Wednesday, April 11, 2012

Part XXVI—Zhiwei Tong (童之伟) Series: In accordance with the Constitution, court cases must be public

 (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.

 (Bill Shields, Quincy Court Becomes Reality TV As Proceedings Streamed Live, CBS Boston, May 10, 2011)

Part XXVI—Zhiwei Tong (童之伟) Series: In accordance with the Constitution, court cases must be public
March 4, 2012

From the point of view of the implementation of the Constitution, for effective protection of citizens’ fundamental rights and the formation of judicial credibility, China’s criminal justice system should solve the two interrelated problems.  To solve these two problems require the appropriate conditions.  If we are to effectively protect the fundamental rights of citizens and the formation of credibility can be divided into two internal and external aspects.  You can say that Article 126 of the Constitution providing for the independence of the judiciary and the independent exercise are the internal conditions, while the external conditions are mainly from Article 125 of the Constitution that provides for a public trial and the right to counsel.  Focusing on the draft amendments for the Criminal Procedure Code being considered by the National People’s Congress and to provide a reference to the delegates, this article only focuses on the external conditions of the Constitution on trial disclosure provisions in the implementation of the amendment of the Criminal Procedure Code.

 (From Chinese court upholds death penalty for police killer, China View Oct. 20, 2008)

1.     With regards to the principle of public trials, the draft seriously violates constitutional provisions

a.     This specifically involves the first provision of Article 11 of the current Criminal Procedure Code, the provision in the late December 2011 draft amendment by the National People’s Congress of the Criminal Procedure Code is issued to maintain the current Criminal Procedure Code as is.  In the thirty-years between the 1979 Criminal Procedure Code to the current draft amendment of the Criminal Procedure Code, aside from the moving the order from eighth to eleventh, the contents of the article has not been changed.  The text reads: “Cases before the People’s Court, unless specified in other provisions, must all be made public.”

b.     In this regard, as part of the draft Article 11 of the Criminal Procedure Code, it is directly tied to Article 125 of the Constitution: “Hearings before the People’s Court, except special circumstances as specified by law, must all be made public.”  The provision for public hearing is established as one of the basic principles of the Criminal Procedure Code by the Constitution.

c.     Before we can discuss the constitutionality of the provisions of the Criminal Procedure Code requiring public hearings, we should be aware of the following circumstances: the Criminal Procedure Code was adopted in July 1979.  Therefore, the existing Criminal Procedure Code and the draft amendment of Article 11 were both created before the 1982 Constitution, and as a result there should be discrepancy in the content of the corresponding provisions.  Note to the reader: Article 125 of the 1982 Constitution (and the current Constitution), involving the court hearing cases, “except for special circumstances as specified by law,” must be heard publically; the text of Article 11 of the existing Criminal Procedure Code and its latest draft, retains the content of Article 8 of the 1979 Criminal Procedure Code without changing a word and says that the court adjudicating cases, “unless specified in other provisions,” must be made public.  We can easily see from the above facts, the following:

                                      i.     The content of Article 11 of the current Criminal Procedure Code and its draft amendment regarding public hearings were formed before the birth of the 1982 Constitution.  Therefore, the former provision is not in accordance with the corresponding provisions that the latter created.  There has been a mismatch in the merging of the provisions regarding public hearings in the current and draft amendments of the Criminal Procedure Code with the Constitution.

                                    ii.     The text and meaning of “except for special circumstances as specified by law” within the Constitution and “unless specified in other provisions” within the current and draft amendments of the Criminal Procedure Code are significantly different.  “Except for special circumstances as specified by law” only excludes “special circumstances,” with “special” being in the context of “exceptional” and “situation” referring to specific phenomenon.  Therefore, according to this provision of the Constitution, the public hearing of court cases is a general principle that must be followed and to rule a case as being excluded from public hearing is an exception and should be limited to “special circumstances” and should be few in number.  Just taking the meaning between the text of the Criminal Procedure Code and the Constitution shows significant differences.  The range of the former is far greater than what “special circumstances” can refer to.  As a result, at the level of basic principles, the Criminal Procedure Code tampers with the Constitution, greatly narrowing the scope with which the Constitution allows for public trials and greatly broadening the scope by which trials are not heard publicly.

                                   iii.     From a logical point of view, there are objective criteria for the range of the ability of “except for special circumstances as specified by law” to limit public trials, because the “specific circumstances” are objective it itself; while the formulation of “unless specified in other provisions” removes the objective criteria in the relevant provisions of the Constitution, and thus the range of cases before the court that can be heard by the public is completely based on the subjective views and decisions of lawmakers.

d.     Perhaps it is because of this departure of the current and draft amendments of the Criminal Procedure Code from the Constitution that leads to the former being almost led to the point where trial level cases are excluded from the scope of public hearings.  The key to correctly understanding and implementing provisions for the constitutional public hearings within the Criminal Procedure Law is to accurately recognize the purpose of the requirements within the Constitution.  Historically, the fundamental purpose of public hearings or trials within the Constitution is to ensure that criminal prosecutions under the supervision of a court or judge be accepted by the community.  The intent of these provisions within our Constitution is the same.  In this regard, the author has never witnessed any Chinese or foreign law expert who has raised any objections or suspicions.  Some people may say that Article 125 of the Constitution is not included in the “citizen’s basic rights and obligations” and thus is not fundamental rights.  This view is incorrect, because the constitutional guarantee of civil rights are fundamental rights and is not dependent on where the relevant provisions are written in the Constitution.  For example, China’s Constitution pertaining to provisions for “citizens’ lawful private property is inviolable.  The country, in accordance with the law, protects citizens’ private property and inheritance rights” is not included in the “citizen’s basic rights and obligations” section of the Constitution.  However, there is no doubt that these rights are universally recognized fundamental rights.

