Wednesday, February 22, 2012

Part XVI—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify the Constitution (Part III) The protection of personal freedom should focus on restricting the power of investigation

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.





    (Pix (c) Larry Catá Backer 2012)



Part XVI—Zhiwei Tong (童之伟) Series:  Perspective Study from Criminal Procedure Code to Modify the Constitution (Part III)
The protection of personal freedom should focus on restricting the power of investigation
http://libertyzw.fyfz.cn/art/1042571.htm
October 31, 2011

“According to the Constitution to formulate the law,” is not just some lying cliché.  Ultimately, the amendment of China’s Criminal Procedure Code is a question whether it is able to carry out and implement the relevant provisions of the Constitution.  When amending the code, one should consider the constitutional guarantees of personal freedom, private property rights and provisions for other fundamental rights, the state respect for and safeguarding of human right provisions, provisions for building a country governed by the rule of law, and provisions to ensure that when handling criminal cases, the courts, the procuratorates and the public security departments “divide responsibilities, coordinate, mutually constrain and ensure the accurate and effective implementation of the law.”  The facts indicate the disadvantages of the Criminal Procedure Code system with the power of investigation being too large and subject to too few constraints.  Therefore, the basic direction of the amendment of the Criminal Procedure Code should be to strengthen the constraints on the power of investigation.  China’s power of investigation rests primarily in the public security department and, to a lesser extent, in the procuratorial organs and the national security departments.

 (Pix (c) Larry Catá Backer 2012)


1.     The power of investigation has little constraints and is unparalleled

From the constitutional perspective, the public security department is an ordinary department of the state administrative organs, but the current Criminal Procedure Code grants the public security department unusually large amount of power, as well as dimension and scope of activities above and beyond what it needs to protect citizens’ fundamental rights and to safeguard the legal order.  It is not easy for those individuals working in the investigative departments or agencies to recognize this situation, because those with power will always believe that the power and authority granted them is not enough and will only ask to expand and increase their authority.  This view is based on the law penned by Montesquieu hundreds of years ago.  For those of us who specialize in the study of comparative constitutional law and comparative political systems and who have studies other countries and regions, the issue of overmuch authority and power granted to the investigative departments is an extremely simple and plain fact.  That China’s Criminal Procedure Code grants substantial investigative power without constraints is reflected in the following two areas:

a.     This law allows the public security department of the administrative organs to circumvent the judicial process, frees it from the constraint of other state organs and allows it to act independently to deprive or restrict the personal freedom of citizens (whether children or adults, men or women) for years at a time.  The public security departments can, at their discretion, deprive or restrict a citizens’ personal freedom in a variety of ways, which includes depriving or limiting a citizen’s personal freedom for one month, several months and even several years of reeducation, rehabilitation, out on bail awaiting trial, residential surveillance and detention.  This point has been addressed in a previous article.  On paper, China’s Criminal Procedure Code does not grant such power to the public security apparatus, but those who wrote the legislation have made meticulous arrangements, always by default, indulge and covertly recognize the power and authority of the public security apparatus.
b.     During the investigative process, this law gives the public security department the ability to independently exercise certain actions that would violate human rights principles and the rule of law that would otherwise require the examination and approval of the court.  These powers include the following: in order to collect evidence of a crime and seize criminals can perform a search of a suspect and associated persons, items, shelters and other relevant investigations; if the investigators deem it necessary to detain a suspect’s any form of mail, they detain it; query and freeze a suspect’s deposits and money transfers; release an arrest warrant for a suspect, and so on.

As far as I know, to acquiescent or to grant these two aspects of the investigative power like within China’s Criminal Procedure Code has been nearly extinct in the world today even in Hong Kong, Macao and Taiwan.  Even in less developed countries, the practice of these two aspects of the system is extremely rare.  Perhaps because of ignorance, the author has no idea if there are any in the world today aside from the three or four that have been negatively assessed and evaluated by the international community where there is a country’s administrative organs that has a public security organ that can behave in such a way and not accept the power of judicial review.

