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The aim and task of China's judicial work is to protect the basic
rights, freedoms, and other legal rights and interests of the whole
people in accordance with law, protect public property and citizens'
lawfully-owned private property, maintain social order, guarantee
the smooth progress of the modernization drive, and punish the small
number of criminals according to law. All this shows that China
attaches great importance to human rights protection in the administration
of justice.
China's public security and judicial organs follow the following
principles in carrying out their duties: (1) All citizens are equal
in regard to the applicability of law. In accordance with the law,
each citizen's legal rights and interests shall be protected, and
any citizen's offenses against the law and his criminal activities
shall be looked into; (2) China's public security and judicial organs
shall base themselves on facts and regard the law as the criterion
in the conduct of all cases; (3) The procuratorate and the court
shall independently exercise their respective procuratorial and
judicial authority. They shall only obey the law and not be interfered
with by any administrative organ, social organization or person.
While dealing with criminal cases, the people's court, the people's
procuratorate and the public security organ shall divide their work
according to law, cooperate with and moderate one another. They
should exercise their authority only within the scope of their own
responsibilities and are not allowed to supersede one another. Procuratorial
organs shall oversee whether the activities in public security organs,
courts, prisons and reform-through-labor institutions are legal.
These principles of justice are clearly stipulated in China's law,
and they provide the legal guarantee for safeguarding human rights
in the state's judicial activities.
In every link of the work of public security and judicial organs
and in the judicial procedure, China's law provides definite and
strict stipulations to protect and guarantee human rights in an
effective way.
1. Detention and Arrest
China's Constitution provides that it is prohibited to take people
into custody illegally or to deprive or limit citizens' personal
freedom in other illegal ways. Without the permission or decision
of the people's procuratorate or the decision of the people's court,
and the dispensation of public security organs, no citizen can be
arrested. In order to guarantee the proper use of the compulsory
measure of arrest and to prevent infringement of the right of innocent
people, the Constitution and the law vest procuratorial organs with
the authority of investigation and approval before any arrest is
made. According to law, public security organs have the authority
to detain. If the internee is not convinced by the detention, he
may appeal to the public security or procuratorial organs. If suspects
detained by public security organs need to be arrested, this should
be approved by the people's procuratorate; if the people's procuratorate
does not approve the arrests, the public security organs should
release them upon receiving notice from people's procuratorates.
China's procuratorial organs and people's courts should promptly
investigate and deal with cases involving staff members in governmental
departments and other citizens depriving or limiting citizens' personal
freedom.
China's Law of Criminal Procedure provides specific regulations
on the deadline for handling criminal cases. At the same time, special
regulations have been formulated on the deadline for major and complicated
cases according to actual conditions. The Supplementary Regulations
on Deadline in Handling Criminal Cases, issued by the Standing Committee
of the National People's Congress in July 1984, provides extension
and calculation of the deadline for investigation and detaining,
the deadline for the first trial and second trial, and the deadline
for supplementary investigation of major and complicated cases.
2. Search and the Obtaining of Evidence
China's Constitution provides that it is prohibited to illegally
search a citizen's body, and to illegally search or intrude into
citizens' houses. The Law of Criminal Procedure provides that in
order to search for criminal evidence and seize criminals, public
security organs can search the body, articles, residence and other
places concerned of the accused as well as those who may hide criminals
or criminal evidence, but should do it strictly according to legal
procedure. Procuratorial organs should strictly supervise law enforcement
in the investigating activities of public security organs.
As a matter of principle and discipline for China's public security
and judicial organs in handling cases, it is strictly prohibited
to extort confessions by torture. Whenever a case of violating this
principle and discipline occurs, it should be dealt with according
to law. In 1990, China's procuratorial organs filed for investigation
472 cases which involved extorting confessions by torture. This
has not only protected citizens' personal rights effectively, but
also taught law enforcement officials a lesson.
