SPC Executive Vice-President Shen Deyong on wrongful cases

2013年 5月6日 http://cpc.people.com.cn/n/2013/0506/c64102-21382998.html

For some time now, the successive emergence of unjust, false or wrongfully decided criminal cases has brought the people's courts an unprecedented challenge, which if handled improperly will seriously restrict the development of criminal trial work, and we have already reached a point where we must take a stand. Once discovered, wrongfully decided cases can only be lawfully and promptly corrected and justice upheld if the people are to develop confidence in the nation's rule of law. Meanwhile, compared with miscarriage corrective, we must place greater emphasis on "nipping the problem in the bud" and having "20/20 foresight", to make eliminate the possibility of potentially unjust, false and wrongfully decided cases from taking from. Resolutely upholding the bottom line of preventing unjust, false and wrongfully decided cases is not only a professional responsibility that our criminal trial departments and judges assume , but also arises from the nature of judicial verdicts as final judgments.

Judgment is the final step of litigation, and is also the last line of defense for realizing judicial fairness. Criminal judgments hold absolute power over life and property, they impact citizen's reputations, property, freedom and even lives, they impact national security and social stability; and adherence to fair trials in accordance with law and the prevention of unjust, false or wrongfully decided cases is a bottom line that we must resolutely uphold. General Secretary Xi Jinping, secretary has instructed us to "strive to let the people feel fairness and justice in every judicial case." Court President ZHOU Qiang has requested that people's courts at all levels closely embrace this goal, carry forth the excellent traditions, be bold in reforms and innovations, and firmly persist in a judiciary for the people, and a just judiciary. People's courts of all levels and criminal judges have the responsibility to earnestly implement the Center's requests and the Supreme People's Court's assignations, to lawfully and justly try each criminal case, to promptly clarify the facts and verify the applicable law, to punish crime and uphold human rights in accordance with law, to ensure every case withstands the tests of facts, law and time. If cases are handled unjustly, falsely or wrongfully decided, fairness and justice no longer exist, and judicial fairness and authoritativeness are completely lost. Therefore, vigilance against the occurrence of unjust, false and wrongfully decided cases is the tail end of the bottom line of our defense of judicial fairness and justice, we must adopt strong measures expel unjust, false and wrongfully decided cases from the halls of adjudication, and give the party, the people and the laws and constitution an accounting.

In all times and places, unjust, false and wrongfully decided cases have been difficult to fully eradicate. There are many causes of unjust, false and wrongfully decided cases ; there are those that intentionally entrap people, those that know their error, those who aren't so competent, those where techniques were primitive. In contemporary China with it's shining governance, great capacity and advanced technologies, the number of unjust, false or wrongfully decided cases brought on by the above causes are increasingly small. Looking over the cases already discovered and disclosed, these unjust, false and wrongfully decided cases have much do with judicial work styles, sloppy work, weak senses of responsibility and also pursuit of incorrect performance goals such as case breaking rates, arrest rates, indictment rates and conviction rates.

The reality is, courts accepting cases face some cases where the facts are unclear, the evidence insufficient, reasonable doubt exists and which leave uncertaintanty in their conscience, particularly cases where there is illegal evidence; and courts continue to face enormous pressure on the issues of whether or not to release, whether or not to have trial, and whether to give a light or heavy sentence. It should be said that, now we have seen a number of cases, includingthe Henan ZHAO Zuohai murder case.the Zhejiang uncle and nephew rapists case, where the trial court at the time made a contribution, or at least it may be said that their contribution outweighs their errors, or else these persons heads [the defendants] would have rolled long ago. In cases like these, where courts face pressure and intervention from all sides, standing by a judgement that leaves some leeway for the unforeseen is already not easy. At the same time, we should be soberly cognizant that although the courts performed a service by preventing a wrongful execution, they, objectively speaking, also have fault in the wrongful judgment as, after all, this kind of judgement leaving a way out, is not only a serious violation of the statutory criminal penalties and principals of due process, but also cannot stand up against the facts and the law, and ultimately puts the courts into an utterly passive position. Once an unjust, false, or wrongfully decided case becomes a reality, the court faces almost universally condemnation, and at that point any explanation or clarification will be feeble and futile, to no avail at all.

