Thursday, April 10, 2008

Verdict before Public Trial -- in China in 2004

Amnesty International, People’s Republic of China Executed "according to law"? - The death penalty in China (22 March 2004):

Capital cases are most usually heard initially by intermediate-level courts in China. Appeals are heard by provincial-level High People’s Courts - the court of second instance.

Article 14(1) of the ICCPR states: In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal [...]

Principle 1 of the Basic Principles on the Independence of the Judiciary states: The independence of the judiciary shall be guaranteed by the state and enshrined in the constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.


A trial of first instance held at an Intermediate People’s Court is heard by a collegial panel of three judges, who pass verdict by majority decision based upon evidence and testimonies presented in court. However, it is often the case that a verdict has been approved by a court before a defendant even appears in front of the judges. Each court in China has an adjudication committee, which according to Article 149 of the Criminal Procedure Law is established to decide "[...] difficult, complicated and major cases" which includes cases "[...] when a death sentence may be imposed".(75) Adjudication committees are composed of CCP officials including at least one judge, who sit in private to examine a case file without ever actually hearing statements or meeting defendants or their lawyers. The adjudication committee’s decision on a case is binding on the collegial panel of judges.

Defendants in capital cases are therefore likely to stand trial in a court which has already decided a verdict and possibly even a sentence. This is a probable explanation for the very short duration of trials: it is common for people to be sentenced to death following a trial of first instance lasting no more than one hour.(76) (It should also be repeated in this context that between 1998 and 2002, 99.1% of all trials of first instance ended with a guilty verdict.(77))

2002 Report on Criminal Justice in China

Congressional-Executive Commission on China [CECC], CECC 2002 Annual Report on Criminal Justice:

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)

One Report about Criminal Trials in Tibet

Tibet Support Group UK, Tibet Online (1996-2008):

Trial Proceedings

Tibetans suspected of opposing the policies of the PRC in Tibet have been held as political prisoners and prisoners of conscience for lengthy periods, some for decades. A list of 108 political prisoners presented by the US government to China in October 1993 took nine months to elicit a response. China listed 51 as 'cannot be found' and did not even say where the acknowledged prisoners were being held. The charges against these people are often unknown and many dissidents, especially before 1987, were sentenced or executed without trial.

Between October 1987 and July 1989 only about a dozen Tibetan political prisoners were known to have been formally charged with criminal offences and tried by a court. The Chinese authorities, however, started to bring to trial scores of Tibetan political prisoners, the exact numbers of which are not clear, after a new policy was instigated in August 1989 (Defying; p.34).

According to Article 125 of the PRC Constitution, "the accused has the right of defence". However, there is no known case of a Tibetan receiving legal assistance prior to, or during, the hearing. It seems that normal judicial procedures have been abridged. The Chinese criminal justice system in Tibet also has no presumption of innocence. There is no known case of a Tibetan defendant accused of political crimes being acquitted (Defying; p.35).

The PRC Criminal Procedure Law states that all trials be public, except those dealing with state secrets, private individual matters or minors (Articles 8 and 11, PRC Criminal Procedural Law). In reality however, most trials in Tibet are held in secret or before a specially selected audience (Defying; p.34). It is very difficult to obtain first-hand accounts of political trials in Tibet. However, there is one recorded eyewitness report of a public trial of two monks from Ngarong Monastery, held in Rigong, March 1990. They were detained in Autumn 1989 after unfurling a Tibetan national flag in the street. Neither of the accused was represented. Nor were they given the chance to defend themselves. The monks were sentenced to one, and one and a half years imprisonment respectively, for counter-revolutionary crimes (Defying; p.35).

The average term of imprisonment since the trials began in 1989 seems to be six and a half years. There have been prison sentences of up to 19 years handed down to Tibetans found guilty of counter-revolutionary offences. There is growing speculation that Tibetan political prisoners have been executed, though no direct evidence of this since 1987 (Defying; p.36). Prisoner releases are often of older prisoners deemed to pose little threat. Other releases have police reporting conditions attached.

A Constitution for Imperial China

China's Peculiar New Constitution - Elaborate Nine-Year Programme for Leading People Gradually to Parliamentary System - Imperial Will Grants It - Leaders of Political Parties to be Appointed by Throne, and Government Must Not Be Crticized, New York Times (October 19, 1908) (byline dated September 15, 1908):
The constitution under which it is planned to lead China from her present form of despotic government to a Parliamentary system of administration is a remarkable and highly interesting document. It ... is of great length. The preamble alone fills twenty pages....


... It is set forth that the Imperial government shall not be criticized on the principle that the "sacred majesty of the sovereign may not be offended against"....


Broadly speaking, the document follows the Constitution of Japan as a model. Some of its most striking clauses [including(?) "fourteen laws"] follow:


"The Ta Ch'ing Emperor will rule supreme over the Ta Ch'ing Empire for one thousand generations in succession and be honored forever."...

Sunday, April 06, 2008

Dirty Drugs & Tricky Numbers

Bruce Vielmetti & Kitty Bennett, "Nigeria Source of Much Heroin," St. Petersburg Times [Florida] (November 2, 1990):

Donald Igwebuike left Nigeria to find fame and fortune kicking field goals in the National Football League.

Many of his countrymen, federal drug officials say, try a different path to fortune: heroin smuggling. Now drug agents are investigating whether Iggy, as he's known to fans, crossed that path too.

Federal officials say Nigerians have emerged as the premier "swallowers" of international smuggling. For a price, they gulp down sealed packets of heroin, fly around the world, and deliver the drug with the aid of laxatives.


But the national focus on a well-paid professional athlete raises the question of whether Igwebuike could have been drawn into crime because of his Nigerian roots, or has been wrongly suspected because of his nationality.

Over the past few years, airport inspectors in the United States and Europe have begun arresting so many nervous Nigerians with drug-laden intestines that nearly all passengers from that country have become suspect.


Muhammadu Jibirilla, a spokesman at the Nigerian embassy in Washington, D.C., acknowledged that many young Nigerians have fallen for the lure of quick drug profits, after learning that life in the United States is not the economic utopia they envision by watching television in Lagos.

Jibirilla also said that many of the criminal leaders in his country are blacks who emigrated there from less fortunate countries, not native Nigerians.

The Nigerian government complained earlier this year that the scrutiny amounted to discrimination. Jibirilla said the country is being singled out as a "sacrificial lamb."

The Nigerian government complained earlier this year that the scrutiny amounted to discrimination. Jibirilla said the country is being singled out as a "sacrificial lamb."

Numbers point to Nigerians

In Thailand, part of the so-called "Golden Triangle" that produces about half the heroin imported to the United States, Thai officials have reported that 80 percent of the Nigerians coming into the country are involved with trafficking the drug in Europe and the U.S.

British officials reported that fully a third of all heroin seized in the United Kingdom in 1989 was carried by Nigerians.

And in New York City, U.S. Customs inspectors at John F. Kennedy Airport in the past 12 months found 204 arriving passengers carrying about 250 pounds of heroin in their bodies.

Ninety percent of those arrested were Nigerians, said Joan Baran, a Customs spokeswoman.