It can be said that China has applied the Criminal Procedure Code to help our country to create a situation where the constitutional and legal status have become disproportionate, and in fact has given superior power and authority to the public security apparatus.  Why I have used the term “help create” is because the formation of this deformity in the power and authority arrangement, by taking class struggle as the key link, regarding “regime” as the “the right of suppression” with impacts on the specific historical background and other factors, should not be the responsibility of the lawmakers.

Taking a look at the text of the draft amendment of the Criminal Procedure Code by the National People’s Congress Standing Committee, it not only has failed to narrow and limit the power and authority of the power of investigation, but instead gives it more real power.  Indeed, the draft amendment of the Criminal Procedure Code creates some meaningful new regulations, including lawyers meeting with suspects and the accused, the effectiveness of collected evidence, the testimony of witnesses and their testimony before the court, the standardization of the Supreme People’s Court’s review of death penalty procedures and the simple program of further standardization and additional special programs, etc.  These proposed changes are primarily a result of the following draft amendments of the Criminal Procedure Code: regarding the monitoring of a designated residence and to even secretly perform surveillance a residence; regarding the provisions for secret arrest and secret detention; regarding the regulations on the time limit for issuing summons and warrants extended from 12 hours to 24 hours; regarding the regulations of the procuratorate’s allocated time to complete their investigation was extended from 10 days to 14 days; regarding the provisions to allow the investigative department to independently decide on what technical investigative measures to use; and regarding the implementation of the provisions that allow special personnel to implement secret investigations, and so on.  The content of these provisions are all geared to the alienation of human rights protection and the rule of law.

These proposed changes involve the relevant state organs’ power behavior that they can act independently and master their internal matters and does not require the approval of other state organs and are not subject to the constraint of other state organs.  Such changes, if adopted, will significantly further expand the public security departments’ primary power of investigation contrary to the spirit of protection of human rights and the principle of allowing the rule of law the space to exercise its power, and also brings greater threat to citizens’ personal freedom and other fundamental rights.

It can be said that the current Criminal Procedure Code and its draft amendment is basically one of convenience of the public security departments, second of convenience to the procuratorate, the judicial organs and the Ministry of State Security to exercise authority, then followed by limiting the power and effectiveness of legal documents or draft legal documents to protect citizens’ personal freedom and other fundamental rights.  The power that these legislative normative documents grants to public authorities or public security departments are real, while the restrictions on their activities are often only skin deep among them many terms directed against the public authority, such as provisions that include “must,” “strictly prohibit,” “strict,” and “should be held accountable” have no punishment for contravention in China’s legal system.  Of course, the criminal law provisions treat torture and forced confessions as a crime, though this may be an exception.  However, these charges have traditionally not been steadily applied with some regions over the years continuing to report a lot of torture cases and it has never been able to discover tortured suspects during lawful investigation and it is even rarer to see someone convicted and sentenced as a result.

For decades, China’s public organs exercise of historical traditions and behaviors in public power has always been: to maximize the expansion of its statutory powers to the maximum, while maximizing the compression of citizens’ basic rights and human rights to the statutory minimum and even below.  In this regard, the performance and the historical record of China’s public security departments in public institutions is probably the most representative.  The range of authority afforded to China’s public security departments formed in class struggle advocating the age of “regime is the right of suppression.”  In that era, they have grabbed an extraordinary share of the total amount of state power.  Up till the reform and opening up period, because of lag of building of democracy and rule of law and the needs of maintaining “stability,” they have basically been able to hold onto their “own” share of the power.  In recent years, in this regard, they have not only managed to “preserved the value” but also “appreciated the value.”

Perhaps of what Montesquieu revealed of the power of law, China’s public security departments’ code of conduct has always been not only to ensure that the amount of power in their hands is not reduced, but also try to let it increase in value.  They follow the logic, as some of the scholars have said: “from their ability to combat crime, they have taken away some of the power of the investigative organs and will inevitably need to make some compensatory provisions.”  From this, we can see that the people who hold this concept: first, the public security departments have their own inherent powers, and this power is not in line with the democracy and the deepening of the process of building the rule of law, but rather with contraction.  Second, it seems that the so-called “ability to combat crime” and “ability to limit citizens’ rights and freedoms” are not two different versions or aspects of the same thing; they do not know that in insuring to death the “ability to fight crime” is actually because they are reluctant to give up the “ability to limit citizens’ rights and freedoms” and not allow the Criminal Procedure Code to progress compared with the existing code.

