Tải bản đầy đủ - 0 (trang)
4 Different Root Three: Attitudinal Biases Causing Wrongful Convictions in China

4 Different Root Three: Attitudinal Biases Causing Wrongful Convictions in China

Tải bản đầy đủ - 0trang

224



7  Different Mechanisms for Wrongful Convictions



the prosecution. The ‘creation of a tribunal independent of the Minister’ and the

Department, with more transparency, may be necessary.50



7.6 Critiquing These Mechanisms: Lessons to Be Learned

7.6.1 Broadening Access to Remedies in China

7.6.1.1 All Institutional Obstacles Should Be Removed

Although China’s judicial safety net has many flaws, the most notable one is the

lack of judicial independence. Achieving judicial independence is both the most

important and the most difficult goal for China’s legal reformers. If any reforms

are to work, all institutional obstacles preventing judicial independence should be

removed from both law and practice. The prevention of wrongful death sentences

requires nothing less.

Since the judges who hear capital cases lack independence, sometimes do not

attend the trials over which they preside and often lack legal training, the risk of

wrongful convictions in such cases is quite high. Some sensitive cases are referred

to the local Political-Legal Committee (PLC) ‘for considering whether the decision of the case is just’, based on the public’s opinion and the interests of society.

Even China’s bar association must to cooperate with the PLCs, which require

‘lawyers to stand back…with a case that the PLC has taken over’.51 Hence,

Chinese lawyers are ‘constantly contemplating any social or political influences or

pressures’. In order to prevent a case from causing controversy, the PLC will

decide a case before trial with the judicial departments, making subsequent trials

merely a formality, as occurred in Case ZHAO. A non-independent judiciary

makes judges less responsible for their final decisions in capital cases, leading to

problems ‘in determining who should take responsibility for an incorrect judgment’. Such additional obstacles for discovering miscarriages of justices should be

removed to promote the correction of errors in death sentences.

Presumption of innocence also needs to be implemented in all stages of criminal process. Police, prosecutors and judges should be encouraged to rely on legally

obtained evidence, and any laws penalizing lawyers who properly defend people

accused of the death penalty should be curtailed. Adversarial reforms will not be

effective if defence lawyers cannot apply the new procedures for the better representation of the accused created in the 2012 CPL. Death penalty reviews also

leave too much room for secret examination by judges without the defence party’s

50Paul



J. Saguil, “Improving Wrongful Conviction Review: Lessons from a Comparative

Analysis of Continental Criminal Procedure”, 45 Alta. L. Rev. 117, 2007–2008.

51Wu Xiaofeng, An Analysis of Wrongful Convictions in China, 36 Okla. City U.L. Rev. 468

(2011).



7.6  Critiquing These Mechanisms: Lessons to Be Learned



225



full participation. Hence, death sentences, at least death sentences with immediate

execution, should be urgently suspended until better procedures are introduced and

fully implemented.

7.6.1.2 Legislation to Allow Claims of Innocence

Given the inevitable errors in death sentences or executions, it is particularly,

urgent and necessary to establish an independent body to thoroughly investigate

claims of innocence in order to create a critical safety net that can prevent and

correct wrongful death sentences. Areas to consider include the investigation of

claims of innocence even where the accused waives his or her right to appeal (e.g.

Case ZHAO Zuohai). The independent body could carefully examine retrial petitions by the accused parties that might be refused by the PC or PP if they abuse

their powers. Also, care must be taken to ensure that an independent body created

to investigate claims of innocence in capital cases is given sufficient impartiality

and authority (e.g. Case SHE Xianglin would probably have been corrected much

earlier had an independent board been able to examine the facts). The intent of the

board should be to legally examine innocence claims and make preventive mechanisms workable.

Unlike the remedy models used in England and Wales and Canada, the Chinese

model of remedying miscarriages of justice in post-conviction criminal cases

through retrial can be initiated by diverse public bodies or individuals, namely,

Chinese courts or procuratorates, as per Articles 241–245 of the 2012 CPL.

Procuratorates are State organs for legal supervision’52 under the Constitution of

the PRC (Constitution). After finding ‘definite’ errors in a legally effective court

decision, they are legally obligated to present a protest to the competent court

against the verdict of conviction; and the ‘court that has accepted the protest shall

form a collegial panel’ for retrial, or order lower courts’ retrial ‘without clear facts

or sufficient evidence in original judgments’ (2012 CPL Article 243).