e.     Based on the above, in my opinion, the text of the current and the latest draft amendments of Article 11 of the Criminal Procedure Code that reads “unless specified in other provisions, must all be made public” are unconstitutional.  This must be amended and must abide by the text of Article 125 of the Constitution on court cases, “except special circumstances as specified by law, must all be made public.”

(From Visitor's Guide to Oral Arguments )

2.     The draft amendment for the terms of public hearing of cases being tried for the first time is unconstitutional

a.     Now we will discuss Article 152 of the current Criminal Procedure Code and the second December 2011 draft’s attempt to amend provisions of Article 184.

b.     Regarding the constitutional provisions for public trial, it is specifically implemented by Article 152 of the current Criminal Procedure Code.  The current Article 152 is composed of two sections, of which one section states: “People’s Court hearings of first time cases should be conducted in public.  Cases involving state secrets or personal privacy shall not be heard in public.  Juvenile delinquency cases involving suspects that are 14 years old but under the age of 16 shall not be heard in public.  Juvenile delinquency cases involving suspects older than 16 years of age but under the age of 18 generally shall not be heard in public.”  The second section states: “For cases heard in closed session, the reason should be articulated by the court.”

c.     The draft changes to Article 152 of the current Criminal Procedure Code being considered by the National People’s Congress Standing Committee in late December 2011 is to adjust the article number to 184, retain the first section, while deleting the second section.  If we are to consider the combined effect of the implementation of the Criminal Procedure Code since 1996, whether it is the current or draft of the Criminal Procedure Code implementation the constitutional provisions for public hearings obviously has issues that deviates from the Constitution.  In fact, the constitutional requirements for public hearings since 1996, within the Criminal Procedure Code has been first and principally to implement Article 152.

d.     The fundamental purpose of the Constitution provision for public hearings is to protect the right of those being criminally prosecuted to a prompt trial before a judge under the supervision of the society.  We can easily see that the contents of the first clause of Article 152 of the current Criminal Procedure Code and the proposed draft of Article 184 seriously depart from the relevant provisions of Article 125 of the Constitution.  Below, we will perform a preliminary analysis of the four sentences that constitute paragraph 1 of the Article 152 of the current Criminal Procedure Code:

                                      i.     The first sentence reads: “Cases being heard for the first time before the People’s Court should be open to the public.”  The meaning of this provision logically implies that outside of cases being heard for the first time, any case can be conducted in closed session.  This provision actually does the prerequisite groundwork of excluding the re-hearing of a case, death penalty review procedures and trial supervision procedures from the scope of public hearings.  In contrast, the relevant principles of provisions of the Constitution provide that “except for special circumstances as specified by law,” all cases being heard “must be made public.”  We can see by comparing the two, be it through semantics, logic or common sense that the relevant provisions of the Constitution absolutely does not consider the re-hearing of a case, death penalty review procedures and trial supervision procedures as “special circumstances and does not imply that these cases are excluded from public hearings.  However, the draft amendments of the Criminal Procedure Code arranges for provisions that are in direct contradiction to the provisions of the Constitution.

                                    ii.     The second sentence reads: “But cases involving state secrets or personal privacy should not be heard in public.”  This phrase places reservations upon the previous provision and is too general, allowing the court to use state secrets or personal privacy grounds to generally reject the broad public attention for public hearings towards cases involving public power.  Moreover, whether cases involving personal privacy should be conducted publicly should first and foremost respect the wishes of the defendant and the accuser.  The “state secrets” excuse used by courts to refuse for public adjudication of cases not only deprives the constitutional rights of suspects or accused to a public trial, but also possibly conceals existing suspicions of illegal handling by public authorities, so that the activities of public authorities and individuals with power escape the supervision of the society.

“Personal privacy” involves either the rights of the accused or the rights of the victims.  These rights should be handled on their own during the judicial process.  Therefore, whether it is the national legislature or the judicial authorities, legal principles cannot dispose of the rights that belong to them and must ascertain their willingness to decide whether to not hold public hearings.  As a result, this kind of situation may occur: both the defendant and the victim decide that a public hearing is consistent with their litigation interests and request to the judge and the court that their case be heard publicly.  In this case, do the legislature and the judicial authorities have any reason to require or decide that the case not be heard publicly?  Even in situations where one side requests for a public hearing and the other side opposes, the legislature and the judicial authorities must measure the interest and the pros and cons before making their decision.  For example, in sexual assault cases, the defendant may be sentenced to death, and as a result, the defendant decides that a public hearing of the case is the only way he or she could get a fair trial.  Due to privacy concerns, the victim opposes an open trial.  So, should this case be heard publicly or not?  I think that jurisprudence in such cases require a public hearing, as the right to life possesses greater importance than the right to privacy.  When the two are in conflict, the latter should give way.  Perhaps this is why in so many countries sexual assault cases are tried publicly.

