Sunday, Oct 26, 2014, 9:03 AM CST – China

Special Report

Legal Reform

CONVICTION TO CURB

Both China’s judiciary and the police have taken initiatives to curb the widespread use of torture. But more, it seems, is needed

The Supreme People’s Court has announced a series of initiatives in legal reform Photo by IC

Among a wide range of reforms outlined in the wake of the high-profile Third Plenary Session of the 18th Central Committee of the Chinese Communist Party (CPC) in early November, reform of the country’s legal system, long characterized by regular and flagrant miscarriages of justice, has attracted particular attention.

The perceived failure of China’s existing legal system to deliver justice is now being touted as the main reason for rising social tension, with long lines of petitioners now a daily sight outside the offices of Party and government authorities in Beijing. People snubbed, abused or falsely convicted in their hometowns regularly travel hundreds of miles to petition the central authorities, and those that make it to Beijing without being intercepted on the way are a major source of embarrassment to the authorities.

Reform of the legal system is now being called an imperative to ensure the survival of the Party, whose legitimacy is being eroded by public perceptions that the government is only interested in justice when it serves the interests of the ruling elite.

In the wake of the Third Plenum, various Chinese law enforcement authorities have launched reform initiatives. On November 13, the provincial Public Security Bureau (police department) of Henan Province issued a directive that abolished certain police-performance indicators such as the case-clearance quotas which are blamed for huge numbers of wrongful convictions secured through illegal means.

A spate of cases in which people were found to have been wrongfully convicted have been exposed by State media in the past months, touching off a public outcry over the widespread use of torture to extract false confessions. 

Unpopular

In its 10-point communiqué, the Henan police announced that it would overhaul the current police performance appraisal system. Based on a number of quantitative indicators, including the number of arrests and number of prosecutions, and most of all, the criminal case clearance rate (set at 100 percent for homicide cases), the existing system is widely blamed for the continued and widespread use of torture, as unscrupulous officers resort to illegal methods in order to meet arbitrary quotas.

A local police officer in Henan Province, speaking on condition of anonymity, told NewsChina that local police officers are under massive pressure to solve homicide cases in particular, due to the 100 percent clearance quota. “The provincial police department demands a 100 percent clearance rate for murder cases,” he said. “Any county chief of police who fails to achieve this will have to make a formal self-criticism at the police department’s annual meeting.”

Police officers with higher crime clearance rates are, meanwhile, rewarded with financial bonuses and promotions. The sharp contrast between the fortunes of those who prioritize meeting targets and those who don’t is remarkable. Since the current appraisal system was adopted in 2003, the clearance rate for murder cases in Henan Province increased from 60 percent in 2003 to an astonishing 97.57 percent in 2010, catapulting the province to the top of national league tables.

Following the central leadership’s high-profile pledge to ensure that “all people are entitled to justice,” the police have moved to tackle the problem of the routine use of torture, which is officially illegal in China, to secure favorable clearance rates. In 2011, following the exposure of several cases of wrongful conviction, police in Zhejiang and Jiangxi provinces made similar pledges.

Now that the drive for reforming both law enforcement and the legal systems seems to be gathering momentum at the highest level, many observers believe that it will be only a matter of time before China’s police are forced to drop crime clearance rates as their primary method for performance evaluation.

However, some dissenting voices take issue with the assertion that the 100 percent clearance rate demanded in homicide cases, for example, is a major contributor to wrongful convictions. “[The] homicide clearance rate is just a basic criterion to gauge police performance,” Professor Shi Pu from the Henan University of Economics and Law, told NewsChina. “It is just a tool.”

The Henan Police appear to be caught in a dilemma. While old performance indicators are being phased out, there is little agreement on how better to gauge police performance. Some have suggested public satisfaction surveys, a concept criticized for being too nebulous and open to abuse.

