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2 Root One: Institutional Restraints That Cause Wrongful Convictions in China

2 Root One: Institutional Restraints That Cause Wrongful Convictions in China

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4.2  Root One: Institutional Restraints That Cause Wrongful Convictions in China


procuratorates and courts, who often work as a united whole against the defence to

strike down crimes as state actors. Each institution supports and receives support

from the other two during the criminal process.

For example, the police rely on the People’s Procuratorate to support their evidence-gathering techniques in a People’s Court, while the procuratorate depends

on the police to provide them with evidence of guilt to secure convictions in

almost all cases. Also, the procuratorates rely on courts to support their prosecution against the accused at trial, while courts depend on the prosecution to provide

them with a version of events that can support the desired trial outcome, which is

usually a conviction. Last but not least, courts rely on the police to refrain from

presenting illegally-obtained evidence. Courts over-rely on the police to be honest,

leaving ample opportunity for abuse, while the police depend on courts to admit

all evidence of guilt obtained by police officers, so as to convict the accused.

Paradoxically, the public supports harsh interrogation so that police can obtain

evidence used for convictions, even though the public is outraged by wrongful

convictions. The close relationship among the police, prosecutors and courts is

very unlikely to prevent the frequent occurrence of unjust convictions and is far

from achieving the goal of due process, though the three institutions should check

and exclude such evidence from use, Indeed, the three have been compared to

‘three workshops in the same factory’4 so that the trial process becomes similar to

an assembly line or conveyor belt in which they cooperate to solve cases that move

along in ‘an endless stream’.5 As institutional restraints may displace the three

institutions’ due role in preventing wrongful convictions, the assembly line of

injustice often begins with an input of confessions, which are processed into the

final product of convictions. In fact, the nominal checks and balances in law further promote crime control rather than due process. More Coordinative Factors

There are further factors that€ contribute to coordination of the police, prosecutors

and courts. On the one hand, it is not the trial judge but the trial committee that

decides whether to convict the accused or to what degree judges should coordinate

with prosecutors and the police. Article 180 of the 2012 CPL states, ‘after the

hearings and deliberations, the collegial panel shall render a judgment. With

respect to a difficult, complex or major case, on which the collegial panel considers it difficult to make a decision, the collegial panel shall refer the case to the

president of the court for him or her to decide whether to submit the case to the

trial committee for discussion and decision. The collegial panel shall execute the

4MA Xiwu (1956), On Several Problems in Adjudication Work at the Present Time, PoliticalLegal Research [Zhengfa Yanjiu], 1:3.

5Herbert L. Packer (1964), Two Models of the Criminal Process, U. PA. L. REv. 113(1):11.


4  The Different Roots of Wrongful Convictions

decision of the trial committee.’6 As court presidents generally work closely with

the heads of the police and the procuratorate at the same level, trial committees are

more likely to coordinate with prosecutors and the police than to act as a check on


On the other hand, some extra-judicial authorities might further promote the

three justice institutions’ mutual coordination in the course of supervising their

judicial work. For instance, the National People’s Congress (NPC) and the local

Congresses at different administrative levels have the power to supervise administrative, judicial or procuratorial organs by the Constitution of the PRC. According

to Article 3 of the Constitution, “[A]ll administrative, judicial and procuratorial

organs of the state are created by the people’s congresses to which they are

responsible and under whose supervision they operate.”7 Article 2 also clarifies

that the People’s Congresses are “[T]he organs through which the people exercise

state power”.8 Thus, the Congresses can supervise the three institutions, so as to

strongly influence them based on what they perceive to be the people’s interests.

Hence, legal restraints on the three justice institutions’ powers are intended

to prevent these powers from being abused and keep them in balance, but these

restraints cannot work well in practice due to the undue influence from non-judicial factors. Based on this interference, together with trial committees’ instructions

on deciding facts or evidence of cases without hearing them, the above restraints

are further weakened in order to control or deter crime at the cost of justice.

4.2.2 Institutional Restraints in Practice

With the institutional restraints of mandatory coordination and crime control, prosecutors or judges often have difficulties in sufficiently checking police misconduct

or prosecutorial work. Although China is adopting the adversarial system, judges

that should be impartial at trial still face obstacles to improving due process in

practice. Instead, the investigation-centered process follows a crime-control

model, involving the elements of ‘an administrative fact-finding process’ leading

to ‘the entry of a plea of guilt’9 in an attempt to seek substantive justice. This

model is dominated by the police or prosecutors, who are concerned with establishing the guilt of the accused for the purpose of crime control. They consider

convictions to be the only valuable result of the trial process, and even decide

criminal cases before trial, which is clearly contrary to procedural justice.

