III. Strengthening Human Rights Protection
III. Strengthening Human Rights Protection
To strengthen the protection of human rights is an important goal of China's judicial reform. China's legislative body promulgated its 2004 amendments to the Constitution, adding "the state respects and protects human rights" to it. The Criminal Procedure Law amended in 2012 included "respecting and protecting human rights" in the general provisions. China's judicial organs are taking effective measures in accordance with the law to deter and prohibit extorting confessions by torture, protect the rights to defense of criminal suspects and defendants, protect attorneys' rights to exercising their duties, limit the applicable measures of detention to protect the lawful rights of detainees, strengthen the protection of the legal rights and interests of detainees, strengthen the protection of juvenile suspects and defendants, strictly control and prudently apply the death penalty, improve the systems of community rehabilitation for inmates and assistance for persons released after serving their terms, and improve the state compensation system and establish systems including the criminal victim relief system, in an attempt to materialize efforts in human rights protection in the sphere of criminal justice.
1. Prohibiting and Deterring Extortion of Confessions by Torture
To improve the investigation and questioning system is a prerequisite for building the rule of law, and it is also an important method for strengthening judicial supervision and protecting the legal rights and interests of criminal suspects in accordance with the law. China is constantly improving its laws to prohibit the exacting of evidence through torture or other illegal means by judicial officials.
Banning self-incrimination. The Criminal Procedure Law amended in 2012 clearly stipulates that no person may be forced to prove his or her own guilt, and no criminal suspects or defendants may be forced to confess.
Excluding illegally obtained evidence. The Criminal Procedure Law amended in 2012 makes it clear that confessions by a suspect or a defendant obtained through extortion or other illegal means and witness's testimony and victim's statements obtained through the use of violence, threats or other illegal means should be excluded from evidence. If physical or documentary evidence is collected in ways violating legal procedures and severely affecting judicial justice, such evidence should be excluded if no correction or justification is provided. It also stipulates the specific procedure for exclusion of such evidence. Once evidence that should be excluded is found by public security organs, people's procuratorates or people's courts during the course of investigation, prosecution review or trial, such evidence should be excluded in accordance with the law.
Improving the system of detention, taking a person into custody after arrest, and interrogation. A person who has been detained must be sent to a house of detention within 24 hours. When a person is arrested, he/she must be taken into custody immediately in a house of detention, where the interrogation shall be conducted. With advances in the IT-based law enforcement by judicial organs, interrogation, detention, court trials and activities happening in places of custody are recorded and video taped. The practice of recording and videotaping investigation and questioning processes is widely adopted. The law explicitly states that for crimes punishable by life imprisonment or death and other serious crimes, audio or video recording of the interrogation process is mandatory. The audio or video recording should cover the entire process of the questioning and should be complete.
2. Protecting the Right to Defense of Suspects and Defendants
The system of advocacy set up for implementing the right to defense as stipulated in China's Constitution is a basic system in China's criminal litigation. It demonstrates the respect of the state for human rights such as those to life and freedom. In recent years, China has been reforming and improving its system of advocacy, aiming to change the old conception of "stressing fighting crimes, but ignoring human rights protection" in judicial practice, and make the system of advocacy play its due role in human rights protection.
Ensuring timely defense. The Criminal Procedure Law of 1979 stated that a defendant is not entitled to appoint a defender until he/she is undergoing court trial. The amended version in 1996 stipulated that a criminal suspect is entitled to hire an attorney for legal assistance during the investigation period, and appoint a defender when the case is handed over to a prosecution organ when the investigation is concluded. And the newly amended Criminal Procedure Law of 2012 went further to specify that a criminal suspect has the right to appoint a defender at any time as of the date when he/she is interrogated for the first time or from the day on which compulsory measures are adopted against him/her. A defendant is entitled to hire a defender any time he/she wants. If a criminal suspect or defendant in custody requests the appointment of a defender, the people's court, the people's procuratorate or the public security organ should convey the message promptly, and a defender may also be appointed by his/her guardian or a close relative on his/her behalf.