In the eyes of Professor Shi, if the police stop employing case clearance rates as an indicator to measure performance, it will “lower morale,” in turn leading to lower clearance rates and a higher crime rate, undermining social stability.

Skeptics have pointed out that the use of torture was equally widespread, if not even more extreme, before the police adopted the current appraisal system. In a high-profile case exposed in 2010, rural resident Zhao Zuohai was acquitted of murder only after serving 11 years in prison. He had been tortured into signing a forced confession in 1998. This notorious case was only one of a string which have come to light in recent years.

Some legal experts point to the legacy of antiquated legal attitudes, some of which have their origins in the imperial era, which prejudice police and courts against anyone accused of or linked to a crime.

“The fundamental reason behind wrongful convictions is disregard for the principle of presumption of innocence which exists throughout the entire law enforcement chain, from investigation to prosecution and trial,” said Professor Guo Zili, an expert on criminal law from Peking University.

Court Short

Taking its lead from provincial pilot programs, on November 21 the Supreme People’s Court in Beijing issued a directive explicitly designed to curb wrongful convictions.

This directive, which lists 27 provisions, explains that henceforth Chinese courts will require “all levels of the judiciary to base their judgments on facts and protect human rights.” Practices classed as torture, including sleep deprivation and the withholding of food during interrogations, have been outlawed for the first time, and the right to an attorney and the outlawing of the submission of false or circumstantial evidence at trial upheld.

A senior provincial-level judge speaking on condition of anonymity told NewsChina that it is very rare for a Chinese court to exclude evidence obtained through torture from a hearing. Confessions, typically forced, are routinely seen as proof of guilt even in the total absence of any other proof.

According to the same judge, more than 30 percent of criminal defendants in his court recant their confessions while on trial, citing torture during their interrogation. However, very few of these cases result in acquittal, as the burden of proof is placed entirely upon the defendant, who is often denied access to sufficient resources to provide such evidence.

The judge added that: “the [supreme] court needs to elaborate more on implementation, rather than just outlining provisions.”

Key Factor

For many, recent initiatives are an encouraging sign that the authorities are responding to public pressure to ensure better rights protection during trials, but most argue that the problems with China’s judiciary are so systematic and entrenched that piecemeal measures cannot bring about significant or long-lasting change.

There has long been consensus among legal experts that the root problem with China’s legal system is that the judiciary lacks independence and is subject to influence and intervention from other agencies.

According to another judge who also refused to go on record given the sensitivity of this issue, when making a ruling, he and his colleagues not only have to consider the validity of submitted evidence, but also make political calculations on how their ruling might impact law enforcement officials.

This judge told NewsChina that even if he deems the evidence heard in court as flimsy, it takes great gall to acquit, especially in serious criminal cases which command significant media attention. Under the current appraisal system, both the responsible police officers and the prosecutor are rewarded for a successful prosecution. An acquittal means, at best, demerits and, at worst, demotion or even a separate prosecution brought against the officials themselves.

As the judiciary remains subject to the leadership of the Party’s Politics and Law Committee, which in many localities are headed by local police chiefs, judges may face retribution if they insist upon an acquittal. “The result is that conviction creates a ‘win-win’ situation, whereas acquittal only leads a ‘lose-lose scenario,’” the anonymous judge continued.

In cases when evidence is in serious doubt, the Party’s politics and law committee, which supervises the police, the procuratorate (the government body which determines whether a case goes to trial), and the judiciary will arrange a meeting to “coordinate the positions” of different law enforcement agencies, with the typical result being a conviction accompanied by a lighter sentence.

“This is how China’s legal system has lost its credibility,” said Professor Guo Zili. According to Guo and others, only genuine judicial independence offers a chance to restore public faith in the country’s legal system.

It appears that the central leadership has also realized the urgency of legal reform. At its Third Plenum, the Party pledged to advance both the causes of judicial independence and the rule of law.

Now, implementation remains the greater hurdle the authorities will have to overcome.

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