6“The Criminal Procedure Law of the People’s Republic of China”, available at: http://wenku.


7“The Constitution of the People’s Republic of China”, available at: http://en.people.cn/constitution/


8“The Constitution of the People’s Republic of China”, available at: http://en.people.cn/constitution/


9Herbert L. Packer (1964), Two Models of the Criminal Process, U. PA. L. Rev. 113(1): 13.

4.2  Root One: Institutional Restraints That Cause Wrongful Convictions in China


4.2.3 Ineffective Checks

Since the three institutions seek to obtain substantive justice for criminals and

police investigation is intended to play a core role in fact-finding, investigation has

become the centre of the entire criminal process. Under the investigation-centered

model, prosecutors and courts basically deal with case files from documents and

records when determining how to conduct the prosecution or whether to admit evidence. These documents or records, e.g., the transcripts of interrogation, are the

main forms of evidence that prosecutors use for prosecution and courts admit to

support a conviction in many cases. Particularly, evidence of guilt is the common

focus of the three institutions, in order to combat crime by joint efforts.

In some local areas, the actual function of the local Political and Legal

Committees (PLCs) used to be to endorse the aforementioned investigation-centered model of conducting trials. Currently, even though local PLCs are prohibited from endorsing the investigation-centered model, in cases with unclear facts

and insufficient evidence, prosecutors or courts can still swiftly proceed under the

local PLCs’ coordination or instructions with the aim of controlling crime. This

abuse of power by the local PLCs illustrates a main deficiency in the current criminal justice system, namely, that the three institutions are too dependent on common outside influences to sufficiently check each other. The main aim of dividing

powers between the institutions powers is to ensure checks and balances among

them, rather than to encourage coordination in criminal justice. When such institutions are subject to control by the local PLCs, power is once more concentrated in

a single body, and the institutions cannot impose real checks to prevent wrongful


The above cooperation between the three enforcement organs was called ‘a

socialist model of criminal justice’,10 even though it is seriously contrary to both

law and justice. This model of co-operation derives from the ‘Soviet-style system

in which the courts are undifferentiated from administrative agencies’.11 When

courts and administrative agencies are united, they naturally cooperate and work

together to achieve common goals.

Combined with the three justice institutions’ coordination and the insufficiency

of constraints, the due functions of prosecutors and courts severely weakened in

the criminal process. Due to insufficient constraints, courts cannot discover illegally obtained evidence during interrogations or correct wrongful prosecutions

that are based only on evidence of guilt, but have a potential to impose unjust convictions. The coordination by extra-judicial authorities would further undermine

the effectiveness of checks, in order to solve cases and achieve crime control.


Liu and Terence C. Halliday (2009), Recursivity in Legal Change: Lawyers and Reforms

of China's Criminal Procedure Law, Law and Social Inquiry, 34(4): 922.

11Stanley Lubman (2013), What China’s Wrongful Convictions Mean for Legal Reform, available at:



4  The Different Roots of Wrongful Convictions

Coordination and limited checks undoubtedly expedite trials, but paralyze the discovery mechanisms for unjust convictions. It is no wonder that innocent people are

convicted against justice in many cases. The High Rate of Conviction

Since 1978, an administrative evaluation system has been established in law enforcement agencies to evaluate their officials’ work achievements.12 Work achievements

determine officials’ rewards, promotions, salary adjustments and demotions to a

large degree. Within this system, the rates at which the justice institutions successfully solve criminal cases, prosecute suspects or achieve convictions have become

critical standards for assessing their work. But the evaluation system based on such

rates essentially fails to incentivize the authorities to effectively work according to

the rules and has misled them ‘to pay more attention to the success of their criminal

accusations than to the justice’.13 In order to achieve targets, the rate of conviction is

often high.

In handling criminal cases, the highest evaluation standards are based on the

rates of prosecution and conviction. The rate of prosecution is measured based on

the number of ‘submitted cases finally prosecuted by the procuratorate’.14 The rate

of prosecution is an influential index used to assess police investigators’ and prosecutors’ work achievements. The rate of conviction is mainly used to evaluate the

work of prosecutors and courts. A low conviction rate is often understood to indicate poor performance, and thus prosecutors or judges lose the opportunity to win

prizes, particularly if case results are overturned on appeal or when the an accused

is acquitted at trial.15 Given these incentives, judges are more likely to convict the

accused in many cases.