As to how to prevent unjust, false and wrongfully decided cases, I have the following thoughts:

One, fully understand the serious harm of unjust, false and wrongfully decided cases. The impact of these cases in not at all limited to the individual case, and the harm the generate in every aspect of social life cannot be underestimated. First, is the damage to the parties. An unjust, false or wrongfully decided case can destroy a household and destroy an individual's life, and this cannot be made right by any compensation or payment. Second is the harm to the judicial image and judicial authority. The judicial fairness of the courts must ultimately be spoken through the quality of their cases; how may years of and people's efforts are undone by a single unjust, false or wrongfully decided case, how many successes and contributions go up in smoke. Third is the harm to public's faith in the law and rule of law. Although in all times and nations it has always been difficult to entirely avoid unjust, false and wrongfully decided cases, the China's people's widespread feeling is that the judiciary should be absolutely correct, fair and unbiased. Therefore, once an unjust, false or wrongfully decided case occurs, it can greatly shake the public's faith in the rule of law. Fourth is the harm to the judge handling the case. A judge intentionally manufacturing an unjust, false or wrongfully decided case is extremely rare. In China's current actual conditions, unjust, false and wrongfully decided cases tend to be the consequence of following orders, abandoning principles or sloppy work and dereliction of duty. In the west, judges are synonymous with fairness, and we also feel that judges are the embodiment of fairness, are the guardians of fairness and justice, and if the guardian become the assailant, the professional stigma cannot be washed off in a lifetime.

Two, fully acknowledging the real potential for unjust, false or wrongfully decided cases to occur. Even excluding situations like the "cultural revolution" period that artificially manufacture unjust, false and wrongfully decided cases, there is always great potential for the occurrence of such cases given the limits of human awareness, the relative nature of technical development, holes in procedural systems and other factors known or unknown; that is to say, that where there is any carelessness, they can occur. "Hope for the best, prepare for the worst". This worst, could happen at this time or that time, could happen in this place or that place. Especially in the current conditions where the presumption of guilt mentality has not been completely eradicated and the presumption of innocence has not been fully established, the chance of an unjust, false or wrongfully decided case occurring could even be said to be quite large. We must maintain a sober recognition of this, and at the same time further improve our awareness of prevention of unjust, false and wrongfully decided cases; we must prevent these cases as if preventing a plague; preferring a wrongful release over allowing a wrongful judgment. If a true criminal is wrongly released, the sky won't fall, but wrongfully convict an innocent civilian, especially wrongfully execute a person, and the sky is coming down.

Three, fully rely on the system of legal procedures to prevent unjust, false and wrongfully decided cases. Looking at the unjust, false and wrongfully decided cases that have already been discovered, many break through the system provisions or flagrantly violate statutory procedures at some point. I have previously on many occasions talked about issue of prioritizing procedural justice , why do I keep repeating myself? Emphasizing procedural justice does not mean it is more important than substantive justice, but is rather to say that we should pay great attention to the independent value of procedural justice. Looking at the process of handling a single case, procedural justice objectively precedes substantive justice, more importantly, procedural fairness serves as a type of "visible justice" with a deeper level of significance for the protection of human dignity, openness in litigation ,transparency, democracy as well as aspects such as the finality and acceptability of judgments. And fundamentally, procedural justice the effective guarantee of substantive justice. A fully complete procedural system can provide the greatest degree of guarantee of prevention of unjust, false and wrongfully decided cases. For example, if the evidence alleged is insufficient to prove a crime, then a not-guilty verdict shoud be proclaimed in accordance with law; if it found that there is illegal evidence, then it should be excluded in accordance with law; when applying the death penalty there cannot be any reasonable doubt at all as to the guilt or sentencing evidence, and wherever reasonable doubt exists, resolutely do not apply the death penalty. The present system could be said to be relatively perfected, the key is whether or not we dare to raise the weapons of legal procedure, whether or not we dare to persist in principles. This is not just a matter of legal professionalism, but also a political issue. At the same time, the courts and judges should see that the legal system is our real protective talisman and patron saint If we abandon our principles, once an unjust, false or wrongly decided case appears, nobody will be able to save us.

