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By Elizabeth M. Lynch, September 30, 2010

Defendants await trial in the Chongqing Mob Crackdown

On June 1, 2010, China openly admitted to a huge problem in its criminal justice system – the reliance on confessions obtained through torture. On that date, China issued regulations establishing a new system by which confessions obtained through torture would be excluded from trial. Although the torture of criminal suspects is illegal under Chinese criminal law, the law had been largely silent about whether that evidence, once obtained, should be excluded from trial. Noting the inherent unreliability of confessions obtained through torture, the new regulations clearly established rules to try to eliminate such evidence from criminal trials. This was progress.

Last week, the Supreme People’s Court (SPC), had the opportunity to test these new exclusionary rules and, as China’s highest court, show by example that these regulations were passed to have some bite. But instead, on Sunday, September 26, 2010, the SPC chose to ignore its mandate and Fan Qihang was executed.

Fan Qihang’s trial was one of the many from the Chongqing mafia crackdown. The city of Chongqing has long had a problem with organized crime; with many officials, judges and police on the take, the city was an Al Capone dream. But in 2007, Chongqing’s own Elliot Ness arrived in the form of Bo Xilai. As Chongqing’s Chinese Communist Party boss, Bo led a swift campaign to wipe out the local mafia, and by the end of November, 2009, over 800 arrests were issued and over 300 people prosecuted. And Bo meant business. No one was spared; even high officials and successful business men were prosecuted and sentenced to long prison terms and even death.

Fan Qihang was one of the defendants who received the latter. A Chongqing construction mogul, Fan was accused of running a crime syndicate and of arranging for the murder of Li Minghang, member of a warring gang. On February 2, 2010, Fan was convicted and sentenced to death, over the objections of his lawyer who maintained that Fan’s confession was obtained through torture.

Fan’s appeals fell on deaf ears and in a last ditch effort to save his client’s life, Zhu released videos of his client made during his meetings with him while awaiting trial. In the video, Fan details the torture and shows to the camera fresh wounds of where he was shackled and hung from the iron bars in his holding cell for days on end. In anguish, Fan tried to kill himself twice – once biting off the tip of his tongue and the other repeatedly banging his head against the wall. Medical reports back up these suicide attempts. (see Ng Tze-wei, “Lawyer reveals grim details of client’s torture,” South China Moring Post, July 29, 2010).

With this mounting concrete evidence of a confession obtained through torture, Fan’s case offered the perfect opportunity for the SPC to show the strength of China’s new exclusionary rules, reverse Fan’s conviction and order a new trial without the use of Fan’s confession. Such a decision would also be a radical signal to China’s criminal justice system that the high court was not going to stand for such blatant violations of the new regulations.
But that’s not what happened. Instead by affirming Fan’s death sentence, the SPC let it be known that even with the new exclusionary rules on the books, it will still be business as usual. Confessions should be obtained at all costs, even at the cost of justice.

But before we criticize China too much, it’s important that we look at ourselves. Fan’s execution comes on the heels of the controversial execution in Virginia of Teresa Lewis. Lewis, along with two other men, was convicted of the killing of her husband and step-son in order to obtain her husband’s life insurance payments. But unlike most who receive the death penalty in the United States, Lewis never pulled the trigger. Instead, the man Lewis was having an affair with, Matthew Shallenberger, and another cohort, did the shooting; in on the plan, Lewis left the doors to the house unlocked so that the two men wouldn’t have difficulty getting in.

Although Shallenberger and the other shooter were both given life imprisonment, Lewis was given death with the judge stating that Lewis was the mastermind of the scheme and by far more culpable than either of the other two. Borderline mentally retarded with an I.Q. of around 71 (Shallenberger’s IQ ranges around 113 and he was diagnosed with a manipulative personality disorder), Lewis’ execution last Thursday was heavily criticized both in the U.S. and abroad as a gross violation of justice and due process.

To be sure, China executes thousands more people than the U.S. (to date this year, the U.S. has executed 39 people) and its violations of due process, fairness and justice are much more egregious than what is seen here. But these two executions – Lewis and Fan’s – falling back to back makes one wonder, by maintaining a death penalty how much of a cover does the U.S. offer China? And why do we want to?

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By Elizabeth M. Lynch, September 15, 2010

On Monday, September 20, Columbia Law School’s Society for Chinese Law & SIPA’s Asia-Pacific Affairs Council is sponsoring:

Hope & Caution: Trends in China’s Criminal Justice System

On this panel, I will have the very fortunate opportunity to share the stage with Jennifer Smith, the former China Director of International Bridges to Justice.  Together we will not only look at some new criminal justice legislation – such as the new exclusionary rules, plea bargaining and recent death penalty amendments – but we wil also discuss their practical implications.  Additionally, because this event is intended to be much more conversational, there will be ample time for questions and comments. 

While I can’t gaurantee that Hope & Caution will be nearly as sexy a show as Lust, Caution, it will be a lot of fun and a great opportunity to hear what is happening in China and also share your own thoughts and theories. 

 Hope & Caution: Trends in China’s Criminal Justice System

Monday, September 20
6:30 PM – 7:30 PM
SIPA Building, Room 918
420 West 118th Street

Featuring:
Jennifer Smith – Former China Director of International Bridges to Justice
Elizabeth M. Lynch – Founder of China Law & Policy

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By Elizabeth M. Lynch, July 21, 2010

Zhao Zuohai, freed after 11 years in jail for a murder that never happened

May 2, 2010 was the day that Zhao Zuohai got his life back.  It was also the day that China was forced to re-examine its criminal justice system and deal with the very real fact that many innocent people in China are in jail.