But in fact, procuratorates hardly present protests against effective convictions in practice, given the need to maintain good relations with the police officers, prosecutors and judges that cause wrongful convictions. Even if they wish to

present a protest against convictions, procuratorates generally decide to communicate with the relevant courts in advance so as to avoid divided opinions on retrial.

Hence China may have more chances to correct errors in miscarriages of justice

through legal supervision by procuratorates at higher levels, which usually do not

need to consider, or give into, undue pressure from lower justice institutions when

handling cases.



52“The Constitution of the People’s Republic of China (Full text after amendment on March

14, 2004)”, available at: http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_

1372991.htm.



226



7  Different Mechanisms for Wrongful Convictions



There has been a sharp contrast between the actual effects of the Chinese model

and the ones used in England and Wales or Canada. In implementation, the discovery and rectification of many wrongful convictions in China is frequently promoted by unprofessional political-legal institutions, like the powerful congresses

or local PLCs. Under Article 3 of the Constitution, ‘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’. Thus, convicted

people who insist on their innocence often seek the powerful congresses’ help by

petitioning against the effective convictions that may be wrongful in the hope that

the congresses will ask the relevant courts to review their cases for retrial.

Although they are not empowered by any specific statutory provisions, local

PLCs are designed to implement the Chinese Communist Party’s policy on legal

issues, nominating judges and prosecutors, administrating the police, procuratorates

and courts, and resolving disputes among the three justice institutions. Once a local

PLC decides to overturn a conviction, any courts under its coordination must follow

its instructions to acquit the convict at a retrial. Meanwhile, there is a great danger

that local PLC secretaries, who do not have much experience in criminal justice,

may coordinate the police, prosecutors and the police to cooperate with each other

and not to check each others’ work, thus causing more miscarriages of justice.

To ensure the independence of investigations and prosecutions, the prosecution

should have the sole power to lay or withdraw charges in the three jurisdictions.

Each file in China should be transmitted to the prosecution for consideration by

law, which enhances the essential role of the prosecution in truth-seeking by

requiring them to be conscious of their duty to identify facts and correct errors.

Similarly, in Canada the prosecution should also be allowed to conduct ‘proactive

audits of cases involving suspect forms of evidence’, so as to ‘discover wrongful

convictions’.53 The prosecution needs to play a more active quasi-judicial role for

better correcting such convictions.54

The criminal justice system in England and Wales, and China could learn from

the Canadian system’s self-criticism spirit, according to which the government has

periodically funded independent research by scholars to identify shortcomings and

to bring about appropriate reforms. Similar independent research should also be

supported by governmental funding in England and Wales, and in China, in order

to further promote systemic reforms on preventing their domestic or worldwide

miscarriages of justice.

Moreover, the impact of the accused’s expert witnesses in Western countries,

especially forensic experts, on criminal law and procedure, police practice and

wrongful convictions, has been considerable.55 The enhancement of the role of

53Kent Roach, Roach: Wrongful Convictions in Canada, University of Cincinnati Law Review,

Vol. 80 [2012], Iss. 4, Art. 19, 1509.

54Kent Roach, Wrongful Convictions: Adversarial and Inquisitorial Themes, N.C. J. INT’L L. &

COM. REG, 2010, 392.

55See Gudjonsson, G. H. (2002). “Unreliable confessions and miscarriages of justice in Britain”,

International Journal of Police Science and Management, 332.



7.6  Critiquing These Mechanisms: Lessons to Be Learned



227



defence experts is evidence that these countries are following the lessons they

learned from quashed convictions. China is far from adopting the latest developments on expert evidence reform and independent post-conviction review that are

used in the Western countries. In China, it is still rare for wrongfully convicted

persons to conduct private forensic investigations. If other countries could learn

from the CCRC as a good model of an independent commission, due process and

human rights could be always upheld to essentially promote efficiency and systemic benefit in handling serious cases. Counsel in China also face professional

risk when they assist the wrongfully convicted, making it difficult for them to help

prove innocence. False and coerced confessions that judges often use to find guilt

during the initial trial should be excluded from use in retrial. Hence, a hybrid form

of both adversarial and inquisitorial systems may be the solution in terms of providing the fairest possible re-trial based on checks and balances between the

defence, the prosecution and the courts.