Expanding the scope of legal assistance. In order to further protect the rights to defense and other relevant rights of criminal suspects and defendants, the Criminal Procedure Law amended in 2012 expanded the scope of legal assistance in criminal litigation, to make it cover the investigation and prosecution review processes as well as trials, and expanded the scope of people entitled to receive such assistance. If the criminal suspect is blind, deaf or mute, or is a minor or is a mentally ill person who has not completely lost his/her capacity to comprehend or to control his/her behavior, or if a criminal suspect may be sentenced to life imprisonment or death, but he/she has not appointed a defender, the relevant people's court, people's procuratorate or public security organ should inform the legal assistance agency to assign a defense attorney.
Stressing witness's duty to testify in court. Witness testimony in court is crucial to improving the quality of a court trial. In order to have more witnesses testify in court, the Criminal Procedure Law amended in 2012 defines the scope of witness appearance at a court and sets up an assistance mechanism for their appearance at court. It stipulates that if the prosecutor and the defender disagree upon the testimony of a witness that bear significantly on sentencing, the witness should attend the court. A witness should be compensated for transportation, accommodation and meal expenses related to his/her court duties by the government. The employer of the witness may not reduce or reduce in disguise the witness's remuneration, bonuses or other social benefits in the period he/she is absent from work providing testimony.
Improving protection for witnesses. In cases involving serious crimes, if the personal safety of a witness, expert witness, or victim or a close relative of the same is at risk because of court testimony, the relevant people's court, people's procuratorate and public security organ should withhold the personal information, and disguise the appearance and voice of such persons during testimony, prohibit certain persons to be in contact with the witnesses, or their close relatives, and take special measures for personal and residential protection.
3. Protecting Lawyers' Rights to Practice
The protection of lawyers' rights to practice in the course of criminal litigation is essential to protecting the lawful rights and interests of the criminal suspect or defendant and ensuring that such cases are dealt with impartially. China is revising related laws to provide a legal guarantee for lawyers to overcome difficulties in meeting with the suspect or defendant, accessing to materials concerning the case and obtaining evidence through investigation.
The Law of the People's Republic of China on Lawyers, amended in 2007, supplemented and stressed lawyers' rights in the course of litigation, particularly criminal litigation. It stipulates that the representation or defense opinions presented in court by a lawyer shall not be subject to legal prosecution so long as they do not compromise national security, maliciously defame others or seriously disrupt court order. These measures have effectively promoted the exercise of the defense function of lawyers. From 2006 to 2011, lawyers throughout the country provided defense for a total of 2,454,222 cases, an increase of 54.16% over the period 2001-2005.
A timely meeting with a client in custody, access to case materials and obtaining evidence through investigation bear directly on the practice of the defense attorney in criminal litigation. The Criminal Procedure Law amended in 2012 specifies that, except for few cases, a defense attorney who holds a license for practicing law, a certificate of his law firm and a letter of attorney or an official legal assistance letter may meet a detained suspect or defendant. Such a meeting is not to be monitored. Starting from the date of the review by the people's procuratorate, a defense attorney may have access to, extract and copy filed materials concerning the case. A defender may apply to the relevant people's procuratorate or people's court for evidence of the innocence of the defendant or the insignificance of the alleged crime collected by the public security organ or the people's procuratorate. It also specifies that if a defender thinks the public security organ, the people's procuratorate, the people's court or their staff hinders him/her from exercising his/her litigation right, he/she has the right to make a petition/accusation to a people's procuratorate at the same level or at the next higher level. The people's procuratorate must review the petition/accusation in a timely fashion. If the petition/accusation is true, the people's procuratorate will notify the relevant department to make corrections to its acts.
4. Restrictions on Application of Custody
In order to safeguard public safety and guarantee the smooth conduct of criminal case investigation, Chinese law specifies both custodial and non-custodial measures to be imposed on a criminal suspect or defendant as well as the strict conditions of their application. To further regulate the application of these compulsory measures and strengthen the protection of civil rights, the Criminal Procedure Law amended in 2012 further improves the compulsory custodial measures.
