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.
The graphics shows punishments meted out by people's courts on juvenile criminals from 2009 to 2011, according to China's white paper on judicial reform published by the Information Office of the State Council on Oct. 9, 2012. (Xinhua)
(Table 2. Punishments Meted Out by People's Courts on Juvenile Criminals, 2009-2011)