Fear of try­ing

A NEW LAW SHEDS LIGHT ON CHINA'S UN­USU­ALLY HIGH CON­VIC­TION RATE

The World of Chinese - - Tea Loves - – H.L.

On Au­gust 9, Shan­dong be­came the first prov­ince in China to abol­ish per­for­mance eval­u­a­tions based on the num­ber of pros­e­cu­tions and “cases solved” by po­lice depart­ments. Al­though the move is os­ten­si­bly in­tended to “re­di­rect en­ergy to pub­lic se­cu­rity, crime-pre­ven­tion, and pub­lic as­sis­tance,” some lawyers hope it could also im­prove the “ob­jec­tiv­ity” of law en­force­ment in a coun­try where po­lice and pros­e­cu­tors al­most never fail to win in court.

Chi­nese courts have one of the world’s high­est rates of crim­i­nal con­vic­tion, de­fined as the per­cent­age of guilty ver­dicts, re­ported to be 99.91 per­cent as of 2016 by the Supreme Peo­ple’s Court’s 2017 work re­port. This has risen from 98.9 per­cent in 2000, ac­cord­ing to the China Law So­ci­ety. By com­par­i­son, the US De­part­ment of Jus­tice re­ports that US courts con­vict around 93 per­cent of de­fen­dants at trial.

Ac­cord­ing to a re­port this year by its pub­lic se­cu­rity de­part­ment, Shan­dong’s po­lice force ranks first among Chi­nese prov­inces in terms of cases “solved” each year, at 99.3 per­cent (re­fer­ring to the per­cent­age of crim­i­nal cases that end up be­ing pros­e­cuted in court).

Bei­jing lawyer Zhang Nianxin told the Le­gal Mir­ror, a Bei­jing daily, that re­mov­ing the “un­ob­jec­tive” stan­dard would “di­rect en­ergy to­ward han­dling cases, and ef­fec­tively re­duce mis­car­riages of jus­tice.” In 2014, when the Supreme Peo­ple’s Court’s abol­ished con­vic­tions rates as a per­for­mance in­di­ca­tor for the coun­try’s higher courts, the Mir­ror hailed the step as a means to re­duc­ing con­fes­sion by tor­ture, and false or un­just sen­tenc­ing (it was also meant to re­lieve prob­lems such as courts re­fus­ing to hear cases to­ward the end of the year, to avoid hurt­ing their an­nual con­vic­tion rate). In a 2015 re­port, the Dui­hua Foun­da­tion, an Amer­i­can think tank fo­cused on China’s le­gal sys­tem, cited sev­eral rea­sons for the low rate of ac­quit­tal. Pros­e­cu­tors (of­fi­cially known as procu­ra­tors) may opt to with­draw in­dict­ments, for­mally drop­ping charges, or rec­om­mend ad­di­tional in­ves­ti­ga­tion, rather than risk ac­quit­tal.

China’s ju­di­cial sys­tem also en­cour­ages co­op­er­a­tion be­tween po­lice, procu­ra­torates, and courts to in­crease “so­cial sta­bil­ity,” Dui­hua notes; pub­lic opin­ion is con­sid­ered a se­ri­ous fac­tor when sen­tenc­ing; judges and of­fi­cials fear that not-guilty ver­dicts will lead to a surge in pe­ti­tion­ing by vic­tims’ fam­i­lies. More­over, they face pres­sure to give ver­dicts quickly—the in­fa­mous case of Hu­ugjilt, the In­ner Mon­go­lian teen whose 1996 con­vic­tion for rape and mur­der was over­turned by the Higher Peo­ple’s Court of In­ner Mon­go­lia in 2014, took only 66 days be­tween ar­rest and Hu­ugjilt’s ex­e­cu­tion.

How­ever, in a 2015 in­ter­view with Phoenix Weekly, Pek­ing Univer­sity le­gal ex­pert Chen Rui­hua iden­ti­fied the prob­lem as po­lit­i­cal rather than pro­ce­dural. Ac­cord­ing to Chen, courts are “timid” to­ward not-guilty ver­dicts, as they have lit­tle power com­pared to pub­lic se­cu­rity bu­reaus and procu­ra­torates, which are po­lit­i­cally con­nected and have “lim­it­less re­sources to pros­e­cute crime”—even, po­ten­tially, to in­ves­ti­gate or charge judges who have is­sued ac­quit­tals. By com­par­i­son, “the law gives de­fen­dants and de­fense lawyers very weak rights”—de­fense lawyers par­tic­i­pate in fewer than 30 per­cent of all crim­i­nal cases na­tion­wide, ac­cord­ing to Dui­hua, and are barred from rou­tine tasks such as ob­tain­ing doc­u­men­tary ev­i­dence from po­lice or sim­ply meet­ing with clients.

Low ed­u­ca­tion lev­els and the poor qual­i­fi­ca­tions of judges and po­lice are yet an­other ob­sta­cle, ac­cord­ing to Wang Jian­sheng, a He­nan lawyer and re­searcher of false and un­just charges. “The big­gest prob­lem in China’s ju­di­cial sys­tem is the lack of suzhi [‘qual­ity’] in the per­son­nel,” he tells TWOC. “Judges might be some­one who has a good back­ground or a cadre who gets pro­moted; po­lice need just a high-school ed­u­ca­tion. They haven’t achieved the nec­es­sary le­gal knowl­edge or logic.”

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