7.6.2 Broadening the Scope for Review in the US

7.6.2.1 From Factual Innocence to All Errors In Justice

In the US, there is an increasing concern about wrongfully convicting the innocent

in capital cases. So far, there is no systematic mechanism for effectively correct

these errors, especially in cases where there is evidence of factual innocence.56 To

broaden the scope of review based on new evidence, it is essential to shift the

focus of US reform on preventing wrongful death sentences from relief only in

cases where the convict can prove his or her factual innocence to allowing more

effective remedies for all errors, especially factual errors, in death sentences.

In determining how to respond to this reform proposal for error correction, the

US criminal justice system may look to its Chinese counterpart for new

approaches. Such approaches could be accomplished step by step as follows: The

first step is to broaden access to a forum that will examine factual as well as legal

errors in trials. There is a need to establish an effective forum or procedure for

investigating and considering claims of factual innocence that are strongly supported by new evidence.57 The second is to further broaden the standards for

reviewing claims of factual innocence in wrongful death sentences or executions,

once the forum for presenting claims has been created. The third is for a meaningful body that can investigate to obtain new evidence in capital cases. This body

should not be constrained by any time limits or any rules unrelated to effective the

discovery of innocence.

56See



Kent Roach, “An Independent Commission to Review Claims of Wrongful Convictions:

Lessons from North Carolina?”, 57 Criminal Law Quarterly, 2012: 283–302.

57See Kansas v. March, 548 U.S. 163, 189 (2006) (Scalia, J. concurring); also see Md. Code

Ann., Crim. Law Article 2-202 (2010).



228



7  Different Mechanisms for Wrongful Convictions



7.6.2.2 The Evidentiary Standard Should Be Lowered

In the US system, whatever forum is ultimately used for reviewing factual innocence claims, the standard for granting relief based on newly discovered evidence

should be lowered. It is worthy of note that there is a vast difference between the

Chinese standard of providing ‘new evidence to prove that the confirmation of the

facts in the original judgment or order is definitely wrong’ and the US standard of

whether newly discovered evidence would probably produce an acquittals. First,

the language of the Chinese standard seems to clarify the burden which the

defence must meet; the US standard places the burden on the accused to rebut the

presumption that new evidence would not have led to a different result at trial.

Second, the US requirement of probable acquittal is much higher than the conclusion that the facts in the original judgment are ‘definitely wrong’.58 The standard

for evaluating innocence claims based on new evidence needs to be broadened and

lowered, allowing courts to vacate wrongful convictions in capital cases where

‘the prosecution cannot convince the court that a conviction still would have

occurred’.59 Finally, the system of executive clemency should be amended to

ensure that the process is open to public scrutiny. The clemency process should

include an open, thorough investigation and should apply meaningful standards so

that no wrongly convicted person is denied relief, serving the meaningful purpose

envisioned by the Supreme Court in Herrera.



7.6.3 Creation of a New Independent Commission

The Chinese government should create an independent commission, different from

the Innocence Project in the US. Given China’s institutional structure, such a body

could not be truly independent, like the Innocence project, but would have to have

some connection with the Chinese state. Also, the new commission should have

more functions or roles than its US model, in order to better correct of errors in

death sentences. Before creating a new independent commission, it is also essential to take the immediate action of suspending all executions until adequate death

penalty reforms can be carried in order to reduce death sentences and decrease

wrongful executions.



58See



Kent Roach, “Less Procedure, More Justice? A Comparison of Canadian and American

Wrongful Convictions”, in C. Ronald Huff and Martin Killias (eds.), Wrongful Convictions and

Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice

Systems. New York: Routledge, 2013; also see Joshua Lott, “The End of Innocence? Federal

Habeas Corpus Relief After In Re Davis”, 27 Georgia State University Law Review, 2011: 474;

e.g., see House v. Bell, 547 U.S. 518 (2006).

59Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1308.



7.6  Critiquing These Mechanisms: Lessons to Be Learned



229



Particularly, given the potential errors in death sentences or executions, it is

urgent and necessary to establish an independent body to thoroughly investigate

all possible wrongful convictions, like the CCRC is England and Wales but with

adversarial representation. Areas to consider include correction of suspected

wrongful convictions even where the accused waives the right to appeal, because

it will be necessary to carefully examine retrial petitions by the accused parties

that might be refused by courts or procuratorates abusing their powers. Care must

also be taken to ensure that an independent body created to decide compensation

claims for judicially identified wrongful convictions is given sufficient impartiality

and authority.

