Based on three years of observing China's Criminal Procedure Law (CPL) in operation, including interviews with lawyers, prosecutors, judges and legal scholars and comprehensive review of documentary sources, Human Rights in China (HRIC) has found that the implementation of the CPL has departed substantially from both the letter and the spirit of the law. The following selection, which is part of a longer HRIC report available in book form, examines the role of lawyers in criminal cases and discusses the effect of the new CPL on legal defense.
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More than four years have now passed since the revised Criminal Procedure Law (CPL) entered into force in January 1997. While these revisions have been praised both inside China and internationally for making certain improvements to the human rights protections available to suspects and defendants caught up in Chinas criminal justice system, the practical impact of these reforms has been called into question by the reality on the ground.
Chinese authorities appear unwilling to allow the limited safeguards in the revised CPL significantly to protect rights in practice. They have also refused to act, whether through enacting legislation or administrative rules, to remedy deficiencies in areas where further reforms are very evidently needed. CPL provisions aimed at safeguarding rights have been either watered down in interpretation or violated outright without the authors of the violations suffering any consequences. Loopholes and ambiguities in the CPL have been exploited to the full by law implementation authorities. In certain areas, the new CPL has actually resulted in greater limitations of key rights. This is particularly so as regards the involvement of lawyers in criminal cases.
According to the stipulations of the new CPL, lawyers can perform two different functions in the criminal process: provide legal counsel and defense representation. To safeguard the rights of defendants or suspects, Article 96 of the CPL allows attorneys to provide legal counsel to individuals being detained or questioned. In contrast, the 1979 CPL permitted attorneys to be involved in the process only after the cases were brought before the courts. After cases are transferred to the prosecutors office for prosecution, defendants have the right to hire lawyers to handle their defense. Compared with the old provision, this represents a step forward.
In preparing a defense, lawyers may collect evidence, and have the right to check, take notes from and duplicate the evidence collected by prosecutors. In addition, lawyers have the right to meet with their clients and maintain communication with them. More importantly, lawyers have the right to defend their clients in court trials, including cross-examining witnesses and appealing on behalf of their clients.
Chinas Lawyers Law was promulgated in 1996 and took effect at the same time as the CPL. The Lawyers Law defines a lawyer as a professional who provides society with legal service instead of a state legal worker as in the old provision. This change was intended to allow lawyers to work more independently and to provide more effective legal services.
However, the Chinese media has reported that lawyers involved in defending criminal cases encountered great difficulties when the CPL first entered into force, and continue to be severely hampered in their work, to the extent that many do not wish to take on defense work on criminal cases at all. Some of the key problems are described below.
The 1996 reform of the CPL was hailed as the most significant legislative development in Chinas criminal justice system in nearly 20 years because it expanded the rights of criminal suspects and defendants. According to the revised CPL, crime suspects and defendants can now retain legal counsel upon being questioned or subjected to coercive measures by authorities.
At this stage of the proceedings, lawyers may provide the following services: give legal advice, petition authorities on behalf of their clients, arrange for bail under the provision of taking a guarantee and awaiting trial (qubao houshen) and check with authorities on the criminal charges under which their clients are being held in custody or questioned. Lawyers may also meet with criminal suspects or defendants and learn the details of their cases from them. However, there is ample evidence that lawyers have not been able to fulfill these roles.
According to official investigations, working conditions for defense attorneys soon after the entry into force of the CPL were disheartening. An All China Lawyers Association survey undertaken in 1997 found that lawyers were commonly limited, or even flatly denied, access to their clients while police were investigating the cases in question. In Huangshi City, Hubei Province, lawyers from 15 law firms accepted 108 cases in which legal counsel was requested. However, in only 30 of these cases did lawyers manage to meet with their clients. In one province, from January 1, 1997 to the beginning of 1998, authorities allowed only four requests from lawyers to meet with their clients during the investigation period.
Lawyers have reportedly been denied meetings with their clients under the pretext that the case involved state secrets. The CPL requires that lawyers obtain approval to meet with imprisoned clients in cases involving state secrets, but fails to define this concept. Public security departments and procuratorates may prevent lawyers from having contact with their clients under the Law on Preservation of State Secrets, which stipulates that details of the investigation of crimes are to be protected as state secrets. Although nationwide data do not exist, one article indicated that from January to March 1997, in only one out of the 42 cases handled by an intermediate court in Henan Province was a lawyer allowed to see the suspect during the investigation period. On at least one occasion, officials admitted that some public security departments were denying all requests from lawyers for meetings with their clients citing state secrets. Another report said that during the first five months of the CPLs implementation, lawyers in one city were denied meetings with their clients in 60 percent of all criminal cases. In some cities, the percentage of such cases in which access was denied under the state secrets clause was close to 90 percent of all criminal cases. One lawyer complained that since the CPL entered into force, he had never had the chance to meet with a client during the investigation phase.