For prosecutors, the failure to prosecute a case may lead to negative comments

from their superiors and the public, and may lead to potential accountability.

Acquittals may further decrease a prosecutor’s chance of promoted and may

undermine his or her entire assessment. Under the similar standards of proof applicable to diverse stages of the process, the police conduct investigations based on

them, as prosecutors or courts do. Non-prosecution or acquittal implies evidential

errors in police investigation. Liaoning Provincial Police’s 2006 Provisions on

12See Wan Yi & Shi Qingzheng, Empirical Study of the Appraisal System in the Procuratorates

[Jianchayuan jixiao kaohe shizheng yanjiu], 1 ORIENTAL LAW [Dongfang faxue] 2009, p. 28.

13Li Enshen, The Li Zhuang Case: Examining the Challenges Facing Criminal Defense Lawyers

in China, 24 Colum. J. Asian L.130 (2010–2011).

14Jiang Lijun, The Discussion of the Appraisal System in the Public Security Organs [Lun woguo

gong’an jiguan de jixiao pinggu jizhi], 6 Journal of Zhejiang Police College [Gong’an Xuekan]

2002, p. 80.

15See Wan Yi & Shi Qingzheng, Wan Yi & Shi Qingzheng, Empirical Study of the Appraisal

System in the Procuratorates [Jianchayuan jixiao kaohe shizheng yanjiu], 1 ORIENTAL LAW

[Dongfang faxue] 2009, pp. 34–35.

4.2  Root One: Institutional Restraints That Cause Wrongful Convictions in China


Examination and Appraisal of Law-Enforcement Quality [Liaoning sheng gong’an

jiguan zhifa zhiliang kaohe pingyi guiding], for example, requires a high ratio of

all cases presented by the police to be prosecuted, so as to encourage police officers to solve more cases.16 The targets that police officers, prosecutors and judges

must meet further encourage cooperation between the three institutions.

In a managerial manner, Chinese authorities use a range of incentives, e.g., the

aforementioned incentives, to promote efficiency in “solving” cases, in order to

further the purposes crime control purposes. For instance, instead of allocating

funds based on the actual needs of investigation, funds are allocated to police and

prosecutors as a reward for achieving high rates of conviction, with funds taken

away from authorities with lower rates. Accordingly, in many justice institutions, the salaries or promotions of police officers, prosecutors and judges largely

depend on their success at convicting suspects. Like underperforming employees

at a private corporation, those who perform poorly often face the risk of wage cuts

or dismissal. Such justice practices put much pressure on the authorities to solve

difficult or high profile cases as quickly as possible. For solving some malignant

cases that attract public attention, superiors tend to set a time limit for each step of

the case, including for investigation into the case and for the prosecution of suspects. This time limit is a further incentive for the authorities to work efficiently in

solving such cases.

With respect to incentives to meet targets, moreover, a target of criminal justice

since 2001 has been to solve all homicide cases. In 2004, the Ministry of Public

Security (MPS) emphasized this requirement, exhorting local police to thoroughly

solve all homicide cases. This target is intended to put tremendous pressure on

criminal investigation departments. Once a homicide case has been solved, investigators are considered for meritorious service designations or awards, which theoretically show that they are competent leaders. Otherwise, they are deemed to be

irresponsible, or incapable of undertaking challenging work, which may lead them

to lose their positions as a punishment. The requirement that “homicide cases must

be broken”17 is actually a slogan with good intentions, but is unlikely to be realized in all circumstances, given that some cases are hard to solve. It has been

reported that such incentives led to an almost full rate of solving such cases over

the past decade, which occurred even in large cities, such as Shanghai and Beijing.

For example, in Shanghai and Beijing, nearly 99 and 99.16 % of cases, respectively, were solved in the year of 2013, Shanghai and Beijing achieved the highest

16See Liaoning Provincial Police, Liaoning Provincial Police’s 2006 Provisions on Examination

and Appraisal of Law-Enforcement Quality [Liaoning sheng gong’an jiguan zhifa zhiliang kaohe

pingyi guiding], DOCIN [douding wang] (12 April 2011), available at: http://www.docin.com/p177446050.html&endPro=true.