Perhaps some people also believe that cases involving sex, such as sexual assault, organized prostitution, among others, the disclosure of facts in public hearings would be indecent.  Such concern is unnecessary and even backwards and hypocritical, because there is no need to mimic the feudal China era by hypocritically creating a mysterious aura about sex.  In this regard, young people need norms and rules rather than ignorance.  Public hearings would help educate them about the norms and rules.

                                   iii.     Whether juvenile delinquency cases should be heard publicly should primarily respect the views of the defendants and their guardians.  The third and fourth phrase of the provision provides: “Juvenile delinquency cases involving suspects that are 14 years old but under the age of 16 shall not be heard in public.  Juvenile delinquency cases involving suspects older than 16 years of age but under the age of 18 generally shall not be heard in public.”  Why are there such requirements?  Is it to protect the privacy of these minor suspects or defendants?  If the answer is yes, so if right to privacy and to a fair trial belongs to these minors, and they and their guardians have the ability to waive these rights, then why does the legislature give the courts the power to waive these rights?  If these minors and their representation believe that only a public hearing would guarantee them a fair trial, then they deserve the right to waive their right to privacy and to accept a public trial.

Regarding the question of public hearings of juvenile delinquency cases, some people in China believe that it is justified that these type of cases not be heard in public.  I think that this is largely a myth or a blind superstition.  Such conceptions need to be reflected upon and the relevant institutional arrangements must re-measure the stakes involved.  According to my limited understanding, in many of the countries that are governed by the rule of law, juvenile delinquency cases allows for public hearings.  Here I will talk about a personal experience with this kind of situation.  I remember during the winter of 1998, when I was a visiting scholar at the University of Memphis with Professors Tan and Liu of Zhongnan University of Economics and Law, it was arranged that we attended a public hearing of a local burglary case.  The defendant was a minor of about 15 years of age.  At the time, there were many primary and secondary students in attendance.  The trial atmosphere was very calm and the result was good.  Afterwards, the Law Professor that had brought us to the hearing immediately organized a discussion.  The most intuitive feeling that we had was that this kind of public hearing was a good legal education class for the young people who had attended.  Whether from the perspective of theory or practice, the Criminal Procedure Code does not provide sufficient rationale for the almost entire denial of public trials in cases involving minors.

The key to how the amendment of the Criminal Procedure Code should deal with these issues is to recognize the fact that to receive a public trial is a fundamental right of citizen, and that aside from the “special circumstances” mentioned in the Constitution; the Criminal Procedure Code should adhere to the constitutional requirement that all cases be heard publicly.  With regards to the scope of public trials, the legislature and the judicial authorities have no right to impose any restrictions that would violate the provisions and spirit of the Constitution.

(From Chinese courts sentence drunk drivers to jail,, May 10, 2011; "Guo Shudong, 37, the first drunk driver to be punished in Beijing since the introduction of tough new driving laws, stands in court as the judge delivers his sentencing in Fangshan district, May 9, 2011. Guo, who rammed into a car while twice the legal alcohol limit, was sentenced to four months in prison and fined 2,000 yuan." [Photo/Xinhua])

3.     Draft amendment regarding the constitutional flaws whether re-hearings of cases and other trial procedures should be public

a.     Discussed here is the content of Article 187 of the current Criminal Procedure Code and the Article 224 of the second draft amendment of the Criminal Procedure Code of December 2011.  Paragraph 1 of Article 224, drafted to replace Article 187 of the current Code, reads: “Cases being heard for the second time with regards to the following types of cases, shall form a collegiate bench to be retried:

                                      i.     The defendant, the plaintiff or their legal representation objects to the facts and evidence of the initial judgment, and the People’s Court involved in the second trial believes that may it warrants appeal of the conviction and sentencing.

                                    ii.     The defendant sentenced to death, appeals.

                                   iii.     The result of the case is protested by the People’s Procuratorate.

                                   iv.     Other cases that should be publicly tried.

The People’s Court hearing the case for the second time should interrogate the accused and listen to opinions of the other parties involved, the defending counsel and other legal representation.

Clearly, only public hearings can be said to be public hearings.  However, not all public trials are public hearing, and not all public trials are not public hearings.  Thus, we can see that there are defects in the draft amendment of the Criminal Procedure Code regarding whether cases that are being retried should be publicly heard:

                                      i.     In fact, the above-mentioned draft of Article 224 upholds the principle that cases being re-tried should be publicly tried (and not publicly heard) and instead marks public trials (including public hearings) as exceptions and explicitly enumerates the four kinds of exceptions.  By listing the four exceptions that should be publicly tried looks to be an indirect and partial way of confirming the scope of public hearings and seems to be understandable.  However, from a logical point of view, this kind of legislative sentence structure enumerates the practice of public trial cases and, in fact, in a general sense denies the premise that cases that are being re-tried should be done so publicly as a precondition.  The embodiment of the content of these principles and provisions is contrary to the explicit requirements of the Constitution regarding courts hearing cases (regardless of level), “except for special circumstances as specified by law.”