Interviews with Chinese lawyers and scholars reveal a concern that local officials have tended to treat all details concerning the investigation of crimes as state secrets. Therefore, in practice any meeting with a criminal suspect under investigation may require formal approval from the authorities. There have been cases where even minor crimes such as reckless driving have been said to involve state secrets.
Sometimes, lawyers requests to visit their clients are rejected for no reason at all. Some reports said that public security departments give no explanation when they decline to grant lawyers applications for meetings. In a few situations, lawyers were told that public security departments were too busy to make any arrangements for such meetings.
Even if they are allowed to meet with their clients during the investigation phase, various restrictions have limited the legal services lawyers can effectively provide. Indeed, the regulatory environment sometimes renders attorney-client meetings virtually meaningless.
Prior to the CPL coming into effect, the Ministry of Public Security drafted implementation rules that stated that meetings between lawyers and suspects, if approved, should ordinarily involve a one-time visit lasting no longer than 30 minutes. The rules further specify that such meetings should not be permitted more than twice. Many authorities, including the public security departments and procuratorates, have reportedly enacted similar rules limiting the number and duration of meetings. In Guizhou Province, regulations set the duration for lawyer-client meetings to between 10 and 20 minutes, while sometimes meetings were to be limited to only five minutes. The provincial public security departments in Shandong and Zhejiang restricted meetings to a one-time consultation lasting no more than 30 minutes. In accordance with a document jointly issued by several law implementation agencies in Xian, Shanxi Province, lawyers could only meet with imprisoned suspects once and for no more than one hour. According to reports, most public security departments imposed limits on the number and duration of meetings either by enacting formal detailed rules or through issuing internally circulated notices.
Often characterized as the right to be present at the lawyer-client meeting, officials insist on sitting in on meetings between lawyers and suspects. Most officials attending such meetings are those in charge of the criminal investigation in question. Their presence naturally has a direct impact on the nature of the conversation. Moreover, some local officials installed video cameras or tape recorders to monitor the conversation between lawyers and suspects. Lawyers and scholars also complain of the official practice of warning, educating and even intimidating suspects in front of their lawyers before the meeting begins. Some investigative authorities even suggest that officials should take advantage of such meetings to crack cases or obtain statements from suspects or defendants.
In some localities, lawyers had to meet with their clients under outrageous conditions. Detention centers generally do not provide sufficient space for lawyers to meet with detainees, and sometimes this has resulted in lawyers lining up to meet with suspects. For instance, in Changsha No. 1 Detention Center, there is only one visiting room for legal consultations, although more than a thousand detainees may be held there. It is common that two meetings are held simultaneously in the same room. In Shiyan City, Hubei Province, meetings are held in an outside yard, while in Xiangyang, there is a glass screen separating lawyers from suspects with a hole in the middle of the glass, so both sides have to speak loudly to make themselves heard. One of the worst places is Ezhou, where lawyers and suspects meet in a metal cage without any chairs inside it. This makes it convenient for officials to monitor the conversation. Under such circumstances, lawyers are not likely to have long consultations with their clients.
The authorities often attempt to censor the content of conversations between lawyers and suspects in advance. Some officials told lawyers they were only permitted to know what suspects had been charged with, while others insisted that any inquiry about details of the case concerned would jeopardize the official criminal investigation. To ensure that lawyer-client meetings did not damage the investigation, some officials required that lawyers submit a written account of what they planned to talk about before holding a conversation with a suspect, and that the meeting be carried out exactly according to the written talking points.
In many detention centers, lawyers are given the responsibility of maintaining security and are required to bring a pair of handcuffs to put on the suspect during their meetings. Furthermore, authorities take every opportunity to charge unreasonable fees for everything from the purchase of application forms (to apply for a meeting or for bail) to making photocopies of various documents.
Lawyers who are retained by suspects or defendants have a duty to defend their clients. Article 33 of the CPL requires that the peoples procuratorates notify suspects or defendants of their right to hire a lawyer within three days after the procuratorates receive cases from the public security departments to review for prosecution. At this point, according to Article 36, defense lawyers should have access to certain case materials collected by the prosecution. Compared to the old provisions, this allows lawyers a much longer time to prepare their defense.