17ZHAO Yaotong, Did that “Murder Cases Must Be Broken” Really Lead to Wrongful Convictions?

[zhenshi ‘ming’an bipo’ daozhi yuanjia cuo’an ma?], South Reviews [nanfeng chuang] (21 November

2014), available at: http://www.nfcmag.com/article/5127.html.


4  The Different Roots of Wrongful Convictions

rates of solved homicide cases in China from 2011 to 2013.18 Rates of conviction

that are almost as high as in Shanghai and Beijing are not rare in China. A direct

consequence of failing to reach this rigid target involves two situations: one is not

to put cases on the record until they are solved, which may lead some arrests and

detentions to go unrecorded. The other is that authorities may resort to falsifying

guilt, possibly by extracting a false confession from the first suspect to be arrested.

As long as such a confession is obtained, a case is considered to be solved for the

purpose of meeting the target. With this utilitarian drive, it is no wonder that miscarriages of justice are not avoided, even in capital cases, and that there is a high

risk that wrongful convictions will occur. Like any employees trying to meet managerial targets, some investigators take advantage of loopholes. In the criminal justice context, such loopholes include the extortion of false confessions by means

fair or foul, including torture. Such injustices, as typical examples of tragedies,

can be caused by the managerial system.

Worse, the public tend to believe that as long as investigators make every effort

to solve the involved cases, all cases can be finally solved under the guidance and

promotion of the police. In most cases, without reliable or sufficient evidence

available, this impractical goal often pushes the officials much pressure to solve

all cases mainly by means of conviction. Even the innocent can be wrongly convicted as a scapegoat by officials who “game” the system to achieve high conviction rates.

Among twelve wrongful conviction cases that were judicially corrected in

2014, for instance, nine of them (or 75 %) involved the crime of murder, and

largely resulted from the local police’s emphases on the detection rate for a long

period of time. In the NIAN Bin case, where both the crime of murder and the correction of his wrongful conviction of murder occurred in Fujian Province in 2006,

the Fujian police were trying to satisfy the evaluation requirement of solving all

murder cases. In order to solve them as required, the local police concluded the

case within twelve days, which actually led to police misconduct and the unjust

conviction of the innocent accused.19


example, see The Beijing Police Annual Report Was Released to Show that the Detection

Rate of Murder Cases Rose up to 99.16 % [Beijing jingfang niandu gongzuo baogao chulu

ming’an po’an lvda baifen zhi jiushi jiudian yiliu], China Net [zhongguo wang] (24 January

2014), available at: http://www.china.com.cn/news/2014-01/24/content_31289621.htm; also see

PAN Gaofeng, The Shanghai Detection Rate of Murder Cases Being Nearly 99 % in the Last

Year [qunian shanghai ming’an po’an lvjin baifen zhi jiushi jiu], Dayang Net [dayang wang] (12

January 2014), available at: http://roll.sohu.com/20140112/n393370187.shtml.

19See CHEN Wei, During Eight Years When the Nianbin Case Occurred, Tragies Still Continuing

[nianbing an zhe banian: beiju rengzai jixu], China News Weekly [zhongguo xinwen zhoukan] (4

September 2014), available at: http://news.inewsweek.cn/detail-862.html.

4.2  Root One: Institutional Restraints That Cause Wrongful Convictions in China

97 Three Institutions’ Coordination

In practice, members belonging to each of the three institutions know each other

very well, and officials frequently coordinate with their colleagues at the other

institutions to ensure efficient cooperation, rather than necessary restraint. Within

this relationship of this close coordination, the three organs rationally (though selfinterestedly) work together to decide criminal cases as a monolithic whole, so as

to efficiently solve cases in the name of serving public interests, e.g., crime control

or maintaining social stability.20

Unfortunately, all too often in China, justice expedited is justice denied.

