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Deputy Chief Prosecutor of SPP, Zhu Xiaoqing response on Wrongful Convictions

Zhu Xiaoqing (Member of the Supreme People's Procuratorate Party Committee,  Deputy Chief Procurator, Porcuratorial Committee Member, Second Level Grand Procurator.
Zhu Xiaoqing (Member of the Supreme People's Procuratorate Party Committee, Deputy Chief Procurator, Porcuratorial Committee Member, Second Level Grand Procurator.

13:17, July 8, 2013 ;Source: Procuratorate Daily

Several Points on the Understanding of "Upholding the Bottom Line of Preventing Unjust, False, and Wrongly Decided Cases"

Since the Party's 18th Congress, General Secretary XI Jinping, has issued a series of major instructions on the establishment of rule of law and political legal work, particularly emphasizing that we "should strive to let the masses feel fairness and justice from every judicial case." Upholding the bottom line of preventing unjust, false and wrongly decided cases is an important aspect of ensuring social fairness and justice. To this end, we must clarify the following ideological points:

1, Clarifying that ensuring the quality of case-handling and upholding the bottom line of preventing unjust, false and wrongfully decided cases is the lifelong pursuit and responsibility of all law enforcement and case handling personnel.

Such cases are not only a catastrophe for the parties, but also seriously harm judicial authority and judicial credibility, impacting the public's faith in social fairness and justice and influencing the long-term stability of the nation. Although the several unjust, false or wrongly decided cases that have been recently revealed were all handled many years ago, and although they only occurred in a handful of places, still, "experience is the best teacher" and that none have been discovered today, does not mean that there are objective definitely none happening, and that none are discovered today does not mean none will happen in the future. Therefore, ensuring the quality of case handling, upholding the bottom line of preventing unjust, false and wrongly decided cases is the lifelong pursuit and great responsibility of all law enforcement and case-handling personnel. Law enforcement and case-handling personnel haven't the slightest reason to feel good about themselves for this, but should rather approach it in the spirit high responsibility, from a knowledgeable and contemplative mindset, so long as they remain in a law enforcement or case-handling position. At the same time, it must also be clarified that "upholding" means resolutely upholding the [asses under one's own protection and one cannot fail do so and hope that others down the line will uphold them. "Upholding" means striving to exclude any illegal evidence that is discovered to avoid that evidence fostering an unjust, false or wrongly decided case. "Upholding" means putting yourself on the line, bravely following the law to express and stick to correct opinions, and when discovering that leaders' decisions might produce an unjust, false or wrongly decided case, reporting it to the level above or even reporting to several levels above so as to prevent a tragedy. Those who clearly know that superiors decisions will produce an unjust, false or wrongly decided case but still carry it out and do not report to superiors will be held responsible in accordance with law. "Upholding" means that case-handling personnel cannot have an excessive caseload for long periods of time, as it will become both difficult to ensure the quality of the cases and difficult to avoid unjust, false and wrongly decided cases from occurring; not to mention the serious impact on the health and studies of case-handling personnel. Therefore, where the problem of high case-loads and insufficient staffing is particularly prominent, support should be garnered from the Party committee and government to hire some procuratorial support personnel. The case load/ staffing conflict is usually pronounced in areas that are more economically developed, and college graduates are very willing to come but face a lack of employment; so long as the Party committee and government consent, all the requirements are there to hire high caliber personnel that can excel at auxiliary procuratorial work.

2, Clarifying the Meaning of Case quality.

Some comrades believe that upholding the bottom line of preventing unjust, false or wrongly decided cases means that it would be better to have some cases slip through the cracks than have them be wrongly decided. I do not agree with that perception. What we call judicial fairness simply means that when one's rights are encroached they will definitely receive protection and remedies, and that criminal activity will definitely be stopped and punished. In other words, judicial fairness includes preventing cases from slipping through the cracks. The meaning of case quality is that the evidence is credible and sufficient, the nature of the case correctly determined, the handling proper and the procedures lawful; which means that cases must neither be wrongly decided nor allowed to slip through the cracks. Because, if they are wrongly decided, the suspect or defendant do not feel the fairness and justice, and if the case is let slip, then the victims do not feel the fairness and justice. Of course, according to the principle of not punishing where a crime is in doubt, handling these doubtful cases might create some 'slips', but there is no conflict between this kind of 'slip' that is called for by law and the prevention of 'slips' in the guiding ideology. Therefore, we should both uphold the bottom line of preventing unjust, false and wrongly decided cases, but also adhere to the 'two fundamentals", preventing entanglement in minutia, and tolerance of crime.