3. Prosecution and Trial
Whether a case should be prosecuted after investigation or exempt
from prosecution should be decided by procuratorial organs after
overall and careful examination according to legal procedure; this
is to ensure the timeliness, accuracy, and legality of a punishment,
and at the same time, to prevent innocent citizens from unjust prosecution
and prevent citizens' rights from infringement. In 1990, after examining
cases to be prosecuted or exempt from prosecution, which were referred
to them by investigating organs, the procuratorial organs at various
levels in the country decided to exempt 3,507 people from prosecution.
The people's courts carry out a public trial system. Cases should
be tried publicly, except those involving state secrets or individual
privacy and involving minors, which according to law shall not be
heard publicly. The main points of a case, the name of the accused,
the time and place of the trial should be announced before the hearing,
and visitors should be allowed into the court. During the hearing,
all the facts and evidence on which the case on file is based should
be investigated and checked in court. All activities in court should
be carried out publicly except when the case is being reviewed during
court recession. These include issuing the indictment by the public
prosecutor, court investigation, questioning witnesses, debate and
the final statement by the accused. The verdicts in all cases, including
cases of non-public trial in accordance with law, should be pronounced
publicly.
During the judicial process the people's court makes it a point
to collect the evidence as comprehensively as possible according
to legal procedure. With no other evidence except the confession
of the accused as a basis, the accused cannot be pronounced guilty
or sentenced; without the confession of the accused but with ample
and reliable evidence, the accused can be pronounced guilty and
sentenced.
The accused has the right to defense. According to the Law of Criminal
Procedure, the accused, besides exercising his right to defend himself,
can also entrust a lawyer, or close relatives, or other citizens
to take up the defense on his behalf. When the public prosecutor
institutes a case before the court, if the accused does not entrust
his defense to a lawyer, the people's court can appoint one for
him. During the trial, the accused has the right to terminate a
lawyer's action in his defense and entrust another to take it up.
After the people's court decides to hear a case, a duplicate copy
of the indictment should be made available to the accused at least
seven days before the opening session of the court in order that
he may learn what crime or crimes he is being prosecuted for and
the reasons why he is being prosecuted, and that he has enough time
to prepare his defense and get in touch with his lawyer. During
the prosecution, the people's court should strictly comply with
the regulations of the Constitution and the Law of Criminal Procedure,
and earnestly guarantee the right of the accused to defense.
The accused has the right to appeal to a higher court and the right
of petition. In deciding cases the Chinese courts follow the system
whereby the court of second instance is the court of last instance.
According to law, if a party refuses to accept the judgement and
ruling of the first trial, he may appeal to a higher people's court;
if he remains unconvinced by the judgement and ruling which are
legal in effect, he may petition to people's courts or procuratorial
organs. Appealing to a higher court will not increase the punishment.
China's Criminal Law has special regulations on juvenile crime
and criminal responsibility. Those who have reached the age of 14
but not of 16 should be responsible for crimes of murder, serious
injury, robbery, arson, hardened thievery and other felonies against
public order; those who have reached the age of 14 but not of 18
should receive lenient punishment or mitigated punishment if they
commit crimes; as for those who are exempt from punishment because
they have not reached the age of 16, their parents or guardians
should be ordered to subject them to discipline, and if necessary
the government can take them away for custody and education.
Lawsuit procedures and judicial activities are strictly supervised
as to their legality. In 1990, China's procuratorial organs put
forward suggestions for the correction of illegal practice in 3,200
instances, thereby effectively guaranteeing citizens' legal rights
and interests in lawsuits and judicial activities.
China, like most countries in the world, maintains capital punishment,
but imposes very stringent restrictive regulations on the use of
this extreme measure. China's Criminal Law states, "Capital punishment
is applied only to criminals who are guilty of the most heinous
crimes." It also provides that capital punishment is not applied
to criminals who have not reached the age of 18 when they commit
crimes or to women who are pregnant when they are on trial. China's
Law of Criminal Procedure provides for a special review procedure
in cases of capital punishment. That is, the judgement in cases
of capital punishment, except for those made by the Supreme People's
Court according to law, should be reported to the Supreme People's
Court or to a high people's court authorized by it after the second,
or final, instance; only after all the facts, evidence, convictions,
sentences and trial procedures are comprehensively investigated
and checked and approved can the judgement take legal effect. After
the examination and approval, if a lower people's court finds that
there may be mistakes in a judgement, it should stop enforcement
of the punishment and immediately report to a higher people's court
with the authority of examination and approval, or to the Supreme
People's Court, in order that a ruling may be made by it.