Its creation is not intended to replace the role of courts or procuratorates in

legal supervision, trial supervision or compensation decisions on such cases.

Instead, its purpose is to remove the disadvantages of these organizations’ dependence on departmental interests and their non-transparent procedures for examining

petitions or compensation claims, in an attempt to help prevent and reduce the risk

of wrongful convictions. The feasibility of creating such review boards outside the

court system tends to result from revelations arising from past wrongful convictions. In these cases, wrongful convictions were often overturned by the persistent efforts of the accused or families of the accused who filed petitions to various

authorities such as all levels of the people’s congresses, political-legal committees. These extra-judicial authorities clearly played an important role in providing

access to retrials for the wrongly convicted and contributed to creating an orderly

and standardized mechanism for discovering wrongful convictions.

The well-functioning of an independent review body primarily depends on its

composition and the nature of its powers. It is desirable to provide the review body

with a composition of individuals with the practical experience required for investigating and discovering possible errors in criminal cases ‘to facilitate the reinvestigation of alleged cases of wrongful conviction’.60 Concerning qualifications and

competence, ‘the post 2002 Canadian system which features an expert special

advisor who is retired judge who reviews all applicants’ would be ‘more fit for the

purpose of deciding whether a case should be referred back to the courts’ than the

method of ‘mandatory stakeholder representation’ may all be included. Such a

model would not be effective in the Chinese context for the above stated purposes

given the impact of China’s problematic criminal justice system. The nature of the

powers of a future Chinese review board will be delegated broad powers by the

National People’s Congress (NPC) Standing Committee,61 in legislation or its

explanations. These powers will mainly include independent investigation, decision-making on cases remanded for retrial, and compensation considerations. The

commission would have three essential features to ensure independence: legislative delegation, transparency in examining or deciding procedures, an emphasis on

error correction and systemic reform.

60Marshall



Inquiry, Report on Wrongful convictions, 145–146 (1989).

committee is responsible for legislation, legislative explanations and decisions, as well as

supervision over relevant authorities on the enforcement of laws.

61The



230



7  Different Mechanisms for Wrongful Convictions



First, ‘this review body should have investigative power so it may have complete and full access to any and all documents and material required’, ‘coercive

power so witnesses can be compelled to provide information’ and consideration

power so any claim for compensation could be handled when ‘a person is found to

have been wrongfully convicted’.62 Since the NPC Standing Committee’s delegation powers are higher than the judicial bodies, how to take full advantage of the

enormous influence of state power on the judiciary could theoretically make it easier to create mechanisms for discovering wrongful convictions. Such influence of

state power on justice system would not interfere with judicial powers, but rather

limited role in helping reinvestigating possible wrongful convictions. In fact,

China could readily introduce a non-judicial review commission that would select

potential wrongful convictions to investigate, as this would not conflict with

China’s existing political system and could improve efficiency of all levels of the

People’s Congress, PLCs, courts and procuratorates. Anyone ‘appointed to this

inquiry should be completely independent of any involvement with the administration of justice which gave rise to the wrongful conviction’, largely contributing to

‘an independent review mechanism to investigate wrongful convictions and constitute judicial inquiries to consider compensation claims’.63 The members of such

an inquiry could form a specialized agency of the NPC financially supported by

state financial departments, so as to avoid interference from undue factors and

independently deal with complaints. Under the legislature, creation of such an

independent body would be only responsible for screening wrongful conviction

cases and remanding them back to the courts, without jurisdiction to withdraw

charges or change errors in final judgments.

Regarding transparency in examining or deciding procedures, the body would

need ‘more transparency’, such as public record and meetings, ‘at least to the

extent of requiring public reasons for all decisions’ in deliberations, which is an

important aspect of procedural justice required on a case-by-case basis.64 In order

to facilitate public scrutiny, the review body should regularly issue a communiqué

on its work and release the corresponding data to the public, except where legitimate concerns exist like protecting the privacy of victims. This enabling review

body could be more transparent and subject to judicial review applications because

‘it is an important safeguard that removes the lingering idea that applications to reopen convictions after ordinary appeals have been exhausted are a matter of mercy

or clemency’.65 Specifically, the body is required to ‘hold public hearings’ and

allow ‘at least the release of transcripts of those hearings in cases’ referred back

62Kent Roach, An Independent Commission to Review Claims of Wrongful Convictions: Lessons

from North Carolina? 2 THE CRIMINAL LAW QUARTERLY (2012).

