Judicial reform in China

III.

Strengthening Human Rights Protection

To strengthen the protection of human rights is an important goal of China's judicial reform. China's legislative body promulgated its 2004 amendments to the Constitution, adding "the state respects and protects human rights" to it. The Criminal Procedure Law amended in 2012 included "respecting and protecting human rights" in the general provisions. China's judicial organs are taking effective measures in accordance with the law to deter and prohibit extorting confessions by torture, protect the rights to defense of criminal suspects and defendants, protect attorneys' rights to exercising their duties, limit the applicable measures of detention to protect the lawful rights of detainees, strengthen the protection of the legal rights and interests of detainees, strengthen the protection of juvenile suspects and defendants, strictly control and prudently apply the death penalty, improve the systems of community rehabilitation for inmates and assistance for persons released after serving their terms, and improve the state compensation system and establish systems including the criminal victim relief system, in an attempt to materialize efforts in human rights protection in the sphere of criminal justice.

1. Prohibiting and Deterring Extortion of Confessions by Torture

To improve the investigation and questioning system is a prerequisite for building the rule of law, and it is also an important method for strengthening judicial supervision and protecting the legal rights and interests of criminal suspects in accordance with the law. China is constantly improving its laws to prohibit the exacting of evidence through torture or other illegal means by judicial officials.

Banning self-incrimination. The Criminal Procedure Law amended in 2012 clearly stipulates that no person may be forced to prove his or her own guilt, and no criminal suspects or defendants may be forced to confess.

Excluding illegally obtained evidence. The Criminal Procedure Law amended in 2012 makes it clear that confessions by a suspect or a defendant obtained through extortion or other illegal means and witness's testimony and victim's statements obtained through the use of violence, threats or other illegal means should be excluded from evidence. If physical or documentary evidence is collected in ways violating legal procedures and severely affecting judicial justice, such evidence should be excluded if no correction or justification is provided. It also stipulates the specific procedure for exclusion of such evidence. Once evidence that should be excluded is found by public security organs, people's procuratorates or people's courts during the course of investigation, prosecution review or trial, such evidence should be excluded in accordance with the law.

Improving the system of detention, taking a person into custody after arrest, and interrogation. A person who has been detained must be sent to a house of detention within 24 hours. When a person is arrested, he/she must be taken into custody immediately in a house of detention, where the interrogation shall be conducted. With advances in the IT-based law enforcement by judicial organs, interrogation, detention, court trials and activities happening in places of custody are recorded and video taped. The practice of recording and videotaping investigation and questioning processes is widely adopted. The law explicitly states that for crimes punishable by life imprisonment or death and other serious crimes, audio or video recording of the interrogation process is mandatory. The audio or video recording should cover the entire process of the questioning and should be complete.

2. Protecting the Right to Defense of Suspects and Defendants

The system of advocacy set up for implementing the right to defense as stipulated in China's Constitution is a basic system in China's criminal litigation. It demonstrates the respect of the state for human rights such as those to life and freedom. In recent years, China has been reforming and improving its system of advocacy, aiming to change the old conception of "stressing fighting crimes, but ignoring human rights protection" in judicial practice, and make the system of advocacy play its due role in human rights protection.

Ensuring timely defense. The Criminal Procedure Law of 1979 stated that a defendant is not entitled to appoint a defender until he/she is undergoing court trial. The amended version in 1996 stipulated that a criminal suspect is entitled to hire an attorney for legal assistance during the investigation period, and appoint a defender when the case is handed over to a prosecution organ when the investigation is concluded. And the newly amended Criminal Procedure Law of 2012 went further to specify that a criminal suspect has the right to appoint a defender at any time as of the date when he/she is interrogated for the first time or from the day on which compulsory measures are adopted against him/her. A defendant is entitled to hire a defender any time he/she wants. If a criminal suspect or defendant in custody requests the appointment of a defender, the people's court, the people's procuratorate or the public security organ should convey the message promptly, and a defender may also be appointed by his/her guardian or a close relative on his/her behalf.

Expanding the scope of legal assistance. In order to further protect the rights to defense and other relevant rights of criminal suspects and defendants, the Criminal Procedure Law amended in 2012 expanded the scope of legal assistance in criminal litigation, to make it cover the investigation and prosecution review processes as well as trials, and expanded the scope of people entitled to receive such assistance. If the criminal suspect is blind, deaf or mute, or is a minor or is a mentally ill person who has not completely lost his/her capacity to comprehend or to control his/her behavior, or if a criminal suspect may be sentenced to life imprisonment or death, but he/she has not appointed a defender, the relevant people's court, people's procuratorate or public security organ should inform the legal assistance agency to assign a defense attorney.

Stressing witness's duty to testify in court. Witness testimony in court is crucial to improving the quality of a court trial. In order to have more witnesses testify in court, the Criminal Procedure Law amended in 2012 defines the scope of witness appearance at a court and sets up an assistance mechanism for their appearance at court. It stipulates that if the prosecutor and the defender disagree upon the testimony of a witness that bear significantly on sentencing, the witness should attend the court. A witness should be compensated for transportation, accommodation and meal expenses related to his/her court duties by the government. The employer of the witness may not reduce or reduce in disguise the witness's remuneration, bonuses or other social benefits in the period he/she is absent from work providing testimony.

Improving protection for witnesses. In cases involving serious crimes, if the personal safety of a witness, expert witness, or victim or a close relative of the same is at risk because of court testimony, the relevant people's court, people's procuratorate and public security organ should withhold the personal information, and disguise the appearance and voice of such persons during testimony, prohibit certain persons to be in contact with the witnesses, or their close relatives, and take special measures for personal and residential protection.

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