China's law also provides a system allowing a two-year reprieve
in carrying out a death sentence. That is, in cases where criminals
should receive the death penalty but the sentence need not be carried
out at once, capital punishment can be announced with a two-year
reprieve and reform through forced labor, in order to observe the
offender's behavior. If the offender sincerely repents and mends
his ways, after the twoyear reprieve expires, the punishment can
be reduced to life imprisonment; if a criminal really repents, mends
his ways and performs meritorious services after the two-year suspension
expires, his punishment can be reduced to a set term of imprisonment
from 15 years to 20 years. Practice has shown that most of the criminals
who are given the death penalty with reprieve have had their punishment
reduced to life imprisonment or a set term of imprisonment, after
expiration of the two-year reprieve. The system of announcing the
death sentence with a two-year reprieve and forced labor, as provided
in China's Criminal Law, is an original creation in the application
of capital punishment. It is an effective system by which strict
control is exercised over the use of capital punishment in China.
4. No "Political Prisoners" in China
In China, ideas alone, in the absence of action which violates
the criminal law, do not constitute a crime; nobody will be sentenced
to punishment merely because he holds dissenting political views.
So-called political prisoners do not exist in China. In Chinese
Criminal Law "counterrevolutionary crime" refers to crime which
endangers state security, i.e., criminal acts which are not only
committed with the purpose of overthrowing state power and the socialist
system, but which are also listed in Articles 91-102 of the Criminal
Law as criminal acts, such as those carried out in conspiring to
overthrow the government or splitting the country, those carried
out in gathering a crowd in armed rebellion, and espionage activities.
These kinds of criminal acts that endanger state security are punishable
in any country. In 1980, in handling the case of the Lin Biao and
Jiang Qing counterrevolutionary cliques, the special court of the
Supreme People's Court strictly implemented this principle by prosecuting
members of the cliques according to law for their criminal acts
while leaving alone matters concerning the political line.
5. Prison Work and Criminals' Rights
At present there are in all 680 prisons and reform-through-labor
institutions in China, holding 1.1 million criminals in detention.
The rate of imprisonment is 0.99 per thousand of the total population.
Compared with the rate of imprisonment of 4.13 per thousand in one
of the Western developed countries according to 1990 statistics
of its ministry of justice, China's rate is quite low.
China's prisons and reform-through-labor institutions receive,
strictly according to law, criminals sent to them to enforce sentences
passed by the courts. If they find the relevant legal documents
not complete or the judgement not yet in effect legally, they have
the legal right to refuse to take the persons in custody. Prisons
and reform-through-labor institutions should notify a prisoner's
family members of his whereabouts within three days after taking
him into custody. According to China's law, most prisoners are allowed
to serve their sentences in the area where they reside to make it
convenient for their family members to visit them and for the units
where they used to work to help educate them. The allegation that
in China some citizens are sent to labor camps without trial or
sent away in some form of exile within the country is a distortion
of the system whereby prisons and reform-through-labor institutions
in China take criminals into custody; it is a groundless fabrication.
In China, the rights of prisoners while serving their sentences
are protected by law.
According to China's law, all prisoners, with exception of those
who have been legally deprived of their political rights, have the
right to vote. Prisoners also have the right to appeal, the right
of defense, the right of immunity from insult to their dignity and
from infringement of personal security and of legal property, the
right of complaint, the right of accusation, and other civic rights
which have not been curtailed by the law.
Convicted criminals, while serving their sentences, have the right
to contact family members and other relatives regularly by correspondence
or visits. If an important event happens in a criminal's family
such as critical illness or the death of a directly-related family
member, and if it is really necessary for the criminal himself to
go back home to handle matters, he can be permitted to go home for
a short period of time.