Refining conditions and approval procedures for arrest. The newly revised Criminal Procedure Law clearly defines social risk criteria of offences, stipulating that when a people's procuratorate reviews and approves an arrest application it may question the suspect. It must question the suspect when it doubts whether the conditions for arrest are met, or the suspect requests to give a statement to the prosecutor face to face, or the investigation may have been in serious violation of the law. If the defense attorney asks to express his opinion, this request should be granted. These provisions help investigators and the investigating authorities get a thorough understanding of the case, and an accurate grasp of the conditions for arrest, thus avoid putting someone in custody by mistake.
Establishing a system of review over the necessity of detention. After a criminal suspect or defendant is arrested, the people's procuratorate should still check the necessity for detention. If the detention is found to be not necessary, the judicial authorities concerned should be advised to release the detainee or alter the compulsory measures.
Improving the procedures for terminating and altering compulsory measures imposed on detained suspects or defendants. The people's court, people's procuratorate or public security organ shall cancel or alter the compulsory measures promptly or release the detained person upon expiration of the statutory period for custody or as soon as they find that the custody measures imposed on a suspect or a defendant are not appropriate. The criminal suspect, defendant, his statutory representative, close relative or defender are entitled to request an alteration of the compulsory measures imposed, and the relevant authority shall respond within three days.
Expanding application of residential surveillance and reducing application of detention. The Criminal Procedure Law revised in 2012 defined residential surveillance as an alternative to detention. It puts under residential surveillance those who meet the conditions for arrest but are seriously ill and unable to take care of themselves, or pregnant women or women currently breastfeeding their own babies, or someone who is the only caregiver of a person who cannot take care of himself/herself.
5. Protecting the Legal Rights and Interests of Detainees
A house of detention is a criminal custody institution for detaining persons who have been arrested and taken into custody in accordance with the law. Protecting detainees' legal rights and interests not only demonstrates the level of civilized and standardized legal enforcement of the house of detention but is also the need for human rights protection.
China attaches great importance to improving the surveillance level of houses of detention, prohibits extorting confessions by torture and overdue custody, improves the conditions for detention and surveillance, improves the living conditions of detainees and protects their lawful rights and interests. A body surface examination will be conducted on a detainee daily within seven days after he/she is sent to a house of detention, and this examination system is also strictly implemented before and after a round of interrogation, as well as before and after a detainee is sent away from or back to a house of detention. The system of one bed for each inmate will be gradually adopted, and medical care for prison inmates will be socialized, so as to ensure that an inmate gets timely treatment in case of illness. The system of investigation and handling of complaints by detainees will be improved, so will the system of detainees' meeting with the police, officials of detention houses or resident procurators upon their requests, so as to receive and investigate complaints and accusations by detainees on time. When the term of detention for a detainee is to expire, the house of detention should submit a written report to the resident procurator's office, which in turn will supervise whether the release of the detainee or alteration of the compulsory measures by the investigation authorities are carried out promptly. From 2008 to 2011, procuratorial organs conducted supervision and examination of houses of detention throughout the country, and corrected 5,473 cases of illegal detention. Efforts are being made to crack down on bullying rogues in prisons, and alarm devices are installed in each cell so that the detainees can call the police on time in case of abuse. The practice is adopted whereby officials talk to detainees upon their release from the house of detention, with follow-up observations and meetings with them for better monitoring over bullying rogues in houses of detention. A responsible system is implemented for chief and assistant policemen in management of prison cells, and those concerned shall be held accountable if there are serious injuries or deaths of detainees inflicted by bullies because of lax management. The system of inviting special supervisors to inspect detention facilities will be established whereby invited special supervisors may come and inspect the performance of duties and law enforcement by the police in the houses of detention during working hours without notification in advance. In 2010, the number of accidents in houses of detention fell by 31.6% compared with 2009. Video meetings with detainees is being introduced in houses of detention across the country to facilitate family visits. The systems of security risk assessment and separate management of detainees have been established, and psychological intervention has been strengthened for detainees. The working principle of "education, persuasion and rehabilitation," which integrates educational measures with management and care for detainees, is upheld in order to help them foster again a positive attitude towards life and healthy lifestyle.