3, Clarifying the standard of "Unjust, false and wrongly decided cases"

My understanding is that in unjust cases a crime objectively occurred but the person prosecuted was not the criminal; in false cases a crime did not necessarily occur and the case or the person being brought into the litigation process is false. The common point of unjust and false cases is that they both take a person who has not committed a crime and make him a suspect or defendant in a prosecution, in layman's terms, they 'got the wrong guy' Wrongfully decided cases can be distinguished on the basis of broad and narrow meanings, the narrow meaning is just as in unjust or false cases, and also indicates having 'got the wrong man'. The broad meaning of wrongly decided case includes initiating a prosecution of a case in doubt where the evidence is not clear or insufficient, because this kind of case does not meet the legal requirements for prosecution or trial but is treated as if it did, making it a wrongly decided case in light of the balance of legal regulations. 'unjust, false and wrongly decided cases" as normally uses, primarily means "getting the wrong guy", while at the same time, it also includes handling a case in doubt as an offense. Because in cases in doubt, there might be a real crime but there might also be no crime, if they are handled as crimes some of the suspects or defendants will be wronged. For example, in a 100 cases-in-doubt, even if only 5% are unjust, if they are all handled as crimes then 5 people will be wronged and this doesn't uphold the bottom line of preventing unjust, false and wrongfully decided cases. Therefore, to uphold this bottom line of preventing unjust cases and false cases (getting the wrong guy), we must persist in not punishing where there is doubt, and uphold the bottom line of not handling cases-in-doubt as crimes.

To the public, "not getting the wrong guy" seems like a simple thing, so why does it become so difficult to do once it's in the judicial organs that we must struggle so hard to attain? First, is because the proof in criminal matters is a retrospective proof that can only use the evidence gathered to recover and reproduce criminal facts that have already past, and the process of this type of recovery or reproduction is extremely complicated, and restricted by a number of factors so that the truth is easily buried or twisted. Second is because whether or not a person is the right man, whether a certain suspect or defendant is the true offender, is something only he knows (if the suspect or defendant is not the real offender, then the offender also knows, and judicial personnel do not know. Judicial personnel see only the facts and evidence in the case. Therefore in the theory of litigation proofs, there exists the distinction between objective truth and legal truth, objective facts and legal facts. Objective truth is not seen by judicial personnel who can only rely on the legal facts 'reproduced' through case evidence; and only when these legal facts correspond to the objective facts, which only the criminal knows, do we get the right guy. If they don't conform, then unjust, false or wrongly decided cases appear. Therefore, in judicial proofs, objective truth is the goal, and legal truth is the standard.

4. Clarifying the Specific Standards for Procuracy Organs in Upholding the Bottom Line of Preventing Unjust, Unlawful and Wrongly Determined Cases

What standards should procuracy organs use for arrest and indictment, before it is considered upholding the bottom line of preventing unjust, false and wrongly decided cases? For example, can we require that any case for which there is an arrest or indictment, there must be guilty verdicts 100% of the time? I think that it's certainly bad to have low conviction rates, but that we can't require a 100% conviction rate.

