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By Elizabeth M. Lynch, October 10, 2011

Over at the US-Asia Law Institute’s blog, research fellow, Jeremy Daum has just published a thought provoking article on the Zhang Guoxi case, the first case to publicly – and perhaps most effectively – use China’s exclusionary rule to exclude evidence that was obtained through torture.

In June 2010, China surprised the world by issuing detailed rules on the use of evidence obtained through torture, essentially excluding it as the basis of conviction when the prosecutor could not show that the evidence was obtained legally and without torture.  China Law & Policy blogged about these new rules here and here.

On paper, the new rules provided hope that the police would reign in their ardent use of torture as a means to obtain a conviction.  But in practice, it appeared that the courts, the enforcers of the new exclusionary rules, had little institutional power to control the more powerful police and prosecutor’s offices.  This fear appeared to be realized when the Supreme People’s Court, a few weeks after the Rules’ adoption, chose not to apply them to overturn a death sentence that appeared to be based on a confession obtained through torture.

But as Daum describes below, a trial court in Ningbo has done what scholars thought was impossible – use the exclusionary rules to deny the use of a suspect’s confession where the prosecutor was unable to, or more aptly was too arrogant to provide evidence that the confession was obtained legally.

The Ningbo trial court did not just stop there.  Instead, the trial court issued a clear and transparent opinion on its decision, reflecting its reliance on the letter of the law concerning the new exclusionary rules. As Daum notes below, in China such an opinion from a trial court is rare making Daum wonder, what impact will the appellate court’s decision (the decision has now been appealed to the intermediary court), and the public’s response, have on the Chinese government’s impending adoption of an amended Criminal Procedure Law (“CPL”).

Below is an excerpt of Daum’s interesting article with a link to the full version.

 

Zhang Guoxi Case: a simple case of bribery?

Excluded : The Zhang Guoxi Case

By Jeremy Daum
Research Fellow, US-Asia Law Institute, NYU Law School

Normally, ‘dog bites man’ is not news, but in the generally bleak climate for reform that pervades China’s criminal justice system, a story of “judge upholds law” has gained some traction in the Chinese media. As Chinese and foreign experts scrambled to absorb new draft revisions to China’s Criminal Procedure Law (CPL) in time to offer their opinions during the single month allotted for public comment, another less publicized story was also making waves in the legal community. A trial court in Ningbo has been hailed as the first to give full force to rules on the exclusion of illegally gathered evidence jointly introduced slightly over a year ago by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice and top law enforcement agencies (“the Rules”), by excluding a confession and allowing a defendant to go unpunished…

…The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation….

….What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law.

Read the full article here.

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By Elizabeth M. Lynch, May 30, 2011

China's Jasmine Revolution?

In February 2011, the Chinese government began a quick and widespread crackdown on Chinese rights-defending (“weiquan”) lawyers and activists, abducting many for days to months on end, some subject to torture while in government custody.  The general narrative that has emerged to explain this recent crackdown is the Chinese government’s fear that an Egypt-like democratic revolution could occur in China, overturning the Chinese Communist Party’s one-party rule.

Make no mistake these extrajudicial abductions are not permissible under Chinese criminal law and like other countries, there are laws in China that restrict the government.  Under Chinese Criminal Procedure Law (“CPL”), a detention warrant issued by a public security organ must be presented when an individual is taken into custody (CPL Art. 64); either the family members or the employer of the detained individual must be informed of the reasons for the detention within 24 hours (CPL Art. 64); the first interrogation of the detained person must be conducted within the first 24 hours (CPL Art. 65); after the first interrogation, the detained person has the right to retain a lawyer and the lawyer has a right to meet with his or her client (CPL Art. 96 – note that this provision makes it legal for the first interrogation to be conducted without a lawyer present); and after 37 days in custody, the detained individual must either be arrested or released (CPL Art. 69).  Additionally, Article 238 of the Chinese Criminal Law criminalizes any unlawful detention or deprivation of personal liberty, imposing a harsher criminal sanction on state functionaries.

So the question remains, if the Chinese government just flouts these laws, why does it bother?

Rule of Law in China?

And what does this say about its progression toward a rule of law, a progression the Chinese government maintains is its goal?

