The Chinese government revised the Criminal Procedure Law in 1996 and the Criminal Law in 1997.(89) The revisions promised increased protection for criminal suspects and defendants and a fairer trial process.(90) The amendments to the Criminal Procedure Law included an expansion of the right to counsel, a more meaningful role for defense attorneys during the pre-trial and trial stages, and other measures to address the problem of "decision first, trial later" (xian ding hou shen).(91) The amended Criminal Law abolished the provision on "analogy" contained in the 1979 Criminal Law. Under this provision, a person could be punished for an act that was not explicitly prohibited by law at the time the act was committed by providing for punishment according to the closest analogous provision of the Criminal Law.(92) The revised Criminal Law also replaced "counterrevolutionary" crimes with "crimes of endangering national security" as part of an effort to depoliticize criminal law, at least on paper.(93)
But as this report notes repeatedly, a wide discrepancy often exists in China between the law on paper and the law in practice. Criminal suspects and defendants frequently do not enjoy in practice the enhanced protections found in the revised laws. Although the revisions to the Criminal Procedure Law and the Criminal Law reflect progress toward internationally recognized criminal justice standards as set forth in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international human rights documents, the Chinese criminal justice system still falls far short of international standards.
Absence of an Independent Judiciary
Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights mandate that every individual is entitled to a fair and public hearing by an independent and impartial tribunal.(94) However, the lack of an independent judiciary is a fundamental problem that China must address before it can meet international human rights standards. The Communist Party exerts significant control over the court system. Party political-legal committees often select judges - decisions that are then simply rubber-stamped by the relevant provincial or local people's congresses, which have the formal power to appoint judges.(95) Most senior judges and members of the courts' adjudication committees are Party members.(96) The adjudication committees supervise the work of the court and have the ultimate power to decide any case before the court.(97) Moreover, judges often confer with the relevant political-legal committee in politically sensitive or difficult cases.(98) As long as the Party controls the courts, a fair and impartial judicial process and protection of the fundamental rights of criminal defendants will remain elusive, particularly in cases of political dissidents or others deemed to be threats to "national security."
Right to Counsel and Right to Present a Defense
Under the 1979 Criminal Procedure Law, a defendant had no right to legal counsel prior to seven days before the start of the trial. Under the revised Criminal Procedure Law, defendants may retain counsel much earlier in the criminal process - after the first interrogation or from the day he or she is first subjected to "coercive measures" (e.g., pre-arrest detention (juliu) and arrest (daibu)).(99) Although a significant improvement over the 1979 Criminal Procedure Law, the revised law fails to conform to international standards. For example, it still leaves a suspect without counsel during a "first interrogation." Given the widespread problem of torture, coupled with the fact that the law requires suspects to answer investigators' questions "truthfully," the absence of counsel at the first interrogation is a serious deficiency in China's criminal process.(100)
Although defense lawyers are entitled under the Criminal Procedure Law to meet with their clients during the investigation of an alleged crime, in practice lawyers are frequently denied access to their clients.(101) In cases involving "state secrets," a term that public security authorities construe expansively, a lawyer must first obtain approval from the relevant investigating authority before meeting with his or her client.(102) The authorities frequently invoke "state secrets" to deny suspects access to a lawyer during the investigation phase.(103) When actually allowed to meet with their clients, defense lawyers generally get only one brief meeting, which is usually monitored and sometimes recorded by investigators.(104) Article 96 of the Criminal Procedure Law permits such monitoring, "depending on the circumstances and necessities of the case."
The revised law provides defense counsel greater access to evidence in the possession of the authorities, at least in theory. In practice, the Supreme People's Procuratorate (China's chief prosecutorial authority) has interpreted the relevant provisions of the new law to require access only to formal documents in the file, such as copies of the detention and arrest notices.(105) There is no requirement that prosecutors provide defense counsel access to physical evidence, documentary evidence, crime-scene records, or statements by witnesses or the victim that are in their possession. Moreover, the revised law severely restricts the ability of defense lawyers to collect their own evidence.(106) Another long-standing problem unresolved by the revised Criminal Procedure Law is the absence of witnesses at criminal trials.(107) Although the law requires the testimony of witnesses to be cross-examined at trial, witnesses in criminal cases frequently do not appear in court.(108) Thus, in most trials defense lawyers are faced with the difficult task of trying to contradict written testimony.
Professor Jerome Cohen of New York University Law School told a Commission roundtable that there are disturbing disincentives for lawyers to engage in the practice of criminal defense law. Criminal defense lawyers have encountered intimidation and harassment from the police and prosecutors as they attempt to assist their clients under the revised Criminal Procedure Law.(109) Some defense lawyers have even faced criminal prosecution for zealous representation of their clients. For example, Zhang Jianzhong, a well-known lawyer who has represented some high-profile defendants in major corruption cases, has been detained since May 2002 under circumstances that remain murky. While Mr. Zhang has purportedly been charged with providing a false statement in a commercial case, members of the local criminal defense bar and other observers believe that the authorities are punishing Mr. Zhang for his vigorous criminal defense work.(110) Criminal defense lawyers have also been targeted for prosecution under Article 306 of the Criminal Law, which prohibits a lawyer from forcing or inducing a witness to change his or her testimony or falsify evidence. Any lawyer who counsels a client to repudiate a forced confession, for example, risks prosecution under this provision.(111)