The Middle Kingdom Strikes Back: New Criminal Procedure Law Conforms with International Law

by Julian Ku

Apropos of Kevin’s post below criticizing China’s new criminal procedure law amendments, it is worth noting that some Chinese legal scholars are defending the consistency of such laws with international treaties. 

China’s draft amendment to the Criminal Procedure Law will further help protect human rights, and conforms rather than contradicts international conventions, legal experts in Beijing have said.

The experts made the remarks in response to doubts cast by international media outlets on an article in the draft submitted to the Standing Committee of the National People’s Congress (NPC), China’s top legislature, last week. These outlets contend that the article violates international conventions and international law.

Article 73 of the draft provides that, in cases involving crimes regarding national security, terrorism or serious cases of bribery, the defendants or suspects can be put under residential surveillance in places outside their own homes if residential surveillance at the home of the suspect or defendant is likely to hinder an ongoing investigation.

The draft amendment does not violate international conventions. Instead, it is in line with the purposes of international law that advocate the protection of suspects’ rights by using the fewest compulsory measures possible in criminal procedure, he said.

Legislation in China is becoming more humane, with greater attention being paid to the protection of citizens’ civil rights and an increasingly cautious approach to the use of compulsory measures, Wang said.

Their analysis doesn’t sound very convincing but it could very well be the translation. In any event, I haven’t seen the draft law (anyone want to post it?), but  I agree with Kevin that it could very well violate norms against arbitrary detentions and “disappearances.” And I wholeheartedly agree with other critics that there is strong evidence China is already engaging in widespread practices of arbitrary detentions and disappearances, even without this law.  The question for critics of China here should be: Is this new law better than the old non-legal system? Probably somewhat better, but definitely not good enough is my guess. But it is still worth looking at the text of the actual new law before jumping to conclusions. 

http://opiniojuris.org/2011/08/30/the-middle-kingdom-strikes-back-new-criminal-procedure-law-conforms-with-international-law/

One Response

  1. I’m not persuaded by how the question of  “disappearances” have been initially raised and then newly addressed with reference to the position of those Chinese Legal Scholars on the compliance of the reform with international law. I don’t want to discuss the Chinese human rights record, but everyone knows that most criminal procedure codes deal in different rules/sections different forms of deprivation of freedom, procedures for the issuance of arrest warrants, judicial review. The amendment of article 73 cannot be the sole argument for a test with the provisions contained in the ICC Statute. The current Chinese Criminal Procedure Code is available in English at the following web address http://en.chinacourt.org/public/detail.php?id=2693. I’m obviously not comfortable with Chinese criminal procedure, but it seems to me that procedure for the issuance of an arrest warrant is properly established. We could discuss if the issuing authority is afforded with the necessary guarantees. It seems that residential surveillance is currently dealt in article 57, that arrest procedure is dealt in article 59 and initial detention under article 61. Obligation to inform family or the “unit” (yes! this could be the point! Cone someone clarify the term?) are dealt in article 64 and 71. Now if the reform extends “residential surveillance” to surveillance outside their homes, doesn’t per se mean “disappearance”. If really China is currently emending only this aspect of its Criminal Procedure in my opinion the outcry that disappearance is being legalized seems to me incautious. Perhaps disappearance is “de facto” tollerated and I have no reason to doubt, but this is another issue. I can suppose that is rather a matter of fear that the (otherwise fully rational) provision of serveilance outside the suspected individual’s home may further inspire or induce “nacht und nebel” practices.                 
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