MCLC: greater rights for defendants

[Denton, Kirk]

MCLC LIST
From: kirk (denton.2 at osu.edu)
Subject: greater rights for defendants
***********************************************************

Source: NYT 
(3/8/12):http://www.nytimes.com/2012/03/09/world/asia/china-acts-to-give-de
fendants-greater-rights.html

China Acts to Give Defendants Greater Rights
By SHARON LaFRANIERE

BEIJING ‹ China moved on Thursday to enhance the rights of suspects and
defendants in criminal cases, recommending that its handpicked national
legislature adopt some key safeguards common in Western countries.

The hard-fought changes, amendments to the Criminal Procedure Law, were
presented to the National People¹s Congress and are almost certain to be
adopted next week. They curb the power of the police and prosecutors to
detain suspects without notifying relatives, to use evidence extracted by
torture and to keep defense lawyers at bay.

Still, legal analysts said, much of the state¹s overwhelming advantage
over criminal suspects would be preserved.

³There is no question these are welcome changes,² said Mike McConville, a
Hong Kong law professor and the author of a recent book, ³Criminal Justice
In China.² ³What I am saying is that they do not go far enough.²

The legislation ‹ by the first most significant before the National
People¹s Congress this session ‹ includes the most sweeping revisions to
the Criminal Procedure Law since 1996.

China¹s criminal justice system is steeply tilted in favor of the police
and prosecutors. The vast majority of cases turn on confessions by
suspects who have no access to defense lawyers until long after
interrogation, if ever. Defense lawyers are powerless to do much except
argue for a lesser sentence. Convictions are all but assured.

An initial draft of the amendments published last year triggered fears
that the police would be given even greater power. About 75,000 people
responded to the government¹s invitation for online comments. The most
controversial provision, dubbed ³the disappearance clause² by human rights
advocates, would have allowed the police to hold suspects for up to six
months at secret locations without notifying their relatives.

In the past few years, the police have increasingly employed that tactic
to intimidate and silence government critics. The internationally known
artist Ai Weiwei, for instance, was held incommunicado for 43 days last
year in a secret location in Beijing before his wife was allowed to visit
him.

Chen Guangzhong, a legal adviser to the legislative committee that drafted
the amendments, said he and others had argued strenuously that the police
should not be given such broad leeway.

³I made it clear that was unacceptable,² said Mr. Chen, a consultant to
the Supreme Court and the Supreme People¹s Procuratorate. ³That could mean
that someone could be holed up in a place for six months without anybody
knowing it.²

Under the amendments presented on Thursday, the police must tell relatives
within 24 hours if a suspect is being held at a residential location
outside a formal detention center.

³This particular battle has been won,² said Nicholas Bequelin, a Hong
Kong-based senior researcher for Human Rights Watch. ³This is about
reformers preventing the police from getting extra powers.²

The police must also notify relatives of suspects who are held in
detention centers, unless notification would impede the investigation and
the cases involve threats to national security or terrorism. Even then,
legal specialists said, the delay is limited to 37 days.

The amendments would extend other new protections to suspects and
defendants. For example, the police would be required to make video and
audio records of interrogations of suspects who face a death sentence,
life imprisonment or, according to Mr. Chen, a prison term of 10 years or
more. Legal experts characterized the electronic recordings as a welcome
safeguard. Only about 15 states in the United States have adopted such a
requirement, one expert said.

A suspect would be allowed to meet a defense lawyer without permission
from the police, except in cases involving national security, terrorism or
grave allegations of bribery. Legal aid would provided to those in
economic need before and during trial.

Li Bibo contributed research.