CPL IMPLEMENTATION IN BEIJING

http://news.163.com/13/0918/03/9919FLF800014AED.html [This is a very loose “summation/translation” of an excellent article at the Beijing News]

The Standing Committee of the Beijing People’s congress has been conducting a review on the implementation of the new Criminal Procedure Law (CPL) since March of this year, only three months after it took effect. A group of 35 representatives have been in constant contact with all relevant stakeholders, including courts, procuratorates, police, state security, justice departments and the lawyers associations. Their goal, both to review and promote the implementation of the new law.

Below are nine points on which their efforts have focused so far.

Point 1:  Public security  recordings of the complete interrogation process to prevent confessions extracted by torture.

Facilities greatly improved: The representatives visit to Beijing’s central lockup for major criminals, (the No. 1 detention center) revealed that interrogation rooms had microphones and cameras that left no blind spots, and the police personnel and suspect entered the room from different sides.

Still, one of the representatives, the lawyer Zicheng Gao, questioned whether all police stations or detention centers would be so well equipped.

The head of the public security supervisory team for the city, Mr.JingBo Gao explained that all 590 enforcement sites in the city, including police stations, already meet standards for interrogation rooms, and that since July 1, recordings of the entire interrogation process have been passed along with the case in all major cases, such as those that might result in a death sentence or life imprisonment.

Representative Dajin Li, also a lawyer, remarked that China’s traditional emphasis on confessions would not disappear overnight, and that while the new CPL emphasizes preventing coerced confessions, we must be vigilant in using technological measures to prevent abuse, and that supervision procedures should be open and transparent so that the public might also supervise.

Point 2: The first high court in the nation to establish a juvenile trial division.

Representatives were moved by a video recording played for them at an area intermediate court of a juvenile defendant  recounting that the concern shown him by ‘appropriate adults’ appointed to protect his best interests by the court, made him appreciate his own worth.

The appropriate adult system , adapted  from UK law, ensures that juvenile suspects whose parents are unavailable to appear beside them are appointed an adult who will help them understand trial and safeguard their interests. The appropriate adult is not a legal representative, and is distinct from the suspect or defendant’s lawyer, but serves an important and calming role in protecting an accused who may not be mature enough to fully appreciate his situation. The appropriate adult will also participate in the education, reform and rescue of the minor.

In the case recounted to the representatives, they learned that the appropriate adults had maintained contact with their charge even after trial as he served his suspended sentence outside of prison, assisting in his reform.

Beijing’s courts are also exploring the use of pre-trial social inquiry reports, establishing bases for community corrections and rehabilitation, systems for expunging the records of juveniles guilty of minor crimes with great success already occurring.

In April of this year, the Beijing High Court became  the first High Court in the nation to establish a comprehensive juvenile case division which will assist in spreading and standardizing these advances across the jurisdiction.

Point 3: Procuratorates cannot persist in mistakes just to save face

Deputy Chief prosecutor Xiangyang Gao met the representatives at a basic level Procuratorate office to introduce the ‘5 awarenesses’ that Beijing’s procuratorates are cultivating in their personnel- awareness of human rights, procedural awareness, evidence awareness,  efficiency awareness and  supervisory awareness. Representative Zicheng Gao added that ‘credibility awareness’ should also be emphasized.

Representative Gao is a famous criminal defense attorney who has handled cases attracting national attention such as the corruption case of Liangyu Chen.  He expressed some problems that he has encountered in his many years ‘dueling’ with the Procuratorate, and his hope that the new CPL could be used to ensure that prosecutors really listen to the opinions of defenders.

Representative Gao also noted that Procuratorate is charged with supervising the entire criminal process, but that it insufficiently supervises the investigation phase, particularly when the Procuratorate itself is the principle investigator. Awareness of the role for excluding illegally acquired evidence has improved, but exclusion is an embarrassment, and the Procuratorate cannot allow the loss of face to make it stubbornly defend a mistake. The defendants should be listened to, with truth as the goal and basis of case decisions. Investigative actions of sealing records and accounts can stop businesses and lead to bankruptcy or unemployment- and this is all under the procuratorate’s supervision.

Point 4: Tripling the efficacy of video courtrooms

When the representatives visited the Haidian #17 courtroom , only a prosecutor and defender were present. On a screen before them, the judge and defendant, located over 30 kilometers away, opened trial. The parties could all communicate seamlessly via videoconferencing.

Since 2011, the Haidian court has been using digital technologies to handle some trials applying the simplified procedures (in which there is no disagreement of the facts, and the defendant has admitted guilt). Long distances from detention centers to courts made trial resource intensive and the video courtrooms have greatly increased efficiency. The need for guarded escorts over long distances and the time this took, previously meant that each day only 8 hearings could be held, but this is now tripled.

In a single afternoon, the representatives were able to watch 3 trials , and while they commended the approach, they also raised a few concerns. Dajing Li noticed that while the prosecution had presented over ten pieces of evidence, it did so in about 5 or six minutes, and that this was not in line with the spirit of the new CPL’s emphasis on in-court proceedings. He felt that even in simplified procedures, the examination of evidence should not be given short shrift and would benefit from a bit more time.

Point 5: Compulsory Treatment placed under the oversight of the Procuratorate

On June 8, the Reps made their way to the Beijign Ankang hospital, also known as the public security compulsory treatment facility.  This is where the public security places persons requiring temporary restraint while it is determined if they need compulsory treatment, and also where people sentenced to compulsory treatment are treated.