In 1999, after being tortured for 33 days, including being handcuffed to a chair, beaten with sticks and denied eating and sleeping for long periods of time, Zhao Zuohai, a poor farmer from a village in Henan Province, confessed to killing a fellow villager who had gone missing.  Although only a behead body was found, its identity not 100% certain, Zhao was convicted of murder.  But after Zhao served 10 years of his 29-year sentence, the “murder victim” turned up alive, returning to his village to obtain his social security benefits.  On May 10, 2010, a court threw out Zhao’s conviction and Zhao returned to his village.

Zhao’s wrongful conviction led to a very open critique of the Chinese criminal justice system and produced changes.  At least on paper.  A month after Zhao was freed, China passed its first rules to exclude during a trial any confessions obtained through torture.  While the regulations had been a work in progress for at least the past year, Zhao’s case likely sped up their issuance.  Then, on Friday, the Supreme People’s Procuratorate  took action, upgrading its compensation scheme for wrongful conviction from 111.99 yuan (approximately $16.50) to 125.43 yuan (approximately $18.50) for every day of a person’s sentence.

Although the recent police investigation into the circumstances surrounding Zhao’s detention has been surprisingly candid, with the public release last week of the police’s investigation (in the form of a “prosecution recommendation proposal” as required by Article 129 of China’s Criminal Procedure Law (CPL)), actual repercussions for the perpetrators remain to be seen.  While five police officers have been charged with “forcing a confession,” all remain free out on China’s equivalent of bail.  Unlike in the U.S., bail is notoriously uncommon in China, where suspects remain in custody up until trial.  The example of Australian national Stern Hu is typical – denied bail even though he posed little to no flight risk.

The decision to release a suspect on bail is usually made by a high official in the police or the prosecutor’s office.  And if the recent case of Xu Zhiyong is any guide, bail means that the case will likely never go to trial.  While it creates a legal limbo for the suspect, the suspect remains free, which beats sitting in a Chinese prison.

The fact that the five police officers responsible for the torture of Zhao Zuohai are on bail means that a trial against them is unlikely.  Additionally, a recent article by Shen Bin, a Shanghai lawyer, questions if a case can even be brought against the police (English translation courtesy of the Dui Hua Foundation).  Article 87 of the Criminal Law (CL) sets a statute of limitation for criminal prosecutions; for crimes that receive a sentence of five years or less, the statute of limitations is five years. In this case, the maximum sentence the police could receive is three years (CL Article 247), making the statute of limitations for bringing a case five years, which Zhao Zuohai’s case has long surpassed. Article 88 of the CL permits the statute of limitations to be ignored if the victim brought a charge of prosecution and the prosecutor ignored it, but it is unclear if Zhao Zuohai’s complaints of torture soon after his conviction are sufficient to rise to the level of “charge of prosecution.”

Zhao Zuohai’s wrongful conviction case confirms a criminal justice system that has a lot of failings.  But it also shows a somewhat more open Chinese government willing to confront some of these issues and a populace seeking to better protect criminal suspects.  However, with the fact that the police who tortured Zhao remain free on bail with little risk of prosecution, China still has a way to go before the danger of wrongful convictions is minimized.

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By Elizabeth M. Lynch, June 29, 2010

In our June 2, 2010 post – “A Paper Tiger?” – we discussed China’s newly adopted “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases.” At that time, the Regulations were not publicly available and we based our analysis on a summary of the regulations published in the state-run media by Prof. Fan Chongyi, a noted criminal procedure expert at the China University of Politics and Law.

Last week, the Chinese government finally publicly issued the “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” (English translation courtesy of DuiHua Foundation; Chinese version here).  These Regulations do not portray the sophistication found in Prof. Fan’s analysis, showing that perhaps Chinese legal academia is more progressive and more committed to legal reform than the Chinese government.  This shouldn’t be surprising.  In order for these Regulations to really have an impact, it was necessary to bring on board China’s Ministry of Public Security (MPS) and Ministry of State Security (MSS), two police bodies that, as in most cultures, are inherently conservative and do not like their investigative powers reined in by the law.  While the Regulations are a step forward, it is a bit disappointing that they do not go as far as we had originally hoped.

In addition to some of the issues noted in our previous post, the Regulations raise some of the following issues:

• Will a Chinese court ever conduct an investigatory hearing as to the legality of the confession? Articles 6 and 7 of the Regulations govern the burden of proof when raising the issue of a confession gained through torture.  Similar to the law in the U.S., under the Regulations, the defense has the right to raise the issue of a confession obtained through torture but must offer a sufficient factual basis for the court to order a hearing on the matter.  Similarly, the Chinese regulations places a minimum burden on the defense to offer some factual basis for its claim; Article 6 calls for the defense to provide the name of the person who performed the torture, the time the torture occurred, the place, the manner and the content of the torture in order for the court to call for further investigation.  If the defense can offer that minimal evidence, the court assumes that the confession was obtained illegally and the burden of proof switches to the prosecutor to offer evidence or testimony that the confession was obtained legally as required by Article 7.

But Article 6 and 7 provide no standards for the evidence.  For the defense, Article  6 requires that some “leads” or “evidence” be provided to the court.  While the Article 6 offers some examples of what the leads or evidence could be, does the defense have to provide all of those examples?  If so, how would a defendant know the names of his interrogators?  There isn’t necessarily a polite introduction aspect to an interrogation. Will a defendant, after a few rounds of torture, even remember the time and the place of the torture?  Likely the few pieces of evidence a defendant would be able to offer is the manner and content of the torture.  But it is unclear if just those two pieces of evidence would be sufficient for the court to switch the burden of proof to the prosecutor.

If the court does happen to order a shift in the burden of proof, Article 7 is similarly silent on the sufficiency of evidence a prosecutor needs to provide to show that the confession was gained legally.  In fact, Article 7 is even less clear on what that evidence should be offered and provides little guidance as to what a judge should consider and the weight of any evidence.  Would a court find a signed statement from one of the interrogators stating that there was no torture enough evidence?  Article 7 does state that audio and video recordings could be sufficient, but does not mandate this type of evidence.  If Article 7 had mandated that the prosecutor provide video or audio evidence of the interrogation, then the Regulations would be a huge step forward in preventing torture during an interrogation.  Perhaps in practice courts will de facto require such evidence, giving more bite to the Regulations.  But nothing in the Regulations themselves currently mandate video or audio evidence.