                                    ii.     In the final analysis, we should accept that “public hearings” are a basic human right of the prosecuted.  However, perhaps we do not quite understand or perhaps because of other reasons, the developers and the amenders of the Criminal Procedure Code since 1979 have failed to fully respect the most important historically and constitutionally acceptance of “public hearings” as a fundamental right of citizens.  To place elements that originally belonged to the scope of the fundamental rights of citizens as a part of state power can result in the arbitrary lack of respect for the historical and constitutional importance of “public hearings.”  Under the circumstances of objections being raised by the defendant, the plaintiff and their legal representation, the decisive factor in determining whether a retrial should be public was originally meant to allow the defendant to exercise their rights.  However, according to the draft of the Criminal Procedure Code, whether the retrial is to be public is dependent on the courts.  Specifically, a public hearing is dependent entirely on how the court “thinks.”  In this way, an element in the Constitution that belongs as a part of basic civil rights has been surrendered to the courts and their discretion to exercise power.

4.     The public hearing of cases is an effective protection of fundamental human rights and is an urgent requirement for the enhancement of judicial authority

a.     The quick acceptance by judges and courts of public trials are an important procedural right of citizens.  The protection of this right is inseparable from citizens’ personal freedoms, freedom of speech, protection of private property rights and other fundamental rights.  Not having a public hearing is often is an indispensable condition through which miscarriages of justice exist within the field of criminal law.  The other side of public hearings permits citizens to sit in attendance and a crucial part in the right of citizens to know about public affairs.  The goal of the constitutional provision that require open hearings is to place the hearing of the case by the court and the judge under the supervision of the society to promote the fair administration of justice, and to meet the citizens’ right to information and the rights of the parties.  Constitutional provisions for the public hearing of cases are mainly implemented by allowing the right to attend and belong to freedom of speech and press.  In this regard, countries and regions governed by the rule of law are no exceptions.  It can be said that the ability to attend a public trial is the right of every citizen.  This right cannot be arbitrarily dismissed by the court.  From this perspective, that the Supreme People’s Court has provided that courts must abide by the law and publicly hear cases so that citizens can attend and provides for a system for visitors to apply for passes is inappropriate.  In accordance with the provisions and spirit of the Constitution, citizens (including mostly importantly relatives of the relevant parties and non-government media reporters) do not have the “possibility,” but rather the right of sitting in and listening in on the trial.  The court can manage the behavior of those listening in on proceedings, but has no right to impose a review of the visitor passes being issued.  Therefore, the relevant provisions of the Supreme People’s Court do not correctly reflect the spirit of the Constitution and disregards and even denies the basic civil rights of suspects.

b.     The role of the court is to reveal the facts of the case, apply the law, implement justice and also the place to provide legal education.  In recent years in China, the record of the implementation of public hearing of criminal cases and the presence of civil observers listening in on the cases has been extremely poor that it can be said to be quite vile.  This creates circumstances where constitutional guarantees for public hearing as a civil right becomes a forum where judicial officials are free to do as they please.

c.     With regards to playing around with public hearings, the common practice is to arbitrarily set the eligibility standards for those attending the hearings, do everything possible to disrupt and limit citizens and even relatives of the defendant to attend, arrange a large number of official staff to occupy the gallery, and so on.  In recent years, more and more local criminal trials while there is an open façade have been no different from semi-open, closed or even secret trials.  What is more, organizations with public power, on the one hand, brazenly embellish the merits of rendering the case, guide public opinion, and engage in the presumption of guilt.  On the other hand, they close the trial off from the public and block the truth of the case from being made public.

d.     In the internet age, “public hearing” sets a very high value for judicial impartiality.  Recent legal practice shows that when court hearings of cases are open and transparent, the court decisions are frequently not too far off the mark according to opinion.

e.     In reality, full disclosure in court cases is to help the judiciary build credibility.  Taking into account the initiative to amend the Criminal Procedure Code in China today is actually in the grasp of agents of the agencies and departments that handle criminal cases, in order to better convince or persuade them, we may wish to utilize the perspective of judicial credibility to discuss how to earnestly implement the constitutional requirements for public hearings in the draft amendments of the Criminal Procedure Code.

f.      With respects to improving judicial authority, some of the practices of the court in recent years have often been severely contradictory: on the one hand, they talk about the formation and maintenance of judicial authority; on the other hand, they tend to turn cases that should be heard publicly into closed or semi-open trials, letting people feel ridiculous about the situation.  The general meaning of a public hearing is first to have the trial be open and free to attend; second should freely allow the media to track and file reports on the trial process, issues of debate and key evidence; followed by making public the litigation documents and allow the media to freely comment; and lastly the judge’s documentation should state the judicial grounds so that in the future the different views of the collegiate bench or the CRIC members participating in the judgment can be categorized as to majority opinion, concurring opinions and dissenting opinions.  According to legal principle, if there is a major case or a case where there is a high degree of public concern, hearings should be more open to the degree that allows for the creation of conditions for as many citizens as possible to attend and provides for conditions for radio and television to report on the trial.

g.     But in China over the long term, especially in recent years, the trend has been reversed.  In court cases around the country, there are often strict restrictions on observers and limitations on reporting.  The more major or more public concern for the case, the more severe the restrictions.

