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Not so very long after the products of China’s Third Plenum left many of those hoping for more overt court reform wanting, the Supreme People’s Court has made public its own opinion on preventing wrongful cases, which encapsulates and reinforces much of what the Court has been saying since new president ZHOU Qiang took office in March this year. Judicial Independence, procedural justice, and the exclusion of illegally acquired evidence are all prominently featured.
The document sets its tone in the first article, by setting its basis in the core principle of protecting and respecting human rights. This phrase first appeared in the Criminal Procedure Law following revisions that took effect in January of this year, but human rights remain a sensitive and provocative concept in China. They are also, however, a vague concept undefined in any domestic laws, so that while invocation of them is welcome and bold sounding, it adds little.
The document offers a heartier broth when addressing Judicial Independence. Outside influences such as pressure from volatile public opinions, petitioning parties and local governments’ need for social stability, are all identified as impermissible influences on judgments [article 2].
The undue influence of public security forces and prosecutors is addressed in article 23, which admonishes courts to respect their distinct professional roles and not collude in case-handling a case. The relationship between these three groups is often complicated by their roles in local government and Party structures, and while the groups are told to be checks on each others power, the potential for improper collusion is rarely addressed so directly.
A subtler form of interference in judicial independence – the judicial performance evaluation system is also addressed, and with specific rules being made. The Opinion calls an end to the use of single factor evaluation indexes like appeal rates, remand rates, and reversal rates. [article 22] Chinese judges have long complained that pursuit of these numeric indicators of case-handling quality, has led them to contort their judgments to both fit justice and get high marks.
In Article 19, the Opinion strikes out at the practice of lower courts seeking advice from higher courts that might see that case on appeal. It is prohibited to request advice from the higher courts on questions of facts and evidence. Of course, this suggests that an advisory opinion on how a question of law might be handled on review is still fair game, but at least allows the lower court to be an independent finder of fact. Of course, allowing any input from higher courts create the fear that judgment will be made by someone other than the people trying the case.
The most notorious example of judgment by non-trial personnel is not from higher courts, but by the adjudication committee that exists within each each court. Even these committees are touched on in passing by the Opinion, that asks that each member of the committee state their thinking in turn, before the persuasive committee chair gives their opinions [article 17]
The article mentioned above will help the courts make independent judgments, but articles on liability for wrongful decisions may cut the other way. Judges are told to make clear decisoins erring towards innocence and not give half-way measures in finding guilt buy allowing a margin of error [article 6], the adjudicators’ joint responsibility for determining the facts seems like it might make judges afraid to use clear judgments even when honestly making decisions based on what is known to them at the time. Judges should be punished if there is a violation of disciplinary codes or laws [Article 22], but idea that those following the law will not be held accountable is only so valuable when the law is often unclear, and only clarified through prosecutions.
Exclusion of Evidence and Emphasis on In-court Proceedings
In previous speeches and essays by SPC leadership this year, the exclusion of evidence has been held out as the silver bullet for stopping wrongful convictions. The Opinion furthers this and provides slightly clear guidance on when evidence should be considered illegally acquired and excluded.
In addition to the use of torture to extract confessions, the SPC’s earlier CPL interpretation made clear that any tactics which caused severe psychological or physical suffering so as to make a person give a confession against their will, were illegal and should be excluded. The Opinion goes a step further, by specifying several qualifying tactics including using exhaustion, heat, or cold during interrogations [article 8]. These terms aren’t defined, but do add some further clarification.
The court also reaffirms that in-court hearings are key to trial process, and should be where the facts are verified, the law is argued, and the verdict takes shape [article 11]. This means that evidence not reviewed and discussed in court should not be the basis of a case decision, except in special circumstances for the safety of undercover officers and the like. [article 12] Witness testimony is still somewhat tepidly required to be in court, and will be excluded, or restricted in use, only where the witness refuses to testify in court without a valid reason and the veracity of pretrial testimony can’t be confirmed. [article 13].
These articles and others (e.g. article 16- judges hearing death penalty cases should have experience; article 9- biological evidence admissible only when found to match a sample from the defendant or victim) are all aimed in the right direction to raise case quality, they seek to put credible evidence before judges who have the training and wherewithal to make unbiased judgments upon it.
Unfortunately, like the call to protect human rights in the first article, the bold language often remains at a high level of abstraction, with only modest efforts to ensure enforcement. The frequent lack of strong enforcement language like ‘must’ and ‘shall’ is particularly troubling in a system where even very concrete requirements can be overlooked when inconvenient and where it isn’t ever clear if promising legal reforms will be realized in practice.
For courts to be reliable and independent , there must be an expectation that they are. When courts rely on secret or closed, out-of-court processes to determine cases, there is no such expectation but rather a pernicious suspicion that the trial was unjust. The Court supports openness in its Opinion, emphasizing explanations of positions and published documents, but until it leaves no other choice but openness, this support may never be enough.