Both the CPL and the Lawyers Law specify that lawyers have the right to collect evidence about the case themselves. After the case is transferred to the courts for trial, lawyers are allowed access to certain materials about the case held by the authorities. During trial, lawyers should be able to cross-examine witnesses, review the evidence presented by prosecutors and conduct legal defense on behalf of defendants. However, in practice, lawyers frequently encounter obstacles in presenting a proper defense for their clients. These obstacles include: restricted access to evidence collected by prosecutors; insufficient power to collect evidence; and inability to cross-examine prosecution witnesses who have provided testimony but who do not appear in court.
Defendants and their legal counsel actually encounter more difficulties in gaining access to evidence collected by prosecutors now than before the CPL was revised. This greatly weakens their ability to prepare an effective defense.
The CPLs formulation of what case materials defense attorneys should be allowed access to is ambiguous. In order to prepare their defense, lawyers have the right to examine, make excerpts from and duplicate litigation documents and technical authentication documents in the prosecutors files, after the case is transferred to the procuratorate by the police for review for prosecution. However, the terms litigation documents or technical authentication documents are not clearly defined. This lacuna leaves authorities with broad discretion to withhold evidence from lawyers. Although some commentators insist that all the major evidence related to the case should be included in the category of litigation documents, and accessible to lawyers, in practice, lawyers have generally not been able to examine any of the evidence collected by the public security departments or the peoples procuratorates. Furthermore, judicial interpretation of what constitute litigation documents has firmly shut defense lawyers out from discovery of official evidence during the prosecutions review of the case.
The revised CPL requires that, after cases are transferred to the court for trial, prosecutors provide courts with a list of the evidence and of the witnesses and with copies of major evidence. Under the old CPL, prosecutors had to submit to the courts all evidence and related materials along with the indictment. If they did not do so, prosecutors ran the risk of the court deciding that the case should be dismissed or returning it to the procuratorate for supplementary investigation. This revision in the CPL was part of trial process reforms that ended the practice of judges reviewing the substance of cases before trial. But without some measures to balance the power of the prosecution, such as a mandatory discovery process, the reform has the effect of greatly weakening the position of the defendant at the trial stage.
Many lawyers report that the rule allowing prosecutors not to submit their evidence to the courts effectively nullifies the right of lawyers to look at the documents and the evidence held by the authorities. It is common practice for prosecutors deliberately to withhold evidence from defendants during the prosecution review stage as well as during the trial phase.
Thus, lawyers are unable to obtain useful information at the prosecution review stage. When the case reaches court, defense lawyers are only allowed to look at the files deposited with the court, which generally contain little more than what they have seen at the earlier phase. Consequently, lawyers are left in the dark on how to prepare a defense. Considering that prosecutors have a disproportionate advantage in collecting evidence and that lawyers are given a short time period to prepare their defense, the adoption of a discovery process which would allow lawyers access to all evidence collected by prosecutors and public security departments and all evidence which will be presented at trial is essential if defense lawyers are to do their job properly. However, there is no sign that the Chinese authorities will establish a discovery system any time in the near future.
Under the new CPL, the right of lawyers to collect their own evidence is severely impaired. According to the law, lawyers may collect evidence from witnesses, units (dan wei), or individuals with their consent. Lawyers must obtain permission from the peoples procuratorates or the courts, as well as the consent of victims, in order to collect evidence from victims or witnesses provided by victims. This curtails the ability of lawyers to prepare a case.
An alternative for lawyers seeking favorable evidence is to apply for a court order to secure the evidence in question. Under Article 37 of the CPL, lawyers may apply to the court requesting the collection of certain evidence should they believe that the evidence in question is critical to the case and they are not able to obtain it on their own. However, courts often dismiss such applications by ruling that the evidence in question is unnecessary or insignificant. There is no recourse for lawyers if a court decides to reject their application for an official collection of evidence. Prior to the enactment of Joint Provisions on the implementation of the CPL, issued by six central government agencies on January 19, 1998, such applications from lawyers often failed. The courts routinely dismissed such applications, or merely issued lawyers with permission to investigate and let them collect the evidence on their own. This practice is in direct contravention to Article 37 of the CPL which requires that the court itself collect evidence if a lawyers application has been granted. This situation has not improved despite the Joint Provisions requirement that the courts abide by the CPL and collect the evidence on the lawyers behalf if they decide it is necessary to do so.
