The Watchmen Watch Themselves: Procuratorate case-handling prohibitions

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The Supreme People’s Procuratorate recently released an 8-point set of prohibitions discussing unlawful conduct in the investigation of abuses of public office. The procuratorate, which is China’s criminal prosecution authority, also replaces the police as the principal investigating authority in certain crimes by Chinese officials. These include crimes of corruption and accepting bribes, as well as other misconduct in office, which are often the focus of keen public interest. Officials accused of such crimes may have already been investigated by a Party discipline committee in the feared and secretive extra-judicial process known as Shuanggui, before the case is transferred to the procuratorate for handling in the criminal justice system.

The 8 prohibitions address some of the most prominent problems in Chinese criminal investigations, ranging from improperly restricting suspects’ freedom during initial investigation to having suspects suffer injuries or death while being investigated. Most of the specific prohibitions, however, essentially repeat provisions of the Criminal Procedure Law, it’s interpretations, and related rules. The added value here may be as a warning to procurators that the problems have been noticed and that there will be consequences for continued violations. Beyond this, the provisions also emphasize potential consequences not only for those directly involved, but also their supervisors, whose lax management or improper conduct allowed violations to occur.

This document is an internal procurate regulation and the scope of its content reflects that, but in reading it, one can’t help but think of other mechanisms that might help better stem this unlawful conduct. An external, truly neutral review of purported violations, perhaps through the courts, might further increase the credibility of the procuratorate decisions. Additional mechanisms for victims of abuses to report incidents and seek remedies might ensure that more of these abuses see the light of day. This sort of internal, hierarchical regulation is typical in the Chinese justice sector, but is particularly bothersome in addressing procurator misconduct, as it is usually the procuratorate that provides some level of external checks on misconduct.

Finally, as you read the outline consider whether the consequences of violating the prohibition are clearly articulated and stern enough to provide sufficient deterrence. Many of the offenses simply suggest that disciplinary and legal responsibility will be pursued. Some of the offenses expressly mention the possibility of criminal punishments, but others, such as taking assets sealed during case-handling do not, which could clearly constitute a crime, do not.

The Prohibitions

1. Improper Preliminary Investigation:

Prohibited Conduct:

  • Capriciously handling case leads or initiating preliminary investigations [This is likely aimed at preventing procurators to use suspected corruption or the threat of investigation as leverage against an official to gain benefits, rather than following procedures to initiate a case]
  • Use of “compulsory measures” limiting suspects’ rights in person or property during the preliminary investigation.

Consequences:

  • Warnings, Demerits of Major Demerits
  • When more significant: Expulsion
  • Possible criminal charges

2. Unlawful use of Non-Residential Surveillance

Residential surveillance is a compulsory measure that may be used during investigation to provide substantial limits a suspects’ freedom without placing them in a detention center. While it is usually a form of house arrest, it may sometimes involve placing the suspect in a ‘designated location’ (non-residential surveillance) when they lack a fixed residence or are suspected of a crime endangering national security, terrorism, or especially serious bribery offenses. Non-residential surveillance requires approval from higher level authorities. [See Criminal Procedure Law Article 73]

Prohibited Conduct:

  • Failure to get approval from level above
  • Expanding scope of cases covered

Consequences:

  • Disciplinary and Legal responsibility pursued on basis of circumstances and consequences.

3. Disruption of business:

Prohibited Conduct:

  • Meddling in construction projects or interfering in the bidding process
  • Meddling in economic disputes
  • Exceeding authority to handle the case.
  • Accepting gifts and payments

Consequences:

  • Demerits or major demerits
  • Demotion or removal from office where more serious
  • Possible criminal charges

4. Unlawful Disposition of Case Assets

Prohibited Conduct:

  • Arbitrary sealing , seizing or freezing of assets
  • Not promptly returning sealed or frozen assets as required
  • Improper disposition of assets or their proceeds (stealing, selling or otherwise benefitting from)

Consequences:

  • Disciplinary and legal responsibility pursued for both decision makers and the actual implementers
  • State can recover from offenders where it was required to pay compensation

5. Interference with Lawyers rights to meet with clients

Following revisions to the Criminal Procedure Law in 2012, defense lawyers are allowed to meet, unobserved, with their detained clients in most criminal cases without first seeking permission. In cases of especially serious bribery, terrorism and crimes endangering national security , they must first seek the permission of the investigating authorities. [CPL article 37]

Prohibited Conduct:

  1. Erecting barriers to meetings or disturbing and influencing meetings.
  2. Not reasonably arranging meetings in cases where permission is required.

Consequences:

  • Warnings or demerits on basis of case-handling circumstances.

6. Not Recording the Full Course of Interrogations

Required by article 121 of the Criminal Procedure Law in all ‘major cases’

Consequences:

  • Case must not be transferred to be reviewed for prosecution
  • Prosecution department may refuse to accept case materials

7. Illegally Gathering Evidence

Prohibited Conduct:

  1. Use of torture, threats, enticements or deceit to obtain confessions and witness statements
  2. Acquisition of physical or documentary evidence without complying with procedures, that might impact fairness, and cannot be reasonably explained.

Consequences:

  • Cannot use materials as evidence
  • Demerits or major demerits
  • More significant violations: demotion or dismissal
  • Serious Violations: Expulsion
  • Possible criminal charges

8. Safety Violations in Investigations

Prohibited circumstances:

  • Violations of laws and rules, or serious negligence, that causes a suspect to flee, be injured, or commit suicide; or the injury or suicide of a witness.

Consequences:

  • Immediate suspension of both person calling the shots and implementers
  • Handling in accordance with discipline and law
  • Possible Criminal Charges.

 

 

 

 

About Jeremy Daum 85 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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