h.     Justice is visible and is unafraid of being seen by the public.  Common sense tells people that: if the hearing a case has real justice, then the judicial organs would certainly be willing to make public every detail of the trial process; not daring to make these details public must therefore be an attempt to cover up on-goings that are not exactly kosher and therefore the justice of the results of the judicial proceedings is something that not even the judges themselves can believe.  Take the example of the case of Peng Zhimin.  For a private entrepreneur who has a net worth of more than 5 billion, why is it that even though he pleaded not guilty, his defense attorney put forward a not guilty case, has he been sentenced to life imprisonment and the deprivation of political rights for life?  What is the key issue of debate between the prosecution and the defense here?  Why is there such a big difference between their views?  Why did the court account for the prosecution’s alleged facts of the crime and not the defense’s evidence and opinions arguing for the accused’s innocence?  In another example, the Li Qiang case, with regards to the 1849 items of evidence provided by the prosecution, the defense attorney, Professor Zhao Changqing, concluded that none of the evidence could establish Li Qiang’s ties to the mafia.  In contrast, the Chongqing court sentenced Li Qiang to twenty years in prison.  Imagine, with Professor Zhao’s authority on criminal law, why was there such a large gap in the defense’s opinion with the perception of the court?  The two sides were worlds apart.  Why did the court sentence the defendant to twenty years in prison?  What exactly happened?

i.      All of these issues originally should have been revealed to the public through public hearing of the case, but the reality is not only that the general public can only see the official reports, even legal experts who have paid close attention to the case cannot understand what happened.  Under these circumstances, how credible is the judgment of the court?

j.      The damage done by closed or semi-public trials to justice is more prominent in trials of cases where defendants are sentenced to death.  The proceedings for the trial, retrial and death penalty review are not in the least bit transparent.  Those people who pay attention to these cases generally feel that it is wrong to kill the suspects.  As a result, taking the small view, the hard work of the judiciary to handle these cases will not only not help them establish their authority, but bring them infamy.  From the big picture, these cases do immeasurable damage to legal authority and judicial credibility.  We can see that semi-public or closed trials not only damage the authority of the judiciary, but also seriously damage legal authority and functionality.  If these cases are able to be public heard, I believe the results and impact would be another matter entirely.

k.     Criminal trials that are semi-public or closed are most likely to lose most the societal function.  The first loss is the crime prevention function, followed by the loss of the legal education function and even possibly the loss of the justice bearing function.

l.      These practices not only deviate from the Constitution, but also from the existing Criminal Procedure Code and results in the loss of trust and confidence in the current political and judicial system.  This should be rectified.

5.     Conclusion: the new draft amendment should ensure that all cases be heard publicly except under special circumstances.

a.     To ensure adherence of the draft amendments to the Criminal Procedure to constitutional requirements, except for special circumstances, that all criminal cases are heard publicly, I propose that the amendment take the following approach:

                                      i.     Change the draft amendment of Article 11 of the Criminal Procedure Code with regards to cases before the People’s Court from “unless specified in other provisions, must all be made public” to “except special circumstances as specified by law, must all be made public.”

                                    ii.     The terms of the draft amendments of the Criminal Procedure Code with regards whether the first trial of a case should be publicly heard should be modified on three bases:

1.     Clearly define the content and scope of “state secrets.”  Compress the scope of so-called sensitive cases heard in closed hearings and reduce the suspicion both domestically and abroad of political show trials

2.     Whether cases involving personal privacy should be heard publicly should in principle is decided by the defendant, the plaintiff, the victim and other associated parties or one of the parties with the help of their legal representation.  In circumstances where there are different opinions, the court will decide.

3.     Whether juvenile delinquency cases should be heard publicly should in principle is decided by the guardian of the minor, plaintiff, the victim, and other associated parties.

The specific terms need to be further studied and discussed.

                                   iii.     With regards to retrial procedures, death penalty review procedures, trial supervision procedures, special procedures, and mental patients forced treatment program, the Criminal Procedure Code should also require, except for special circumstances, public hearings.  In the design process, those in charge should pay particular attention and accept that public hearing is the fundamental rights of the defendant or other parties in the case and deserves full respect.

                                   iv.     To protect the basic rights of citizens, the new draft amendment of the Criminal Procedure Code should make provisions in the following areas:

1.     When a court hears cases, it should implement the principles of open attendance and free news reporting.

2.     Prohibit the court or any public power organization from blocking public awareness of cases for the purpose of manipulating public attendance.

3.     The court is obliged to create conditions for citizens to attend court hearings and also have the right to manage the behavior of those attending in accordance with the provisions and spirit of the law; rules should be published in advance and remain relatively stable.

                                    v.     Recommend the following addition to the Criminal Procedure Code: “Cases being heard before the court, citizens should be able to freely attend based upon proof of identification; close relatives of parties involved and journalists have priority; observers can take written notes and audio recordings, but video, photography and live broadcasts are subject to the approval of the court on a case by case basis.”

                                   vi.     Details of cases that has been publicly disclosed by personnel of government organs or publicly reported by the media must all be heard in public. 