• Is a prosecutor able to delay the trial indefinitely? Interestingly, Article 7 also offers the prosecutor the opportunity to postpone the trial so that he or she can obtain more evidence to show that the confession was obtained legally. In accordance with the Regulations, the prosecutor would request a postponement under the Article 165 of the Criminal Procedure Law (CPL).  However, Article 165 of the CPL contemplates three different situations in which a trial could be delayed, two of which are applicable in a case where a prosecutor needs more evidence to prove the legality of a confession: (1) the need to notify a new witness to appear in court or to obtain new physical evidence and (2) when the public prosecutor discovers there is a need to conduct a supplementary investigation.  Only the latter situation contains a one-month time restriction (see CPL Article 166); postponement due to the need to notify witnesses or obtain new physical evidence does not have a time restriction.  While CPL Article 165(2) seems most applicable to situations where a prosecutor requests more time to obtain evidence to show that a confession was obtained legally, a court could postpone a trial on the grounds found in CPL Article 165(1), especially if the court is pressured by the Chinese Communist Party, through an adjudication committee, to give the prosecutor more time to obtain enough evidence to convict.  Until courts have greater independence, expect outside influence in politically-important cases.  Articles 8 and 9 of the Regulations also allow a postponement in the trial for further investigation: Article 8 is at the request of the court and Article 9 is at the request of the prosecutor during the trial.  Neither Article 8 nor Article 9 reference any portion of the CPL which would limit the time of the postponement.  In fact, the language in Article 9 is very closely aligned with the language found in CPL Article 165(1), which does not limit the time length or the postponement.
• Does the appeals process offer greater protection from illegally-obtained confessions? Article 12 contemplates an appeal process and creates an incentive for the defense to raise the issue of an illegally-obtained confession at trial.  Under Article 12, if the defense alleges that the defendant’s confession was obtained through torture, the court refuses to investigate the allegation, and the court uses the confession as a basis for a conviction, then on the appeal – or what is known in China as the “trial in the second instance” and the court retries the case – the appellate court must conduct an investigation.  This appears similar to the U.S. system of raising an objection on the trial level in order to “preserve” the issue for appeal.  But looking more closely at Article 12, a lot more elements are required to preserve the objection.  In the U.S., filing a motion to suppress evidence or merely objecting to an issue at trial, even if overruled, is enough to preserve the issue for appeal and if properly preserved, the appellate court must re-examine the trial court’s decision.  But in China, under Article 12, it’s not enough that the issue is raised and overruled, the confession must also be a basis of a conviction to require the court of the second instance (the appellate court) to investigate the circumstances surrounding the confession.

In addition to using the confession as a basis of the defendant’s conviction, the court of the first instance must also have rejected the defense’s request to conduct an investigation; in other words, the court must have found the evidence provided by the defense under Article 6 of the Regulations insufficient to switch the burden of proof to the prosecutor and conduct an investigation under Article 7 of the Regulations.  But if the court in the first instance conducts the investigation and finds that the prosecutor offered enough evidence to rebut the defense’s allegation, on appeal, the court in the second instance is not required to re-investigate the issue of the legality of the defendant’s confession.  Given the loosey-goosey parameters of the evidence required of the prosecutor under Article 7, the trial finding the prosecutor’s evidence sufficient is likely.

Article 12 mandates that court of the second instance conduct an investigation if the three elements found in Article 12 are met.  But there is nothing in Article 12 that forbids the court of the second instance to investigate the allegations of illegality if less than all three of the elements of Article 12 are present; there is just nothing that requires it.  In fact, CPL Article 186 gives the appellate court the power to reexamine all issues in a case, even if outside the scope of the appeal or protest.  So ultimately, it is within the power of the court in the second instance to conduct an investigation concerning a defendant’s confession, regardless of the elements of Article 12.

• What about cases outside of the formal criminal justice system? Flora Sapio, an expert in Chinese criminal law, noted in her analysis of the new regulations that the Regulations apply only to formal criminal cases; the Regulations offer no protection to individuals in criminal-like situations, such as Re-Education Through Labor (RETL) and drug rehabilitation, both administrative cases, not criminal ones.  The new regulations offer no protection to individuals being tried in these areas of law.

The “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” were drafted in order to better implement the Chinese Criminal Law’s prohibition against torture of suspects.  But ironically, the Regulations themselves are relatively vague and their strength will only be determined through their implementation.  If defense counsel does not raise the issue of an illegally-obtained confession (with CL Article 306 defense counsel has the incentive not to protest the confession as discussed in the previous post), or if the court does not give greater life to Articles 6, 7 and 12, then the Regulations will have little impact.  But given that there are some in the legal field that are working hard to provide for greater justice and rule of law in the Chinese criminal justice system, there is hope that perhaps something can happen with these Regulations.  A small hope, but hope nonetheless.

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By Elizabeth M. Lynch, June 2, 2010

China’s new criminal justice regulations or a paper tiger? You decide

It is rare to wake up in the morning, turn on the computer and find that China just made huge changes to its criminal procedures, and in a positive way.  But that was exactly where I found myself Tuesday morning when I saw that China passed two new criminal justice regulations, one of which attempts to stem the tide of the increasing use of confessions obtained through torture.

Torture of criminal suspects in order to obtain a confession remains a common practice in China as the confession is usually the key piece of evidence in criminal trials.   But as a signatory to the United Nations’ Convention Against Torture, such action is nominally illegal in China.  Article 43 of China’s Criminal Procedure Law (“CPL”), forbids the use of torture or coercion in obtaining statements or evidence and in the Supreme People’s Court’s Interpretation of the CPL (“SPC Interpretation”) – a document meant to provide greater detail to the vaguely drafted CPL – Article 61 states that evidence obtained through torture cannot be used as the verdict’s basis.