In this case, to promote the amendment of the Criminal Procedure Code is more difficult, because this will not only involve the balance of power, but also about individuals being able to treat and dispose of issues in a rational fashion.

 (Pix (c) Larry Catá Backer)

2.     The advance and retreat of the amendment of the Criminal Procedure Code depends on the success or failure of restricting the power of investigation

Civil rights and public power should be formed and to maintain balance.  Over the decades, the basic characteristics of China’s configuration of legal rights has always treated civil rights too small and has treated state power as the main external manifestation of public authority too large, suffering a serious imbalance between the two.  In recent months, many people in the legal sphere have talked about where to proceed or to recede with the current efforts to amend the Criminal Procedure Code.  With these differing opinions, they have failed to reach a decision, in fact, whether to continue with the amendment process of the Criminal Procedure Code is relatively simple to measure.  That is to measure the pros and cons of the public security departments-led the investigative authority.  If there is much to lose, then we must retreat.  If there is little to lose, then we must proceed.  This decision whether to proceed or to retreat relies upon the amount of pros and cons.  Because, if other relevant factors remain constant, the legally established authority is constant, too much power granted to the public security and other main investigative bodies will inevitably compress citizens’ personal freedoms and other fundamental rights.

Thirty years of the practice of criminal justice has shown that the implementation of the Constitution – for the court, procuratorate and public security’s “division of responsibility to mutually cooperate and mutually restrain to guarantee the accurate and effective enforcement of the law” in handling criminal cases” – the key link is to really understand the meaning of “mutual cooperation” and strictly implement “mutual restraint.”  There has always been a historical bias when understanding this issue.  Take “mutual cooperation” as an example, the tripartite division’s handling of criminal cases has often ignored its goal that lies with “to guarantee the accurate and effective enforcement of the law” and so that constitutional purpose of “mutually cooperate” changed to “combat crime”; as for “mutual restraint,” it is often played down and ignored.   Numerous facts (such as the large number of individuals unjustly sentenced to death) have shown that the tripartite relationship is one that has neglected mutual restraint, particularly the power of the judiciary to constraint the power of investigation.  From the content of the publicized draft amendments of the Criminal Procedure Code, the situation remains the same.

With regards to the question of amending the criminal code, the macro-structure that we face has three features:
a.     In all of the legal rights (statutory rights), when an imbalance between power and rights occurs, power is too strong, and the rights are insufficient to control or balance out power.
b.     In the internal structure of power, if the investigation power’s capacity and coverage is overly large, then the status and coverage of the power of the judiciary is too small; even if the procuratorial power capacity is small, it is still more powerful than judicial power.
c.     When the power of investigation and the organs that reflect the power of investigation are overpowered, then it creates a situation where they can have a decisive impact on the amendment process for the Criminal Procedure Code.

In the above mentioned structure of legal rights, although to comprehensively and accurately implement of the relevant provisions of the Constitution requires the need to strengthen the constraints of the Criminal Procedure Code to power of investigation, but whether this will be done successfully mainly depends on three factors:

a.     The factor of reflecting the rationality of the power of investigation of political and public organizations and organs can directly affect the amendment of the Criminal Procedure Code
b.     The power of investigation relative to the people, namely all citizens’ awareness of human rights reflects is dependent on and directly reflects the power of investigation relative to the size and quality of the person’s voiced requirements for their human rights.  The main manifestations of such factors have been the professional activities of individuals within the National People’s Congress, its Standing Committees, legal experts and legal professions, and the public expressions (especially amongst web users); if there is a high quality and loud expressions, then there will certainly have an effect.
c.     The ruling party, based on the ruling party’s responsibilities and interests, must consider imposing a direction for the amendment process of the Criminal Procedure Code.  While the impact would not be as direct as that of the power of the investigative organs, however once it comes into effect, will be effective and be able to make the difficult and decisive decisions.

