China is taking steps on the long road to a credible judiciary

Grenville Cross says the recent moves to prevent wrongful verdicts are needed if the judiciary is to ultimately gain legitimacy

PUBLISHED : Friday, 24 March, 2017, 12:08pm
UPDATED : Friday, 24 March, 2017, 7:16pm

In 2015, the conviction rate in criminal trials in mainland China was 99.92 per cent, with 1.23 million accused being convicted. High conviction rates were seen as vindicating the way the authorities handled cases. However, the danger of relating the ratio of guilty verdicts to the performance of judges is now being recognised.

In his annual report to this year’s National People’s Congress, chief justice Zhou Qiang ( 周強 ) revealed that, in 2016, 1,076 accused were acquitted, 37 more than in 2015, and 1,376 wrongful verdicts or sentences were overturned on appeal. This, he said, showed that real judicial progress was being made in China. Zhou highlighted the tragic case of farmer Nie Shubin, who was executed in 1995 for the rape and murder of a woman in Hebei (河北) province, but was later adjudged innocent, after someone else confessed. This illustrated the dangers of prosecuting people on the basis of contrived evidence.

Zhou declared that “such wrongful convictions humiliate justice”, and called on courts at all levels to learn appropriate lessons. He was duly supported by the prosecutor general, Cao Jianming ( 曹建明 ), who called on prosecutors to find, report and correct cases based on false premises, and to hold accountable those responsible for miscarriages of justice. Their joint message was clear: acquittals are not something for the courts to be afraid of, but, in appropriate cases, are even to be welcomed, as where the evidence is lacking or unreliable. This approach will hopefully hit home among the nation’s jurists.

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In February, the Supreme People’s Court also issued a white paper on judicial reform, which disclosed that, between 2013 and 2016, the courts acquitted 3,718 defendants. Reflecting latest thinking, it emphasised that “correcting false charges has rebuilt the judicial protection of human rights, maintaining a fair and just image to boost people’s confidence in the justice system”. Courts, moreover, were reminded of their responsibility to base their decisions on reliable evidence, to exclude questionable testimony and to prevent travesties of justice from arising.

It is encouraging that the judicial authorities now recognise that, quite apart from its impact on the innocent, a miscarriage of justice also damages the credibility of the courts themselves. Since the judiciary is being increasingly staffed by highly trained professionals, who are replacing the retired cadres put on the bench as a reward for loyal party service, these are messages that should resonate. The judges will, however, still need to assert their independence in the face of often conviction-minded law enforcement personnel. After all, what is said on high in Beijing is not always taken at face value on the ground, at least not in the more remote parts of the country.

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As the Supreme People’s Court has often emphasised of late, illegally obtained evidence must be excluded at trial, and investigators who use improper means to obtain confessions must be held to account.

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In many jurisdictions, including Hong Kong, prosecutions often proceed in the absence of a confession from the accused, by placing reliance, for example, on the testimony of eye witnesses. However, this is rare on the mainland, where the confession is still seen as the centrepiece of any prosecution. This must change.

On the mainland... the confession is still seen as the centrepiece of any prosecution. This must change

Although China’s revised Criminal Procedure Law explicitly proscribes coerced testimony, stringent procedural safeguards for suspects are nonetheless still necessary, to give the prohibition teeth. While investigators are now supposed to video record their interviews with suspects, this is not always happening. Investigators need to understand, therefore, that even if they treat suspects appropriately, their cases will still not go to court if the procedural requirements for the videotaping of interrogations are not scrupulously observed.

In 2016, Zhou Qiang said the court was doing its “utmost to let the public feel equality and justice in every court verdict”. This requires judicial impartiality. Judges must show that their ultimate allegiance is to objective standards of justice, not to their superiors or the state. China has pledged to abolish targets for arrests and convictions, and cases must be decided henceforth on the basis of cogent evidence, properly obtained.

Improved criminal justice, therefore, requires not only a change of mindset by investigators, but also transparent procedures. Judges must satisfy themselves, by looking at video recordings, that the confessional evidence placed before them was freely given by the accused, and without any force, threats or oppression having been applied. If they do this, their verdicts will achieve the legitimacy they still sometimes lack.

Grenville Cross SC is a criminal justice analyst