作者按语:2012年 “两会”已开始举行,刑事诉讼法修正案草案很快就要在全国人大会议上交付审议表决了。值此关键时刻,我再次强烈呼吁“两会”代表和委员关注草案中存在的不 合宪法的问题,推动刑诉法的进一步修改。如果现有刑诉法修正案草案背离宪法原则太远,全国人大本次例会不如暂不审议,留待下一届全国人大审议。】

【内 容摘要】接受法院公开审判是公民基本权利的组成部分。现有刑诉法修正案草案对审理公开原则的表述严重违反宪法规定。草案关于一审案件是否公开审理的条款不 合宪。草案关于法院按二审等程序审理的案件是否公开的规定有宪法瑕疵。案件审理公开是切实保障基本人权、提升司法权威的紧迫要求。刑诉法新修正案应确保除 特别情况外案件一律公开审理,为此必须对现有刑诉法修正案草案做进一步调整。


或 许,正是刑诉法及相应修正案草案与宪法的这种背离,使得前者可以在该法原则性章节的后续各章中,近乎以整个审级为单位将案件排除到了公开审理的范围之外。 正确理解并在刑诉法创制中落实宪法审理公开的规定,关键是要准确体认宪法做这项规定的目的。历史地看,审理公开或审判公开进入宪法,根本目的都在于保障刑 事被追诉人获得在社会大众监督下接受法官或法院审判的权利,我国宪法做这方面的规定,目的同样是这样。对此,作者从来未见中外法学界有谁提出过异议或怀 疑。或许有人会说,宪法第125条不是在“公民的基本权利和义务”那一章中,因而不算基本权利。这种说法不对,因为,宪法保障的公民权利就是基本权利,不论有关规定写在宪法的那一部分。例如,我国宪法关于“公民的合法的私有财产不受侵犯。国家依照法律规定保护公民的私有财产权和继承权”的规定,就没有写在宪法中“公民的基本权利和义务”那一章,但这些权利毫无疑问是举世公认的基本权利。

2. 上述四句话中第二句的原文是:“但 是有关国家秘密或者个人隐私的案件,不公开审理。”这句话是对前一项规定做的保留,失之于太笼统,使得法院能以涉及国家秘密或者个人隐私为由,拒绝对公众 广泛关注的几乎所有涉及公权力运用的案件进行公开审理。再说,涉及“个人隐私”的案件是否应公开审理,首先应该尊重被告和受害人的意愿。法院借口“有关国 家秘密”拒不公开审理案件,不仅剥夺了众多犯罪嫌疑人或被告人获得公开审判的宪法权利,还遮盖了公权力机构可能存在的违法办案嫌疑,使公权力机构和权力人 士的活动逃避了社会大众的监督。
“个 人隐私”涉及的要么是被告的权利,要么是受害人权利,这些权利在司法过程中应该由他们自己处理,因此,国家立法机关也好,司法机关也好,按法理无权处分属 于他们的权利,更不可以不考虑他们的意愿断然规定“不公开审理”。法律生活中很可能出现这种情况:被告和受害人两方面都认为公开审理符合自己的诉讼利益, 同时他们也都对法官和法院提出公开审理的要求。试想,在这种情况下,立法机关、司法机关有什么理由规定或决定对有关的案件不公开审理呢?即使面对被告与被 害人中一方要求公开审理,另一方反对的情况,立法机关或司法机关也应该做利益衡量或得失评估才好作相应的具体决断。例如,性侵犯方面的案件,如果被告可能 被判死刑,且被告认为只有公开审理,自己才能得到公正的审判,而被害人却因隐私权保护的考虑而反对公开审理。那么,这个案子应该还是不应该公开审理呢?我 以为,按法理这类案件应该公开审理,因为生命权大于隐私权,两相冲突,后者应该退让。或许,这就是为什么很多国家性侵害方面的案件也公开审理的原因之一。
或 许,有些人还认为,涉及“性”的案件,如性侵、组织卖淫等案件,公开审理披露的案情会有伤风化。这种担心是多余的,甚至是落后和虚伪的,因为,没有必要像 中国封建时代那样将“性”虚伪地加以神秘化。在这方面,青少年需要的是规范、规则,而不是无知、蒙昧,而公开审理有助于对他们进行规范、规则教育。
3.未成年人犯罪案件是否公开审理,主要应尊重被告及其监护人的意见。上述四句话中第三句和第四句话规定的内容在性质上差不多,其原文是:“14岁以上不满16岁未成年人犯罪的案件,一律不公开审理。16岁以上不满18岁 未成年人犯罪的案件,一般也不公开审理。”为什么这样规定?是要保护这些未成年犯罪嫌疑人或被告的隐私权吗?如果答案是肯定的,那么。所要保护的隐私权是 属于这些未成年人的,获得公开审判的权利也是这些未成年人的,他们和他们的监护人有权处置这些权利,立法机关有什么理由把这些权利的处置权交给法院?如果 这些未成年被告及其代理人等认为只有案件公开审理,自己才能获得公正审判,那么,他们理所当然有权选择放弃隐私权,接受公开审判。
关 于未成年人犯罪是否公开审理的问题,我国似乎有人认为这类犯罪案件不公开审理是天经地义的,我觉得这在很大程度上是神话或盲目的迷信。此类诉讼观念需要反 思,有关制度安排需要重新做利害方面的衡量。按我有限的了解,不少法治国家的青少年犯罪案件,是允许公开审理的。这里谈点个人亲历情况。记得1998年冬天,我和当年中南政法学院的覃教授和刘教授在美国孟菲斯大学访学,曾由主人安排旁听了一场当地法官对一入室盗窃案的公开审理,被告是一个15岁 左右的少年,当时还有不少中小学生也去旁听。庭审气氛很平和,效果很好。旁听后领我们去的法律诊所教授马上组织了讨论,我们最直观的感觉是,这次公开审理 对旁听的青少年是一堂很好的法制教育课。不论从理论还是实践角度看,刑诉法都没有充分理由近乎一概地否定对未成年人犯罪案件的公开审理。
刑 诉法修改时处理这些问题的关键,在于深入体认接受公开审判是公民的一项基本权利的道理,而且除宪法所说的“特别情况”外,刑诉法是应该不折不扣地遵循所有 案件一律公开审理的宪法要求的。对公开审理的案件的范围,立法机关无权违背宪法的规定和精神任意施加限制,司法机关更不能。