To promote empathy requires all parties to use reason and wisdom to resolve the political factors that hinder empathy.  Those within the legal profession commenting on the dispute over the amendment of the Criminal Procedure Law: “Sometimes, on many key issues, we should not take the sectarian point of view when considering the problem.  If you can have empathy, we can a reach a consensus on a lot of things.”  This statement makes sense, but we must not forget that empathy requires the need to have a political basis.  Unfortunately, China does not have the political basis for this.  Today’s China, as the control of the political resources is centralized and planned dispositions are carried out, there has hardly been any space for the disposition of the political resources market.  As a result, whether it is a top grade poor family or a low grade the ruling class and the ruling class status tend to be immobilized.  In this context, once a person has entered the ruling class, from then on, that individual will not be able to go back to the legal status of an ordinary citizen with the investigative powers not considering the individual’s relative position in society, although from an objective point of view, they are still potential targets of investigation.  Others that for generations have been in position to be the target of investigation will never have the real opportunity to participate in the management of public affairs and do not have control over the power of control over the power of investigation’s consideration of social environment.  Therefore, China, except for limited cases of rise and falls, individuals with rich experiences and intelligence, people of all social classes are unlikely to show empathy when considering the amendment of the Criminal Procedure Code.  When speaking of empathy, most people tend to only exhibit empathy when considering the situation from different positions in the ruling bodies and are unlikely to consider empathy between those controlling the power of investigation and those being investigated.

Does the existence of these circumstances mean that it is impossible for the amendment process of the Criminal Procedure Code to focus on the implementation of constraints upon the power of investigation?  It does not.  In order to implement constraints upon the power of investigation, may partly place one’s hopes on the activities of the National People’s Congress and Standing Committee and legal experts; in part place one’s hopes on the ruling party’s consideration of its responsibilities and interests to conform to the wishes of the people and to abide by the times to protect human rights, rigorously enforce the law, to exert influence to strengthen the constraints on the power of investigation; and can also in part hope that the organizations representing the power of investigation can be rational.

(Pix (c) Larry Catá Backer 2012)


3.     Include the power of investigation’s able to freely use coercive measures within the scope of mutual restraint

The investigating authorities have no right to decide to use coercive measures against a suspect or defendant.  The decision on whether to use coercive measures can only be taken by the court and by the judge reviewing the case—this is the general practice for all countries governed by the rule of law to restrict the power of investigation.  In our country, even more so should implement the Constitution with regards to the protection of human rights, building a country governed by the rule of law and ensuring that in handling of criminal cases by the court, procuratorate and public security will mutually restrain one another.

How to amend the Criminal Procedure Code so that the constraints on the power of investigation are implemented?  We will not talk about an ideal solution here, but only mention a few opinions on things that China can already do to amend the situation.  Originally, the public security departments were free to utilize coercive measures – requiring approval by the procuratorate is one form of constraint.  But the procuratorial organs are not organizations that referee and judge.  Therefore, we should progress along the lines of a country governed by the rule of law where the court makes that determination.  Based on this consideration, I suggest that the draft amendment of the Criminal Procedure Code, on the subject of power of investigation’s use of coercive force must satisfy the following relevant provisions:

a.     The people’s procuratorate and public security departments’ release of suspects on bail and performance of residential surveillance should be subject to supervision.  The original text of Article 63 of the draft amendment: “The people’s courts, people’s procuratorates and public security organs can, according to circumstance, issue warrants, release on bail pending trial or perform residential surveillance on suspects or defendants.”

We should consider amending the text of this article to: “The people’s courts, people’s procuratorates and public security departments can, according to circumstance, issue warrants, release on bail pending trial or perform residential surveillance on suspects or defendants.  But, the people’s procuratorates and public security departments must report to and require permission by the courts to release on bail or place under surveillance any suspects or defendants.  If the suspect or the defendant believes that it is unnecessary to be released on bail pending trial or to be the target of the coercive act of being placed under residential surveillance, then they can report the situation to the court so that the court can make a timely ruling on the matter.  If they refuse to accept the ruling, both the suspect or defendant and the people’s procuratorates and public security departments can protest or appeal.