Four, fully bring to play defense lawyers' important role in prevent unjust, false and wrongly decided cases. According to the provisions of the Criminal Procedure Law, defense lawyers' basic duties are to put forward comments and materials regarding the suspect or defendant's innocence or grounds for leniency, commutation or excuse from punishment based on the facts and the law, and to protect a suspect of defendant's litigation procedural rights and other lawful rights and interests. The system's design lies in the formation of a type of adversarial litigation relationship with the prosecution to prevent criminal charges from becoming just a latent determination of guilt. Although China's law regarding the public prosecution organs also provides for attaching importance to evidence of innocence and mitigation, the nature of the public prosecution is pursuit of conviction and they will instinctively pay more attention to evidence of guilt and aggravating sentences, and this is understandable. Therefore, the modern litigation structure, in order to prevent one-sidedness, legislates this kind of criminal defense counter-force, creating an litigation structure in which the defense and prosecution are adversarial and the judge is placed between them. Speaking from the perspective of preventing unjust, false and wrongly decided cases, and by extension, from the perspective of ensuring the fairness and rationality of all criminal trials and the acceptability of judgments, defense lawyers are the force upon which the courts can most rely, and should rely. Today there is a very strange phenomenon, lawyers do not oppose the prosecution, but stand instead in opposition to the presiding judges, even evolving into "adversaries," lawyers want to "K.O." judges, and there are those in society who say that the relationship between lawyers and judges is "a symphony of rain" , but what are the underlying reasons? We need to consider this more deeply. Objectively, there are certainly instances where individual lawyers disobey rules, but are judges making a mountain out of a molehill and overreacting to the problem? Is there any issue of them harboring thoughts of looking down upon defense lawyers or not respecting lawyers' lawful performance of their professional duties? Is there any chance that in work relationships they emphasize cooperation between the courts and procuratorates but overlook issues of bringing lawyers' function into play? Are judges abiding by the principle of judicial neutrality and an impartial stance? We must deeply reflect upon these questions. We want to fully recognize that lawyers are an important member of a joint corps of legal professionals, are allies of the people's courts, are an irreplaceable and important force in bringing about fair trials and effectively preventing unjust, false and wrongly decided cases. As to individual lawyers violating rules, revolting or irrationally causing a commotion, these can be taken one at a time, with the relevant principal departments promptly adopting methods appropriate to the situation, and it is also a matter to report to the judicial administrative organs and the lawyers associations so as to request their cooperation in these efforts. Yet this sort of situation should not be blown up into a prejudice against the entire body of lawyers, and you must have full faith that the vast majority of lawyers are of excellent professional caliber, reasonable, objective, fair, on point and are a force upon which the people's courts can and should rely.