But neither of these provisions directly discusses the actual admissibility of this illegally obtained evidence, and the SPC Interpretation is only applicable to judicial bodies, not administrative organs such as the police or the state security bureaus.  Because current law is silent on its admissibility, confessions obtain through torture, while nominally illegal, are routinely used in criminal cases.  And the danger associated with such methods, namely the risk of sentencing an innocent person to prison or even death, have been increasing.  Just this month, Henan farmer Zhao Zuohai was released from his 11-year prison sentence when the man he was found guilty of killing, returned alive to their village.

Zhao’s story is not a one-off event, and such occurrences usually receive a tremendous amount of media attention, causing the Chinese public to be critical of the criminal justice system, question its validity, and, as a result, frighten the Chinese government.  There have been rumors of reform for the past few years, and on Monday morning such reforms were adopted.  The SPC, the Supreme People’ Procuratorate (SPP), the Ministry of Public Security (MPS), the Ministry of State Security (MSS), and the Ministry of Justice (MOJ) released two new regulations: “Regulations on Examining and Evaluation Evidence in Capital Cases” and “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases.” The Regulations on the Exclusion of Illegally Obtained Evidence goes the furthest in providing greater protection of criminal suspects and, through various procedural safeguards, attempts to eliminate the use of torture in obtaining confessions.

The reforms, which seem to be taken directly from a Law & Order episode, are rather sweeping and sophisticated, and

Forget about LA. Next Stop, Law & Order: China!

if implemented, can successfully eliminate torture and provide for greater justice.  But that’s the catch: in a system where more than 70% of defendants go without counsel and in the few cases with counsel, obstacles to effective representation abound, will such reforms really mean anything?  Because the regulations have yet to be publically published, the analysis below is based upon a summary provided to the Chinese media by Prof. Fan Chongyi, noted criminal law professor at the China University of Politics and Law and participant in drafting the reforms.

(1) Oral testimony that is the result of torture may be excluded from evidence.    Oral testimony that was the result of improper procedures, such as when only one investigator partakes in an interrogation [the law requires at least two interrogators], does not necessarily have to be excluded if it can be corrected.

Although this regulation certainly clarifies that courts may exclude confessions obtained through torture, the new regulation in no way creates an absolute “exclusionary rule.”  Instead, by using the term “may,” the regulation largely leaves it in the hands of the courts to decide whether to admit evidence obtained through torture.  Given the lack of judicial independence and the power of local security bureaus in China, it is questionable if local courts, when pressed by more powerful forces, will in fact exclude confessions based on torture.  Additionally, in cases where improper procedure was used, it is unclear what would need to be done to “correct” the issue and allow for the testimony to be admissible.  Perhaps the regulations, when officially issued, will clarify this.

(2) The defendant and his attorney have the right to request a pre-trial hearing concerning an illegally obtained confession.  The court may request that the defendant or his lawyer provide the names of the alleged officer involved in the illegality, the place, the time, the method used, the content of the illegality, and anything else related to the claim.

In a society with few rights for defendants, this regulation explicitly providing for the right to raise the issue of admissibility is rather extraordinary.  Additionally, the regulation calls for a pre-trial hearing to determine whether illegally obtained evidence should be admitted.  By separating the decision concerning the admissibility of the evidence from the actual trial, the regulation attempts to guarantee that the illegally obtained evidence in no way influences the final verdict.

By giving the defendant the right to question the admissibility of evidence, the regulation raises a bigger issue: when most defendants are not represented by counsel, who will inform the defendant of his or her rights?  Presumably in a situation of a confession obtained through torture, neither the police nor the prosecutor has much interest in informing the defendant of his right to attempt to invalidate the confession they just worked hard to obtain.  The alternative, that the court informs the defendant of his or her right, does not appear to be mandated by the regulations, making it questionable if the court will, on its own initiative, inform the defendant.  Given the pressures on the court as discussed in point 1 above, such action appears unlikely.

But even with a lawyer, a defendant will still have difficulty in raising the issue of a coerced confession.  A defendant’s changing his testimony, even if the prior confession was in fact the result of torture, is not in the self-interest of his attorney.  Article 306 of China’s Criminal Law (CL) provides criminal liability, and a prison term of up to seven years, to lawyers who entice their clients to change their testimony in opposition to the facts or to give false testimony.  While the overarching purpose of the sanction – to ensure that lawyers do not encourage their clients to lie – is laudable, Article 306 has been used by police and prosecutor as a way to intimidate defense counsel from questioning the validity of any confession, even when torture is obvious.  And this is not an idle threat.  This past year, after a high-profile case representing an organized crime syndicate in Chongqing, criminal defense attorney Li Zhuang was charged with violating Article 306 by advising his client to recant his confession on the basis that it was obtained through torture.  Li was eventually found guilty and sentenced to one year and six months in prison.  Thus, as long as there is Article 306, there remains an incentive for lawyers to advise their clients NOT to recant their confession.

Finally, while the regulation’s designation of a pre-trial hearing to determine the admissibility of illegally obtained evidence is a step in the right direction, such a pre-trial hearing is meaningless if the judge deciding the admissibility of the evidence is the same judge that will determine the guilt or innocence of the defendant (in China, judges determine guilt; there are no juries).  Having the same judge decide both would defeat the purpose of attempting to prevent illegally obtained evidence from influencing the trial portion.  It will be interesting to see if the officially published regulations will clarify this issue.

(3) After the defendant or his lawyer raises the issue of illegally obtained evidence and provides the details required by the court [see point 2 above], the burden of proof then switches to the prosecutor to show that the evidence was obtained legally.