63Kathryn Campbell, Policy Reponses to Wrongful Convictions, 41 CRIMINAL LAW

BULLETIN 154 (2005).

64Kent Roach, An Independent Commission to Review Claims of Wrongful Convictions: Lessons

from North Carolina? 2 THE CRIMINAL LAW QUARTERLY (2012).

65Kent Roach, An Independent Commission to Review Claims of Wrongful Convictions: Lessons

from North Carolina? 2 THE CRIMINAL LAW QUARTERLY (2012).



7.6  Critiquing These Mechanisms: Lessons to Be Learned



231



the courts to increase transparency. During hearings, ‘adversarial challenges of

provisional verdicts’ are required to strengthen defense representation for better

preventing and remedying wrongful convictions, as well as such challenge ‘to

expert opinions and to the adequacy of police or judicial investigations’. Relevant

transcripts could also be made available online, including a comprehensive review

and assessment of the conviction and sentencing of the complainant. If the complainant considered the review body’s decision illegal or unreasonable, they could

apply to a court for judicial review. After receiving criminal complaints submitted

from the body, the higher court of trial courts which issued the wrongful conviction would hold a public hearing and publicize the final results and its reasons

within a reasonable time limit.

Concerning a shared or selective focus on error correction and systemic

reform,66 the former could be the similarity of all mechanisms for discovering

wrongful convictions worldwide, such as the CCRC in the UK, Ministerial PostConviction Review in Canada and so on.67 As recently reported, the North

Carolina Innocence Inquiry Commission (NCIIC) stressed the “non-advocatory

fact-finding’ approach to review cases.68 But the latter might be a bit different, as

‘it may be inevitable that an independence commission with the power to refer

convictions back to the courts will assume a quasi-judicial stance and be too busy

and hesitate to advocate for systemic reform’.69 While the CCRC in England never

make ‘proposals designed to reform the criminal justice system to reduce the risk

of wrongful convictions or to oppose criminal justice innovations’, the NCIIC has

‘involved in all criminal justice stakeholders’ and ‘successfully advocated for systemic reform’.70 Moreover, ‘an advisory panel composed of various experts’

would be able to ‘engage in research and advocacy on wrongful conviction issues’,

and the authorities ‘might be more responsive to the recommendations made from

those associated with a commission it appointed’ or delegated by law, than pubic



66See Kent Roach, The Role of Innocence Commission: Error Discovery, Systemic Reform, or

Both, 85 CHICAGO-KENT L. REV. 89 (2010).

67See Kent Roach, Criminal Case Review Commissions and Ministerial Post-Conviction

Review; Narissa Somji, A comparative Study of the Post-Conviction Review Process in Canada

and the United Kingdom; John Weeden, CB, Commissioner, The Criminal Cases Review

Commission (CCRC) of England, Wales and Northern Ireland; Michael Naughton, The Criminal

Cases Review Commission: Innocence Verse Safety and the Integrity of the Criminal Justice

System, 207; Lynne Weathered, The Criminal Cases Review Commission: Considerations for

Australia; Ulf Stridbeck and Svein Magnussen, Opening Potentially Wrongful Convictions—

Look to Norway, 2 THE CRIMINAL LAW QUARTERLY 2012; Kent Roach, An Independent

Commission to Review Claims of Wrongful Convictions: Lessons from North Carolina? 2 THE

CRIMINAL LAW QUARTERLY (2012).

682011 General Assembly Report, NCIIC (2011), available at: http://www.innocencecommissionnc.gov/gar.html.

69Kent Roach, Criminal Case Review Commissions and Ministerial Post-Conviction Review.

70Kent Roach, An Independent Commission to Review Claims of Wrongful Convictions: Lessons

from North Carolina? 2 THE CRIMINAL LAW QUARTERLY (2012).



