Annex 4
Further notes on changes to Criminal Law
and Criminal Procedure Law
The new conformity of Chinese terminology to
international standards means that when responding to enquiries
from non-governmental organisations (NGOs) and foreign governments
the Chinese authorities now routinely refer to prisoners who were
convicted for counter-revolutionary crime as criminals who committed
subversion, harmed national security, or attempted to overthrow
the state. Because similar language exists in the criminal code
of virtually every nation, few foreign governments have shown
themselves willing to confront China for prosecuting these crimes.
It is easier to discuss the suitability of the labels applied
to certain actions than the actual application of the law.
In the area of "state security" a
significant change for Tibetans in the amended Criminal Law is
the increased emphasis given to crimes of "splittism".
The new Article 103 deals specifically with crimes of organising,
plotting or acting to split the country. In the 1979 Criminal
Law, Article 91 dealt with colluding and plotting to "harm
the sovereignty, territorial integrity and security of the motherland"
and Article 92 dealt with "plots to dismember the state".
The amended law now has a total of five Articles (102 to 106)
dealing with such matters, indicating the increasing determination
of the authorities to eradicate such activities.
In 1997 amendments also included several other
potentially significant changes. Official reports indicated that
a "presumption of innocence" had been introduced. However,
when the law is examined, certain provisions are inconsistent
with the principle of the presumption of innocence, at least as
understood in English law. There is no right for a defendant to
remain silent (Article 93), no right for a defendant not to testify
(Article 155) and no provision for placing the burden of proof
on the prosecution so as to give the defendant the benefit of
the doubt. Moreover, Article 35 places a burden of proof on the
defendant that, again, is inconsistent with presumption of their
innocence.
A limited right to legal assistance and defence
had been introduced by the 1979 Criminal Law but prior to the
1997 amendments lawyers had no access to the defendant or his/her
case files until seven days before the trial. Article 33 now specifies
that suspects have the right to ask "defenders" (who
may be lawyers) to represent them, starting on the day when a
public prosecution has been initiated. The procuratorate is to
inform suspects of this right within three days of their receipt
of the relevant materials. There is no legal obligation to inform
suspects at any earlier stage of their right to instruct a lawyer.
If a lawyer is appointed prior to the suit being filed they are
not given access to the prosecution case or evidence until the
suit is filed, thus disadvantaging the defendant. Supplementary
regulations on criminal procedure were introduced in February
1998, inter alia stating that investigative organs were
responsible for the prompt transfer of requests for the assistance
of lawyers.
Under the amended Criminal Procedure Law the
time limit for judicial detention without charge is a maximum
of 44 days, an extension from the 10 days allowed under the 1979
Law and longer than the international norm. Some reports indicate
that much longer periods of detention without charge (in some
cases up to 10 years) have been experienced under the administrative
"shelter and investigation" procedure but this has reportedly
been discontinued with the introduction of the new Criminal Procedure
Law.
However, Part II of the amended Criminal Procedure
Law allows new possibilities for extensions to the period of time
for which a person can be detained and "investigated".
As in the 1979 Criminal Procedure Law the amended version allows
a suspect to be held in custody for two months with a month extension
for "complicated cases". But the amended law also allows
for a suspect to be held for a further two months with the approval
of the procuratorate at TAR or municipal level in "major
and complicated" cases including those "in remote regions
with very poor transport facilities" and those "involving
a broad spectrum of crimes for which evidence is difficult to
obtain". Furthermore, according to new Article 128, if a
criminal suspect is discovered to have committed an important
crime while under investigation for another crime the period of
custody is recalculated from the date that the second crime is
discovered (not necessarily the date it was committed), and when
a suspect refuses to disclose his/her true name, address and identity
the period of custody is recalculated to the date that the true
identity of the suspect becomes known. A detainee can therefore
now effectively be "investigated" for considerably longer
than 44 days before formal charge, arrest and procuratorial and
judicial procedures begin, without violating the flexible time
limits stipulated in the amended Criminal Procedure Law.
The extent of the implementation of the amendments
to the Criminal Law and Criminal Procedure Law and their impact
on Tibetans remains unknown. But despite the obsolescence of the
criminal terminology of "counter-revolution", sentences
for the same activities in Tibet are, on the whole growing longer,
more common, and are being handed down by "judicial"
rather than "administrative" procedures. The shift of
sentencing to courtrooms has not been of apparent benefit to the
accused. No Tibetan is yet known to have mounted a successful
defence against any politically nuanced charge, nor is an appeal
against conviction known to have been successful. Despite the
potential for significance in revisions of law and criminal procedure,
the outlook for a Tibetan who expresses political views differing
from those mandated by the state is demonstrably worse today than
a few years ago. The changes to the legal system appear so far
to have had no significant effect on determination of the nature
and length of imprisonment.
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