Fifth, fully employ power of technology to prevent unjust, false and wrongly decided cases. We have entered the 21st century, science and technology progress with each passing day, optical technology, biological technology, nano-technology, electronics, genetic technology are all in wide use. As everyone knows, applications of science and technology is fastest in two areas: military operations and crime fighting. The key is whether we are bold enough to use it, and whether we will use it. Whether it's traditional science or modern technology, there is an issue of scientific application, one must be both daring enough to use it and skilled in its use, one must be able to recognize it as an important method but cannot blindly accept it. DNA identification, for example, in the early 1990s, 200 people or so might match a person's DNA, but now we already have it down to 1 in 400 million, show how the technology itself is continuously progressing and advancing. In United States 1989 "Central Park jogger" case, a female banker was raped and beaten when jogging through Manhattan's Central Park. The suspects that the police locked in on where 14-16 year old juveniles, who after a lengthy questioning admitted guilt and made a video confession. Although they later adamantly said that they had been tortured and were forced to make the recording, but the charges were still established by this "forceful" evidence and were sentenced seperately to 5-15 years detention. In 2002 the cases' real offenders emerged and DNA test results revealed made clear that the previous confessions from were false. In Japan's Toshikazu Sugaya rape murder case, Toshikazu Sugaya was sentenced to indefinite imprisonment in 1992 but released as innocent in 2009. The primary evidence behind both the guilty and the innocence verdicts was a DNA test results-- truly a blessing and a curse. Despite its shortcomings,the role of technological means in enhancing the quality of handling cases cannot be underestimated and we mustn't stop eating for fear of choking, but can only adapt to the era's level of technological ability. Therefore, to fully employ technological might to prevent unjust, false and wrongly decided cases we must update our equipment more quickly, particularly the technological might of public security organs in remote and backwards areas where the basic technology level is behind.

Sixth, get the full support of the community in jointly preventing unjust, false, and wrongly decided cases. Increasing public supervision is an effective means of preventing such cases. "The masses have sharp eyes." Adherence to the judicial mass line, actively gaining the public's support, and rationally drawing upon the strength and wisdom of the masses, can effectively make up for the limits of professional judge's knowledge and abilities. For a long time, the notion of "a life for a life" has had a broad influence on judicial practice. When a homicide occurs, there is attention from all side, especially from the victims, and the demands the case be broken quickly and the punishment be harsh are always intense, and it's easy to garner the sympathy and support of the public. Put oneself in that position and such feelings are understandable. But court judgments must be upon the actual criminals, and verifying a crime rests upon facts and evidence, and thus having the correct mindset is very important. First, do not too emphatically demand that a "murders must be solved." We emphasize that the subjective initiative to actively investigate the case is well intentioned, and the average people's desire to for peace and tranquility is also good, but emphasizing that 'murders must be solved' is bound to place an invisible pressure on the public security organs and can even become an element of external interference and which might influence the quality of case handling. In practice, there are objectively a small number of cases, subject to factors such as methods of understanding and capacity levels, that cannot be broken, where no one is caught, that cannot be indicted or that cannot be tried; and at such a point the only thing that can be done is to withdraw cases that should be withdrawn, don't indict those that shouldn't be indicted, and find not guilty those that that should be found not guilty. We absolutely must not act as if 'everything that lands on the plate is food.' Second is that avoiding unjust, false and wrongly decided cases has a cost. Speaking from the perspective of legal understanding, putting an 100% absolute stop to unjust, unfair and wrongly decided cases isn't possible. It is generally believed that Western countries have a more comprehensive legal system, and might not have such cases, the truth is actually precisely the opposite how people's imagine it to be. China University of Political Law and Science Professor Chen Guangzhong and his research group have concluded: The rate of innocent persons sentenced to death in American death penalty cases is 5%. Their research data come from Columbia University Law School Professor James [Liebman --ed.} who presided over a national research report on the application of the death penalty in the United States. This research was commissioned by the Federal Department of Justice and implemented by Professor James and it is the most comprehensive statistical research on the use of the death penalty in the United States. Two wrongly decided cases from the US and Japan were mentioned above, and there is also the Australian Lindy [Chamberlain --ed.] case (aka the famous Cry in the Dark case). In 1981, Lindy was accused of murder and sentenced to indefinite imprisonment, and only had her name cleared 31 years later. These cases were all felt to be unproblematic at the time, and it was only with the passage of time, the appearance of the real killer, or technological advances, that the cases could be corrected. Once can see that China isn't the only place with wrongly decided cases, and they have occurred across nations and throughout time; the most important thing is to research how to effectively prevent them and to correct them quickly when they are discovered. Many of us have the idea of "not wrongly accusing a good man, and not releasing a bad man" , but if we want to effectively prevent unjust, false or wrongly decided cases to really accomplish "not wrongly accusing good men" and to protect the innocent, it will result in "letting go" a few bad guys. This kind of systemic risk objectively exists, and all parts of society must brace themselves for this occurrence. This is the price that must be paid for ensuring judicial fairness in criminal cases and of preventing unjust, false or wrongly decided cases. Third, quickly inform the people of the truth. Openness is the best way to dispel doubts. Regardless of whether some cases are actually wrongly decided, as time drags on and the truth is still not revealed, the courts are made extremely passive it becomes very hard for the ultimate judgment to be give credence. With today's rapid development of information technology, criminal adjudication should adapt to the demands of the day and emphasize openness in the entire judicial process. As long as it doesn't touch upon state secrets, adjudication secrets, personal privacy, or major trade secrets, the truth should be actively revealed in a timely fashion, to let the public use the scales of their conscience to weigh and evaluate it. While upholding the foundation of independent fair trials in accordance with law, we should widely hear comments and suggestion and actively solicit the support and understanding of the people's representatives, CPPCC members and the news media, and fully respect the active role played by expert scholars. In some major, difficult or controversial trials organizing people's representatives, CPPCC members, lawyer representatives, media representatives and basic level mass representatives to form a gallery for observing and reviewing trials, and, in a suitable fashion, hear their comments on how to handle the case; or may organize a group of expert scholars to perform research and demonstrations to provide advisory opinions. In short, we need to take the initiative to work with the community to jointly create a relaxed and rational environment for upholding the bottom line of judicial fairness.