Under these circumstances, the defense in many cases consists only of questioning and rebutting the evidence presented by prosecutors. This generally makes for a weak defense and results in the lawyers efforts not being given adequate consideration by the courts. Some commentators have attributed the ineffectiveness of defense lawyers to difficulties in collecting evidence.
Since lawyers have insufficient access to prosecution evidence and lack the means to collect their own evidence, it becomes critically important for them to have an opportunity to examine the evidence presented during trial. However, lawyers have great difficulty in calling witnesses to testify on the stand.
The absence of witnesses during trial has been a long-standing problem in criminal cases in China. Prior to the enactment of the new CPL, witnesses were rarely called to the stand, and defendants had few chances to confront witnesses by cross-examining them. The revisions aimed to change this situation by stipulating that witnesses shall be present and be subject to cross-examination during the trial.
Complaints that witnesses, especial
ly those who provide authorities with written testimony, are seldom present for cross-examination during trial were widespread among lawyers. Most witnesses are exempted from presence at trial by a decision of the court, even when lawyers have applied for their presence. In cases where witnesses are called by the court, many witnesses ignore the court order and choose to stay away. Although Chinese courts have subpoena powers, no legal penalty has been set for not complying with a courts subpoena. In most trials, the courts proceed only with written testimony provided by prosecutors and leave lawyers no choice but to focus on contradicting the written testimony. In all three trials the authors observed, not a single witness was called. All the trials proceeded with prosecutors and judges reading written evidence and lawyers occasionally raising questions regarding the written testimony. It should be noted that written testimonies need not conform to any formalities such as being given under oath or in a setting where the opponent is given an opportunity to question the witness.
Some attribute the failure to bring witnesses to the stand during trial to the ambiguity of the CPL, since it does not stipulate which side should be responsible for guaranteeing the presence of witnesses. One commentator insists that the laws or regulations should provide the resources and legal guarantees that can secure the presence of witnesses at trial. Others suggest that there should be an appropriate legal penalty if witnesses refuse to attend. Judges often cite safety concerns as an excuse for witnesses not being called to the stand.
In any event, this reality severely prejudices the role of defense lawyers and ultimately the rights of defendants. According to a recent article concerning a total of 293 criminal cases tried in Shenzhen courts from January to September 1997, only 84 cases involved actual witness testimony. In these cases, the courts called a total of 129 witnesses to testify. However, only 16 witnesses actually showed up. Another report states that as few as 30 percent of witnesses called by the courts were present at trial during the period from January to April 1997 in the entire Wuhan area.
Some scholars claim that the percentage of trials in which witnesses are present is below 10 percent. Among 166 criminal cases tried during the first quarter of 1997 in Maoming City, Guangdong Province, there were only 12 cases in which witnesses were present. Shanghais record was no better. From January to April 1997, only five out of 107 criminal cases tried by Yangpu District courts had witnesses take the stand. Jingshan County court had a better record, as witnesses were present in 27 percent of criminal cases during the first quarter of 1997.
Some localities were worse than others. One survey conducted by a district court in Henan Province sheds some light on the severity of the problem. Among 345 criminal cases tried by the Nanguan District Peoples Court, Kaifeng City, Henan Province, there were 1,726 witnesses who should have been called to the stand. Of these, only seven showed up in court. This represents only around 0.4 percent of all witnesses.
Professor Chen Guangzhong, Chinas leading criminal justice expert, recently provided an even more pessimistic national perspective. According to Professor Chen, witnesses are called to the stand in only one to five percent of all criminal cases. Witness safety appears to be the main reason for such low figures. However, prosecutors are also reluctant to call witnesses out of concern that the witnesses might retract their statements. It is much safer for prosecutors to rely on favorable written statements. Other witnesses are simply afraid of being harassed or detained by authorities if their testimony does not go well.
Attorneys and scholars in Shanghai and Beijing estimate that the percentage of cases in which witnesses were called to the stand and cross-examined was well below 30 percent, although the situation has been steadily improving in big cities such as Shanghai and Beijing. All of them agree that there is an urgent need to enact a national law regulating the conduct of witnesses, including provisions on providing witnesses with necessary resources and guarantees of personal safety.
Lawyers in China can risk their careers and even their personal liberty as a result of confrontations with authorities in the course of representing their clients. The All China Lawyers Association (ACLA) declared 1995 a disaster year for lawyers, due to the high number who were detained and convicted merely for doing their job.