232



7  Different Mechanisms for Wrongful Convictions



inquiries.71 Hence, the Chinese review commission created for promoting systemic reform process surely could recommend more suitable legal or judicial

responsive reform measures to better prevent future wrongful convictions and educate people about their causes or remedies, apart from error correction and

compensation.



7.7 Conclusion

In comparison, the Chinese legal system even after recent reforms that increase

review of death sentences still provides less access to remedies for wrongful convictions than the current western systems. In order for China to match the western

success, it is necessary that China adopt more substantive reforms. Particularly,

China should establish an independent and professional review commission to

remedy wrongful convictions, based on overseas experience and its lessons.

Despite no legislation to guarantee DNA testing in post-conviction process,

the Chinese system has emerged as more flexible to consider whether to admit

new evidence for retrial than the western systems. Chinese judges have never

allowed technicalities to stand in the way of correcting wrongful convictions, but

define such errors broadly to include factual errors and procedural unfairness.

Unlike their western counterparts, Chinese authorities are less adversarial, never

take actual innocence as a precondition to relief for any wrongful convictions,

frequently admit new evidence and do not apply strict time limits for appeals.

The Chinese criminal justice system, in practice, does not effectively protect an

accused. The justice system wrongfully penalizes those who persist in claiming

their own innocence or that of a family member or friend.

The Chinese approach to wrongful convictions is, in both law and practice,

quite different from the western systems. Chinese judges may grant relief for factual innocence by considering new evidence that reveals factual errors at trial.

They tend to pay less attention to the finality of convictions than western judges in

considering whether or not to correct errors. Given the function of comparative

law ‘to reveal what might otherwise be unquestioned assumptions by those working in only one system’,72 contextual factors help explain why systems are so different in identifying and remedying wrongful convictions.73 It is still essential and

necessary to understand other systems, particularly the Chinese system, in order to

expand the scope of relevant reforms.



71Kent



Roach, An Independent Commission to Review Claims of Wrongful Convictions: Lessons

from North Carolina? 2 THE CRIMINAL LAW QUARTERLY (2012).

72Kent Roach, “Less Procedure, More Justice? A Comparison of Canadian and American

Wrongful Convictions”, in C. Ronald Huff and Martin Killias (eds.), Wrongful Convictions and

Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice

Systems. New York: Routledge, 2013.

73See Mark Tushnet, 2008 Weak Courts Strong Rights (Princeton: Princeton University Press): 5–10.



Chapter 8



Problems and Prospects: China’s Response

to Wrongful Convictions



8.1 Introduction

Since 2005, criminal justice in China has undergone several waves of reform as

official responses to wrongful convictions in capital cases. The scope of China’s

responses broadly covers the relationship between police, prosecutors and courts,

that between each of the three and the ruling Party (CCP), their substantive powers, more adversarial procedures and mechanisms for preventing or remedying

injustices. While justice reform intensified when the Central Political-Legal

Committee (PLC) of the CCP started its crusade against such convictions,1 current

institutional, cultural or attitudinal practice may weaken the implementation of

new justice reform.

Institutional practices could be defined as a Chinese approach involving an

institution, such as the inadequate funding of justice institutions, the three’s cooperation under local PLCs’ coordination, and evaluation of their work performance

based on clearance, prosecution or conviction rates. Cultural practice may be clarified as a method of work relating to the shared values of Chinese justice society,

for example, more attention paid on strike than protection, on power than rights,

on substantive interest than procedures, or on a presumption of guilt than that of

innocence. Attitudinal practice is defined as passive attitudes taken to avoid conflicts among institutions. These practices actually contribute to a very high rate of

clearance or conviction. From 2011 to 2013, Beijing police’s clearance rates are

respectively 97.89, 98.91 and 99.16 % in murder cases, followed with 98.54 % as

of September 10, 2014.2 The proportion of accused offenders being found guilty



1See



“The CCP’s Central Political-Legal Committee Issued the First Guideline on Preventing

Unjust Cases” [zhongyang zhengfawei chutai shouge fang yuanjia cuoan zhidao yijian],

XINHUA NET (13 August 2013), http://news.xinhuanet.com/2013-08/13/c_116929042.htm.

2“Beijing Police’s Clearance Rate for Eight Serious Crimes Hitting A Record High in Ten Years”,

China News Network (September 14, 2014), http://news.sina.com.cn/c/2014-09-14/191830851732.

shtml; “Beijing police: the murder detection rate being 98.54 % in this year”, People Network

(September 14, 2014), http://legal.people.com.cn/n/2014/0914/c42510-25657969.html.