The reason for this modification and the reason why this amendment is necessary are because: the long-term restriction of personal freedom should be decided by the court; avoid the use of unnecessary coercive measures; if the arrest itself has no legal basis, then releasing an individual on bail pending trial or placing them under residential surveillance essentially degenerates into a means of punishing suspects for the procuratorate and the public security departments, or even worse, degenerates into a way to mask inappropriate behavior by the procuratorate or the public security departments.  In accordance with the Constitution, “public security” can be called as an organ and can also be referred to as a department.  In order to rationalize the constitutional order, I will universally refer to them as “public security departments.”

b.     Regarding the issue of residential surveillance . . . the original text of Article 73 of the draft says: “Residential surveillance should be implemented on the suspect or defendant’s residence; if there is no fixed residence, it can be executed at a designated residence.  If suspected of endangering national security, terrorism or major bribery, any surveillance on the residence that could impede the investigation approved by the people’s procuratorate or public security organ one level above can be executed at the designated residence.  However, this designation cannot be assigned to a detention facility or a location that handles cases.  When being placed under residential surveillance, other than it being impossible to provide prior notification or on suspicion of endangering national security, terrorism or when notification impedes an investigation, the individual and his family must be informed of the reasons for and implementation of surveillance within 24 hours of beginning monitoring.  Residential surveillance of the designated residence, residential surveillance of criminal suspects and defendants can entrust a defense lawyer to apply the provisions of Article 33.  The people’s procuratorate must supervision over the legality of the decision and the implementation of the residential surveillance of the designated residence.”

We can consider the following amendment to the draft of Article 73: (1) amend clause 1 to read: “Residential surveillance should be implemented on the suspect or defendant’s residence; if there is no fixed residence, surveillance can be implemented at the residence of friends or family; if there are no friends or family willing to shelter the suspect or defendant, then surveillance can be executed at a designated residence, but family must be allowed visitation rights.”  The justification for these changes is that it is necessary to prevent residential surveillance from being transformed into de facto imprisonment.  (2) Cancel the other provisions of Article 73 on monitoring a suspect or defendant’s designated residence.

The reason for amendment: residential surveillance of the designated residence no longer adheres to the original meaning of residential surveillance, equivalent to de facto imprisonment and may be secret detention without notification of family; this requirement would allow the people’s procuratorate or public security departments to bypass the trial process and release them from constraints of other state organs to freely commit the long-term restriction and deprivation of personal freedoms of citizens.  This is not consistent with our Constitution and the construction of a country governed by the rule of law and respecting and protecting human rights provisions.

c.     With regards to the time limit on release a suspect or defendant on bail pending trial and residential surveillance, Article 78 of the draft reads: “The people’s court, the people’s procuratorate and public security organs cannot release on bail a suspect or defendant for more than 12 months and conduct residential surveillance for more than 6 months.”

We should consider amending Article 78 of the draft to: “The people’s court, the people’s procuratorate and public security departments must adhere to this law so that they do not release on a bail a suspect or defendant for more than 6 months and conduct residential surveillance for more than 3 months.”

The reason for this amendment is that the suspect and the defendant should be free from coercive measures before they are sentenced and yet they are controlled as such.  In practice, this procedure is often used as a penalty in disguise.  Therefore, the time limit cannot be too long.

d.     With regards to procuratorate arresting a suspect reporting to the court for approval, the original draft of the Article 162 reads: “The people’s procuratorate’s direct acceptance of cases must be in conformity with the specified circumstances within provisions of Article 80 and clauses 4 and 5 of Article 81, if there is a need to arrest or detain a criminal suspect, then the decision should be made by the people’s procuratorate and implemented by the public security organ.”

We can consider amending the draft to: “The people’s procuratorate’s direct acceptance of cases must be in conformity with the specified circumstances within provisions of Article 80 and clauses 4 and 5 of Article 81, if there is a need to detain a criminal suspect, then the decision should be made by the people’s procuratorate and implemented by the public security organ.  In same circumstances, but if there is a need to arrest the criminal suspect, then it requires that the people’s procuratorate report the situation to the people’s courts for review and with this approval implemented by the public security departments.”