6. Protecting the Legal Rights and Interests of Juvenile Suspects and Offenders
China adopts the measure of combined punishment and protection to help juvenile offenders and does the utmost to rehabilitate them and get them reintegrated into society. China specifies the principle of "education, persuasion and rehabilitation" for juvenile offenders, sticking to the principle of applying primarily educational measures, and taking punitive sanctions as ancillary means. The judicial organs assign officials who have a good knowledge of the physical and psychological characteristics of minors to handle juvenile cases. If a minor defendant has not appointed a defender, the judicial organs should notify a legal assistance agency to assign an attorney to defend him/her. There are strict rules regarding the arrest of a juvenile suspect or defendant. When a people's prosecutor's office reviews and approves an arrest and a people's court decides on the arrest of a minor, the minor shall be questioned and the defense attorney's opinion shall be heeded. Minors held in custody, arrested or are under criminal punishment shall be detained, administered and educated separately from adults. During the interrogation and trial of juvenile criminal cases, the legal representative of the minor should be present. The court may also inform the minor's other adult relatives or representatives of his/her school, work unit, place of residence or juvenile protection organizations of the trial so that they shall be present. If the legal representative or any other relevant person present believes that the legitimate rights and interests of the minor have been infringed upon during the interrogation or trial, he/she may express his/her opinion thereon. The interrogation or court records shall be made available on the spot to the legal representative or other relevant person present to read or be read out to them. When female juvenile suspects are interrogated, a female officer shall be present. For a minor whose offence is not serious, therefore may be sentenced to less than one year in prison but who has shown remorse, the people's procuratorate may decide not to proceed with prosecution, with conditions attached. The judicial organs may take into consideration the family and school background, cause of crime, guardianship and education of a juvenile offender and use them as reference when handling the case. Trial of cases in which the offenders are under the age of 18 shall not be open to the public. If the offender is under 18 at the time of the crime and sentenced to less than five years of imprisonment, the records of the crime shall be sealed. These records shall not be disclosed to any institution or individual unless they are required by judicial authorities for handling cases or by relevant institutions for inquiry in accordance with state regulations. Amendment Eight to the Criminal Law promulgated in 2011 makes clear the conditions under which probation is applicable to a minor. It also stipulates that juvenile offenders do not constitute recidivists. By July 2011, a total of 2,331 juvenile courts had been set up across the country. From 2002 to 2011, thanks to efforts from all sectors of society, the rate of recidivism of China's juveniles remained at 1% to 2%. In recent years, cases of juvenile delinquency have been falling, and the proportion of juvenile offenders among the criminal population is gradually decreasing.
7. Strict Control over and Prudent Application of the Death Penalty
China retains the death penalty, but strictly controls and prudently applies it. China's Criminal Law stipulates that the death penalty shall only be applied to criminals who have committed extremely serious crimes, and has very strict stipulations on its application. Amendment Eight to the Criminal Law promulgated in 2011 eliminated the death penalty for 13 economy-related non-violent offences, accounting for 19.1% of the total death penalty charges. It stipulates that death penalty shall generally not be used for people who are already 75 years old at the time of trial. It also established the system of death penalty with a suspension of execution and put restrictions on reduction of sentences. These are attempts to create conditions in legislation and system to gradually reduce the use of the death penalty.
The death penalty bears directly on the citizen's right to life, so it must be applied in a very prudent manner. Starting in 2007, only the Supreme People's Court has the right to approve death penalty. In China, court trials of all death penalty cases of the second instance are open to the public. The state has improved the death penalty review procedure and strengthened supervision over the death penalty review. When the Supreme People's Court reviews a death sentence, it shall question the defendant, and hear the opinion of the defense attorney if the attorney makes the request. During the review of a death sentence, the Supreme People's Procuratorate may advise the Supreme People's Court of its opinions. The reform of the death penalty review procedure guarantees fairness in handling death penalty cases. Since 2007, when the Supreme People's Court began to exercise the right to review death sentences, the standard for the application of the death penalty has been more uniform and the number of death sentences in China has dropped gradually.