This regulation is perhaps the most impressive in that it is also the most sophisticated.  Burdens of proof are

Prosecutors await trial in China

difficult concepts to understand, and knowing when to switch the burden from one party to another, can give an otherwise ineffective rule teeth. The law seeks to switch the burden of proof to the party that has the greatest opportunity to determine the truth.  Here, as China correctly notes, that party is the prosecutor.  The prosecutor, in working with the police and at times as part of the interrogation, has the best opportunity to demonstrate the admissibility of the confession.

Additionally, switching the burden of proof can also create an entirely new incentive structure to prevent the illegal behavior from ever occurring.  Here, China utilizes this concept.  Once the prosecutor has the burden of proof to show that evidence was obtained legally, he or she will seek to have procedures in place to guarantee that the police do not violate the law in obtaining evidence so that if the defendant raises the issue, the prosecutor can win.  For example, while there has been a few cities in China that have experimented with videotaping police interrogations, this practice has largely remained isolated.  But, with the switched burden of proof, prosecutors all across China will seek to implement methods to guarantee that confessions are obtained legally, and may seek to pressure their police counterparts to begin recording all interrogations. This regulation could potentially change the way interrogations are performed and recorded, reducing the risk that torture is used.

However, it is still subject to the criticism noted in points 1 and 2 above: will the court decide to exclude evidence even if illegally-obtained since it is not required to do so and will the defendant even know to act upon his or her rights?  If the answer is no, then the incentives created by the switched burden of proof remain irrelevant.

(4) The interrogator (usually the police or the prosecutor) must appear in court and testify.

While this might seem mundane to most Americans, as Prof. Fan notes, for China, this is pioneering.  In China, there is very little live testimony during criminal trials.  Just forcing someone to actually appear and testify in court is radical.  Having that person be a police officer is even more shocking.  In China, the state security apparatus is a powerful body and far outranks the courts or the nascent criminal defense bar.  The fact that the MSS and the MPS agreed to this regulation is certainly surprising and raises a red flag: has the MSS and MPS really agreed to give the courts power over their employees?

Again, the criticism of the new regulations noted in point 1 and 2 are applicable here as well.  Will we even reach the point that there is a hearing questioning the legality of evidence?  Likely not.  But regardless of those issues, the regulation itself seems to be without any bite.  Unless the officially published version expounds upon this regulation, there are no procedures in place to determine which party can call the police office to testify or whether defense counsel will be permitted to cross-examine the police officer, both necessary to guarantee that the regulation is effective.

(5) In regards to illegally obtained physical evidence, if the illegally obtained evidence has the potential to influence the fairness of the trial, then it should be excluded unless there is a reasonable reason for the illegality or it can be corrected.

This regulation is perhaps the vaguest, and thus weakest of them all; it appears to be inspired by the U.S.’ “fruit of the poisonous tree” (FPT) doctrine.  Under the FPT doctrine, other evidence discovered as a result of an illegal search or interrogation is also excluded.   For instance, after an illegal search of a house (the poisonous tree) a key to a locker is found and in that locker is the murder weapon (fruit), that murder weapon will also be excluded.  An exception exists if it can be shows that the discovery would have been inevitable or the discovery would have been made through an untainted source.

China’s regulation here seems to adopt the spirit but not the substance of the FPT doctrine, by only looking to the FPT exceptions.  In the U.S., the exceptions to the FPT doctrine are only applied to the fruit; no exception is made for the poisonous tree.   Here, China applies similar exceptions to the actual tree, to the evidence that was obtained directly as a result of the illegal violation.

This regulation is further weakened by the fact that these terms “reasonable reason” and “corrected” are left completely undefined.  Courts are left to their own devices to determine what these terms mean, a situation that was suppose to be avoided by these new regulations.

China’s “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” is impressive and provides the architecture necessary to guarantee greater fairness in China’s criminal trials by excluding evidence obtained illegally.  The sophistication of some aspects of the new regulations reflects China’s increasing understanding of the need for effective procedures in order to give meaning to its legal principles.  However, these regulations should be viewed as a step toward greater progress; China has only stuck its foot in the water; it has yet to jump fully in.  China needs to find solutions to the systemic problems plaguing its criminal justice system. Unless China makes efforts to foster a vibrant criminal defense bar, provide access to attorneys early in criminal investigations, and takes steps to create a judiciary independent from the state security and Party apparatus, the new regulations will likely have little impact in the short-term.

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By Elizabeth M. Lynch, April 20, 2010

On Monday, I posted my take on the Rio Tinto trial which elicited significant response from China law scholars.  I was lucky to have a very thoughtful response from Prof. Vivienne Bath of the University of Sydney and Director of the Centre for Asian and Pacific Law at the University of Sydney.

Prof. Bath has a different perspective on the Rio Tinto trial and you can find her comments below.  She also points out two mistakes that I made in the original article.  In the original article, I state that foreign press was permitted into the bribery portion of the trial.  This is incorrect.  They were only permitted access to the verdict and sentencing portion.  A second mistake is that I state that there was live witness testimony; there was not.  There was only the presentation of written testimony; not actually live witness testimony.  I have made these corrections to the original article and my apologies to the readers.

I thank Prof. Bath for her response to my article and for giving me permission to post it to China Law & Policy to offer a different perspective.

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By Elizabeth M. Lynch, April 19, 2010

Originally Posted on Foreign Policy Digest

Developments

Last summer, the billion dollar steel industry watched in rapt attention as China cracked down on one of its own.  On July 5, 2009, Chinese authorities in Shanghai detained four employees of the Australian mining company Rio Tinto, then later sentenced them to prison terms ranging from seven to fourteen years.  Many China watchers and industry insiders considered the sentencing and charges of bribery and commercial espionage to be retaliation for the recent tough iron ore pricing negotiations, and Western media were quick to portray the Rio Tinto incident as a reflection of China’s irreverence toward rule of law and its politicization of the legal system for corporate advantage.   However, in examining the Rio Tinto case, the Chinese prosecutors followed legal procedure more precisely than they do in most ordinary criminal trials in China.  While there may have been some misuse of criminal process for corporate gain, it appears that the Australian government and Rio Tinto itself may have acted as passive accomplices in its politicization.