1.草案(第224条)的上述规定,实际上是把二审案件不开庭审理(即不公开审理)作为原则,把开庭审理(含公开审理)作为例外,并且明确列举了例外的4种情况。列举4种 应该开庭审理的例外情况,看起来是在间接地、部分地确认应进行公开审理的案件的范围,似乎无可厚非。但是,从逻辑上看,这种立法句式列举应开庭审理的案件 的做法,其实是以在一般意义上否定二审案件应开庭审理(含公开审理,下同)为前提的,其所体现的原则和规定的内容,与宪法关于法院审理的所有案件、无分审 级,“除法律规定的特别情况外,一律公开进行”的明确要求是相违背的。
2.接受“公开审理”归根结底是被追诉人的基本权利,但是,或许是由于不太明白,或许是由于其他原因,1979年 以来的刑诉法制定和修改者对接受“公开审理”是公民基本权利的一部分这一最重要历史属性和宪法属性显得没有足够尊重。把原本属于公民基本权利范畴的要素当 作国家权力可以任意支配的无主资源来处置,就是他们不太尊重“公开审理”的历史属性和宪法属性的重要表现。请看在这种背景下草案是如何在立法上“替民作 主”的:按前引草案二稿第224条之规定,“被 告人、自诉人及其法定代理人对第一审判决认定的事实、证据提出异议,第二审人民法院认为可能影响定罪量刑的上诉案件”,可以开庭审理;“其他应当开庭审理 的案件”,也可以开庭审理。可见,在这些情况下,影响二审案件能否开庭审理的决定性因素,原本应该是被告人如何行使权利,但按刑诉法草案的规定,能否公开 审理完全取决于法院如何行使权力。具体地说,这些二审案件是否公开审理完全取决于法院怎样“认为”,取决于在法院看来是“应当”还是不“应当”。就这样, 在宪法上属于公民基本权利范畴的要素,通过刑诉立法变成了法院可以行使自由裁量的权力随意处置的对象。这就明显违背了宪法的相关规定和精神。
3同样由于不尊重被追诉人接受“公开审理”的权利的历史属性和宪法属性,前引草案第224条还在“尊重”被告人,其他当事人、辩护人和诉讼代理人意见的堂皇外观下,将原本应该由被告人及其代理人等做决定的权利,变成了法院做决定的权力。请再看前引草案第224条第1款的最后一项: “第二审人民法院决定不开庭审理的,应当讯问被告人,听取其他当事人、辩护人、诉讼代理人的意见。”在这里,接受公开审判原本是属于公民基本权利范畴的权 利,但修正案草案只是允许权利主体表达“意见”,而把实实在在的决定权(即被告人、其他当事人等的权利的处分权)给了法院。在这里,修正案草案再次专断地 攫取了原本属于被告人、其他当事人等的权利。
到此为止,本文这部分和前几个部分已经阐明的原理,完全可以很容易地拿来衡量刑诉法修正案草案关于法院按死刑复核程序、审判监督程序、特 别程序、精神病人强制医疗程序审理的案件是否应该公开审理的各项规定的合宪性。因时间关系,本文对修正案草案的有关规定不再做详细评述。但这里还是有必要 再次强调:所有案件都公开审理是我国宪法明定的原则,只有具体的“特别情况”可以例外;全国人大修改刑诉法对“例外”必须严格掌握,必须纠正从前的偏差。

