Strengthening the defence of death penalty...

Strengthening the defence of death penalty cases in the People's Republic of China

Project Funded by the European Initiative for Democracy and Human Rights: 2003-2005

Strengthening the defence of death penalty cases in the People's Republic of China Project Funded by the European Initiative for Democracy and Human Rights: 2003-2005.

Introduction

The Great Britain China Centre and its partners are working with funding from the European Commission on a project which aims to strengthen the capacity of defence lawyers in promoting the legal rights of those accused of capital crimes. Starting in 2003 this project will, over the following 30 months, build up a body of experience, within China, of successful defence for those facing the death penalty, identify best practice for legal aid in these cases and increase the professional standards of Chinese defence lawyers benefiting all, and in particular the poorest, who face capital crime charges. It will do this through the development and piloting of a new training module, workshops with legal aid centres, professional networking, high-level dialogue and research.
This project has three main streams of activity: training, research and development of professional networks. The European Criminal Bar Association is one of the European partners in this project and is the partner responsible for the development of the professional network between its members and members of the Beijing Bar Association.A Launch Seminar for the project was held in Beijing 8-9 January 2004 and the first activity for the development of the professional network is a Case Study Forum to be held in Paris 3-4 May. 
 
Professional Network

 
The overall aim of this network is to raise professional standards and help defend the rights of criminal defence lawyers in China through the development of professional and individual relations with criminal defence lawyers across Europe.
The Case Study Forum (see below) will provide an opportunity for European and Chinese lawyers to develop closer personal and professional contacts. Language barriers and the enormous differences between the legal systems make it difficult to develop the kind of professional relationship of support that exists between many European lawyers and colleagues in other jurisdictions. It is, however, the intent of this project to worktowards establishing partnerships, which will give moral and ethical support to Chinese lawyers handling death penalty cases.
This relationship will only emerge once there is a greater common understanding of each others systems and will in most cases, need to be mediated through translators, but it offers the prospect of providing Chinese lawyers with access to arguments and precedents based on international human rights standards. It is also hoped that as the network develops on a personal level there will be a sense of solidarity between the criminal defence lawyers in Europe and those in China.

 

Case Study Forum and Study visit to Germany, Holland, England and France

Eight defence lawyers from China will join eight European lawyers, currently envisaged as being two from each of the following jurisdictions: Germany, Holland, England and France for a day and half of discussions and arguments on defence in capital crime cases. Discussions will centre on a number of case studies provided by the Chinese lawyers, and allow for the sharing of experience on legal arguments, advocacy techniques and human rights standards of fair trials.
At the close of the Forum a Chinese lawyer will accompany each European lawyer to their home jurisdiction for a visit of five days. The aim of this visit is to introduce the Chinese lawyer to the practice and procedure of defence work and is likely to include a visit to a court, a police station, discussion with prosecuting agencies, and observation of the work of the European defence lawyer. This will give the Chinese lawyer first hand insight into the standards and practices operating in Europe, and an appreciation of what is considered fair trial procedures in those countries. It is hoped that through this experience the Chinese lawyers will have a form of benchmark against which to judge their own domestic procedures and strengthen their understanding of how the Chinese criminal law and procedure might be improved.

Further activities

Following this visit to Europe and the development of relationships between the lawyers, it is very much hoped that an informal network will have begun to develop that will be largely sustained on an individual basis between the lawyers and allow for informal consultation and sharing of information and advice.
Although not part of the original proposal it is intended that there will be two further opportunities for the European and Chinese defence lawyers to meet, one at the midproject review seminar, and one at the final workshop and seminar both to be held in China. These seminars will be opportunities to strengthen the network between the ECBA and Beijing Bar Association, which it is hoped will outlive the term of the project, and to explore in some detail specific aspects of criminal law and procedure both from a European and Chinese perspective.
Following this visit to Europe and the development of relationships between the lawyers, it is very much hoped that an informal network will have begun to develop that will belargely sustained on an individual basis between the lawyers and allow for informal consultation and sharing of information and advice.Although not part of the original proposal it is intended that there will be two further opportunities for the European and Chinese defence lawyers to meet, one at the midprojectreview seminar, and one at the final workshop and seminar both to be held in China. These seminars will be opportunities to strengthen the network between the ECBA and Beijing Bar Association, which it is hoped will outlive the term of the project, and to explore in some detail specific aspects of criminal law and procedure both from a European and Chinese perspective.

Practical Arrangements

The GBCC, as project manager, will reimburse the eight European lawyers for their return travel (economy class) to Paris and provide a per diem for up to three days of 130 per day (to cover accommodation and out of pocket expenses). The GBCC will cover the same for the Chinese lawyers as well as their onward travel to Germany, Holland and England and per diems for their five-day stay in those countries, and the same for the two lawyers staying in Paris. The per diem is designed to cover accommodation, food and local transport.
The European lawyers may incur expenses for the five-day visit and the GBCC will cover any reasonable costs such as local transport. Interpreters will be provided by GBCC at the Case Study Forum. Whilst some of the Chinese lawyers will have an understanding of English it will still be necessary to
provide interpretation for the five-day study visits. The GBCC will work with its partners to identify suitable interpreters to accompany each group of lawyers. Further thought will be given to these arrangements once we know which European lawyers will be participating and where the visits will take place.