Background

Rio Tinto is keenly aware of China’s importance in its operations.  In 2009, China’s imports accounted for $10.56 billion, or close to a quarter of Rio Tinto’s overall profits.  With China as one of the few countries still growing during the global finical crisis, it is no wonder that Rio Tinto’s 2009 Annual Report listed “strengthen [its] relationship with China” as a key strategic goal for 2010.

In China, it is neither unusual nor unlawful for suspects to be detained without being officially arrested or charged with a crime.  Article 69 of the Chinese Criminal Procedure Law (CPL) permits authorities to detain a suspect

Stern Hu

without arrest for up to 30 days in certain instances—one of which is in cases with multiple suspects.  When the four employees were detained by Chinese State Security officials on July 5, 2009, Stern Hu—an Australian citizen—Wang Yong, Ge Mingqiang, and Liu Caikui appeared likely to be charged with stealing state secrets, a grave offense under the Articles 111 and 113 of the Chinese Criminal Law (“CL”) that can carry a life or, even death, sentence if convicted.  State secret trials are particularly nontransparent; the trial is completely closed, with even the defendant’s lawyer excluded.  However, upon their official arrest on August 12, the four Rio Tinto employees were not charged with stealing state secrets; instead all four were charged with the lesser crimes of stealing corporate secrets and commercial bribery, which carry prison terms of three to seven years and five years, respectively.  There is a thin line between stealing state secrets and stealing corporate secrets when the entity involved is a state-owned company, as are most Chinese steel companies.  But, given Stern Hu’s Australian nationality, it was crucial to Sino-Australian relations that China make such a distinction in this case.  On February 10, 2010, a three-judge panel in the Shanghai Number One Intermediate Court agreed to accept the case, and the four employees were officially indicted.

While in custody, the four employees received support from both Rio Tinto and the Australian government.  Sam Walsh, chief executive of Rio Tinto’s iron ore operations, remained confident in his employees’ innocence and repeatedly expressed his concern over the charges.  Australian officials who paid consular visits to Hu, as mandated by the China-Australia Agreement on Consular Relations (the “Consular Agreement”), continued to discuss the case with the press, and the Western media remained actively interested in the case, wondering how the Chinese government was going to execute what was perceived as trumped up charges against Rio Tinto employees.

Australian Consul-General Tom Connor (centre) makes a statement to the media outside the Shanghai No. 1 Intermediate People's Court in Shanghai, on March 22, following the first day in the trial of four Rio Tinto employees.

In a surprising turn of events, on March 22, 2010—the opening day of the long-awaited trial–all four Rio Tinto employees pled guilty to accepting bribes totaling $13 million.  In accordance with the Consular Agreement, an Australian consular official was allowed to attend the bribery portion of the trial.   Domestic press was given access to the trial, but with only guilty pleas, there was little to report.  Foreign press was excluded.* After the guilty plea, Rio Tinto and the Australian government, the only two Western entities that have seen the actual evidence that caused the four to plead guilty, stated that there was enough evidence to support the bribery charge.  But this allegedly “clear evidence” has not been made public, making it impossible to evaluate its credibility.

On the second day of the trial, the Court tried all four defendants in a closed-door trial on the charge of stealing commercial secrets.  Even Australian consular officials, who are permitted to attend all trials under the Consular Agreement, were denied entry.  After concluding the trial on March 24, the Court reached its verdict on the following Monday, March 29, 2010.  With Stern Hu’s wife in the courtroom–the first time she had seen her husband since the day he was taken away by authorities–the Court found all four defendants guilty of stealing commercial secrets.  In accordance with Chinese practice, sentences were immediately handed out: Stern Hu received a total of 10 years in prison, and Wang Yong, Ge Mingqiang and Liu Caikou received fourteen, eight and seven years, respectively.  All of the sentences were within the timeframe allowed by the Criminal Law.

Analysis

The Rio Tinto case makes clear that the Chinese criminal justice system could use improvement, particularly in regards to the public’s access to evaluate the evidence in non-closed trials.  But it is not the grave travesty the Western media portrays it to be.  In many ways, the Rio Tinto employees were given more protection of the criminal law than must ordinary Chinese defendants.  The Rio Tinto employees were all given access to defense counsel; Stern Hu met with his attorneys on ten different occasions before trial. In China, most defendants are unrepresented and the few who retain an attorney usually have no access to that attorney prior to trial.  Additionally, the Rio Tinto commercial secrets trial lasted two days, one day longer than most trials in China, with examination of evidence, including statements from witnesses.  In China, most criminal cases rely solely on a defendant’s confession with little to no other evidence.*

But the Western media has been particularly focused on the closed commercial secrets portion, with some arguing that the closed trial violates Chinese domestic law (see here and here).  Indeed, Article 152 of the CPL states that criminal trials, except for those involving state secrets or personal private matters, are open to the public.  However, the CPL is not the only instructive document.  The Supreme People’s Court (SPC), China’s highest court, issues binding interpretations to clarify the law.  Article 121 of the SPC’s “Interpretation of the CPL” maintains that in cases involving “business secrets,” the court may close the trial if a party requests it.  The Interpretation does not say that “party” is limited to either prosecutor or one of the defendants in the case; presumably any party with an interest in the secret may request the closure.  In this case, Rio Tinto, the Chinese steel companies involved, or the Chinese government, all of whom likely have reasons to keep the public out of the seedy affairs of iron ore pricing, likely requested a closed trial.

However, it is problematic that an Australian consular officer was excluded from the corporate secrets portion of the trial, and equally disturbing that the Australian Foreign Minister would neglect to discuss or criticize the Consular Agreement violations after the verdict.  The Consular Agreement is clear that an Australian consular official is permitted to attend all trials involving Australian citizens in China.  China’s claim that “judicial sovereignty” necessitated the closing of the commercial secrets portion of the trial is specious at best and leaves China open to the Western media’s assertion that the Rio Tinto case was purely political.

