(Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之伟), 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 (童之伟) 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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