Editor's Note: Beginning January 1 of this year, two major procedural laws closely tied to citizen's rights took effect.The revised Criminal Procedure Law has great significance for the punishment of criminals, the protection of citizen's lawful rights and interests, deepening reforms of the justice system and further realizing judicial fairness; likewise, the revised Civil Procedure Law plays an active part in protecting parties' rights at trial, simplifying procedures, reducing litigation costs, regulating malicious lawsuits and limiting abuse of civil litigation, and perfecting enforcement procedures.
Today is the one-hundredth day that the two laws have been in effect, and we have specially selected several short pieces on whether the highlights of the revisions have been fully implemented in reality, for our readers.
The implementation of the Criminal Procedural LawRelies on the Guarantees of the Justice System
Every new system established in the Criminal Procedure Law, every changed article, need corresponding guarantees of manpower, funds and materials; set-up, equipment and enforcement costs all require further improved support
There are three factors necessary for the Criminal Procedure Law to be smoothly implemented, all of which must be present: Detailed accompanying implementation regulations, a transformation of law enforcement ideology and fair and efficient guarantee mechanisms for the justice system. So far, the first two elements are basically in place, but the final element has a long way to go for implementation.
In 2012,the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and others successively released their own judicial interpretations and departmental regulations on implementing the Criminal Procedure Law, and jointly released a unifying normative document on issues touching multiple departments.These judicial interpretations and departmental regulations that refined the text of the Criminal Procedure Law, further increased the law's operability, clarified the legislative intent, eliminated ambiguity in departmental understandings, and laid out a solid foundation for implementing the Criminal Procedure Law.
The importance and emphasis that the central government political-legal organs have placed on ideological change throughout the process of preparing to implement the Criminal Procedure Law has been demonstrated from last year, when the ideas of rights awareness, procedural awareness, evidence awareness, efficacy awareness, and oversight awareness were raised at the Central Political Legal Committee's symposium on implementing the Criminal Procedure Law, to the Supreme People's Court, Supreme People's Procuratorate and Ministry of Public Security's sequential demand for ideological shift,
Currently, the root problem preventing the smooth implementation of the Criminal Procedure Law is that there are still instances of incompleteness and non-coordination. There are costs for implementation of the rule of law and protecting human rights, Every new system established by the Criminal Procedure Law and every new article all need corresponding guarantees of personnel, funds and materials; set-up, equipment and enforcement costs all need further improved support. These issues, however,have lagged relatively behind the preparations for implementing the law, so that the political-legal organs of many regions are learning the laws, changing their ideologies, but waiting for the food to hit their pots; the national finance and budget management offices should quickly and as soon as possible carry out their corresponding responsibilities. "Self-help is more effective than appealing to law", the implementation of the Criminal Pro cedure LAw relies upon a fair, effective and authoritative justice system; the root of many hard-to-solve problems of the Criminal Procedure Law is still in mechanisms of the justice system.
The revised Criminal Procedure law has been implemented for 100 days, and the situation overall is quite good, but we still see that in some enforcement units there exist ways of 'marking down' or 'shrinking' this or that, even circumventing the law or refusing to enforce the law. To smoothly implement the revised criminal procedure law, supervision, the law's unity and dignity must be preserved by establishing systems for supervision, inspection and correction of the law's implementation, so that procuratorates at all levels can sufficiently supervise, dare to supervise, and are good at supervising.
Are lawyer's 'three difficulties' still difficult?
reporter for this paper [link above] Wang Bixue
The revised Criminal Procedure Law's chapter on "Defense and Representation" is particularly notable A well-known criminal procedure expert who participated in the revisions of the Criminal Procedure Law, Tenured Professor Chen Guangzhong of China University of Political Science and Law, said that "the improvement of the defense system is the most satisfactory part of the revisions to the criminal procedure." Because it enlarges the strength of protections for lawyer's rights to meet clients, read case materials, and investigate to collect evidence, giving lawyers' defenses a hope of escaping the hardship of the 'three difficulties': difficulty meeting clients, difficulty reading case materials, and difficulty conducting investigations to gather evidence.