8. Improving Community Correction System for Persons Serving Sentences and Assistance System for Persons Released from Prison
Improving law-enforcement conditions of prisons and results of education and reform. China is striving to build a just, clean, civilized and efficient prison system, realizing its reform objective of "full-sum guarantee, separation of administrative and business functions, separation of revenues and expenditures, and standardized operation" of prisons. The expenses for jail administration, criminal reformation, prisoners' cost of living, and jail facilities are all guaranteed by the government budget. Inmates are required to work in prison and get paid. Every week, they work for five days, receive classroom education for one day and rest for one day. Attempts are made to strengthen moral, cultural, and technical education to inmates and give them vocational training so as to enhance their ability to make a living after being released. Since 2008, a total of 1.26 million inmates have completed literacy and other compulsory education courses while serving their sentences, and over 5,800 people have acquired college diplomas recognized by the state. Over 30,000 skill-training courses of various kinds have so far been conducted by prisons across the country, and over 75% of inmate trainees have received related certificates, made about 14,000 technological innovations and obtained over 500 invention patents.
Carrying out community correction. In recent years, China has committed itself to reforming and improving the punishment system. It launched this effort in 2003 to introduce community correction experiments first, and then spread it across the country in 2009, putting criminals who have been under surveillance, received a suspended sentence, been released on parole or temporarily served a sentence outside prison into community correction organizations. The aim of this is to correct their crime-prone mentality and harmful behavior with the assistance of social forces and help them reintegrate into society. Community correction has been established as a legal system by China's Criminal Law and Criminal Procedure Law. By June 2012, a total of 1.054 million people had received community correction, and 587,000 people had been released from such correction. The recidivism rate of those undergoing community correction is around 0.2%.
Improving the system of assistance to people released from prison. The Chinese government pays great attention to helping solve difficulties encountered by people released from prison in life and employment. Those who are eligible for the minimum subsistence allowance are covered by this system. Others who face economic difficulties but ineligible for the minimum subsistence allowance are given temporary assistance. People released from prison who are starting their own businesses and enterprises providing jobs for them can enjoy tax breaks and reduction of administrative fees. According to available statistics, people who are released from prison and receive social assistance across the country increased 2.7-fold from 2008 to 2011. The recidivism rate of such people remains low.
9. Improving the State Compensation System
China has established a state compensation system to compensate citizens, legal persons or other organizations if their lawful rights and interests are damaged by state organs or their functionaries in the course of enforcing their power in accordance with the law. The State Compensation Law of the People's Republic of China amended in 2010 sets up necessary offices responsible for state compensation, opens up the channels for claiming compensation, expands the compensation scope, specifies the burden of proof, adds compensation for psychological injury, increases the compensation standards, and guarantees the timely payment of compensation. This has further improved the system of administrative compensation, criminal compensation, and non-criminal judicial compensation. In recent years, the standard of state criminal compensation has been rising along with social and economic development. The daily payment for infringement upon a citizen's right to freedom was increased from 17.16 yuan in 1995 to 162.65 yuan in 2012. In 2011, a total of 6,786 cases concerning administrative compensation (first instance), criminal compensation and non-criminal judicial compensation were concluded by people's courts at all levels. Among them, 868 were criminal compensation cases, with the aggregate amount of compensation standing at 30.67 million yuan, representing increases of 16.04% and 42.9% respectively as compared with 2009.
10. Establishment of Assistance System for Crime Victims
In recent years, China has been actively exploring ways to establish an assistance system for crime victims. The government will provide appropriate financial support to crime victims who are not able to get effective and timely compensation, live in poverty and particularly to those violent crime victims who are severely injured, disabled or dead or to their immediate family members. The assistance standard and scope for crime victims shall be set in the light of the local economic and social conditions. The crime victim assistance work should be done in combination with related measures, such as legal assistance, judicial assistance and social security, improving the guarantee system for the rights and interests of crime victims. From 2009 to 2011, the judicial authorities issued assistance funds worth a total of 350 million yuan to 25,996 crime victims, and provided legal assistance in 11,593 cases.