Prof. Donald Clarke of George Washington University Law School came out with a rather thought-provoking essay last Thursday, seeking to answer some of these questions, and put China’s ‘rule of law’ development in some sort of perspective.  In “China’s Jasmine Crackdown and the Legal System,” Prof. Clarke dispenses with the conventional idea that China was ever on the path toward a rule of law.  Defining a rule of law as a system “where there are meaningful restraints on the powers of government” and that “those in power cannot do simply as they please,” Prof. Clarke maintains that the Chinese government never had the intention to be held accountable; its quest toward a “rule of law” for the past 30-odd years has just been about creating government efficiencies.  In 1978, to become a successful market economy, the Chinese leadership had to create some legal system since Mao had all but dispensed with law by the end of the Cultural Revolution (1966-1976).  But while these developments in the economic-legal sphere might have the looks of a rule of law, scholars are wrong to think that it was ever the government’s intention to be held accountable under a true rule of law system.  Many of the Chinese government’s recent actions, including the crackdown on rights-defending lawyers, exemplify the leadership’s anti-commitment to a rule of law.

Rights-defending Lawyer Li Tiantian

There is something to be said for Prof. Clarke’s assessment and in many ways it is accurate: the leadership appears unwilling to allow anything it deems “political” to be handled by the legal system and this appears to explain its harsh assault the past few years on rights-defending lawyers.  It’s commitment to a “rule of law,” a commitment it repeatedly states in various US-China dialogues, seems specious if it does not allow a space for rights-defending lawyers.  But Prof. Clarke’s analysis is very top-down and doesn’t take into effect the rights-defending lawyers themselves.  And this is where the other fascinating essay from last Thursday comes into play, Li Tiantian’s blog post “I was Discharged from the Hospital” (translation courtesy of Siweiliozi’s Blog).  Li Tiantian is a Shanghai-based rights-defending lawyer, taken into custody on February 19, 2011 and held incommunicado for three months, finally released on May 24, 2011.  In a highly allegorical essay, Li Tiantian recounts her captivity:

It’s been a while since I’ve been in touch. First, let me tell you a story.

One day, a hornet worried unreasonably that a little bird would stir up its nest. (As it happened, some distant hornet nests had recently been stirred up.) The hornet grabbed the little bird and began stinging it frenziedly. Unable to bear the hornet’s stings and thinking there was no point to suffering this ordeal, the bird realized that no one would gain anything and that there was no way to change the hornet’s ways. So, the bird kneeled down to the hornet and kowtowed in order to extricate itself. The hornet, knowing that the force of justice was on the increase in the animal world, didn’t dare do anything rash to the bird and came up with a plan that would satisfy everyone. It agreed to release the little bird, but only if the bird promised: (1) not to speak of the past few months; (2) not to damage the hornet’s reputation; and (3) not to urge other animals to stir up the hornet’s nest. Finally the bird was free. (…read more here…)

Li Tiantian’s publication of this blog post soon after her release belies her commitment to any kind of silence concerning her unlawful detention.  The fact that her blog post was pulled – likely by the Chinese government – a few days later is not surprising.  But her brazenness is.  After three months in custody, unable to communicate to the outside world, and subject to heaven’s knows what, Li still feels the need to speak; still feels the need to give push back to the government.

Prof. Clarke presents a government that doesn’t want to give people like Li Tiantian any space; but Li Tiantian has no plans to give up that easily.  True that since many of the lawyers’ release, most have kept out of the spotlight, but will they continue to do so?  And how can the Chinese government expect them to?

Prof. Clarke is right to contend that the Chinese Communist Party is not interested in a “rule of law” if it means that it will contain the Party.  But after 30 years of constantly reiterating – both domestically and abroad – the idea of a rule of law, sending lawyers, judges, and academics abroad to study Western countries’ legal systems, and inviting various foreign legal NGOs to establish offices in China and work with Chinese layers, some belief in a rule of law must have permeated  society, especially for academics and rights-defending lawyers, the beneficiaries of much of China’s rule of law programs.

Prof. Clarke compares the Chinese government to a well organized army: sure there are lots of bureaucratic rules that must be followed, but those rules are not intended to be followed by the commander.  For Prof. Clarke, an army, with all the rules that help it function, is in no way a rule of law society.