The Criminal Procedure Law has already been implemented for over 3 months, have the 'three difficulties' been resolved? This reporter has recently discovered through investigative interviews that lawyers meetings with clients, access to case files and evidence collecting, have seen some improvement, but a few problems still exist.
Meeting Rights: overall improvement, but procedures are not uniform
According to the provisions of the revised Criminal Procedure Law, lawyers only need to be carrying their professional license, proof of law firm, and letter of representation or legal aid letter, and they can request to meet with a detained criminal suspect or defendant, and the detention center shall, within48hours, arrange a meeting, without a requiring the investigative organ's consent, and moreover, the lawyer's meeting will not be listened in on..
This provision is useful for breaking through all kinds of obstacles to lawyers meeting with suspects, effectively resolving the difficulty of meeting with clients, and helpful to suspects in promptly receiving a lawyer's assistance and defense.
Most lawyers feel that following the implementation of the Criminal Procedure Law, there has been an overall improvement in lawyers meeting clients, the provision and completion of formalities for meetings have been greatly simplified, and efficiency has also been improved quite a bit. Lawyers in possession of a professional license, proof from a law firm, and letter of representation can all promptly meet with detained suspects.
On January 16 of this year, the Secretary-General of the Beijing Chaoyang District Lawyers Association's Criminal Law Research Society , Liu Kelan of the Beijing Zhongyin law firm, received a major theft case from the investigation department at the Chaoyang branch of Beijing Public Security Bureau; the suspect has been placed under a compulsory measure three days earlier and his family was extremely nervous and retaining a lawyer to arrange a meeting and understand the situation as quickly as possible.
After Liu Kelan arrived at the detention center, he followed the previous process for arranging a meeting and was prepared to first go to the pre-trial reception area to submit his paperwork, but as soon as he entered the lobby he was clearly informed by the security guard that: those whose paperwork is complete can go submit their materials directly to the detention center and don't need to first apply for police approval. At the time he didn't even realize it, but after reflection he realized that this was the revised criminal procedure law already quietly taking effect.
Not long after, Liu Kelan was handling a case of 'provocation and distubance" in the Xicheng district During his meeting with his client at the Xicheng detention center, the detention center's reception officer also used the same method of implementing the criminal procedure law provisions on meetings.
From the revision of the Criminal Procedure law, Liu Kelan has had several meetings with clients, and has deeply felt the change in work mechanisms brought about through the Beijing public security organs' thorough implementation of the Criminal Procedure Law.
The feeling of the bulk of lawyers is that since the revised Criminal Procedure Law took effect, the difficulty in meeting clients has been somewhat lessened; "In the past, you could only meet clients with the approval of the case handling organ and with their personnel accompanying you, but this isn't required now. "
Even as the problem is being resolved, this reporter also noticed that some areas aren't using unified operational procedures, and it's a bit chaotic.
Zhejiang Provincial representative and lawyer at the Zhejiang Dagong Lawfirm, Mr. LI Wangrong, has previously looked into the circumstances of of the Criminal Procedure Law and discovered that because the public security organs and detention centers of different areas have differing views on issues such as how to verify representative's identities, the obligation to promptly inform suspects about hiring a lawyer and the number of lawyers that can attend a meeting, this becomes an obstruction to lawyers meeting their clients and impacts the implementation of the right to meet clients.
Li Wangrong laid out the methods of several areas in Zhejiang: The Hanzhou Xiaoshan district and Jiaxing city detention centers require that the letter of representation be personally signed by the criminal suspect, the Yuhuan County detention center requires that defendants issue a written confirmation document, The Deqing County Public Secutiry Department wants to see the representatives' residency permit, a proof from the registered residence's public security office or a proof from a basic level organization at the site of the registered residence; Hangzhou's Yushang district detention center requires lawyers to first register in case-handling lobby and then be notified of the arrangements within 48 hours, so the lawyer has to go to the detention center twice to realize his meeting rights."There's no basis for these methods in the law, the criminal procdure law doesn't say anything about requiring the suspect or defendant to confirm a meeting.” says Liu Wangrong.
The right to view the case file: a big improvement over the past, but still limited
Viewing the case file is a prerequisite for lawyers' exercising their right to carry out a defense. The Criminal Procedure Law provides that from the day the procuratorate begins reviewing for prosecution, lawyers may read, copy and reproduce case file materials.