© Springer-Verlag Berlin Heidelberg 2016

N. Jiang, Wrongful Convictions in China, DOI 10.1007/978-3-662-46084-9_8



233



234



8  Problems and Prospects: China’s Response to Wrongful Convictions



was reported to be nearly 100 %.3 Given the frequency of wrongful convictions,

China’s police and justice system is often estimated as far from meeting international standards.4

The recent discovery of several wrongful convictions has revealed major flaws

in China’s justice system.5 For example, in 2013, five such convictions were

finally rectified, namely Case Uncle and Nephew ZHANGs in Zhejiang,6 Case LI

Huailiang in Henan,7 Case Five Youths in Xiaoshan,8 Case CHEN Keyun in

Fuqing9 and Case YU Yingsheng in An’hui.10 The publicity surrounding them,

especially in the cases of LI Huailiang and YU Yingsheng, has resulted in unusual

heated public debate in China11 and has created new momentum for further criminal reforms.12 Media reports promote widespread distrust of the justice system to

increase publicity that led to desire for deep reform.13 As a direct response to such

convictions, China has, since 2013, ‘started a new round of judicial reform to

tackle problems impeding … justice’.14 Important goals include the enhancement

of judicial independence and the curbing of outside interference in criminal trials.

So far, there have been three waves of justice reforms, from the post-SHE

Xianglin reform that took place from 2005 to 2010, to the post-ZHAO Zuohai



3“The



Conviction Rate of Chinese Criminal Cases Being nearly 100 %”, http://www.360doc.

cn/3g/article.aspx?id=255647.

4Ibid.

5See WANG Lin, “Wrongful Convictions Expose Deep Flaws In China’s Justice System”, THE

ECONOMIC OBSERVER (23 July 2013), http://www.eeo.com.cn/ens/2013/0723/247176.shtml.

6See Keith Zhai, “Zhang Gaoping: a 10-year travesty of justice”, SOUTH CHINA MORNING

POST (27 June 2013), http://www.scmp.com/news/china/article/1269708/zhang-gaoping10-year-travesty-justice.

7See China, “Innocent man freed after 12 years in prison”, SHANGHAI DAILY (27 April 2013),

http://www.china.org.cn/china/2013-04/27/content_28674800.htm.

8See LIU Gang, “Xiaoshan Hangzhou Public Security Commission for Discipline Inspection to

apologize case five youth”, INFORMATION SECURITY INDUSTRY NEWS WATCH (3 July

2013), http://news.securemymind.com/11322.html.

9See “China: Forced Confession by Torture and 12 Years in Jail, Chen Keyun Wants People To

Hear His Story”, BRITTIUS (11 November 2013), http://brittius.com/2013/11/11/china-forcedconfession-by-torture-and-12-years-in-jail-chen-keyun-wants-people-to-hear-his-story/.

10See Xinhua, “Innocent after 17 years in jail over wife’s death”, XINHUANET (14 August

2013), http://news.xinhuanet.com/english/china/2013-08/14/c_132630577.htm.

11See Michelle Miao, “The Politics of China’s Death Penalty Reform in the Context of Global

Abolitionism”, 53 BRIT. J. CRIMINOL. (2013): 500–519.

12See “Judicial reform: Court orders”, The ECONOMIST (7 December2013), http://www.economist.com/news/china/21591210-it-turns-out-torturing-people-confessions-isnt-all-right-after-allcourt-orders.

13See Jerome A. Cohen, “Struggling for Justice: China’s Courts and the Challenge of Reform”,

WORLD POLITICS REVIEW (14 January 2014), http://www.worldpoliticsreview.com/

articles/13495/struggling-for-justice-chinas-courts-and-the-challenge-of-reform.

14See Xinhua, “Latest judicial reform to improve judicial independence: chief justice”, XINHUA

NET (12 August 2013), http://news.xinhuanet.com/english/china/2013-08/12/c_132623785.htm.



Tài liệu bạn tìm kiếm đã sẵn sàng tải về

4 Different Root Three: Attitudinal Biases Causing Wrongful Convictions in China

Tải bản đầy đủ ngay(0 tr)

×