For China’s legal reforms to work, dispensers of rough justice must be brought to book
Grenville Cross lauds efforts to ensure justice for suspects tortured into false confessions, but says real change requires both funding for better practices and stern action against those behind such maltreatment
In 1992, Chen Man, a Sichuan ( 四川 ) native, was arrested in Hainan ( 海南 ) and accused of murder and arson. Following an argument with his landlord, Chen allegedly hacked him to death with a kitchen knife, then burned the body. Based largely on confessional evidence, the Haikou Intermediate People’s Court convicted Chen as charged in 1994, and gave him a death sentence, suspended for two years, which was upheld on appeal.
In February, however, after the Supreme People’s Court directed the Zhejiang Higher People’s Court to review the case, Chen’s convictions were quashed. The chief judge found a number of failings in the original trial, noting that Chen’s “role in the murder is not clear”. In particular, inconsistencies in the confession, including switches from admissions to denials and back, raised concerns, as did a divergence between his description of events and the version provided by the forensic evidence and other witnesses.
Chen, now aged 53, told the Zhejiang court how he had been tortured into admitting guilt. Apart from physical abuse, he was denied food and sleep, and this, together with cold weather exposure, caused him to make “a complete confession”. He has now been advised of his right to seek state compensation while his parents, in an online letter, have called for those responsible to be held accountable, for otherwise they “may harm others again”.
Since China’s revised Criminal Procedure Law was enacted in 2013, coerced confessions, even if true, are no longer admissible against a suspect. Evidence obtained by illegal means must be excluded at trial, a principle that is gaining traction.
The Supreme People’s Court itself pioneered this development when, in 2010, it adopted its own exclusionary rules, as national benchmarks, to proscribe illegally obtained evidence. The deputy director of the court’s research office, Hu Weixin, has emphasised that the ban on coerced confessions is necessary “to protect one’s human rights”.
Since 2013, the supreme court, in an effort to right historic wrongs, has proactively overturned 23 convictions such as Chen’s, based on improper evidence. Moreover, according to official sources, criminal courts around the country are estimated to have acquitted almost 2,000 suspects, which, until very recently, would have been unthinkable, given that the legal system has traditionally prided itself on only bringing the guilty to trial.
It would, however, progress notwithstanding, be naive to conclude that everything in the garden is rosy, as problems abound.
An accused, for example, bears the onus of establishing that he was tortured, whereas in Hong Kong, as in Britain, the prosecution has to prove that a confession is voluntary. Moreover, since as few as 20 per cent of criminal defendants are believed to actually have legal representation at trial, due to inadequacies in the legal aid system and a shortage of lawyers, their defences often go by default.
In cases where lawyers do investigate their clients’ torture claims, and try to gather the evidence necessary to discharge the onus of proving torture, they often face official obstruction, while those who try too hard may themselves end up in the dock.
Amnesty International’s China Researcher, Patrick Poon, considers that “until lawyers are allowed to do their jobs without fear of reprisals, torture will remain rampant”. Moreover, in its 2015 report, “No End in Sight”, Amnesty claimed that out of a sample 590 cases in which torture was alleged, forced confessions were only excluded in 16 cases, with one leading to an acquittal and the remainder resulting in convictions based on other evidence.
In politically sensitive cases, where cadres seek a particular outcome, there are also real dangers that legal protections will end up taking a back seat. It is, however, a strength of the mainland legal system that a suspect cannot be convicted on the basis of a confession alone, and there must be corroborative material. In many jurisdictions, by contrast, including Hong Kong, this is perfectly permissible, and convictions based solely on admissions are not uncommon.
Although, since 2015, the police are supposed to video record their interviews, as a protection for suspects, this does not always happen – not necessarily for sinister reasons, but often because the required expertise and funding are lacking.
China, to its credit, is concerned by miscarriages of justice in its legal system, not least because they highlight systemic weaknesses. This month’s joint statement by the supreme court, the state prosecutor, the justice ministry and the law enforcement agencies, emphasising that coerced confessions must play no part in criminal trials, shows that they mean business.
They reiterate that interviews with suspects must be video recorded, and recognise that, if proper procedures are not applied, “it could seriously affect justice”.
However, as the statement implicitly acknowledges, the 2013 legal reforms are not working as well as they should, and, if this is to be rectified, then, apart from better funding, heads must also roll.
In their online letter, Chen Man’s parents said their son’s abusers “should be severely punished according to law”, and stringent responses are required. If the law enforcement culture, in which convictions are paramount, is to be changed, those responsible for maltreating suspects must be prosecuted, or at least dismissed. The rule of law, by which China claims to set such store, requires no less.
Grenville Cross SC is a criminal justice analyst