This reporter has learned that in the past the difficulty in viewing case materials in the review for prosecution and trial phases resulted primarily from issues such as the public security organs not having provided the entire file or not providing convenient conditions. After the Criminal Procedure Law took effect, the procuratorates and courts have essentially already followed the law in allowing lawyers to read the case file. Lawyers right to read the case file has seen major improvement over the past; the scope of the right has expanded from the previous 'some of the materials' to 'case file materials'. However, when i comes to actual practice, each place has its own methods: some places require lawyers to make an appointment in advance of reading the case file, and then read the case during one or two days per week designated for reading case files; some limit the ways that lawyers can review case files, only allowing photocopies and not taking pictures or copying by hand.
Li Wangrong feels that imposing time restrictions on reading case files makes it more difficult for lawyers to read the files. Especially in a few special cases where the review for prosecution is very brief and lawyers have no way to see the file quickly. "The time for reviewing the case file shouldn't be limited, as long as it's within work hours set by the government it should always be allowed, the method of case file reading also shouldn't be limited to photocopying. "
To Mao Hongtao, a lawyer at the Shandong Deheng Law firm, there is already no resistance to lawyers reviewing the case file. Judicial interpretations relevant to lawyers methods of reproducing case file materials all meake clear that they may do so by photocopying, taking photos, scanning or other methods to facilitate the lawyers' work.
He explained that Shandong's Qingdao Municipal People's Procuratorate specially established a case management system to promptly accept lawyers' requests to review case files and to communicate with those handling the case.“Earlier this year2when I went to Qingdao's Licang District Court to review the case file of Mr. Huang who was suspected of corruption, the procuratorate's case management center made if very convenient for me."
Compare to Shandong Lawyers, Lawyers in Hubei and Sichuan aren't so lucky. " Case-handling organs don't let lawyers make copies, only take pictures. Doesn't this increase the time and cost of lawyers' work? ” says Liu Ping, a lawyer in Hubei Ruitong at the Tianyuan Lawfirm, who is quite angry about this. A lawyer in Chengdu when reviewing a case file at the Chengdu municipal procuratorate was only allowed to read and reproduce part of the case file materials.
The right to gather evidence: Usually goes smoothly, but lacking safeguards
The right to investigate and gather evidence during the course of a criminal prosecution is an important procedural right of lawyers carrying out their profession role of defense. The revised criminal procedure law made major changes to area such a the scope and method of lawyers right to investigate and gather evidence.
The Criminal Procedure law provides that where a defender feels that a public security organ or people's procuratorate have gathered evidence in the investigation or review for prosecution phases that shows that the suspect or defendant is not guilty or that the crime was minor, but has not submitted the evidence, the defender has the right to apply for the people's procuratorate or people's court to obtain it; and, upon a witness's consent, a defense lawyer may gather materials relevant to the case and may also apply to the people's procuratorate or people's court to gather or collect evidence, or apply to the people's courts to notify witnesses to appear in court to testify.
Many lawyers feel that following the revisions to the Criminal Procedure Law, it is easier for lawyers to gather evidence under the vast majority of circumstances.
Liu Kelan is currently handling a 'provocation and disturbance' case, because the circumstances surrounding the events that initiated the case are quite complicated, the disparity between the vicitim and the defendant's stories is large and it is necessary to find witnesses that were at the scene. After asking everywhere, he finally found an eyewitness. However, no matter what he said, this witness was only willing to write a written document to give to the court and refused to appear. Unable to do anything else, Liu Kelan could only apply to the Beijing Chaoyang District Court, requesting that the witness appear in court to testify. The court agreed to the lawyer's request and actively initiated communication with the witness, requesting that the witness appear in court to testify. " Even though this case has still not begun trial, the witness has already promised to appear in court. ” Liu Kelan is looking forward to starting trial when the witness will be able able to verify statements and help the case reach a just verdict.
Beijing Zhongrui law firm's Zhang Hongqin has been as fortunate as Liu Kelan.Zhang Hongqin has been handling criminal cases for several years, this year3she took up a fraud case in Hebei, "The client admitted his guilt, but in the entire process of gathering sentence evidence went more smoothly."