The GBCC, as project manager, will reimburse the eight European lawyers for their return travel (economy class) to Paris and provide a per diem for up to three days of 130per day (to cover accommodation and out of pocket expenses). The GBCC will cover the same for the Chinese lawyers as well as their onward travel to Germany, Holland and England and per diems for their five-day stay in those countries, and the same for the two lawyers staying in Paris. The per diem is designed to cover accommodation, food andlocal transport.The European lawyers may incur expenses for the five-day visit and the GBCC will cover any reasonable costs such as local transport. Interpreters will be provided by GBCC at the Case Study Forum. Whilst some of the Chinese lawyers will have an understanding of English it will still be necessary toprovide interpretation for the five-day study visits. The GBCC will work with its partners to identify suitable interpreters to accompany each group of lawyers. Further thought will be given to these arrangements once we know which European lawyers will be participating and where the visits will take place.


Background to the death penalty in China

 

Support for abolition of the death penalty is a cornerstone of the European Union's human rights policy, one that serves as a model for the many countries and regions of the world where the death penalty is still practiced. The majority of the world s governments have either abolished the death penalty outright, or are abolitionist in practice; only 85 countries still retain and use the death penalty, most notably the People s Republic of China.
China has experience a period of exponential development since promulgation of the open door policy in 1979. Both the rule of law in general, and in criminal justice in particular have also seen remarkable developments, but virtually no progress has been made in diminishing the use of the death penalty. China s leadership faces immense challenges as the economy and society develop at unprecedented rates, and as the impact of joining the WTO begins to be felt. The cost of progress in many areas includes rising rates of crime and corruption. The government s response to this serious threat to social stability has been, amongst other initiatives, to intensify the Strike Hard campaign of recent years.
Official reports on the campaign reveal a total absence of concern for international norms, which require that the most thorough judicial procedures be adhered to in death
penalty cases. These reports indicate that the police and judicial authorities have been pressurised to achieve ''quick results'' in the campaign, by curtailing certain judicial
procedures and safeguards enshrined in the Chinese Criminal Procedure Law, and thereby greatly increasing the potential for miscarriages of justice, arbitrary sentencing and the execution of innocent people.
The Amnesty International report on China for 2001, drawn from limited and incomplete records, shows that at least 4,015 people were sentenced to death and 2,468 executed.
The real total is likely to be much higher; although the Chinese Government does not release death penalty statistics. Among the 85 countries still using the death penalty, China has carried out the highest number of executions in the last few years. The report also shows that the death penalty is being used extensively for non-violent crimes such as tax evasion, bribery, pimping and selling harmful foodstuffs. It is not clear from any of the information available whether the defendants, many of whom are illiterate and unlikely to fully understand the legal processes involved, have had fair trials.
In previous campaigns China s judicial authorities have appeared to be more concerned with supporting the government in wiping out these social evils and strictly enforcing the law, than with upholding international legal standards. But there is evidence that, as the meaning of rule of law begins to seep into the national consciousness, and as a result of China's signing of the International Convention on Civil and Political Rights, the way in which the death penalty is imposed is coming under domestic scrutiny by certain members of the legal profession.
In January 2002 Taiwan revoked the death penalty as a mandatory sentence for specified crimes, with an indication from the Taiwan Justice Ministry that this could be followed by total abolition within the next few years. We know that it is highly unlikely that China will abolish the use of the death penalty in the near future. But we also know that there is a strong body of opinion amongst leading legislators, lawyers and legal academics, that too many crimes (more than 60) are subject to the death penalty, and that the use of the death penalty is no longer an effective deterrent to criminals. At a recent international conference on the death penalty held in China it appeared that the Chinese government now seeks to justify the extensive use of the death penalty on the grounds that its use satisfies public opinion.
Our strategy is to assist our Chinese partners in encouraging full application of the 1997 Criminal Procedure Law (Article 34) which guarantees access to a defence lawyer and legal aid for those facing the death penalty, and in increasing the application of those Articles in the same law which allow for appeal against the death penalty where there is contradictory or insufficient evidence. If the government s self-proclaimed intention is to use law to govern the country (yifa zhiguo), then the most pragmatic approach in promoting the long-term abolition of the death penalty in China would be to promote vigorously
(1) full application of existing legal guarantees such as access to legal aid and a meaningful appeals process for defendants subject to the death penalty;
(2) training of defence lawyers to ameliorate the effective use of existing criminal procedures, legal aid and the appeals process; and
(3) discussion of new legislation allowing for a second appeal in the case of the death penalty.
The professional network between European and Chinese defence lawyers is a key part of this process.