McDermott Will & Emery has a strategic alliance with MWE China Law Offices, a separate law firm based in Shanghai. This China Law Alert was authored by MWE China Law Offices lawyer Henry (Litong) Chen.
In a recent landmark decision, China’s national legislature, the National People’s Congress, increased the protection of suspects’ legal rights and reinforced its efforts to punish bribery and other crimes. The decision will take effect 1 January 2013. Although some of the rules provided in the Decision may not be feasible, the Decision shows great—and much needed—progress toward protecting human rights and maintaining law and order in the country. The Decision also provides a good tool for in-house counsel to manage their compliance and litigation risks.
On 14 March 2012, the Decision of the National People’s Congress on Amending the Criminal Procedure Law of the People’s Republic of China (the Decision) was promulgated; it will come into force on 1 January 2013. The Decision includes significant amendments to five procedural rules that could affect bribery cases: privilege against self-incrimination, the exclusion rule of illegally obtained evidence, the requirement to report problems within a prescribed time and in a prescribed place, investigative measures and confiscation of illegal income. As a result of the Decision, investigation and punishment against commercial bribery would be enhanced. Despite increased protection of defendants’ rights, and thus increased difficulty for prosecutors to collect evidence, such enhancements would be quite limited due to lack of supporting rules.
This newsletter discusses the impact of the Decision on the investigation of bribery cases in China.
1. The Decision theoretically increases the difficulty of investigating commercial bribery
The Decision adds rules of privilege against self-incrimination and elaborates on the exclusionary rules of illegally obtained evidence, which existed in previous judicial interpretation.
Privilege against self-incrimination is provided in Article 15 of the Decision: “It shall be strictly prohibited to force anyone to commit self-incrimination.” The exclusion of illegally obtained evidence is set out in Article 18 of the Decision: “A confession of a criminal suspect or defendant extorted by torture or obtained by other illegal means and a witness or victim statement obtained by violence, threat, or other illegal means shall be excluded. If any physical or documentary evidence is not gathered under the statutory procedure, which may seriously affect justice, correction or justification shall be provided; otherwise, such evidence shall be excluded.” These rules indicate that there is significant progress in China in establishing the rule of law and protecting human rights. However, these rules are in effect theories for now.
Theoretically, if a suspect is allowed to not commit self-incrimination, he or she is allowed to not make a confession incriminating himself or herself, or rather, to just remain silent. Under such circumstances, if certain evidence is acquired by torture, such evidence is illegal and shall be excluded. However, in practice, courts rarely conduct hearings to exclude illegal evidence, as evidenced in the ongoing case against Xie Yalong, former vice-chairman of the Chinese Football Association, and the director of the Chinese Football Management Centre, the deputy party. Xie was arrested for accepting bribes in exchange for manipulating soccer games in 2010. Xie was prosecuted and tried in April that year. In the trial, which took place during the anti-gambling, crackdown on crimes campaign of 2011, he claimed he was guilty, but not as a corrupt official. On 24 April 2012, in the Intermediate Court of Dan Dong, Xie alleged he was tortured and forced to confess during the investigation. His lawyer accordingly applied to exclude the illegally obtained evidence.
The legal basis for the application is Article 5 of the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases (2010), which provides: “Before the commencement of the trial or during the trial, if the defendant and his lawyer allege that the pre-trial statements of the defendant are obtained through illegal means, after the public prosecutor has read out the bill of indictment, the court shall first conduct investigations in the court.” If the alleged facts are confirmed by investigation, the court shall refuse to adopt the evidence collected by the police department using torture. However, the Intermediate Court of Dan Dong did not conduct hearings into the evidence despite the application of Xie’s lawyer. On the contrary, Xie’s statement was defined as the “withdrawal of a confession,” which rendered the previous voluntary surrender that could have led to a lighter sentence invalid.
2. Infeasibility of the exclusionary rule of illegally obtained evidence
According to exclusionary rule of illegally obtained evidence, confessions obtained via illegal measures, such as torture, and the testimony and statements of victims collected illegally via violence or threats shall be excluded. However, in practice, cases are frequently decided according to the testimony of investigators, which are often submitted by prosecutors. Therefore, the judicial branch has no incentive to initiate implementing the exclusionary rules. In addition, there are difficulties in excluding illegal evidence, as discussed below.
