The Supreme People’s Procurate (SPP) is not only China’s top prosecutors’ office, but is also responsible for ‘legal oversight’ of judicial and administrative action. The various levels of provincial and local procuratorates under the SPP can review the legality of administrative agencies’ enforcement actions and even re-open court cases where they find that the courts have applied the law incorrectly. While the prosecution and legal oversight functions of the procuratorates are exercised by different departments internally, it is because of the institutions’ additional authority that we refer to their staff as ‘procurators’ rather than simply ‘prosecutors’. These robust powers are also one reason that reviewing the SPP’s annual work report is at least as important as looking at that released by the courts.
Until recently, the procuratorates had the further authority to directly investigate corruption and related crimes by government officials. The 2018 Supervision Law shifted this authority to the newly formed supervision organs – government bodies incorporating the powers and duties of the Communist Party’s notorious Discipline and Inspection Commissions to regulate the conduct of all state actors. The work of the supervision organs is secretive and can involve months of extra-judicial detention, but because any crimes discovered by the supervision commissions are ultimately transferred for criminal prosecution, the somewhat more transparent SPP’s work report provides some insight into supervision organs’ work as well
For example, the report tells us that a total of 19,760 cases were transferred to procuratorates from the supervision commissions. Even more interesting is that the SPP reports some level of pushback against the supervision commissions, with procuratorates declining to prosecute 662 of the transferred suspects, and requesting further investigation 4,013 times.
This may in part reflect different evidence requirements in China’s formal justice system compared with the opaque supervision investigation that precedes it. Materials gathered during a supervision investigation are allowed to be used as evidence in criminal proceedings, but only where it can be proven that they were collected through procedures that are legal under criminal procedures. While this review of evidence for use in criminal proceedings doesn’t amount to the procuratorate “supervising the supervisors” as they have no authority over the supervision commissions’ investigations, it seems they are acting as gatekeepers in the criminal process at least, reviewing cases sent by the supervision authorities just as they would cases sent by police.
One of the most striking items in the report is that pretrial detention is down to 53%. This suggests an astonishing shift, as just 20 years earlier 96.8% of suspects were kept in custody through trial. Pretrial release not only aligns with the presumption of innocence, but also gives suspects the opportunity to more easily meet with their lawyers to prepare a defense, and protects them from the coercive influence of being detained for what may be many months of pretrial investigation and interrogation. That the procuratorate is proudly touting pretrial release as an achievement, despite predictable misgivings from police and public safety-minded citizens, also suggests wider government support.
The law itself has long supported greater pretrial release, but it has been difficult to realize in practice. Under Chinese law, police are generally required to seek the procuratorate’s approval for further detention (known as formal arrest or 逮捕) within three days of taking a suspect into custody- which may sometimes be extended (and frequently extends as long as 37 days). It is the procurators, rather than the courts, that then make an initial review of the case, and decide whether continued detention is necessary, or whether a less restrictive measure such as release on guarantee or ‘residential surveillance’ is sufficient to ensure that suspects do not commit further crimes or tamper with evidence. Continued detention is the strictest of China’s pretrial restrictions, and procurators are expected to continuously examine whether detention remains necessary.
Unfortunately, as a practical matter, procurators have generally had more reason to fear the repercussions of releasing a suspect who then commits another crime than of unnecessarily detaining a suspect. While compensation may be owed to suspects who are ultimately found not guilty after detention, not guilty verdicts are incredibly rare. Ironically, rather than discouraging unnecessary pretrial detention, it has even been suggested that the true impact of allowing such compensation has been to make courts more reluctant to give ‘not guilty’ verdicts. To the extent that compensation has been a real concern to the courts and procurators, perhaps more pretrial release will be followed by more not-guilty verdicts.
As to why pretrial release might be finally gaining traction, there are likely several factors. First, is the decrease in serious crime, with a reported 77.4% of crimes now being more minor offenses punishable by a maximum of a 3 year prison term (up from 53.9% in 2000). More mild offenders are less likely to be viewed as posing a risk to society. Another factor is the introduction of the ‘plea leniency’ system inspired in part by the US plea bargaining system, in which suspects who admit their crimes and show remorse are given lighter punishments. In determining whether detention is necessary pre-sentencing, procurators are allowed to consider a defendant’s “plea” as an indication that they are less dangerous and more suitable for release. Although the system is new, plea cases already account for >85% of all cases. Finally, it may well be that as more and more of our lives move online, it has become increasingly difficult to abscond off-grid, and the fear of a suspect disappearing after release has been reduced.
Public Interest Prosecutions
Another newer function of the procuratorate is initiating public interest litigation. The public interest litigation here refers to law suits against government or private actors to stop illegal conduct and seek compensation in situations where large numbers of people are impacted in areas such as food and drug safety, the environment, and consumer protection issues like leaks of user information. The procuratorates handled over 151,000 such cases, although only 8,010 ever made it to court. The vast majority of the cases (137,000) were aimed at government organs, where the procuratorate will exercise its legal oversight authority to first urge the government body to make corrections before initiating a lawsuit. These report says that such recommendations were followed 99.4% of the time, precluding the need for litigation, meaning that most of the cases which did go to court were against private parties. Env
While there are no great surprises in this data, the data provided on what types of crimes were prosecuted is worth keeping track of:
|Type of Crime
|Arrest Approved (pretrial detention approved)
|common property offenses
|Saohei organized crime cases (since 2018)
|vice and gambling
|Serious Violent Crimes
|Abuse，sexual abuse, trafficking of children
|juvenile crime cases
|food drug crimes
|not approved for lack of evidence
|total not arrested/ not indicted in plea leniency cases
|not arrested because self-defense