• Decision on Revising the Criminal Procedure Law of the Peoples' Republic of China's
  • June 12, 2012 | Author: Omar Puertas
  • Law Firm: Cuatrecasas, Gonçalves Pereira - Shanghai Office
  • The current PRC Criminal Procedure Law was promulgated in 1979 and revised in 1996. In 2009, further revision of the CPL started and on August 30, 2011, the draft amendment of the CPL ("Amendment") was published for public consultation. On March 14, 2012, the Amendment was passed in the 5th session of the 11th Congress.

    The Amendment has introduced provisions on respecting and safeguarding human rights. It is believed that the CPL intends to address various problems that have emerged in practice during the past 16 years. For example, the Amendment tries to tackle problems such as extortion of confessions by torture, by establishing that confessions obtained through illegal methods (such as extortion of confessions by torture) must be excluded and that no one shall be forced to confess. Also, under the Amendment, criminal suspects are now allowed to engage lawyers as their defense council to represent them during the investigation period, whereas under the current law, criminal suspects can only engage lawyers to provide legal consultation during this period.

    Although it is considered that the Amendment has introduced many reasonable revisions, it is believed that the CPL does not go far enough. For example, under article 73 of the Amendment, when a person is suspected of being involved in crimes (i) threatening state security, (ii) involving terrorist activities, or (iii) involving grave bribery activities, residential surveillance can be carried out in a place designated by the procuratorate or the public security bureau with approval from their upper level, if it is believed that carrying out residential surveillance at suspects’ or defendants’ residences might obstruct the investigation. Although article 73 of the Amendment also provides that places where the procuratorate or the public security bureau detain suspects and defendants in custody (we understand that a police station is one of those) must not be designated to carry out residential surveillance, the concept "places where the procuratorate or the public security bureau detain suspects or defendants in custody" is not defined by law; therefore, there is concern that it might provide room for extortion of confessions by torture and practices that are against human rights. In addition, lawyers are still worried that article 38 of the Amendment still leaves room for the procuratorate or public security bureau to tend to criminalize defense lawyers for being involved in providing false evidence or testimonies of suspects or defendants.