Evidently, ‘crime control has still unduly dominated the operation of criminal proceedings’ to cause more injustices.21 For example, courts focus on crime control at

trial and the police or procuratorates prefer accusing suspects based on any evidence of guilt to acquitting them based on innocence, which indicates the intensified ideal of crime control ‘in the mentality of law enforcement agencies’.22 In

order to achieve the goal of crime control, some investigators in the police or procuratorates tend to obtain crucial evidence by all means, even those contrary to law,

such as torture.23 Once courts fail to check the misconduct, based on tortured confessions most convictions are of the innocent, and the fact that cases are not conducted properly makes convictions “wrongful”, regardless of the actual guilt or

innocence of the accused. Within the justice system, the three justice institutions’

coordination results from their own positions as tools for crime control or social


Under the strong influence of crime control ideas, the three institutions often

play their institutional roles in achieving the goal of crime control and maintaining social stability. For instance, after concluding investigations, police investigators tend to arrest or detain major suspects and suggest that prosecutors prosecute

them by sending the prosecutors a letter of proposal to prosecute the involved suspects. The procuratorate frequently follows the advice of investigators to proceed

with the involved case, and even draft a formal indictment as an edited version of

the proposal letter for prosecution. Unfortunately, in prosecuting the above suspects, there is often no adequate check on police misconduct in practice. Similarly,

courts seldom correct investigative or prosecutorial errors, but take the revised

indictment as a judgment.

20See Pitman Potter (1999), The Chinese Legal System: Continuing Commitment to the Primacy

of State Power, The Chinese Quarterly, 159: 681.

21Li Enshen, The Li Zhuang Case: Examining the Challenges Facing Criminal Defense Lawyers

in China, 24 Colum. J. Asian L.130 (2010–2011).

22Li Enshen, The Li Zhuang Case: Examining the Challenges Facing Criminal Defense Lawyers

in China, 24 Colum. J. Asian L.130 (2010–2011).

23Amnesty International, People’s Republic of China: Law Reform and Human Rights 13 (1997);

Guo Zhizhong, The Legal Analysis of Forced Confession through Torture and Ill Treatment

[Xingsun bigong de falv fenxi], POLICING STUD. [Gong’an Yanjiu], 4 (2007), 64.


4  The Different Roots of Wrongful Convictions

Particularly in doubted cases, the police and prosecutors often choose to communicate with judges and even influence the judiciary’s final decisions. For example, in many capital cases, where facts are not clear or evidence is insufficient,

courts may still decide to convict defendants and give them lighter punishments,

rather than declare their innocence at trial. Otherwise, acquittals in high-profile

cases may lead to indignation on the part of victims or his or her family, or to public dissatisfaction. When cases end in acquittals, they would question the justice

institutions’ capability of solving cases, which further weakens public confidence

and arouses social instability. Facing this dilemma, courts tend to balance the

interests of coordinating with the police or prosecutors with the interest of leaving room for the correction of wrongful convictions, for example, by imposing the

death penalty with a suspension of execution in capital cases.

As generally reported in the worldwide media, both Case SHE Xianglin and

Case ZHAO Zuohai are high-profile wrongful convictions in China involving

death sentences, the study of which could help reveal the typical causes of wrongful convictions. The first innocent, SHE Xianglin, was wrongly convicted in 1994

of killing his wife ZHANG Zaiyu, who had disappeared from their hometown in

Hubei Province. In April 1994, SHE Xianglin, a security guard, was arrested as a

suspect after a corpse was found at the town several months before. SHE Xianglin

was convicted and sentenced to death by the Intermediate People’s Court (IPC)

of the former Jingzhou Region based on his false confession extorted by torture

conducted over ten days and eleven nights of interrogations, during which he was

deprived of water and sleep. But the Higher People’s Court (HPC) of the Province

remanded SHE Xianglin’s case for retrial in January 1995. After changes in the

division of administrative regions, Case SHE Xianglin was unfortunately transferred to the police of Jingshan County, and was heard in 1999 by the Basic

People’s Court (BPC) of the County and the IPC of Jingmen Cityin the first and

second instances, respectively. It was five years after his death sentence that the

BPC and the IPC sentenced him to imprisonment for fifteen years based on the

same confession. He remained in prison until March 2005, when the “dead” victim

ZHANG Zaiyu suddenly returned home alive from Shandong Province after having lived with others for eleven years. At retrial SHE Xianglin was declared to be

innocent in April 2005.

