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He Haibo: The Boundaries of a Lawyer's Out-of-Court Speech—In Defense of Zhou Ze

Unauthorized translation.

He Haibo: The legal boundary of lawyers' comments outside court——Defense of Zhou Ze

To the Beijing, Chaoyang District, Justice Bureau:

I've been entrusted by Lawyer Zhou Ze to attend today's hearing. Based on a sincere and good-faith understanding of the law, I offer my comments for your consideration.

The facts of this case are fairly clear: When attorney Zhou Ze was handling the Lü Xiansan case in Anhui, he took three screenshots of the interrogation video provided by the public security organ and disclosed them on his Weibo, making the accusation that torture was used to extract confessions in the investigation process. Because of the Hefei public security organ's suggestion to "handle his case strictly," Zhou Ze is now facing the administrative penalty of a one-year suspension of his practice.

The bases for your honorable Bureau's proposed punishments are article 9, item 1 of the Lawyers Law, i.e., "[Zhou] impacted the lawful handling of cases by other improper methods," as well as article 38, item 4 of the Ministry of Justice rule "Measures on the Administration of Lawyers' Practice," i.e., "[Zhou] disclosed or distributed . . . important information or evidentiary materials relating to cases in the course of handling cases, in violation of provisions."

This case has attracted the attention of many, not just because Zhou Ze is a well-known lawyer, but more because it touches on a general question: what are the legal boundaries of a lawyer's out-of-course speech? Specifically, it is lawful for a lawyer to expose on the internet the extraction of confessions by torture? This questions may have different answers in different times. Today, as law-based governance is being comprehensively implemented, it is necessary that we deal with question under the standards of the rule of law and with a more cautious attitude.

There are three specific questions I wish to discuss: 1. How to understand impacting the lawful handling of cases by other improper methods" as provided in the Lawyers Law? 2. The violation of what provisions does the "violation of provisions" in the Measures on the Administration of Lawyer's Practice refer to? 3. If a lawyer cannot expose the illegal conduct in criminal investigations on the internet, how to maintain the balance of the scales of criminal defense?

1. The circumstances for penalties in the Lawyers Law are limited.

The Lawyers Law has many articles providing for lawyers' obligations in practice and conduct that should be punished (see appendix). The main basis for the proposed punishment for Lawyer Zhou Ze is the provision of item (1) in Article 49 of the Lawyers Law, namely "meeting with judges, procurators, arbitrators or other relevant staff in violation of regulations, or impacting the lawful handling of cases by other improper methods;" but what exactly is " impacting the lawful handling of cases by other improper methods"?

(1) "Other methods" cannot be arbitrarily expanded.

Of course, "other methods" can't mean "any other means at all". When the Lawyers Law was revised in 2007, a catch-all clause in article 44 on the circumstances for which punishment shall be given that read 'other conduct that shall be punished' was deleted. This clearly shows that the legislature was determined to adhere to the principle of nulla poena sine lege, and did not want to excessively expand the scope of administrative punishment, let alone use sweeping provisions to allow potentially indiscriminate punishment. This is the progress of the rule of law in China, and this kind of progress should be implemented in specific administrative law enforcement and benefit the parties in specific cases.

(2) "Impacting the lawful handling of cases by other improper methods" is the law's bottom line.

In the clause of the current Lawyers Law, there are two key points for when punishment shall be given: the first is 'improper methods', the second is 'impacting the lawful handling of cases'. "Improper" is not the same as 'inappropriate'. It is conduct that is morally refuted and has harmful consequences. Ordinary 'inapropriate' conduct is not pursued by the law.

"Impact lawful case-handling" means that this type of method has already impacted the lawful handling of the case or could so, to bad effect. Exposing the use of torture to extract confessions is to promote just handling of the case, it is not a bad thing, and can't be called "impacting the lawful handling of cases." The Lawyers Law already provides the circumstances for giving punishments, and rules cannot exceed those provisions. The Measures on the Administration of Lawyers' Practice provision on 'violations by disclosing or distributing ... important information and evidence obtained by oneself or other lawyers during the course of handling a case" is not clearly listed in the range of circumstances for punishment in the Lawyers Law, and should be interpreted as having the qualification that it must be 'impacting the lawful handling of cases through improper methods', or else it crosses the line.

(3) The Lawyers Law is going after 'tampering lawyers' not 'earnest lawyers'.

Furthermore, in terms of the conventions of legal texts, the 'other' improper means of impacting the lawful handling of cases should refer to conduct that differs from the enumerated means, but that is of the same character. What is clearly laid out in the front part of this item is "meeting with judges, procurators, arbitrators or other relevant staff in violation of regulations".

In the obligations for legal practice provided for in article 40 of the Lawyers Law, "other improper means" is attached following with "giving bribes to a judge, prosecutor, arbitrator or another staff member concerned, introducing bribes to them, instigating or inducing a party to resort to bribery, or, attempting to influence their lawful handling of a case".

