FEAR OF TRYING

FEAR OF TRYING

A NEW LAW SHEDS LIGHT ON cHINA’S UNUSUALLY HIGH cONVIcTION RATE

On August 9, Shandong became the first province in China to abolish performance evaluations based on the number of prosecutions and “cases solved” by police departments. Although the move is ostensibly intended to“redirect energy to public security, crime-prevention, and public assistance,” some lawyers hope it could also improve the “objectivity” of law enforcement in a country where police and prosecutors almost never fail to win in court.

Chinese courts have one of the world’s highest rates of criminal conviction, defined as the percentage of guilty verdicts, reported to be 99.91 percent as of 2016 by the Supreme People’s Court’s 2017 work report. This has risen from 98.9 percent in 2000, according to the China Law Society. By comparison, the US Department of Justice reports that US courts convict around 93 percent of defendants at trial.

According to a report this year by its public security department, Shandong’s police force ranks first among Chinese provinces in terms of cases “solved” each year, at 99.3 percent (referring to the percentage of criminal cases that end up being prosecuted in court).

Beijing lawyer Zhang Nianxin told the Legal Mirror, a Beijing daily, that removing the “unobjective” standard would “direct energy toward handling cases, and effectively reduce miscarriages of justice.” In 2014, when the Supreme People’s Court’s abolished convictions rates as a performance indicator for the country’s higher courts, the Mirror hailed the step as a means to reducing confession by torture, and false or unjust sentencing (it was also meant to relieve problems such as courts refusing to hear cases toward the end of the year, to avoid hurting their annual conviction rate).

In a 2015 report, the Duihua Foundation, an American think tank focused on China’s legal system, cited several reasons for the low rate of acquittal. Prosecutors (officially known as procurators) may opt to withdraw indictments, formally dropping charges, or recommend additional investigation, rather than risk acquittal.

China’s judicial system also encourages cooperation between police, procuratorates, and courts to increase“social stability,” Duihua notes; public opinion is considered a serious factor when sentencing; judges and officials fear that not-guilty verdicts will lead to a surge in petitioning by victims’ families. Moreover, they face pressure to give verdicts quickly—the infamous case of Huugjilt, the Inner Mongolian teen whose 1996 conviction for rape and murder was overturned by the Higher People’s Court of Inner Mongolia in 2014, took only 66 days between arrest and Huugjilt’s execution.

However, in a 2015 interview with Phoenix Weekly, Peking University legal expert Chen Ruihua identified the problem as political rather than procedural. According to Chen, courts are “timid” toward not-guilty verdicts, as they have little power compared to public security bureaus and procuratorates, which are politically connected and have“l(fā)imitless resources to prosecute crime”—even, potentially, to investigate or charge judges who have issued acquittals. By comparison, “the law gives defendants and defense lawyers very weak rights”—defense lawyers participate in fewer than 30 percent of all criminal cases nationwide, according to Duihua, and are barred from routine tasks such as obtaining documentary evidence from police or simply meeting with clients.

Low education levels and the poor qualifications of judges and police are yet another obstacle, according to Wang Jiansheng, a Henan lawyer and researcher of false and unjust charges. “The biggest problem in China’s judicial system is the lack of suzhi [‘quality’] in the personnel,” he tells TWOC. “Judges might be someone who has a good background or a cadre who gets promoted; police need just a high-school education. They haven’t achieved the necessary legal knowledge or logic.” – H.L.