The other innocent, ZHAO Zuohai, was also convicted of murder, in this case

for killing his fellow villager in Henan Province. In May 1999, ZHAO Zuohai, a

farmer, was arrested immediately following the discovery of a dead body in a village well. The body was discovered over half a year after the “assumed victim”,

ZHAO Zhenshang (who was not related to ZHAO Zuohai), went missing. Three

years later, based on false and coerced confessions, the People’s Procuratorate

of Shangqiu City accused ZHAO Zuohai of murder at the first-instance IPC of

Shangqiu. In 2002, that court sentenced ZHAO Zuohai to death with a two-year

suspension of execution for the crime. Since the defence did not appeal against

the conviction or sentence of suspects, the HPC approved the IPC’s sentence in

2003 after conducting a final review that was not an appeal but rather the last process in capital cases. Seven years later, the “dead victim” Zhenshang unexpectedly

4.2  Root One: Institutional Restraints That Cause Wrongful Convictions in China


returned alive to his village on 30 April 2010. He told the real truth: that he cut

ZHAO Zuohai with a knife on the night of October 30, 1997, and left his hometown early the next morning to avoid revenge. Although ZHAO Zuohai had no

wounds on his body to show the trial court, the fact of his fight with a village fellow cannot be reasonably judged as his murder in judicial findings. Finally, the

HPC held a trial committee meeting to identify ZHAO Zuohai’s murder conviction

as a wrongful conviction, thus declaring him to be innocent in May 2010.

As these stark cases have indicated, a crucial clue was suppressed due to cooperation, i.e., in the SHE Xianglin case. Close cooperation between the police, prosecutors and courts without the imposition of the necessary restraints is another

major factor contributing to wrongful convictions. Although Article 7 of the 2012

CPL requires the gong-jian-fa institutions to cooperate with and “check each

other to ensure the correct and effective enforcement of law”, they actually work

together on the same line in their fight against crime, without imposing the necessary checks on each other. It is such co-operation that further led the innocent

accused to be wrongly convicted by courts, even though there were many doubts

over the facts in the involved criminal cases, such as whether the death body is the

missing victim or not in Case SHE Xianglin or ZHAO Zuohai, and whether DNA

tests exclude suspects from the list of potential murderers or not in Case ZHANGs.

Also, public indignation following acquittal may cause concern for higher

authorities, leading them to promote the three institutions’ coordination to convict

the accused in a speedy way. In China’s current political system, the local NPC

has the power to decide courts’ personnel affairs, the government has the power to

decide courts’ financial affairs and party committees at all levels have the power

to decide courts’ leadership. In fact, the phenomenon of “instructions” on deciding cases is widespread, with courts frequently subject to improper interference

from these sectors. Higher authorities like the above NPC and local PLCs, or the

three justice institutions, are highly consistent with one another internally in handling cases. They are actually practicing a division of labour but not a separation

of powers, and often cooperate to collectively pursue criminal suspects or defendants. Under these procedures, it is difficult to avoid injustice in practice.

Hence, the three justice institutions not only coordinate with each other in combating crime, but also have to give up their mutual checks in order to convict the

accused in doubtful cases, even at the cost of justice and human rights. As a tool of

crime control, all three justice institutions face great political and public pressure

to convict the accused. Some extra-judicial institutions justify their illegal interference on the basis that they promote the ends of furthering social interests. Implied Rules in Chinese Courts

In practice, Chinese courts still retain the inquisitorial tradition, though it was officially replaced with the adversarial system in 1997 pursuant to the implementation of the 1996 CPL. A major reason why courts maintain the inquisitorial system

is that judgments are usually not reached by the judges who hear and examine


4  The Different Roots of Wrongful Convictions

evidence at trial, but by judges without attending trial or the trial committee established inside each court. The decision-making process of convicting the accused

is essentially not transparent or adversarial without cross-examinations of both

parties to influence it at trial. But in fact, courts dominantly decide convictions

in camera by administrative means, which is a part of the essence in inquisitorial

systems. Apart from following the opinions of local PLCs or of the public with

respect to individual cases, trial committees often overstep their boundaries to

decide cases based on paper reviews without a hearing. Implied rules in the courts

led to many wrongful convictions, such as those in the Five Youths case.

According to Article 180 of the 2012 CPL, when the collegial panel meets to

discuss ‘difficult, complex or major cases’, the panel shall refer such cases to the

president of the court who will decide whether to submit them to the trial committee for discussion or decision. Such practices aim to encourage the panel to

discuss cases with the authoritative committee. Yet the legal scope of the cases to

be reviewed by the trial committee often broadly expanded to include any cases

where it is desirable that verdicts should be changed. In such cases, final verdicts

come not from the trial judge, but rather from judges on the trial committee who

has not participated in the trial. If the opinion of the committee does not agree

with that of the panel, the latter can only defer to the former, even though convictions resulting from such interference are very likely to be wrongful. If the cases

decided by the committee are unjust, the judges can avoid taking responsibility.