The reason for this amendment: to respect and protect human rights principles and the spirit of the rule of law, any department or organ exercising the power of investigation should not have the power to determine to arrest a suspect; the provisions of the Constitution relating to the tripartite division of power between the courts, procuratorate and public security require in the handling of criminal cases that mutual restraint is shown, and it does not allow an investigation department or organ the power to deciding by itself to arrest a suspect.

e.     Regarding the procuratorate’s change of an individual’s status from detention to arrest requires examination and approval of the courts.  Article 164 of the draft reads: “People’s procuratorate in dealing with detained people in cases that it has directly accepted that are deemed to require to be arrested, must make the decision in 14 days.  In exceptional circumstances, the time to decide the arrest may be extended by 1 to 3 days.  If there is no need to arrest the individual, then they should be released immediately; if there is a need to continue the investigation, and they are in compliance with the terms of being released on bail and being under residential surveillance, then the individual may be legally released on bail and/or placed under residential surveillance.”

Article 164 of the draft can be correspondingly amended: “People’s procuratorate in dealing with detained people in cases that it has directly accepted that are deemed to require to be arrested, must make the decision to report the situation to the courts for examination and approval within 3 days.  In exceptional circumstances, the time to decide the arrest may be extended by 1 to 4 days.  If there is no need to arrest the individual, then they should be released immediately; if there is a need to continue the investigation, and they are in compliance with the terms of being released on bail and being under residential surveillance, then the situation must be reported to the courts for examination, and after approval the individual may be legally released on bail and/or placed under residential surveillance, and if not approved, the individual must be released immediately.”

The reason for this amendment is: the people’s procuratorate’s exercise of the power to arrest should be subject to control; the nature of the work of the people’s procuratorate and the public security departments are not the same, the procuratorate’s right to decide for themselves the reason for the detention of a criminal suspect was never as fully developed as that of the public security departments, since detention is a deprivation of citizens’ personal freedom, in accordance with the protection of human rights and the spirit of the rule of law, then the people’s procuratorate should not have the power to decide for themselves to deprive a citizens’ personal freedom for as long as 14 days; it is necessary to protect against arresting first, gathering evidence later.

f.      Regarding detention being advanced to arrest, Article 90 reads: “Public security department’s detention of people, if it is deemed that they need to be arrested, within 3 days of detention, the matter should be brought to the People’s Procuratorate for examination and approval.  Under extraordinary circumstances, the review time can be extended by 1 to 4 days.  For people who flee after committing a crime, people who repeatedly commit crimes and major suspects of a gang crime, the review time may be extended up to 30 days.  The People’s Procuratorate has, upon receiving the public security organ request for approval of an arrest, 7 days with which to decide to approve the arrest.  If the People’s Procuratorate does not approve the arrest, then the public security shall immediately release the individual after receiving notice and keep the People’s Procuratorate up to date on the situation.  With regards to the need to continue the investigation, and the suspect complies with the conditions for bail and residential surveillance, and after approval the individual may be legally released on bail and/or placed under residential surveillance.”

The draft of Article 90 should be amended to: “Public security department’s detention of people, if it is deemed that they need to be arrested, within 3 days of detention, the matter should be pushed up to the People’s Court for examination and approval.  Under extraordinary circumstances, the review time can be extended by 1 to 2 days.  For people who flee after committing a crime, people who repeatedly commit crimes and major suspects of a gang crime, the review time may be extended up to 10 days.  The People’s Court, upon receiving the public security organ request for approval of an arrest, has 7 days with which to decide to approve the arrest.  If the People’s Court does not approve the arrest, then the public security shall immediately release the individual after receiving notice and keep the People’s Court up to date on the situation.”

The reason for this amendment: police arrest of a suspect requires the review and approval of the court and judge, and must be in line with the protection of human rights and the rule of law; police acting on its own to detain a suspect for 30 days is not consistent with the protection of human rights and the rule of law.