While serving their sentences, prisoners can read newspapers, magazines
and books, watch television, listen to the radio, and take part
in recreational and sports activities that are beneficial to the
body and mind. In prisons and reform-through-labor institutions
there are libraries where criminals can go to read. Like ordinary
citizens, prisoners who are serving their sentences have the freedom
of religious belief. Prisoners with religious beliefs can maintain
their beliefs, and allowances are made for the customs and habits
of prisoners of minority nationalities.
Prisoners are accorded the material treatment necessary in their
daily lives. The state covers their living and medical expenses,
and their grain, edible oil and non-staple food rations are set
according to the same standards for local residents. All prisons
and reform-through-labor institutions are staffed with an appropriate
number of doctors; in professional medical institutions, medical
facilities and hospital beds are set aside in prisoners' exclusive
service; on an average, there are 14.8 hospital beds for every thousand
prisoners, and those critically ill are sent to hospitals outside
the prison for treatment or, on approval, may seek medical treatment
on bail according to law. Prisoners' needs for medical care are
guaranteed.
The people's procuratorates provide legal supervision of the protection
of criminals' legitimate rights and interests. They send full-time
prosecuting attorneys to jails and other places of surveillance
to check whether the working and living facilities and conditions
and the surveillance work are legitimate, to hear the opinions of
those under surveillance, accept and look into their complaints
and appeals, and deal with violations of law promptly when discovered.
The prisons and reform-through-labor institutions in China are
not designed merely to punish the criminals but to educate them
and turn them into law-abiding citizens by organizing them to take
part in physical labor, learn legal and ordinary knowledge and master
productive skills. Prisoners who have taken educational or technical
training courses and passed examinations given by local education
or labor departments are given certificates corresponding to their
levels of education or technical grades. The validity of such certificates
is recognized in society. By the end of 1990, about 720,000 certificates
for literacy or diplomas for completing courses up to the college
level had been issued to those serving terms in prisons and reform-through-labor
institutions; over 510,000 had attended various technical training
courses, and 398,000 received certificates of technical qualification.
Prisoners thus find it easier to find jobs on release after serving
their sentence.
China's law stipulates that prisoners who really show repentance
and have rendered meritorious service can, upon rulings of the people's
courts, have their sentences commuted or be put on parole. In 1990,
18 percent of the criminals in custody were accorded such treatments.
Thanks to the humanitarian, scientific and civilized management
of the prisons and reform-through-labor institutions, the recidivism
rate has for many years stood at 6-8 percent. Many prisoners have
returned to society and become key members or engineers in their
enterprises, and some of them have become model workers or labor
heroes. Compared with the situation in one developed country in
the West, where, according to 1989 judicial statistics, 41.4 percent
of exprisoners returned to jail, China has come a long way in reforming
and educating criminals. China's prisons and reform-through-labor
institutions have won global acclaim for their achievements in turning
the overwhelming majority of criminals, including the last emperor
of the feudal Qing Dynasty and war criminals, into law-abiding citizens
and qualified personnel helpful to the country's development.
6. Prison Labor
China's law stipulates that all prisoners able to work should take
part in physical labor. This is also the practice adopted in many
countries worldwide. China's policy of reforming criminals through
labor is designed to help those serving prison terms mend their
old ways by acquiring the labor habit and fostering a sense of social
responsibility, discipline and obedience to the law. This policy
enables criminals in custody to stay healthy through a regular working
life and avoid feelings of depression and apathy resulting from
a prolonged monotonous and idle prison life. It also helps them
learn productive skills and knowledge of one kind or another so
that they can find a job after being released from prison and avoid
committing new crimes because of difficulties in making a living.
China's policy of reforming criminals through labor is not simply
for the purpose of punishment; it is a humanitarian policy conducive
to the reform, and the physical and mental health, of the criminals.