It can be seen that the target of this punishment in the Lawyers Law is conduct by lawyers and case-handling personnel 'colluding' together to damage judicial fairness and judicial credibility. "Tampering lawyers" are a blight on the judicial system. The favoritism and benefit chain brought out by Zhang Jiahui, the former vice president of the Hainan High, People's Court, is one shocking example.

It should be said that the Chinese judiciary's stance in cracking down on "tampering lawyers" is clear, but, because "tampering" is done in the shadows it is not easy to find and punish, and causes great social harm. This is also the reason that the Lawyers Law requires punishment. By contrast, lawyers comment online after having found evidence of the use of torture to extract confessions in order to ensure that a case can be handled justly. This type of lawyer is an 'earnest lawyer', and this type of conduct is neither an 'improper' means nor can it 'impact the lawful handling of the case'.

If the "tampering lawyers" in the shadows are spared by law enforcement, but the open acts of "earnest lawyers" are attacked, it would be contrary to the legislative intent of the Lawyers Law.

II. There should be specific provisions for "violation of provisions".

Another basis for the proposed punishment is Article 38, Item 4 of the "Measures for the Administration of Lawyers Practice" (revised in 2016). According to this provision, lawyers shall perform their duties in accordance with the legally-prescribed procedures and must not impact the lawful handling of cases in the following improper ways: "(4) Violating provisions to disclose or distribute information or materials in case that are not tried in public, or important information and evidence obtained by oneself or other lawyers during the course of handling a case. " This item is also worthy of careful analysis.

(1) "Violating provisions" is a prerequisite for administrative punishment.

Looking at the text, this item contains two situations: the first is violating provisions by disclosing and disseminating information or materials in cases that are not tried openly; the second is violating provisions by disclosing or disseminating important information or evidence materials related to a case that are learned of by oneself, or by another lawyer, in the course of handling a case. The "Lu Xiansan case" is not a case that is not being tried openly, so it is the second situation that is related to this case. What needs to be emphasized is that the second situation must be a 'violation of regulations' by disclosing or disseminating important information or evidence materials related to a case that are learned of in the course of handling the case. This point is not difficult to get in reading the text of this phrase in the "Measures on the Administration of Lawyers' Practice.” The “important information or evidence materials related to a case that are learned of by oneself, or by another lawyer, in the course of handling a case.” in this sentence is only the object of 'violating provisions by disclosing or disseminating' ; if 'violating provisions by disclosing or disseminating' is pulled out, the sentence is incomplete. You can see that it's not any disclosure or dissemination of important information and evidentiary materials learned by lawyers in the process of handling a case that constitutes a violation of the law and should be punished; it is only disclosure and dissemination of the aforementioned important information and evidentiary materials that "violates regulations" that should be punished.

(2) The basis for penalizing lawyer Zhou Ze is insufficient.

The question now is whose provisions and what provisions did Lawyer Zhou Ze's conduct break? This is something that the organs doing the punishing should present evidence on and explain. The principles of the rule of law require that all penalties must be based on specific and clear rules formulated in advance. Article 4 of the Administrative Punishments Law requires that:“Provisions on giving administrative punishment for violations must be publicly released; provisions that are not released must not be the basis for administrative punishments. If the organ giving the punishment cannot provide the relevant provisions, then the punishment of attorney Zhou Ze lacks an adequate legal basis.

In academic discussions, some commentators have mentioned the "Norms for Lawyers Handling Criminal Cases" formulated by the All China Lawyers Association in 2017. However, the lawyers association is the lawyers' self-regulating organization, and the professional norms formulated by it cannot serve as the basis for administrative penalties. The professional norms and disciplinary rules formulated by the lawyers association must not contravene the relevant laws, administrative regulations, or rules. Moreover, the provisions in the aforementioned Norms that are relevant to this case also provide that "lawyers must not disclose or distribute important case information or case files in violation of provisions," without making clear the specific provisions. Not only is this a legal requirement, but also a provision in the "Norms for Lawyers Handling Criminal Cases" themselves.

Paragraph 2 of Article 37 of the Norms for Lawyers Handling Criminal Cases provides that "Where defense lawyers are consulting, extracting, or copying case materials containing state secrets they shall do so with the consent of the people's procuratorate and the people's court and shall abide by the regulations on state secrets. Lawyers must not violate regulations, revealing or disseminating important case information and case materials, or using [that information or those materials] for purposes other than in defense and representation for that case. "

I hope, that the judicial administrative organs will make reasonable, specific, and workable provisions on the basis of a consideration of the experience in practice and listening to a wide range of comments. But until new provisions are put out, as far as the current ones, giving punishment where is no violation of the current provisions is still without a basis.

III. Penalizing similar conduct will affect the balance of criminal justice

The Internet is not outside the law, and there is no immunity for lawyers’ comments outside of court. But at the same time, lawyers’ right to give a criminal defense and citizens' right to make accusations should also be protected by law. The question that arises is how to maintain balance in criminal defense?

(1) Lawyers’ out-of-court remarks are an extension of lawyers’ right to defend.