Yet, there is also reason to question the roles of Rio Tinto and the Australian government in the politicization of this case.  From the beginning, when the charges were changed from state secrets to commercial secrets, both the Australian government and Rio Tinto likely exerted pressure on the Chinese government, taking advantage of the political nature of the Chinese legal system which the Western media has criticized China for.

Sam Walsh, Rio Tinto's Iron Ore Chief

After the four employees were found guilty, Rio Tinto was quick to report that while “clear evidence” showed beyond a doubt that the four employees had accepted bribes, all bribe-taking was conducted outside of Rio Tinto.  It seems difficult to believe that a $13 million bribery scheme, presumably resulting in cheaper prices for iron ore for Chinese steel makers or more iron ore sold to a preferred Chinese steel maker, would leave not a single trace of evidence on Rio Tinto’s systems – not a single email or a price discrepancy or any evidence that more iron ore was being sold to one steel company, nothing. Also, as others have pointed out, with regard to the charge of stealing commercial secrets, one must wonder, who was the ultimate beneficiary of the theft?   Although evidence in the commercial secrets theft is not public, during sentencing the Court stated that the Rio Tinto employees obtained secret information about the China Iron and Steel Association’s “next price for upcoming iron ore negotiations.”  In other words, the limit one can charge the Chinese steel industry for iron ore.  This is information that Rio Tinto the company would want but would be less valuable to individual employees such as Stern Hu.

There are other legal tools to use to find out this information, but it appears that the Australian government has chosen not to use them.  Under Australian law, bribery of foreign officials by an Australian company and its employees is illegal and can be prosecuted in an Australian court, even if the bribery happened abroad.  Here, the Rio Tinto employees were convicted of stealing commercial secrets.  While one could steal commercial secrets by burglarizing someone’s office or hacking into their computer, it is most likely that the Rio Tinto employees obtained the secrets from someone on the inside of China’s state-owned steel industry.  It is most likely the Rio Tinto employees paid for this type of information, which is not easily attainable or free.  Such an act would be in violation of Australia’s criminal law prohibiting bribery of foreign officials and could subject Rio Tinto to large monetary penalties.  But the Australian government has made no overtures of either investigation or prosecution of other Rio Tinto employees or Rio Tinto itself.

China’s legal system is far from perfect; greater transparency could result in a more reliable legal system, less vulnerable to censure.  In this case, allowing the public to see the evidence relating to the bribery charges and giving some sort of an explanation for closing the commercial secrets portion of the trial could have been useful.  But, ultimately, the Rio Tinto case is not the poster child for China’s retreat from rule of law or for the danger of foreign companies doing business in China.  Instead, this case makes clear that the oft quoted adage by lawyers that “bad facts make bad law” is equally as apt to the press: “bad facts make bad journalism.”

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* Corrections were made to the original article to better reflect the facts (see here).  The author still stands behind the views expressed in this article.

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By Elizabeth M. Lynch, March 17, 2010

A true test of any criminal justice system is how it treats its most vulnerable and perhaps one of the most vulnerable groups in any society is the mentally ill.  Shunned by many in the world and often incapable of asserting their rights when questioned by police, the mentally ill are often left unprotected.  In its almost 250-year existence, the United States has come a long way in protecting the rights of the mentally ill but not without a struggle.  While the insanity defense and competency to stand trial have long been a part of Anglo-American jurisprudence, the requisite procedures to evaluate mental illness are of more recent provenance.

Given our difficulty, how does country like China, with a criminal justice system that has only been around for 32 years, handle mentally ill suspects and defendants?  Prof. GUO Zhiyuan (pronounced Gwo Zhir-yooan), Associate Professor of Law at the China University of Political Science and Law, has answered that question in her recent article “Approaching Visible Justice: Procedural Safeguards for Mental Examinations in China’s Capital Cases (Hastings Int’l. and Comp. L. Rev., Winter 2009).

With the first candid examination (at least in English) of the interplay between the Chinese Criminal Law and the Chinese Criminal Procedure Law, Prof. Guo shows us that while the law ostensibly protects the mentally ill, there is a lack of procedural protections.  If the defense attorney doesn’t have the right to call for a mental examination of his or her client, what good is an insanity defense?  Prof. Guo examines these issues and offers potential reforms in Approaching Visible Justice.  From our own experience, protecting the mentally ill is not an easy task, but with scholars like Prof. Guo working on this issue, there is the possibility that China is not far from offering similar protections.  Below is an interview with Prof. Guo discussing her recent article and the plight of the mentally ill in the Chinese criminal justice system

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EL: Does the Chinese criminal law have special protections for the mentally ill?  Is there an insanity defense like there is in the U.S.?  In what other ways does mental illness come into play under China’s criminal law?

GZY:  Yes, Chinese criminal law does have special protections for the mentally ill.  Article 18 of the Criminal Law of the PRC [People’s Republic of China]states:

“If a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility. . . . If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.”

Although defendants with mental illness do not bear criminal responsibility, Article 18 of the Criminal Law of the People’s Republic of China stipulates that:

“his family members or guardian shall be ordered to keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment.”

Article 18 also emphasizes:

“[a]ny person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.”

This is the same as in the American model, where the mental status at the time of crime is relevant in determining criminal responsibility.

EL: How does a defendant or his lawyer, make a claim that he is mentally ill and thus subject to the laws protections?   Does the defendant or his lawyer call for a mental examination?  Who pays for the mental examination?

GZY: In China, only the police, the prosecution or the court can decide to conduct a mental examination. Neither the defendant nor his lawyer can  initiate an evaluation; they also cannot apply to the judicial agencies for one; they can only apply for supplementary evaluations or re-evaluations after an officially-initiated examination has produced results. To my knowledge, both the officially-initiated mental examinations and the supplementary evaluations are conducted at the State’s expense, but when the defendant or his lawyer successfully initiates a re-evaluation, they retain mental health experts at their own expense.