Health people being ‘mentally-illed’ or malingerers escaping punishment have been problems in the public eye that the CPL attempts to redress. The Representatives visited treatment facilities, rehabilitation facilities, examination facilities, and even directly spoke with some of the residents.

The procurator stationed at the office permanently situated within the Ankang facility explained that supervision of the compulsory treatment process is an entirely new area of work for the Procuratorate since the new CPL took effect, and they must protect both protect the rights of those given such treatment and of the public who is at risk from violent mentally ill persons.

To date they have had 12 persons sent for temporary restraint of which 1 was later freed, and 3 were sent for compulsory treatment.

The Procuratorate raised a suggestion, saying that as of now, mental health evaluations, supervision and enforcement of compulsory treatment are all primarily done through the AnKang hospital, but following the new CPL’s implementation, they feel that there should be further separation between the supervision and management functions and the treatment functions. For example, if an offender or family objects to the public security organ’s mental health evaluation, perhaps one of the city’s 3 other evaluation organs might make any new appraisals.

Point 6: Admitting guilt should not be a prerequisite for reducing sentences.

The representatives visited a prison to understand how labor was being used for rehabilitation of offenders. Those offenders who have the ability are required to work while serving their sentence, which has a rehabilitative value and teaches them skills to allow them to return anew to society. Prisoners were seen working lathes and assembling cars.

In the prison’s auditorium, a remote commutation hearing was being conducted, with guards and prisoners coming forward to vouch for the prisoner in question’s ‘good attitude in admitting guilt” put forward as a grounds for commutation.

Representative Zicheng Gao noted that courts persist in making ‘admission of guilt’ a prerequisite in commutation and parole hearings and that this does not conform with the new CPL and isn’t helpful for developing prisoner’s faith in the nation or furthering the CPL’s goal of protecting human rights.

Point 7: 50,000 persons warmly rehabilitated at the sunshine halfway house!

The representatives also visited the community corrections facilities of the Chaoyang district, known as a sunshine halfway house to understand their work in providing sunny temporary homes for prisoners reentering society.

The relaxing music pumped in is meant to let long-time prisoners know they have taken their first step back into society.  The counselors at the halfway house say that the first hurdle is psychological. Those returning from prison have a feeling of self-blame in their interactions that requires proper guidance or might cause them to shut themselves off or develop dangerous habits. The halfway house is supervised, but in the community and offers education, training, and temporary placements to help with reentry and readjustment to returning prisoners and those undergoing community corrections.

The head of the city justice department said that the Beijing community corrections program has 10 years of experience and has served 50,000 people.  The recidivism rate is as low as .16% and 100% of participants accept jobs recommended by the center.

Point 8: Change in the 3 hardships of lawyers.

Meeting clients, reading case files and investigating to gather evidence are known as the three difficulties facing criminal lawyers. The lawyers visited the Beijing  lawyers association in its owned and operated building

“2,300,000 rmb was put towards improving the meeting facilities in detention centers, adding 47 more meeting seats, increasing the total number to over 200, which is just about satisfactory. “ said the public security management team.

Hongying Shi, the head vice-chair of the association’s criminal procedure committee also admitted that since the new CPL took effect, lawyers have been given unobstructed visitation to the clients so long as the have their 3 documents (lawyers license, letter of introduction from work-unit, retainment letter from client). However, with the increase in the number of cases, some detention centers have begun stopping performing visitation formalities at 3:30. Hongying herself said that she once waited 2 hours until 3:30 before being told visiting time was over—having travelled tens of kilometers.

Also, while the new CPL requires that detention centers allow for private attorney-client meetings, some detention centers have facilities where multiple groups having visits interfere with each other, or the distance between lawyers and clients is large, meaning they need to yell to communicate.

Hao Chenli, another deputy chair of the criminal procedure committee also mentioned that while access to case files has improved, and usually only the three documents are required, there are still some times in sensitive cases where they are denied access, even up to days before trial starts. Some procuratorates allow viewing of the case file, but not continuous, with several short periods of view allowed and where it is difficult to plan in advance, so that it might take several weeks for a lawyer to read the entire case file. This kind of case is also usually the most complicated, and lawyers don’t even have time to make copies before it’s time to start trial—meaning their clients lose their right to a defense.

Point 9: “Witness appearances are still far from adequate”

The final stop for the representatives was the Beijing No1 Intermediate Court, where they observed trial and heard lectures to understand topics such as witnesses and evaluators appearing in court, exclusion of evidence, and prosecutorial sentencing recommendations.

During a drug case, a suspect recanted his earlier confession and said that he had been tortured by the police to extract the confession.  The prosecution and defense both requested that the arresting officer ,and also the expert drugs evaluator, appear in court to testify. The officer appeared in court and explained the arrest process, and denied torture, while the evaluator described the legal and factual basis for his opinion. This was recorded by the court in the case.

In discussions with the public security legislative affairs office, it was revealed that following the new CPL, the number of police appearing in court has increased and it has even impacted regular case handling. She suggested trying to reduce the number of police appearing as witnesses solely for examination of the issue of whether there was torture or for publicity.

Representative Gao Zicheng said that he could not agree with this opinion and that far from needing to be reduced, the number of witness appearances was still very insufficient, and a number of the other lawyes seconded his opinons.

Data from the courts also supports the representatives feelings, with less than 100 cases in the last 5 months having witnesses appear.  This is more than in the past but a very small number of cases.