There are also lawyers that feel that although the Criminal Procedure Law provides that lawyers may apply to the people's courts or procuratorates to collect evidence, or apply for witnesses to appear in court and testify, there are not clear safeguard mechanisms or remedies so that in actual practice it is easy to be restricted or ignored. Whether or not lawyers' right to apply for the collection of evidence will be realized is primarily still based on whether or not the people's courts or procruatorates accept the evidence. Yin Ping explainted that when lawyers request evidence from knowledgable parties, that party may refuse and the lawyers can only wait until a judicial organ intervenes before he can collect evidence from the party through the judicial organ; this causes delays. He calls for the release of an Evidence Law as early as possible, giving lawyers the right to collect evidence. "Hubei is currently exploring the joint establishment, by judicial organs, public security organs and lawyers associations, of a kind of criminal practice mechanism for integrated disposition, to facilitate lawyers' collection of evidence. "
Most lawyers interviewed felt that looking overall at the over three months of implementing the revised Criminal Procedure Law, the key is still in changing law enforcements' thinking; if whenever the higher levels have a policy, the lower levels have a counter, even if the law is revised even more, it will still be nothing more than words on a page. The law has only made a few statements of principals, at the lower levels, we still need the law enforcement bureaus to make corresponding supplementary explanations. At the same time, questions such as the consequences of violations of the law to obstruct lawyers' rights to meet clients, review case files and gather evidence should also be clarified.
Henan's Louhe City
A path for settlement in Criminal Cases
Reporter Peng Bo
Article 277: The parties may settle in the following types cases where criminal suspects or defendants earnestly repenting their crime and receiving the victim's forgiveness through methods such as compensating them for their losses or making a formal apology, and the victim voluntary settles:(1)Cases involving crimes mentioned in chapters 4 and 5 of the specific provisions of the criminal law that were cause by a civil disagreement, and might be punished by a prison sentence of three years or less.;(2)Cases of crimes of negligence other than dereliction of duty where the punishment might be a prison sentence of 7 years or less.
----- Taken from <the PRC Criminal Procedure Law>
This year3When Mr. Li, a student a Henan's Luohe Municipal vocational school, returned again to the familiar classrooms, he truly understood the value of freedom.In the period of over a year from when the case began until it was resolved by settlement, Mr. Li has very poignant legal education.
It all began in September of 2011. Mr. Li and his uncle were eating in a small restaurant.A Mr. Dong, who was eating at the same restaurant, carelessly spilled dish-rinsing water all over Mr. Li.After was accused, Mr. Dong started hitting Mr. Li in the head, and Mr. Yue and others eating with Mr. Dong also came over and joined the fray.In the ruckus, Mr. Li's uncle knocked Mr. Yue to the ground.Afterwards, Mr. Yue felt poorly and a few days later, after emergency rescue failed, he died.Not long after, the public security organs took Mr. Li and his uncle into custody for intentional infliction of harm, and took Mr. Dong into custody for provocation and creating a disturbance.
"Mr. Li's conduct constitutes the crime of intentional infliction of harm, the facts of the case are clear, the evidence is conclusive and complete, he shall be pursued for criminal liability. However, in the course of review we discovered that Mr. Li's role in this case was minor and that he bears no responsibility for what happened to the decease, and he is also an enrolled student, meeting the requirements for settlement in criminal cases as provided for in the revised Criminal Procedure Law. ” when the case was transferred to the Zhenzhou Municipal People's Procuratorate in preperation for prosecution, the duty procurator, Liu Mengyu performed the initial review. Later, Liu Mengyu also came to know through investigation that Mr. Li was truly repentant and had actively paid compensation to the victim's family much earlier, and the victim's family and their agent ad litem were willing to forgive Mr. Li creating a foundation for settlement.
January 7 of this year，Liu Mengyu initiated procedures for settling this prosecution, with the Zhenzhou Municipal People's Procuratorate organizing the two sides to begin settling.“The time period for the settlement procedure is 3 days, if the criminal suspect doesn't admit guilt or the victims and their agent ad litem aren't willing to forgive the suspect, the settlement procedure is immediately terminated." Liu Mengyu first heard both sides opinions on settlement, then considered the lawfullness and voluntariness of the settlement and preside over the formulation of the settlement agreement.The settlement agreement clearly lists each point of the settlement between Mr. Li and the victim's family, including how he will make amends for his impact on the victim and others, the victims' expression of forgiveness of the suspect etc., and finally, the parties of both sides sign and verify it.Finally, the people's procuratorate issues a decision to not prosecute Mr. Li, in accordance with law.