Since the new CPL became effective, lawyers have been at an even greater risk than before. Lawyers are now more likely to come into conflict with authorities because the new CPL provisions both expand the scope of their work at various stages of the proceedings and allow them to become involved earlier in the process. Mounting official hostility toward lawyers is another reason lawyers are at more risk in China today. Public security departments and prosecutors reportedly harass and intimidate lawyers. In the worst cases, lawyers have been detained, beaten up, or even convicted, for doing nothing more than vigorously representing their clients. According to a Ministry of Justice official, in 1998 alone more than 100 lawyers were detained, prosecuted or convicted under a variety of different charges.
This is likely a gross underestimate. In Hunan Province alone there have been around 120 incidents in which lawyers were either harassed or had their liberty restricted since 1996. Among these incidents, about 20 lawyers were detained or arrested on various criminal charges. In Fujian Province, three lawyers were detained for allegedly tampering with evidence, suborning perjury or engaging in bribery in 1999. According to an ACLA leader, the ACLA section in charge of protecting lawyers rights handled more than 70 cases in 1999 in which lawyers were deprived of their rights to defend their clients, restricted from investigating cases or harassed.
Two troublesome clauses in CPL Article 38 potentially put defense lawyers in severe professional jeopardy. One clause states that defense lawyers and other defenders are prohibited from assisting crime suspects or defendants in concealing, destroying or forging evidence and from helping defendants collude with each other. The other states that defense attorneys or other defenders are prohibited from threatening or inducing witnesses to change their testimony or commit perjury. In addition, Article 306 of the Criminal Law provides that defenders or legal representatives may be subject to punishment for obstructing justice by forcing or inducing witnesses to commit perjury or change their testimony.
Many legal scholars have criticized the provisions of the CPL and the Criminal Law (CL) on the crime of perjury by lawyers for creating an environment inimical to the provision of legal counsel or defense services. One commentator pointed out that as defined in the CL, the crime of perjury or assisting perjury could be committed by anyone involved in the criminal process, including prosecutors or even judges. Yet the CL arbitrarily singles out defense attorneys and other defenders as liable for this crime and thus exerts a great deal of pressure on such lawyers. Furthermore, the CL does not stipulate in detail what constitutes the crime of forging evidence or perjury under Article 306, leaving prosecutors wide discretion to prosecute lawyers, and giving judges enormous latitude to find them guilty of such an offense.
In practice, lawyers often run into serious legal trouble simply because witnesses or defendants/suspects change their testimony or statements after lawyers become involved, thus prompting suspicion among prosecutors that lawyers have suborned perjury. After the CPL took effect, witnesses and defendants reversing their testimony and statements became a frequent occurrence. Some lawyers have been convicted merely for acquiring a different story from that given to officials. On some occasions, lawyers have been held liable for the perjury of defendants. In Xinyang City, two lawyers were detained by prosecutors after they discovered a false statement, which was later proven to have been made by defendants rather than by the lawyers.
What troubles lawyers and legal scholars most is not that lawyers can be detained or convicted for illegal acts, but that they can be detained by their counterparts in a criminal trial while they are in the middle of conducting legal defense. This undoubtedly sends a dangerous signal to all criminal lawyers that they are working in a climate of legal uncertainty. Since their opponents are the very ones who have the authority to determine whether they are behaving appropriately in conducting their defense, there is a strong incentive for lawyers to be extremely conservative in their work. As one lawyer stated, Article 306 of the Criminal Law and Article 38 of the CPL are like the sword of Damocles hanging over the heads of defense attorneys and other defenders, and nobody knows when it will fall.
The hostile environment and the frequent reports about lawyers being caught up in serious legal troubles have discouraged lawyers from participating in criminal defense and have caused a substantial decline in the number of criminal cases in which defendants are represented by lawyers. According to some official reports, the number of criminal cases in which lawyers presented a defense dropped sharply nationwide after the CPL took effect. One authoritative source reports that lawyers presented a defense in less than 30 percent of criminal cases. Another commentary indicates that since 1997 close to 60 percent of criminal cases had no attorney participating. This is corroborated by official sources that note that cases with legal defense account for only 30 percent of all cases tried during the first six months of 1997.
The 1996 CPL revisions were supposed to expand the rights of individuals suspected of criminal offenses by authorizing lawyers to provide more legal services at an earlier stage of criminal proceedings. Despite the promises of the new CPL, lawyers continue to experience difficulties in preparing a proper defense. To truly expand the rights of criminal suspects and defendants, China must accord its lawyers the guarantee that they will be able to perform their professional duties without intimidation, harassment or unnecessary restraint. Indeed, with thousands of executions being carried out annually, for many people this is a matter of life and death.