The inquisitorial decision-making process seriously weakens courts’ due role in


The managerial justice system of trial committees tends towards hierarchal

bureaucracy because the committees are concerned first and foremost with administrative decisions, and lower levels defer to higher levels, allowing the highest

authorities to decide important or controversial cases. Under this managerial system, many unwritten rules continue to undermine criminal justice. For example, in

the Five Youths case, which occurred in Xiaoshan of Zhejiang Province, the trial

judge ZHANG Debao stated that “the case was finally decided by the Trial

Committee”.24 It seems that the Committee should take collective responsibility

for unjust cases, but the collective decision-making actually means that no one

takes on any responsibility, detrimental to justice and human rights.

For instance, in another case, for instance, a Harbin policeman named ZHANG

Jinbo was wrongly accused of rape in 1995. Based only on the alleged victims

false testimony, the administrative decision to prosecute and convict the accused

was reached in the ‘joint handling meeting’ of the police head, chief prosecutor

and court president from diverse institutions, unlike a trial committee established

inside each court. In 1998, the Nangang District Court convicted the innocent ZHANG Jinbo and sentenced him to ten years of imprisonment. After that,


Liu Changsong, “Wrongful Convictions in Xiaoshan” Question the Mechanism for the

Accountability of Trial Committees [xiaoshan cuo’an kaowen shenwei hui wenze jizhi], Beijing News

[xinjing bao], (4 July 2013), available at: http://epaper.bjnews.com.cn/html/2013-07/04/content_


4.2  Root One: Institutional Restraints That Cause Wrongful Convictions in China


ZHANG Jinbo immediately appealed against his conviction, to the Harbin IPC.

But unfortunately, the local IPC denied his appeal and maintained his original

wrongful conviction in 1999.

In fact, the collegiate panel of the Harbin IPC concluded that ZHANG Jinbo

was factually innocent. Later, the trial committee disagreed with the panel’s conclusion, so the trial judges in the panel followed the committee and affirmed the

judgment of guilt. According to required rules, judgments of guilt cannot be

changed until after the committee’s discussion or permission.25

Finally, Chinese authorities generally presume the guilt of suspects for managerial reasons. This traditional presumption has persisted in spite of several reforms.

While the use of an inquisitorial system does not imply the presumption of

guilt, the presumption encourages an inquisitorial approach to handling criminal

cases. Once guilt is presumed, the role of courts becomes not so much to determine whether or not the initial presumption is correct, but instead to inquire as

to why the accused is guilty and focus on evidence of guilt only. Even if courts

were not subject to outside interference, they would likely still take an inquisitorial or bureaucratic approach in hearing cases or in coordinating with the police or

prosecution. Also, the latter two justice institutions aim at bringing the accused to

justice and thus are unlikely to restrain or question judicial presumptions of guilt.

Thus, such implied rules in courts often lead to injustices. Promotion by the Local PLCs

(a) Between the years of 1979 and 1998

Some Chinese wrongful convictions were ultimately caused by local PLCs, who

promoted the coordination of the police, prosecutors or courts when dealing with

the involved cases in practice. In this context, co-ordination by the PLCs means

that superiors organize lower institutions so that they work together, which substantially differs from the three justice institutions’ voluntary cooperation at the

same administrative level. The PLCs are composed of the leaders of the relevant

courts, procuratorates and police stations. Their main responsibilities are to support and coordinate each branch in exercise of their powers and functions, and

to oversee controversial or important cases. Underlying the PLCs’ dominance or

co-ordination is the state’s concern with its political performance with respect to

increasing social or crime control.

As early as 1979, the Central PLC issued instructions to all party members in

order to strengthen the ruling Party’s leadership over judicial work. It stated that

the most important task and a specific means to achieve it is respectively, to effectively safeguard the implementation of the law and to ensure judicial independence in practice. Under the Party’s leadership, moreover, China enacted national

25See Zhang Yue & Qi Shuxin, The Policeman Zhang Jinbo’s Unjust Conviction in Ten Years [minjing zhang jinbo de shinian yuanyu], China Youth Daily [zhongguo qingnian bao] (9 February 2007).

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2 Root One: Institutional Restraints That Cause Wrongful Convictions in China

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