First, it is impossible to record the entire investigation and interrogation process. Even if it were possible, it is impossible to record the whole imprisonment, so there will inevitably be gaps in evidencing torture.
Second, there is no specialized institution or standard to define extorting confessions by torture. In the above case, Xie alleged he was slapped, beaten and forced to be naked, subjected to cold showers on chilly days, endured electricity shocks (which led to arrhythmia) and not allowed to sleep. Assuming all these facts to be true, there is still no uniform standard to determine which of these conducts extorted confessions by torture and which did not. Some conduct is obviously easy to define, such as beating and electrical shock, but some are disputable, such as deprivation or slight deprivation of sleep. Without uniform definition, there is likely to be ambiguity about what conduct would amount to torture, though not defined as such. Such ambiguity would also encourage suspects, consciously or sub-consciously, to exaggerate conduct during a normal interrogation torturous.
To address this ambiguity, China could develop or introduce some feasible rules from the United Nations Convention Against Torture, passed by the UN General Assembly in December 1984 (China joined the Convention in 1988). For example, the Convention differentiates torture from other cruel and inhuman punishment. Only those punishments that inflict on persons severe pain or suffering, whether physical or mental, constitute torture. Interrogation with ordinary threats or slightly offensive conduct shall not be defined as torture. A certain degree of severity is necessary to constitute torture. Medical standards must be introduced to decide the degree of severity; a doctor, not a judge, shall decide the physical and mental situations. Extorting confessions by doing nothing, such as leaving suspects in the cold or without food, also constitutes torture.
Third, there is no other effective means of investigation and interrogation provided by law in China. Plea bargaining should be introduced into Chinese law as a means to achieve prompt and effective conviction and sentencing without extorting confessions. It is a mechanism used in the United States to reduce punishment if a suspect confesses. In the case of plea bargains, district attorneys are authorized to bargain with suspects and promise reduced punishment if they confess without going to trial. Of course, suspects have the option to a trial, but if they are convicted, the punishment from a trial is usually more severe than what they would have gotten in the plea bargain. Such a mechanism would greatly reduce the cost of interrogation and lower the possibility of extorting confessions by torture.
China has a similar policy, called “Leniency to those who confess, severity to those who resist”, which has not been built up to a effective mechanism. Moreover, in practice, prosecutors often withdraw what they promised after a deal is concluded. According to reports, during an investigation into the former deputy mayor of Hangzhou, Xu Maiyong, a law enforcement agency promised him that “leniency would be granted if you confess promptly and thoroughly.” According to Xu’s closing statement before execution, during the eight months of examination by provincial discipline inspection commission, he confessed to all illegal actions, even disclosing where he deposited his money, real estate and stocks that he had held under others’ names, and maintained a cooperative attitude during prosecution. Additionally, Xu disclosed clues of others’ crimes to the prosecuting party and the discipline department. Accordingly, he applied for a “special leniency” treatment. Had Xu’s application been granted, it would have helped dispel the commonly held belief in China that: the more confessions, the harsher the punishments will be (because more confessions give investigators more evidence). However, on 2 May 2011, he was sentenced to death, and all his personal property was ordered to be confiscated in the first instance judgment by the Intermediate Court of Ningbo. Xu appealed to a higher court, but it upheld the original sentence.
The prosecutor’s failure to keep his promise in this case could encourage suspects of similar crimes to flee, conceal illicit money or transfer such money to foreign countries. Once arrested, these suspects are likely to refuse to confess, so as to reduce the amount of bribes that can be determined and the commensurate punishment imposed. All of these increase the difficulty of investigation, prosecution and trial. The prosecutor’s failure to keep his promise is significant and will have long-term effects.
3. Legalization of the requirement to report problems within a prescribed time and in a prescribed place
The earliest appearance of this requirement (hereinafter referred to as “the double prescription”) is in the Regulations of the People’s Republic of China on Administrative Supervision (promulgated on 9 December 1990, and abolished on 9 May 1997), which provided that during investigation, supervisory officials were authorized to “require related persons to provide explanations and statements regarding items related to supervision within a prescribed time and in a prescribed place”. Since 1993, when the Central Commission for Discipline Inspection of the Communist Party of China (CCP) merged with the Ministry of Supervision, the scope of application of the double prescription has been enlarged. In addition, the implementation of CCP regulations on case supervision of discipline inspection organs (unofficial translation) has made the use of the double prescription within the CCP legitimate since 1 May 1994.