The Chief Prosecutor for District 1 of the Zhenzhou People's Procuratorate , Li Junhua, said: "Criminal Settlement is a new method for resolving criminal cases, it emphasizes that in cases where the facts are clear and the victim is repentant, the victims and the offender may, on an equal, voluntary and lawful footing, reach settlement through dialogue and negotiation. Practice shows that using criminal settlement to handle appropriate public prosecutions is legally and socially effective, and can reduce litigation costs and save judicial resources while raising litigation efficiency. Criminal settlement is not a simply the payment of financial compensation to receive a lenient disposition; the non-prosecution, mitigated or commuted sentence, or even excuse from punishment is because of the offender's repentance and minimal harm, and can't be labeled as 'buying leniency.' "
Sealing of Juvenile's Criminal Records
Article 275: The relevant criminal records of persons not yet 18 years of age at the time of the offense who are sentenced to imprisonment for 5 years or less, shall be sealed.
----- Taken from <the PRC Criminal Procedure Law>
On the afternoon of March 7, the People's court for the the BaoAn district of Shenzhen in Guandong province's announced that two juvenile's records would be sealed and handed them the decision documents in court, formally sealing their criminal records.This was the first time that the BaoAn district court had issued a decision to seal juvenile records since the revision of the criminal procedure law.
"The records sealing system for minors means that, in accordance with legal requirements and procedures, the case handling unit, case management and other departments will preserve the secrecy of criminal records of minors who were have been lawfully pronounced guilty, and not reveal them to outsiders except in statutory designated situations. ” Judge Yuan Wei of the Shenzhen Intermediate Court explained that minors can be momentarily led astray, but that the label of criminal one affixed can follow them their entire life, and be difficult to shake as the pursue their career, education, and other key life events, creating a negative impact in all these areas, and leading them to be stigmatized in society and have a hard time establishing their worth. The records sealing system [lays a major role in ensuring that minors who've lost their way can reenter society.
It was explained that in October of 2011, the Shenzhen Intermediate Court, BaoAn and Luohu district courts, were confirmed as pilot sites for juvenile record sealing by the Shenzhen High Court. The Intermediate Court, on the basis of provisions of the revised Criminal Procedure Law and that court's experience with juvenile criminal cases, released the "Guandong Province, Shenzhen Implementation methods for the juvenile criminal records sealing system (provisional)"
On March 7, the two minors whose records were sealed by the Bao'an District Court had been sentenced to one year for intentional infliction of harm and two years for robbery repectively, all with a suspended sentence. On the basis of legal provisions, when a person was not yet 18 at the time of the offense and is sentenced to a punishment of five years or less imprisonment, the relevant criminal record shall be sealed. After the two minors' verdicts took effect, the Bao'an District court issued a decision to seal their criminal records in accordance with law.In accordance with law, sealed criminal records may not be provided to any workplace or individual except where judicial organs require them to handle a case or relevant workplaces are carrying out an inquiry on the basis of provisions.Workplaces carrying out an inquiry in accordance with law shall keep the circumstances of the sealed criminal records confidential.When ta juvenile offender or relevant workplace apply to have a criminal record certification issued, a certificate shall be issued showing they have no criminal record.Therefore, when it has been decided that a juvenile's criminal records will be sealed, he shall enjoy equal rights as others his age in education, employment and other areas, and his criminal record will not thereafter impact his normal life.