I understand that lawyers both cooperate with the public security organs, procuratorates, and courts, and that they also mutually restrain each other, to jointly complete the tasks prescribed by law.

Article 36 of the Lawyers Law provides that: "Where lawyers serve as agents ad litem or defenders, their rights to debate and defend are protected in accordance with law. " Is a lawyer's right to defend limited to speech at court? It shouldn't be. In the "trial-centered" litigation structure, the ideal situation is of course that everything is said in the court, and there is no need to speak outside of court.

But in practice, there are still many situations that drive lawyers to speak outside of court. For example, during the investigation and prosecution stage of the case, some investigative agencies announce that they have "cracked" a case, and enumerate the suspect's "crimes" with names and even photos attached . Or for another example, for some illegal conduct in the course of the investigation, prosecution, ortrial, the parties or their family members "have nowhere to appeal, and no way to sue," so go online to air their grievances . In such a situation, it is neither fair nor just to categorically stop the parties and lawyers from speaking out online. In summary, the right of lawyers to defend is not limited to what they say in court, but also includes legitimate efforts outside of court. If a lawyer's out-of-court remarks are to be punished, it must be because it violates certain laws or infringes certain legal interests.

(2) Exposing the use of torture to extract confessions is part of citizens' right to accuse

Our country's Constitution provides for the rights of citizens to appeal and sue. Article 14 of the Criminal Procedure Law further provides that,"Litigation participants have the right to submit an accusation against adjudicators, procurators, and investigators who infringe on citizen's procedural rights and cause personal insult. " and normally the accusations shall be submitted directly to the relevant government organs. But the law doesn't have any provisions that accusations can only be submitted to state organs, or that online accusations are entirely prohibited.

In practice, online exposure and accusations have been exactly what led to the just handling of quite a few cases, and the correction of quite a few unjust or wrongfully decided cases, Lawyer Zhou Ze's "trouble-making" Weibo posts were all related to exposing the use of torture to extract confessions. Whether torture was used to extract a confession in this case remains to be investigated and finally determined by the authorities. However, the interrogation continued for a long time going through two o'clock in the morning; during which the handcuffs were pressed 13 times in 13 minutes, and the party groaned constantly, making it hard to believe that this was not torture.

In fact, the Anhui Provincial Procuratorate withdrew two interrogation transcripts during the second instance trial; in the remaining transcripts, the Anhui High Court's second-instance judgment also confirms that there were three interrogations from which “we cannot rule out the use of illegal methods to collect evidence” (pages 39-40). And it is not that those involved did not report the issue of the use of torture to extract confessions to the relevant authorities. The family members of the parties made reports to several departments, and the answer they received was that "the problems you have reported are not true." The defense attorney in the first-instance trial raised it at court, requesting the exclusion of the illegal evidence, but it was not sustained.

Lawyer Feng Yanqiang filed an accusation with the Anhui Procuratorate on April 26, 2020, and Attorney Zhou Ze filed a complaint with multiple departments on January 3, 2021, but no substantive response was received. After Zhou Ze took over the defense in the second-instance trial, because the court did not give notice of in-court proceedings at that time, Zhou Ze judged that there was probably no opportunity to speak in court. It was in this situation that Zhou Ze chose to expose it online, and this really cannot be considered "improper".

(3) Punishment for online reporting should be necessary and appropriate

Even if we do not consider whether the statutory conditions for administrative punishment are established, and only look at it in terms of the administration of lawyers, administrative punishment should be restrained. Where there are already penalties, there is no need to add new ones; and if gentler means can be used to achieve goals, there is no need to use the big stick of punishment. Actually, the current law is not without provisions about lawyers online reporting: If a lawyer leaks state secrets, there are punishments --but this case doesn't involve state secrets; if the case circumstances are leaked during the investigation stage of a criminal case, obstructing the criminal investigation, there are punishments --but this case is in the second-instance trial phase and the evidence has long been set; if it's a case that is not being tried openly, and case circumstances are disclosed online disrupting the order of the proceedings and infringing on the parties' procedural rights, there are punishments --but this case is not one that is not tried openly; if lawyers fabricate or distort the facts in making reports, there are punishments --but these images are from the interrogation video provided by the public security organs; if the main content of a lawyer's report is false, they should also bear the consequences --but so far nobody has claimed that the content was false; and finally, in today's online management system, if the content of lawyers' reports is inappropriate, the network administrators may delete the content, and the public security organs may also request that it be deleted -- but this content remains online today.

In summary, the current regulations governing lawyers’ out-of-court speech are sufficient, and it is unnecessary and inappropriate to impose penalties based on the circumstances of this case.

Finally, I want to confess a thought to the person in charge of this case: whatever the outcome of Zhou Ze's case, it will become a benchmark. I believe that one may send a message about the the rule of law to the society by not punishing Zhou Ze: "it is not illegal for a lawyer to accurately report on the extraction of confessions by torture." By contrast, if Zhou Ze is punished, then history is left with this story: "the torturer was safe and sound, but the whistleblower was met with punishment." "

Please consider the above comments.

January 5, 2021

He Haibo


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