EL: If you could redesign China’s criminal law and criminal procedure law, what would you change so that China best protects the mentally ill when they interact with the criminal justice system?  In other words, what would the ideal system look like?

GZY: I don’t see anything inappropriate in the provision in China’s Criminal Law, but it’s necessary to reform the Criminal Procedure Law of China. To be exact, procedural safeguards should be added to the current Criminal Procedure Law in order to put Article 18 of China’s Criminal Law into practice. It seems to me that the ideal system should, at the very least, adopt the following seven proposed reforms: First, for all capital cases, a mandatory pretrial examination of defendants’ mental status should be required at the State’s expense.  Second, the defense should be entitled to retain its own mental heath professionals who are allowed to witness and participate in this proposed mandatory mental examination or any other mental examinations initiated by the prosecution. Third, the defense’s right to initiate its own examination should be granted and respected.  This would be the most important change if it does occur.  Fourth, both parties should have a right — not just the defense — to confront the opposing side’s psychiatrist or other mental health examiner; this right should be guaranteed. Fifth, the indigent defendant should be entitled to psychiatric assistance at the State expense; this would ensure equal treatment among defendants with different financial means. Sixth, to address the problem of conflicting expert testimony, an additional impartial psychiatrist should be appointed by the court to perform another independent assessment.  This would aid the court in determining the mental condition of the defendant. Finally, effective assistance of counsel should be emphasized in those capital cases involving mentally disabled defendants.

EL: In China, sometimes a lawyer is held liable for the acts of his client (e.g. when a client perjures himself his attorney could be held liable).  Does a defense lawyer get into trouble if his client pleads “not guilty for reasons of insanity” and is found not to be insane?  Will the lawyer be censured?

GZY: Although it’s very easy for a defense lawyer  to get into trouble if his client withdraws a confession he made to the police, cases are very rare in which a lawyer gets into trouble because his client was found sane after pleading “not guilty for reasons of insanity.”

EL: In the U.S., mentally ill defendants don’t often receive the public’s sympathy.  But in your article, you discuss the

Mug Shot of Yang Jia and the murder weapon

case of Yang Jia, a man who stormed a Shanghai police station and killed six police officers after he had been harassed by the police.  The Chinese public was largely sympathetic toward him – do you think this was because people felt sorry for him because he was mentally ill?

GZY:  No. Although many thought that Yang Jia was insane, whether he was actually mentally ill or not would have depended upon further serious assessment by qualified and impartial professionals.  In Yang Jia’s case, the Chinese public was largely sympathetic towards him for the following reasons. First, with the public’s increasing awareness of their legal rights, police misconduct – which, of course, is not a uniquely Chinese problem – has met with unprecedented condemnation, and the call for judicial fairness has become more and more intense in these cases. The motive behind Yang Jia’s attack  –avenging past police misconduct – played directly to this sentiment. Second, there were a number of procedural flaws in Yang Jia’s case, such as lack of transparency, conflict of interest, and serious problems regarding  the mental examinations. The general public just seized on Yang Jia’s case as an opportunity to express their anger at police violence and to voice their demands for a more fair criminal justice system.

EL: Do you think there is increasing sympathy toward mentally ill defendants in China?  Are attitudes changing?  How are attitudes changing?

GZY: Yes, more and more attention is paid to mentally ill defendants in China, especially after a series of relevant high-profile cases such as Qiu Xinghua’s, Yang Jia’s, and Akmal Shaikh’s cases.  The general public has being changing their indifferent attitudes towards mentally ill offenders; more and more people have realized it’s essential to establish a fair judicial system to prevent the state from punishing the mentally ill.  For this transformation, open information has played an important role.

EL: Thank you Prof. Guo for your time and your insights on a very important issue in every criminal justice system.

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By Elizabeth M. Lynch, December 28, 2009

The Guardian has reportedthat Akmal Shaikh was executed by leathal injection at 10:30 AM local time on Tuesday, December 29 (9:30 pm Monday EST).

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By Elizabeth M. Lynch, December 28, 2009

The Times Online is reporting that Akmal Shaikh will be executed tomorrow morning, Tuesday, December 29 at 10:30 AM local time (9:30 pm, Monday, EST).  Mr. Shaikh will be executed in Urumqi, the capital of the Xinjiang Autonomous Region.  After being held for more than 2 years without any family contact, Chinese authorities allowed two of Mr. Shaikh’s cousins to visit him in his hospital room.  A group from the British Consulate has also paid a visit to Mr. Shaikh.  High level discussions between the British and Chinese governments are continuing, with the British government requesting clemency or at the very least expert testimony regarding Mr. Shaikh’s mental illness. 

While the Chinese government has maintained that the case was handled according to law, no expert evidence was permitted to be submitted regarding Mr. Shaikh’s mental state.  Instead, the lay opinion of judges was used to determine that Mr. Shaikh suffered from no mental illness. 

If the Chinese government really wants the rest of the world to respect its courts and not view them as mere kangaroo courts, they themselves have to first respect their own laws, something that was absent in Mr. Shaikh’s case and other criminal cases involving mental illness.  The Chinese Criminal Law offers protections to the mentally ill.  But without procedures in place to examine a defendant’s mental state by professionals, these laws are conveniently rendered meaningless. 

Protection of the mentally ill would not just be helpful to Mr. Shaikh, but would also prove beneficial to the multitude of mentally ill Chinese defendants that interact daily with China’s criminal justice system.  While the Chinese press and the Chinese government seems to think that Mr. Shaikh’s execution will be a victory for rule of law in China and a repudiation of the extra-territoriality that existed in China in the late 1800s, in reality it will prove to be a lost opportunity for the Chinese people.