By the Chinese law, criminals work for no more than eight hours
a day and take time off during holidays and festivals; they are
entitled to the same grain, edible oil, and non-staple food rations
and the same labor and health protection as accorded to workers
of state-run enterprises engaged in the same type of work; those
who overfulfill their production quotas are given bonuses and those
holding technical titles at and above the middle grade are entitled
to monthly technical allowances and opportunities of on-the-job
vocational and technical training.
Prison labor products are mostly used to meet the needs within
the prison system, and only a small quantity enters the domestic
market through normal channels. The export of prison products is
prohibited. China's foreign trade departments, which handle the
export of Chinese commodities in a unified way, have never granted
foreign trade rights to reform-through-labor institutions.
7. Education through Labor and the Rights of Those Being Educated
through Labor
The work of education through labor in China is based on the 1957
Decision on Education through Labor and other regulations adopted
by the Standing Committee of the National People's Congress. Education
through labor is not a criminal but an administrative punishment.
Education-through-labor administrative committees have been set
up by the people's governments of various provinces, autonomous
regions, municipalities as well as large and medium-sized cities,
and the work is under the supervision of the people's procuratorates.
It is stipulated that those eligible for education through labor
should meet the requirements of relevant laws and regulations. For
example, they should be at or above the age of 16 and have upset
the public order in a large or medium-sized city but refused to
mend their ways despite repeated admonition, or they have committed
an offense not serious enough for criminal punishment. The decision
to put a person under education-through-labor is made through a
strict legal procedure and under a system of legal supervision in
order to avoid subjecting the wrong person to the program.
After the education-through-labor administrative committee has
according to related regulations made the decision to put a person
an education-through-labor program ranging from one to three years,
the person and his family members are entitled to be informed about
the reasons for the decision and the duration of the program. If
the person takes exception to the decision, he may appeal to the
administrative committee or lodge a complaint with the people's
court according to the Law of Administrative Procedure. If the education-through-labor
institution finds that the person does not conform to the qualifications
for the education-through-labor program or that he should have been
sentenced to criminal punishment, it may report the case to the
reeducation-through-labor administrative committee for review.
Those undergoing education through labor are entitled to civic
rights prescribed by the Constitution and the law, except that they
must comply with the measures taken according to the regulations
on education through labor to restrict some of their rights. For
instance, they are not deprived of their political rights and have
the right to vote according to law; they have the freedom of correspondence
and the right to take time off during festivals and holidays; during
the period of education through labor they are allowed to meet with
their family members, those who are married can live together with
their spouses during visits, and they can be granted leave of absence
or go home to visit family members during holidays. Those who have
acquitted themselves well while being educated may have their term
reduced or be released ahead of time. Every year about 50 percent
of the people undergoing the education-through-labor program have
their term reduced or are released ahead of time.
The education-through-labor institutions follow the policy of educating,
persuading and redeeming the offenders, with the emphasis on redeeming.
Classes are opened, and instructors assigned, in these institutions
to conduct systematic ideological, cultural and technical education.
Offenders under the education-through-labor program work no more
than six hours every day.
An average of 50,000 people have been brought under the education-through-labor
program annually since it was instituted. The overwhelming majority
of those who have been reeducated have turned over a new leaf, and
many have become valuable participants in building the country.
According to surveys conducted over the last few years, only 7 percent
of those released from the education-through-labor program have
lapsed into offense or crime. The program has done what families,
workplaces and schools cannot do: to prevent those who have dabbled
in crime from committing further anti-social actions and breaking
the law and to turn them into constructive members of society. Both
the public and family members of the offenders speak highly of the
program for its role in forestalling and reducing crime and maintaining
public order.
China's public security and judicial organs have carried out their
responsibilities strictly according to law and played an important
role in protecting and guaranteeing the citizens' rights and freedoms.
That explains why China has long been one of the countries with
the lowest incidence of criminal cases and crime rate in the world.
In 1990, the incidence of criminal cases and crime rate in China
were 2 per thousand and 0.6 per thousand respectively, considerably
lower than the figures in some developed Western countries, which
ran as high as 60 per thousand and 20 per thousand respectively.
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