Seven, fully rely on the leadership of the party in efforts to prevent prevent unjust, false and wrongly decided cases. Our judicial work is the people's judicial work done under the leadership of the Party and the Party's leadership is an important political guarantee that judicial trial work will be done well. Performing judicial trial work including the prevention of unjust, false and wrongly decided cases cannot rest solely upon the courts alone as a solitary struggle. Most important is to, collaborate with the public security and procuratorate organs, uunder the leadership of the Party, to soundly implement divisions of labor and responsibility, mutual cooperation, the principle of mutual checks, joint responsibility for carrying out the law, joint upholding of the law's bottom line, and joint prevention of unjust, fals and wrongly decided cases. Laying a solid foundation is extremely important for preventing unjust, false and wrongly decided cases, that is to say that investigative work will be shake if the foundation isn't stable; towers can't be built upon sand. As for public security, procuratorate and court organs, cooperation must be improved. This is benneficial to to their combining efforts and to bringing out the best of the system to raise the overall quality and level of criminal proceedings. Even more important is improving mutual checks. Any form of joint case handling has the possibility of planting the seeds of unjust, false or wrongly decided cases and must be resolutely rejected; any degree of accommodation or protection can allow major mistakes to develop and create irreversible harms, and must be absolutely refused. Given that we are judges, we ought to have a little of this impartial and selfless mentality. History will ultimately prove that our doing so is beneficial to defending the Party's cause, preserving the interests of the people, maintaining judicial authority, and promoting social development and progress. In short, we want to launch efforts under the party's leadership and working together with other specialized in unified coordination and with independent responsibility, to make a "watershed management" scheme for preventing unjust, false, and wrongly decided cases with each bringing into play its role in this engineering system for the prevention of such cases. Public security and procuratorate organs, on the basis of the successful work of the last few years, emphasize earnestly implementing the revised Criminal Procedure Law and this requires further raising the quality and level of investigation and prosecution, providing an important foundation for the prevention of unjust, false or wrongly decided cases. Criminal trials, as the centerpiece of criminal proceedings, must firmly uphold the bottom line of preventing unjust, unfair and wrongly decided cases; and independent and fair trials, in accordance with law, should be used to take firm hold of this final hurdle, and fully protect judicial fairness. (SHEN Deyong)

(The author is the Executive Vice President of the Supreme People's Court, a part-time professor of law at the China University of Political Science and Law, and doctoral candidate supervisor)