipulates that prisoners who really show repentance and have rendered meritorious service can, upon rulings of the people's courts, have their sentences commuted or be put on parole. In 1990, 18 percent of the criminals in custody were accorded such treatments.

Thanks to the humanitarian, scientific and civilized management of the prisons and reform-through-labor institutions, the recidivism rate has for many years stood at 6-8 percent. Many prisoners have returned to society and become key members or engineers in their enterprises, and some of them have become model workers or labor heroes. Compared with the situation in one developed country in the West, where, according to 1989 judicial statistics, 41.4 percent of exprisoners returned to jail, China has come a long way in reforming and educating criminals. China's prisons and reform-through-labor institutions have won global acclaim for their achievements in turning the overwhelming majority of criminals, including the last emperor of the feudal Qing Dynasty and war criminals, into law-abiding citizens and qualified personnel helpful to the country's development.

6. Prison Labor

China's law stipulates that all prisoners able to work should take part in physical labor. This is also the practice adopted in many countries worldwide. China's policy of reforming criminals through labor is designed to help those serving prison terms mend their old ways by acquiring the labor habit and fostering a sense of social responsibility, discipline and obedience to the law. This policy enables criminals in custody to stay healthy through a regular working life and avoid feelings of depression and apathy resulting from a prolonged monotonous and idle prison life. It also helps them learn productive skills and knowledge of one kind or another so that they can find a job after being released from prison and avoid committing new crimes because of difficulties in making a living. China's policy of reforming criminals through labor is not simply for the purpose of punishment; it is a humanitarian policy conducive to the reform, and the physical and mental health, of the criminals.

By the Chinese law, criminals work for no more than eight hours a day and take time off during holidays and festivals; they are entitled to the same grain, edible oil, and non-staple food rations and the same labor and health protection as accorded to workers of state-run enterprises engaged in the same type of work; those who overfulfill their production quotas are given bonuses and those holding technical titles at and above the middle grade are entitled to monthly technical allowances and opportunities of on-the-job vocational and technical training.

Prison labor products are mostly used to meet the needs within the prison system, and only a small quantity enters the domestic market through normal channels. The export of prison products is prohibited. China's foreign trade departments, which handle the export of Chinese commodities in a unified way, have never granted foreign trade rights to reform-through-labor institutions.

7. Education through Labor and the Rights of Those Being Educated through Labor

The work of education through labor in China is based on the 1957 Decision on Education through Labor and other regulations adopted by the Standing Committee of the National People's Congress. Education through labor is not a criminal but an administrative punishment. Education-through-labor administrative committees have been set up by the people's governments of various provinces, autonomous regions, municipalities as well as large and medium-sized cities, and the work is under the supervision of the people's procuratorates. It is stipulated that those eligible for education through labor should meet the requirements of relevant laws and regulations. For example, they should be at or above the age of 16 and have upset the public order in a large or medium-sized city but refused to mend their ways despite repeated admonition, or they have committed an offense not serious enough for criminal punishment. The decision to put a person under education-through-labor is made through a strict legal procedure and under a system of legal supervision in order to avoid subjecting the wrong person to the program.

After the education-through-labor administrative committee has according to related regulations made the decision to put a person an education-through-labor program ranging from one to three years, the person and his family members are entitled to be informed about the reasons for the decision and the duration of the program. If the person takes exception to the decision, he may appeal to the administrative committee or lodge a complaint with the people's court according to the Law of Administrative Procedure. If the education-through-labor institution finds that the person does not conform to the qualifications for the education-through-labor program or that he should have been sentenced to criminal punishment, it may report the case to the reeducation-through-labor administrative committee for review.

Those undergoing education through labor are entitled to civic rights prescribed by the Constitution and the law, except that they must comply with the measures taken according to the regulations on education through labor to restrict some of their rights. For instance, they are not deprived of their political rights and have the right to vote according to law; they have the freedom of correspondence and the right to take time off during festivals and holidays; during the period of education through labor they are allowed to meet with their family members, those who are married can live together with their spouses during visits, and they can be granted leave of absence or go home to visit family members during holidays. Those who have acquitted themselves well while being educated may have their term reduced or be released ahead of time. Every year about 50 percent of the people undergoing the education-through-labor program have their term reduced or are released ahead of time.

The education-through-labor institutions follow the policy of educating, persuading and redeeming the offenders, with the emphasis on redeeming. Classes are opened, and instructors assigned, in these institutions to conduct systematic ideological, cultural and technical education. Offenders under the education-through-labor program work no more than six hours every day.

An average of 50,000 people have been brought under the education-through-labor program annually since it was instituted. The overwhelming majority of those who have been reeducated have turned over a new leaf, and many have become valuable participants in building the country. According to surveys conducted over the last few years, only 7 percent of those released from the education-through-labor program have lapsed into offense or crime. The program has done what families, workplaces and schools cannot do: to prevent those who have dabbled in crime from committing further anti-social actions and breaking the law and to turn them into constructive members of society. Both the public and family members of the offenders speak highly of the program for its role in forestalling and reducing crime and maintaining public order.

China's public security and judicial organs have carried out their responsibilities strictly according to law and played an important role in protecting and guaranteeing the citizens' rights and freedoms. That explains why China has long been one of the countries with the lowest incidence of criminal cases and crime rate in the world. In 1990, the incidence of criminal cases and crime rate in China were 2 per thousand and 0.6 per thousand respectively, considerably lower than the figures in some developed Western countries, which ran as high as 60 per thousand and 20 per thousand respectively.