Let's first talk about prosecution. Although indictment and trial standards are both "the facts of the crime are clear, evidence credible and sufficient, there isn't a clearly visible line that can be understood at first brush that divides clear and unclear facts, or sufficient and insufficient evidence; and it is hard to avoid having a "fuzzy area". For most cases, this line is fairly easy to draw, but in a few cases exist in this fuzzy region between clear and unclear, credible and sufficient and incredible and insufficient. Further, different people have different understanding, and this can lead to situations where one person sees clear facts and credible and sufficient evidence while other see unclarity, and insufficient evidence. It the goal is put forward that 100% of indicted cases should lead to convictions, prosecutors will increase their risk margins and only indict those cases where there is no difference of interpretation in the facts and evidence and where a crime is clearly established and those cases that fall within the fuzzy area, allowing for different understandings will not be indicted, and this means that will result in insufficient force in fighting crime. It is precisely because of this that every country in the world places strict checking mechanisms on prosecutions' decisions to not prosecute, so as to prevent failures to prosecute. At the same time, many countries find that as the prosecuting body, the procuratorate should maintain an amount of flexibility and some even put the standard for indictment below that for judgments. So as to maintain this type of flexibility, some countries even go so far as to not keep records on the percentage of indicted cases resulting in conviction, so as to prevent prosecutors failing to prosecute in an effort to improve their rates. China's procuratorial organs should strictly follow the statutory requirements for indictment, "the facts of the crime are clear, the evidence is credible and sufficient", in deciding whether to prosecute. Because it is precisely where the facts of the crime are clear and the evidence credible and sufficient that reasonable doubt can be excluded, and therefore unjust, false and wrongly decided cases can be prevented. We will shall put a great deal of focus on prosecutions that later result in a non-guilty verdict, and carefully analyze them. If it is felt that the judgment is indeed in error, a prosecutorial counter-appeal should be raised in accordance with law; if it is felt that judgment is correct, the we should earnestly summarize the lessons learned, and hold the case-handling personnel responsible for any fault. If it is felt that the judgment is reasonable and that the indictment was also reasonable, then there should be increased research and communication with the court to facilitate a unification of enforcement measures and evidence standards.

As for approval of arrests, based on the same reasoning, we should strictly follow the statutorily determined for deciding whether or not to arrest on the basis of review of the facts and evidence of the case. Any case that meets the requirements for arrest that is approved, even if there is ultimately a not-guilty verdict or a penalty less than a jail term, cannot be called a wrongful arrest. An arrest where requirements for arrest were not met, or a failure to arrest where the requirements were met is a wrongful arrest or a wrongful non-arrest. There are several points on this that must be explained:

1. Here the fact and evidence are "the facts and evidence at the time of the review for arrest" and are not the facts and evidence ultimately clarified in litigation, and are also not the final facts used to determine the verdict. Because arrest is a compulsory procedure at the beginning of the investigation for the purpose of ensuring successful prosecution, with the deepening of the investigation and progress of the proceedings, the original facts and evidence and the social harm presented by the suspect might change. The requirements of facts and evidence for arrest are "there is evidence proving that there was a crime" and are not "the suspect's conduct constitutes a crime" , so we cannot ask that all cases with an arrest return guilty verdicts. We must attach equal importance and to, and earnestly research, cases where a verdict of not-guilty is given after an arrest to see whether the evidence and facts at the time met the requirements for arrest.

2 The facts and evidence here are "the facts and evidence of the case" and not just "the facts and evidence in the case file." If the recently disclosed major unjust, false and wrongly decided cases had been based on the facts and evidence in the file would probably have mostly met the requirements for arrest. But the case cases have a common characteristic, which is that the suspects were all coerced into making confessions, and the personnel approving arrest could not discover, or did not give sufficient attention to, the use of torture to coerce confessions. In addition to the facts and evidence in the case file, the "facts and evidence in the case", should also include all known facts and evidence known to the suspect and others. If when reviewing to approve arrest, in addition to reviewing the case file, issued that should have been focused on where focused on, issues that should have been discovered where discovered, and suspects and witnesses who should have been interviewed or interrogated where, but no facts or evidence contrary to what is in the case file were discovered, the that isn't a wrongful arrest. If issues that should have been focused on were not, issues that should have been discovered were not, and suspects or witnesses who should have been interviewed or interrogated were not, and the result is a not guilty verdict, that is wrongful arrest. Precisely because of this, Article 86 of the revised Criminal Procedure Law provides three scenarios in which suspects shall be interrogated during reviews to approve arrest, and then also provides that that one "may question witnesses and other participants in the proceedings and hear the views of defense counsel; and that where defense counsel so requests, their views shall be heard."

3. Wrongful arrest here is an assessment of the work quality of the personnel approving arrest rather than an assessment of whether or not to compensate the defendant. Assessment of whether or not the defendant should be compensated should use the final resolution of the trial as a standard. If a case is ultimately withdrawn, not-prosecuted or given an not-guilty verdict, it is a wrongful arrest that should receive criminal compensation unless there are circumstances calling for the avoidance of compensation. Author: Zhu Xiaoqing (Supreme People's Procuratorate Party Committee Member, Deputy Chief Procurator, Member of the Procurator's Committee, and Second-Level Grand Procurator-- Editor's note)

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