In Depth: How to Better Protect Procedural Justice for Criminal Suspects in China

China’s legislature is planning the fourth amendment to its Criminal Procedure Law (CPL) since 1979, aiming to achieve procedural justice amid new developments. The CPL, often called the “mini constitution,” aims to balance the powers of law enforcement and judicial authorities with the rights of criminal suspects and defendants [para. 1][para. 2].

The fourth draft amendment, set for review in the 2023-2028 legislative term, involves government consultations with professionals [para. 3]. Legal scholars and practitioners advocate trial-centric proceedings to avoid wrongful convictions. They call for mandatory witness presence in trials, increased appeal trials, witness protection systems, and clearer litigation rights for defendants and their lawyers [para. 4][para. 5].

Current CPL provisions limit witness participation to cases deemed significantly impactful by the courts, granting judges excessive discretion. Experts propose mandatory witness systems, ensuring witnesses are generally required to appear in court unless specifically justified otherwise. Tian Wenchang from King & Capital Law Firm suggests excluding critical testimony if the witness doesn't appear [para. 7][para. 8].

Additionally, experts are concerned about the low rate of appeal trials, reduced to under 20% post-2017. The issue is attributed to legal ambiguities and judiciary personnel reforms. The CPL requires all prosecution-protested appeal cases to be tried in court but has conditions for defense appeals. Legal professionals recommend eliminating these conditions for more trials [para. 13][para. 14].

Interference by higher authorities in lower court judgments and local government obstruction in investigations has worsened the trial-centered procedures. This "judicial administrative-ization" creates fear among lower-level case handlers, prompting them to seek guidance from superiors constantly [para. 15].

Concerning the defendants' right to legal defense, there is a broad interpretation among public security and judicial bodies, restricting defense lawyers’ access to clients, case files, and evidence collection. Legal advisors insist on clearer definitions of lawyers’ rights and strict measures against any infringement [para. 17][para. 18].

The right to remain silent is another proposed revision. Despite a 2012 CPL clause against self-incrimination, it hasn't been effectively implemented. Experts argue for an explicit right to remain silent, following models like the U.S. Miranda warning [para. 21][para. 23].

Pre-trial detention measures, specifically “residential surveillance at a designated location,” have been abused for torture and forced confessions. Initially for suspects without a fixed residence or in national security threats, it has become a form of disguised detention. Experts call for its abolition or strict limitations [para. 26][para. 27].

Another poorly defined measure is retention in duty-related crimes involving government employees, leading to inconsistent application and weakened individual rights during investigations. Zhang suggests high reliance on confessions and recapturing escapees as reasons for China’s high pre-trial detention rate (26.8% in 2023) [para. 28][para. 29].

The leniency system for confessions, intended for lighter sentencing, reached 90% in application in 2023, raising concerns about innocence admissions due to feared imprisonment. Experts call for greater defense lawyer involvement and stricter standards for retracting forced confessions [para. 33][para. 34].

Regarding corporate crime, judicial bodies are testing leniency programs for compliant companies. Some experts endorse a special litigation chapter in the CPL for corporate crimes, though others urge caution [para. 36][para. 37].

These proposed amendments reflect a comprehensive effort to balance justice, strengthen defendants’ rights, and ensure a fair procedure across China’s criminal justice system. [para. 1][para. 3][para. 5][para. 7][para. 9][para. 12][para. 14][para. 16][para. 18][para. 20][para. 25][para. 28][para. 31][para. 35][para. 38]