迅速接受法官或法院公开审判是公民的重要程序性权利,这项权利的保障与公民人身自由、言论出版自由、私人财产权等基本权利的保障密不可分。在刑法领域冤假错案的生成和维持条件里,不公开审理往往是其中不可缺少的一项。案件审理公开的 另一面是公民是旁听权,它是公民对公共事务知情权的一部分。宪法规定法院审理案件公开,目的是要把法院、法官对案件的审理置于社会大众的监督之下、促进公 正司法,同时满足公民的知情权和当事人的相关权利。案件公开审理的宪法规定,主要是通过旁听自由和属于言论出版自由范畴的报道自由来落实的,在这方面,法 治国家和地区概莫能外。可以说,旁听公开审判是每个公民都享有的权利,这些权利不能由法院任意处置。从这个角度看,最高人民法院规定法院“依法公开审理案 件,公民可以旁听”,同时还规定了申办“旁听证”的审查许可制,很不合适。[2]按 照宪法的规定和精神,公民(其中首先是当事人亲属和非官方传媒的记者有权)不是“可以”旁听,而是“有权旁听”,因而旁听应该是充分自由的。法院可以对旁 听行为进行管理,但无权实行事实上的审查许可制。所以,最高人民法院的有关规定没能正确体现宪法精神,有漠视乃至否定公民基本权利的嫌疑。
法 庭是揭示案件真相、适用法律、落实正义的地方,也是进行法律教育的地方。任何对自身的司法制度有信心、不借助庭审达到不正当目的的国家和地区,无不欢迎公 民甚至外国人自由旁听庭审。但是,在刑事案件的公开审理和公民旁听方面,近几年我国法院留下的纪录是极其糟糕的,甚至可以说是恶劣的。其糟糕、恶劣的集中 表现,是公开审理从宪法保障的民权变成了官方随意玩弄的司法权术。
在 玩弄审理公开方面,常见的做法是任意设定旁听资格、千方百计阻扰限制公民乃至被告亲属旁听、安排大批官方指定人员占据旁听席,等等。近年来,愈来愈多地方 刑事案件的审判,名为公开,但事实上无异于半公开审判、不公开审判或秘密审判。更有甚者,公权力组织往往一方面肆无忌惮地加油添醋渲染案件的案情、引导舆 论,搞有罪推定和未审先定,另一方面又进行不公开审判,对外封锁案件真相。[3]
在 提升司法权威方面,法院最近几年的一些做法,往往严重自相矛盾:一方面,开口闭口要形成和维护司法权威,另一方面却往往把应该公开审理的案件搞成不公开审 理或半公开审理,让人感到匪夷所思。公开审理的一般含义,首先应该是庭审公开,自由旁听;其次应该是开放新闻媒体自由地追踪报道庭审过程、争议点和关键证 据;再其次是公开诉讼文书,开放媒体评论;最后,裁判文书应该载明裁判理由,将来甚至应该考虑公开合议庭或参与下判决的审委会组成人员的不同意见,如多数 意见、协同意见和反对意见。按法理,应该愈是大案要案和公众关注程度高的案件,审理时愈应该公开程度高,不仅应该创造条件让尽可能多的公民自由旁听,还应该提供条件让电台或电视台对审理进行全程报道。
但 我国长期以来、尤其是近年来的情况却完全相反。各地法院审理案件,往往都有严格限制旁听、限制报道的倾向,愈是大案要案或公众普遍关注的案件,愈是限制严 格。但遗憾的是,杨佳案,李庄案,黎强案,彭治民案、北海案,黎庆洪案、“史上最穷黑社会案”这类社会各界广泛关注的案件,都是在半公开甚至基本不公开的 安排下审理的。其中,限制旁听、限制媒体报道、甚至限制包括诉讼文书和辩护词等可能透露案情的材料公开的措施可谓花样繁多。
正 义是看得见的,正义是不怕公众看见的。常识告诉人们:如果案件审理真正有正义,审判机关一定愿意将审判过程的每一个细节公之于众;不敢公开,一定是要掩盖 什么不大好拿出来见人或经不起社会大众检验的东西,一定是审判机关对其审理过程和裁判结果的正义性自己都无法相信。就拿被称为重庆最大黑社会的彭治民案来 说吧。一个身家50多亿的私营企业家,为什么在他自己不承认有罪、辩护律师为他做无罪辩护的情况下,他会被判处无期徒刑、剥夺政治权利终身?控辩双方关键争议点有哪些?双方意见分歧为何天壤之别?法院凭什么认定控方指控的犯罪事实而不采信辩护律师主张被告无罪的证据和意见?又如,重庆黎强案, 对于公诉机关提供的1849件证据,代理此案的律师赵长青教授给出的法庭辩护结论是其中无一能证明黎强涉黑罪名成立,而重庆法院却判黎强20年徒刑,试想,赵教授作为刑法学权威,其辩护意见何以与法院的认知差距如此之大?双方认知天壤之别,法院基于什么样的理由能够判被告20年徒刑,这到底是怎么回事?
所 有这些问题,原本都应该通过公开审理向公众展现、让公众看明白的,但实际情况是不仅普通公众只能看到官方发布的语焉不详的报道通稿,连紧盯着此案的法学专 家都不明白此案的就里!在这种情况下,法院的判决怎么可能有公信力?按这种情形,公众怀疑有关公权力人士通过包装黑社会制造假案、变相抢劫私有企业、私有 企业家的资产和私有财产,难道不是合理怀疑?
不 公开或半公开审理对司法公信力的损害更突出地表现在一些被告被判处死刑的案件的审理上。如重庆樊奇杭案、辽宁朱立岩案,被告遭严刑逼供的事实已经显露无 遗,公众对严刑逼供与犯罪事实认定的关系疑问重重,而一审、二审和死刑复核的审理过程又都没有最起码的透明度,让关注这些案件的人普遍感觉他们有被冤杀的 嫌疑。如此一来,于小处而言,司法机关辛辛苦苦办理这些案件,不仅无助于他们确立权威,甚至给他们带来了骂名。从大处看,这些案件对法律权威和司法公信力 的损害,更是不可估量。可见,半公开或不公开审判,不仅损毁司法机关的权威,也严重损害法律的权威和功能。如果能公开审理这些案子,我相信结果和影响一定 会是另一回事。



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