But running a society is different from running an army; unquestionable allegiance to hierarchy is not naturally found in society like it is among foot soldiers in an army.  Ultimately, Prof. Clarke’s essay raises another question: while the Chinese government has little interest in rule of law, will these rights-defending lawyers succumb and just disappear?  Li Tiantian’s essay upon her release heavily implies that the answer is no and that among some in China, there is a true commitment to a greater rule of law, even if not found within the ruling party.

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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, 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, 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.

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By Elizabeth M. Lynch, December 22, 2009

British citizen and Chinese death row inmate, Akmal Shaik

The Guardian has just reported that Akmal Shaikh‘s death sentence has been upheld by the Supreme People’s Court, China’s highest court.  An execution date has been set for December 29.  Execution will be by either lethal injection or firing squad.  All of Mr. Shaikh’s legal options have been exhausted and the only remedy left to save this arguably mentally ill man from execution is clemency fromChinese government.

As reported by the Guardian, the British government will be stepping up pressure on the Chinese government to grant clemency.  But given that  in politically sensitive cases  the Chinese legal system merely does the bidding of the Chinese leadership, clemency from a political official is highly unlikely.

While many Chinese officials have claimed that the courts having been following a “rule of law” in deciding this case, they have been using a fairly selective interpretation, only looking to the fact that the importation of drugs into China is a death-eligible offense.  But the issue in Mr. Shaikh’s case is that the Chinese courts have never allowed for a professional determination of Mr. Shaikh’s mental status.  The Chinese criminal law itself protects the mentally ill.  An insanity defense is permitted under Chinese law.  Furthermore, if a defendant’s mental illness does not rise to the level of an insanity defense, the courts are permitted to take into account the defendant’s mental illness during sentencing and are allowed to depart from the statutory requirements.

Although the Chinese law affords these protections, the Chinese courts have consistently refused to adopt procedures that would allow for a defendant to be professionally evaluated.  If Mr. Shaikh is executed, he will be the third  arguably mentally ill individual in the past three years that the Chinese criminal justice system has put to death (and those are the three that the Western media knows of; there are likely more).  What could have been an opportunity for the Chinese criminal justice system to face the fact that there  are no real procedures in place to protect the mentally ill, it has instead squandered.

Mr. Shaikh’s case has made headlines in the U.K.  But in the rest of the world, very little attention has been paid.  Other

Gordon Brown standing alone? Where's the rest of the world?

nations should wake up.  This case, and the world’s reaction to it, will set a precedent.  Every year, China receives more and more foreign visitors, as tourists, business executives or students.  Last month, in his speech at the Shanghai townhall, President Obama announced his goal of sending 100,000 U.S. students to China.  Given these facts, there is increasing likelihood that more foreigners will interact with the Chinese criminal justice system, a system that based on Mr. Shaikh’s case is a far cry China’s own criminal laws let alone actual justice.

The U.K. should not stand alone on this issue; other nations should also be commenting on China’s inability to follow its own laws.  In the past, the Chinese courts have executed arguably mentally ill Chinese citizens (see the case of Yang Jia and the case of Qiu Xinghua) and now the courts will execute an allegedly mentally ill British citizen.  Who will be next?

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By Elizabeth M. Lynch, December 15, 2009

Followers of China Law & Policy will remember the October story of Akmal Shaikh, a mentally ill British man convicted of drug smuggling and sentenced to death in China.  His case, which has garnered a lot of attention in his home country of Great Britain but little else where, demonstrates the difficulties that most criminal justice systems face when dealing with the mentally ill.  However, in China, because procedures have yet to be put in place to protect the mentally ill, the situation is particularly distressing.

Mr. Shaikh’s case is still in the hands of China’s Supreme People’s Court (SPC), China’s highest court.  As of today, the SPC still has not issued a decision.  In our piece from October, we called on the SPC to use this case as an opportunity to flesh out procedures to protect the mentally ill, protections that are normatively found in China’s current criminal law.

On Friday, the Global Time’s English edition published an interesting article stating that British Prime Minister Gordon Brown contacted Premier Wen Jiabao requesting that “mental health considerations” be properly considered in dealing with Mr. Shaikh’s case.  The Global Times did not have to publish this two-paragraph story.  Does the fact that it did mean that it will permit Mr. Shaikh to finally undergo a psychological exam and give its courts a face-saving way to repeal Mr. Shaikh’s death sentence?  Time will tell.  We will keep you informed if any new information about Mr. Shaikh’s case becomes public.