(Pix (c) Larry Catá Backer)


4.     Place the investigative powers’ principal investigative activities into the scope of mutual restraint

In the investigative process, the investigative powers’ principal easily commits serious violations on the personal freedom, property rights and other fundamental rights of citizens.  Serious violations of basic civil rights and human rights in the criminal justice process occur mainly in the investigative stage.  The most important reason why they occur is because the Criminal Procedure Code is not in accordance with the provisions of the Constitution and the principles of fully implementing the spirit of the rule of law and mutual restraint, and lacks constraints on the power of investigation.  In this regard, there is not any other modern country governed by the rule of law that is like China in allowing its Criminal Procedure Code to indulge the investigative powers’ principal investigative activities.  Like all of the other countries and regions today that are governed by the rule of law, China should place the investigative powers’ principal investigative activities into the scope of mutual restraint.

a.     Regarding the power of investigation, Article 133 of the draft reads: “In order to collect criminal evidence, search and seize criminals, investigators can conduct searches of the suspect, any location capable of hiding the suspect or search the suspect’s person, personal items and shelter.”

We can consider amending Article 133 to: “In order to collect evidence, search and seize criminals, investigators after being granted approved by the People’s Court can conduct any relevant searches of a criminal suspect, any location capable of hiding the suspect or searches of criminal suspect’s person, personal items and shelter.”

b.     On the seizure of a suspect’s mail and telegrams, Article 140 of the draft reads: “If investigators deem it necessary to seize a suspect’s mail, they may do so with the approval of the public security organs or the People’s Procuratorate notify the postal and telecommunications offices to seize the related mail and telegrams.  When it is no longer necessary to continue the seizure, the relevant postal and telecommunications office should be immediately notified.”

We should consider amending Article 140 to read: “If investigators deem it necessary to seize a suspect’s mail and telegrams, with review and approval by the People’s Court, can with documentation from the court notify the postal and telecommunications office.  The postal and telecommunications office must adhere to the manner and time limit of the court documentation to implement the seizure of a suspect’s mail.

c.     Regarding freezing a suspect’s deposits and money transfers, Article 141 reads: “The People’s Procuratorate and public security organs can, according to the needs of the investigation of a crime, in accordance with regulations, query and freeze a criminal suspect’s deposits and money transfers.  Once a suspect’s deposits and money transfers have been frozen once, they cannot be repeatedly frozen.”

We should consider amending the draft of Article 141 to: ““The People’s Procuratorate and public security organs can, according to the needs of the investigation of a crime, with review and approval by the People’s Court, query and freeze a criminal suspect’s deposits and money transfers.  Once a suspect’s deposits and money transfers have been frozen once, they cannot be repeatedly frozen.”

d.     With regards to technical investigation, the draft adds a total of five new provisions to the existing ones (Articles 147-151).  The shortcomings of these provisions are a result of conferring upon those principals conducting the investigation the power to freely decide on how to implement technical investigations and not be subject to the constraints of other state agencies or departments.  This issue will be discussed in a follow-up study.

e.     Regarding arrest warrants, Article 152 of the draft reads: “The suspect should be arrested, if at large.  The public security organ may issue an arrest warrant and take effective measures in the pursuit of justice.  Public security organs at all levels, within their areas of jurisdiction, can directly issue arrest warrants; beyond their areas of jurisdiction, the arrest warrants should be submitted to higher authorities to decide to promulgate.”

We should consider modifying Article 152 to read: “The suspect should be arrest, if at large.  With the review and approval of the People’s Court, the public security organs can issue an arrest warrant and take effective measures to pursue justice.  The public security departments at all levels within their areas of jurisdiction can, with review and approval by the People’s Court of the region, directly issue arrest warrants; beyond their area of jurisdiction, the arrest warrants should be submitted for approval by the People’s Court at a higher level to ask for the higher authorities to decide to promulgate.”

Within the criminal justice system, socialism with Chinese characteristics should absorb humanity’s system of civilization’s achievements to effectively protect citizens’ personal freedom and other fundamental and human rights.  In this regard, the effect is the sole criterion for testing the truth.  In any case, the characteristics in the field of criminal justice of socialism with Chinese characteristics should not be expressed as the powers of the investigative organs being especially large and not restricted or can infringe upon the citizens’ basic rights and human rights.

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