Wednesday, Aug 27, 2014, 10:54 PM CST – China

Society

Wrongful Conviction

Prisoners of Circumstance

After decades of concealment, China’s judiciary is finally rolling back scores of wrongful convictions. Is this the first step towards long-term reform?

Zhang Huanzhi, mother of Nie Shubin, a man wrongly executed for rape and murder Photo by CFP

April 13, 2005, crowds gather outside a local court in Jinshan, Hubei Province awaiting the aquittal of She Xianglin Photo by CFP

Wu Changlong (right) and his father

Wu Changlong, after spending 12 years in prison, finally returned home in early 2013 after his conviction was overturned Photo by Mu Shui

“All effective measures must be taken to stop wrongful convictions,” Shen Deyong, executive vice-president of the Supreme People’s Court, wrote in the People’s Court Daily on May 6, calling for an end to miscarriages of justice.

“Once a wrongful conviction is made, the court will face finger-pointing from all sides. In recent years, a number of wrongful conviction cases have posed unprecedented challenges to the court and it’s high time to rectify the situation. Otherwise, the judicial system will lose its credibility among the general population,” Shen concluded.

This article, written by one of China’s most senior judges, is regarded as an indication that China’s court system, long in thrall to the country’s internal security authorities rather than to the statute book or the constitution, may be undergoing its biggest shake-up in history.

In some localities, a number of decade-old murder convictions have been overturned. The most recent example was the May 3 acquittal of Wu Changlong, who had formerly been convicted of terrorism and sentenced to a 12 year jail sentence in Fuqing, Fujian Province.

In early 2013, President Xi Jinping urged that China’s judicial and law enforcement organs “try to ensure” fair trials in every judicial case. While on paper this seems a modest request, in China, where almost all criminal cases end in a conviction and are often followed up by separate charges being brought against the defense counsel.

Then, on April 26, Zhou Qiang, president of the Supreme People’s Court, commented publicly that “a fair judiciary is the eternal theme, task and aspiration of the people’s court.”

But will it become a reality?

Accountability

China’s wrongful conviction accountability system was set up in the early 1990s as an attempt to allow the courts to self-regulate, a policy in line with that used in other government departments. According to Professor Xu Xi of the Law School of Beijing Institute of Technology, in 1998 the Supreme Court formulated “the People’s Court Accountability Regulation for Adjudicatory Personnel in Illegal Trials,” clarifying who was to be held responsible in the case of a wrongful conviction.

As with other attempts to allow government departments to reform themselves, this move was a failure. “Some local courts regard the hearing of appeals, retrials and amendments as an admission of wrongful conviction,” Xu told our reporter. “Thus they have stymied the independence and enthusiasm of judges.”

“In order to avoid accusations of wrongful conviction, local courts often resort to passing cases up the chain of command,” he added. As a result, Xu believes, judges devote much of their time to cultivating good relations with their superiors, to guarantee a safety net should a case come under scrutiny.

Even the very basis and application of Chinese law is far from concrete. Despite the official adoption of presumption of innocence as a guiding principle, the meager number of acquittals in criminal cases in China is a testament to the historic bias against defendants in the country.

“Presumption of innocence was introduced into China’s Criminal Procedure Law in 1996,” Chen Guangzhong, a professor from the China University of Political Science and Law, told NewsChina. However, to what degree this principle actually exists in the letter of the law in China is open to debate. The clause Chen cites is Article 12 of the revised law, which states that: “Nobody shall be incriminated before the people’s court passes judgment.” Such vague wording allows courts plenty of room for interpretation.

“Wrongful convictions are often the result of dereliction of duty on the part of judicial personnel and the pursuit of a high arrest, prosecution and conviction rate,” wrote Shen Deyong in the People’s Court Daily. Referring to judges in the West, he argues: “The stain of a wrongful conviction would not be washed away in a lifetime.”

In Shen’s opinion, China’s courts, notorious for show-trials, biased testimony, insufficient or doctored evidence and the reading of confessions obtained through torture, are now under intense pressure from all sides.

When cases, specifically capital cases, are marred by such eventualities, Shen argues, higher courts will often choose to change a death sentence into death with reprieve or a life sentence in order to secure a conviction to satisfy law enforcement while also avoiding the execution of a person convicted despite the existence of reasonable doubt.

“Presumption of guilt,” a concept central to China’s pre-Communist legal system, still remains an unspoken feature of criminal cases, and is deeply rooted in the mentality of both judicial personnel and law enforcement agencies, who are incentivized to secure convictions, not acquit the innocent. This leads to miscarriages of justice beginning at arrest which can continue right up until a judge passes sentence.

China’s network of procuratorates, the intermediary bodies which determine which cases will go to trial, is also under pressure from special interest groups to fast-track certain cases and throw others out.

Guan Fujin, deputy director of the Anti-corruption and Anti-bribery Bureau of the Supreme People’s Procuratorate, also pointed out that judicial independence is almost impossible to guarantee in most communities. “Local governments can often intervene in decisions made by local courts and procuratorates,” he told NewsChina.