The double prescription is not part of official judicial procedure, but a means employed by the CCP to restrict the freedom of a person before judicial proceedings. It is usually adopted by a discipline inspection commission of the CCP to prevent collusion or the destruction of evidence. It is employed when the prosecutor does not have adequate evidence, and thus cannot take actions directly according to law. The “place” requirement for the double prescription is usually remote, isolated and convenient for accommodation, such as hotels, training centres and military bases.
By its nature, the double prescription is a disciplinary measure of the CCP, adopted to deal with disciplinary problems related to the party. However, once the disciplinary problem relates to crime, the disciplinary inspection commission must transfer the case to the prosecutor’s office. There has been fierce criticism levied on the fact that many non-party members and non-government official suspects are also subject to double prescription in investigations.
Currently, the Decision officially legalizes “double prescription”. Article 24 of the Decision provides: “Article 73 Residential confinement shall be executed at the residence of a criminal suspect or defendant; or may be executed at a designated residence if the criminal suspect or defendant has no fixed residence. Where execution of residential confinement at the residence of a criminal suspect or defendant in a case regarding compromising national security, terrorist activities, or extraordinarily significant bribery may obstruct criminal investigation, it may be executed at a designated residence with the approval of the people’s procuratorate or public security authority at the next higher level. However, residential confinement may not be executed at a place of custody or a place specially used for handling cases.” According to such a rule, both CCP member suspects and non-CCP member suspects can be double prescribed, as long as they engage in crimes endangering state security, involving terrorist activities or involving significant amount of bribes.
There is still debate as to whether double prescription would co-exist with residential confinement or be replaced by it. If they co-exist, the question then arises as to whether the aforementioned privilege against self-incrimination and exclusionary rule of illegally obtained evidence are applicable to the double prescription.
4. Enhancement of investigation into suspects of the bribery cases
Article 57 of the Decision provides: “After opening a case regarding a significant crime of embezzlement or bribery or a significant crime committed by taking advantage of one’s powers to gravely infringe upon the personal rights of citizens, a people’s procuratorate may, as needed in a criminal investigation, take technical investigation measures after undergoing strict approval formalities and request the relevant authorities to execute such measures according to relevant legal provisions.”
Article 9 of the Decision provides: “Where a defence lawyer files a request during the period of criminal investigation for a meeting with a criminal suspect in custody who is suspected of compromising national security, terrorist activities, or extraordinarily significant bribery, the meeting shall be subject to the permission of the criminal investigation authority. In such a case, the criminal investigation authority shall issue a prior notice to the jail.”
Both the above articles are provided to enhance the investigation of the judicial authority into bribery cases and prevent suspects from counter-detection.
5. Enhancement of confiscation procedures for illegal income
Chapter III added by the Decision, Confiscation Procedures for Illegal Income in Cases Where a Criminal Suspect or Defendant Escapes or Dies, Article 280 provides: “Where, in a case regarding a significant crime such as embezzlement, bribery, or terrorist activities, a criminal suspect or defendant escapes and cannot be present in court after being wanted for a year, or a criminal suspect or defendant dies, if his or her illegal income and other property involved in the case shall be recovered in accordance with the Criminal Law, a people’s procuratorate may file an application with a people’s court for confiscation of illegal income.” Such rule is in accordance with the requirements of the Convention Against Torture and resolutions related to anti-terrorism issues.
However, according to Article 283, “where a fugitive criminal suspect or defendant voluntarily surrenders himself or herself or is captured during the course of a trial, a people’s court shall terminate the trial. Where the property of a criminal suspect or defendant is erroneously confiscated, such property shall be returned, and compensation shall be made.”
In conclusion, the Decision is a landmark in China’s legal history. On one hand, it reinforces efforts to punish bribery and other crimes. On the other, it tries to protect the legal rights of suspects. Although some of the rules provided in the Decision may not be feasible, the Decision shows great—and much needed —progress on the part of China’s judicial branch toward protecting human rights and maintaining law and order.
In addition, the Decision provides a good tool for in-house counsel to manage their compliance and litigation risks.