According to reports, the amended criminal procedure law only lays out principles for the juvenile criminal records sealing system, but the city of Shenzhen has formulated specific implementation methods providing detailed content on the juvenile records sealing system's targets, the enforcing department, the scope of enforcement, procedures, pursuit of accountability the requirements for unsealing records and more, with four specific breakthroughs: First is providing that after the first court to try a case of a joint crime by a juvenile and adult offender has decided to seal the records, the court should separately file and seal the juvenile criminal records that meet the requirements of this law, so as to avoid leaking the criminal records. Second is providing that information and materials touching upon juveniles in adult criminal cases should also be sealed. Third is providing that in juvenile criminal cases meeting the requirements of article 15 of the criminal procedure law and being excused from criminal liability, the case file materials shall be sealed and that the public security organ, procuratorate or court making the decision to withdraw the case, not prosecute or terminate trial, shall have the responsibility for doing so. Fourth is providing that where the circumstances of a juvenile's offense are minor and they don't need to be criminally sentenced or are exempted from penalty in accordance with the criminal law , or where they are suspected of a crime that violates citizens' personal or democratic rights, or of a crime that violates property rights or obstructs social management order, which might be given a sentence of one year or less but is elligible for indictment but they repent the crime and people's procuratorates decide carry out a conditional non-prosecution, the criminal records shall be sealed by the procuratorate.
NeiJiang City, Sichuan
Resolution of the first case of 'excluding illegal evidence'
Xu Jun and Chen Zhiqiang
Article 54: Criminal suspects or defendants confessions gathered by the use of torture to extract confessions or other illegal methods or witness testimony or victim statements gathered by the use of illegal methods such as violence or threats, shall be excluded. Physical or documentary evidence gathered not in accordance with statutory procedures that might seriously influence judicial fairness, shall either be corrected or reasonably explained; Physical or documentary evidence gathered not in accordance with statutory procedures that might seriously influence judicial fairness, shall either be corrected or reasonably explained; if it can not be corrected or reasonably explained, the evidence shall be excluded.
----- Taken from <the PRC Criminal Procedure Law>
On March 27, Liu Yingjiang, the chief judge of the Neijiang municipal intermediate court in Sichuan province's first criminal division, went to "visit" the defendant, Liao Bing, in the lockup. Liao Bing had been captured in an online convict search on August 1, 2011, because of his alleged involvement in the death of Xie Jun. In the first-instance trial, the Court, sentenced Liao Bing to 12 years for "intentional homicide". At trial, Liao Bing has asserted that: "the police hit me, I was beaten until I confessed. " His defender, Li Junlin of the Beijing Pacific Century law firm in Chengdu, asserted confessions extracted by torture are illegally gathered testimony that should be excluded in accordance with law.In response, prosecutors provided hospital physical examination records and medical examination records from the lockdown showing that Liao Bing had no injuries, and the public security organ and procuratorate provided formal letters attesting that there was no use of torture to extract confessions.After Liao Bing provided leads by preventing 'the wounds on his body', the public security organ said that injuries to his head were the result of Liao Bing hitting his own head against the wall, and that wounds on his hands came from pulling at his handcuffs.
At the second-instance trial, the judge carefully analyzed the circumstances of the case and found that although Liao Bing could not prove that the public security organs used torture to extract a confession, he had displayed injuries and provided leads, while the public security organ's and procuratorate's 'rebuttal' was extremely suspect, and that in accordance with the requirements of the revised criminal procedural law, the procedures for the exclusion of evidence should be initiated.Accordingly, the court did not admit Liao Bing's "confession" and did not find that Liao Bing had 'raised the killing blade', but found that Liao Bing had participated in the planning of the crime and went to the scene to carry it out, changing the sentence from 12 years to 8”.
“I never thought that the court would exclude the entire confession." Said Li Junlin on March 28,adding that the Neijiang court had fired the first shot in the exclusion of illegal evidence since the revisions of the criminal procedure law went into effect.At the same time he also wondered: In excluding illegal evidence, isn't the Neijiang intermediate court afraid of making public security and procuracy 'lose face" ?
There is no concern of 'losing face', said Zhong Yang, the vice president of the Neijiang intermediate court; the case lawfully initiated procedures for the exclusion of illegal evidence in accordance with law and was handled by strictly following the revised criminal procedure law. After the case was concluded, the NeiJiang intermediate court , public security organ and procuratorate reached a common understanding: Fully implementing the criminal procedure law is the shared responsibility of the political-legal organs, and traditional notions of evidence and evidence collection methodologies must be changed before we can correctly punish criminals and effectively safeguard human rights.