Presumed Guilt

As a result of a number of embarrassing exposures of wrongful capital convictions, some of which had led to the execution of innocent people, the Supreme People’s Court in 2007 made an unusual U-turn, withdrawing the power to review capital cases from local judicial authorities.

Last year, Henan Province started holding judges and retired judges responsible for wrongful rulings in an effort to reduce miscarriages of justice. Since then, courts at various levels in the province have reviewed over 100 old cases involving hundreds of convicted individuals, of whom 116 have since been declared innocent.

Many legal experts believe this is only the tip of the iceberg. “It’s easy to make wrongful convictions but it’s very difficult to correct them after the fact,” Chen Guangzhong told our reporter.

Despite this, the newly-issued Criminal Procedure Law, signed on January 1, 2013, has proven more effective than its previous incarnation. Several capital convictions have been overturned, and many more are now up for review.

Li Huailiang, a villager from Henan Province convicted of murder on August 7, 2001, was released on April 25 this year by the Pingdingshan Intermediary Court, which had secured his death sentence 12 years previously. While the Henan Provincial High Court commuted Li’s sentence to life imprisonment on the grounds of a lack of evidence, as with so many capital cases in China, a lack of evidence hadn’t kept Li out of jail.

A lengthy campaign by Wang Yongjie, Li’s defense attorney, bore little fruit until the new Criminal Procedure Law, Article 96 of which declares that defendants must be released on bail if a case remains unsolved after a second hearing. This clause allowed Li Huailang to be released from jail, though he remains under surveillance, and his murder conviction remains in place.

Chen Keyun and Wu Changlong, convicted in June 2001 of carrying out a terrorist bombing in Fuqing, Fujian Province, were declared not guilty by the Provincial High Court on May 3.

While optimists claim that the admission of wrongful convictions and the overturning of some sentences as the result of the new changes to the statute book, Cheng Lei, associate professor at the Law School of Renmin University of China, does not see a direct connection with the new Criminal Procedure Law. Rather, he believes that the new central government is attempting to send out signals to the public.

“The overturning of more wrongful convictions is due to a change in the political environment,” he told our reporter. “After the 18th National Congress of the Communist Party of China late last year, the new generation of leaders’ strong emphasis on rule of law led to indirect pressure on the judiciary to step up efforts to reform.”

Perversion

He Jiahong, law professor at Renmin University, believes that the problem with wrongful convictions is that they are neither the fault of individual law-enforcement personnel nor individual judicial personnel, but the judicial system as a whole.

Many other academics have a similarly pessimistic view, but few agree on the root cause of miscarriages of justice in China. In Professor Chen Guangzhong’s opinion, the majority of blame lies with police, and the commonplace use of torture to extract false convictions – a measure seen by many law enforcement personnel as legitimate so long as it has a positive impact on crime statistics.

“Law enforcement departments are under intense pressure to solve cases,” Chen told NewsChina. “For example, they are required to solve all homicide cases. Ignoring evidence, they simply target an individual and extract a confession by coercive means.”

According to Chen, once such a case proceeds to trial, the procuratorate and the court often fail to stick to the principle of “innocent until proven guilty.” Instead, they choose to suspend the case, or reduce the sentence, neither acquitting nor sentencing a defendant to death, thus leaving detainees to languish in jail indefinitely.

He Jiahong believes that the way criminal investigations are carried out in China is a barrier to the concept of a fair trial. Flimsy, questionable or, at best, circumstantial evidence can often guarantee a conviction, while defense attorneys regularly find witness testimony disregarded, evidence ignored and their access to clients and court documents blocked.

Valuable forensic data, particularly a comprehensive DNA database, are advocated by attorneys and legal experts, but the ability to prove beyond doubt the innocence or guilt of a suspect is far from desirable to China’s law enforcement agencies as it would likely prove devastating to the country’s massaged crime statistics.

According to He, this reflects two vital defects in China’s judicial system: first, the lack of checks and balances on law enforcement and judicial procedure; second, what he describes as the “de facto invalidity” of criminal court hearings – namely, that most are a foregone conclusion.

In such a legal environment, progress is painfully slow. NewsChina has learned that the Supreme People’s Court’s wrongful conviction reform drive has been under review for years. The use of torture to extract confessions is technically banned under China’s new Criminal Procedure Law, but few observers expect this ban to be enforced.

“The new Criminal Procedure Law guarantees only that suspects be immune from coercion after they step into the detention center,” said Chen Guangzhong. “It does not account therefore by the 24 hours that are permitted to elapse between a suspect being taken into police custody and relocated to the detention center.”

“No regulation prevents ‘coercion’ during this period,” he added.

In his article in the People’s Court Daily on May 6, Shen Deyong, executive vice president of Supreme People’s Court baldly stated that: “Wrongful acquittal… is preferable to wrongful conviction.”

Despite concessions made to the new leadership’s reform agenda, for now, it seems, China’s legal authorities may beg to differ.

“Wrongful acquittal is preferable to wrongful conviction.”

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