Written by Tim Millar.
On 1 January 2013 China’s New Criminal Procedure Law (New CPL) came into force. This major reform was years in the making; indeed discussions leading to it began as soon as the law was last revised in 1997. The New CPL introduced many positive changes to China’s criminal justice system. These include; providing for the exclusion of illegally obtained evidence, some protection against self-incrimination and the use of videotaping in police interviews. The New CPL also increases the evidential standards for conviction, provides for earlier access to a defence lawyer, introduces new measures to protect witnesses, and states that ‘the state shall respect and protect human rights’ (such language is already in China’s constitution).
Not all the changes brought in by the New CPL were positive. Article 73 expands the use of residential surveillance and legitimises detention in places that are neither normal places of residence nor formal detention centres, leaving detainees without even the limited oversight found in official facilities. And some hoped for changes, such as the presumption of innocence, were not approved. The incorporation into law of long-standing and previously extra-legal practices relating to residential surveillance reveal the extent to which the New CPL is a compromise between competing visions of criminal justice.
Despite the somewhat mixed bag of reforms, positive provisions in the New CPL provide useful entry points for lawyers and academics seeking to increase respect for human rights. For example, new provisions for the exclusion of illegally obtained evidence provide an opening for lawyers and scholars to challenge the extraction of confessions through torture. The revised law establishes new standards for criminal procedure against which lawyers can try to hold the judicial authorities accountable. However, given the lack of independent institutions and ambiguities in the legislation, the real challenge is to see the law implemented.
The Rights Practice believes that greater respect for human rights will come from the people of China. Our approach is to help build the effectiveness of Chinese civil society to raise awareness of human rights and advocate for improved access to justice and criminal procedure, and public participation in decision-making. We are currently working with a range of partners in China, including small NGOs, lawyers, scholars, and university institutes. Since the New CPL has come into force The Rights Practice has used it as a starting point for discussions in much of our programming in the area of human rights and criminal justice.
In a project to promote the exclusion of illegally obtained evidence, we have worked with academics and lawyers to raise awareness of the new law as an important measure to combat torture and help China meet its international obligations under the Convention Against Torture. Activities have included roundtables, participatory training with lawyers and the preparation of manuals and training materials. Feedback suggests failings in the implementation of the new legislation with many lawyers reporting difficulties in persuading the procuratorate to initiate investigations into allegations of torture as required under the new law. A major challenge is the lack of clear guidance for the preparation of medico-legal reports that can provide medical evidence that injuries are consistent with reports of the use of torture. We have provided the opportunity for selected participants to undertake study visits to other Asian countries to learn from their experience of legal reform and challenging impunity for torturers.
Study visits – either short intensive visits for small groups or extended visits by individuals – provide participants with insight into how other countries approach similar issues and an opportunity to look at their own system from a different perspective. With the support of the EU-China NGO Twinning Programme we were delighted to bring the project manager from one of our local partners to the UK for five weeks last autumn to investigate the provision of legal aid, particularly within the criminal justice system. This gave him invaluable first hand insights as well as opportunities to meet with experts and practitioners to see how detainees are given access to legal aid in police custody. His understanding of UK experience and current practice has boosted his ability to promote the adoption of a duty lawyers’ scheme in China that aims to provide new detainees with prompt access to legal advice at the detention centre. We are continuing to work with his centre, Public Interest and Development Law Institute at Wuhan University, to encourage and support pilot projects to test new models for providing all detainees, regardless of their means, with access to lawyers.
Tim Millar has worked for human rights NGOs for 10 years and in China for The Rights Practice for more than two years.