11.03.2008 - Source: US Department of State

Corruption often influenced judicial decision making ("Country Report on Human Rights Practices 2007") [ID 22772]

"Corruption often influenced judicial decision making, and safeguards against corruption were vague and poorly enforced. In 2006 292 judges were investigated for "illegally handling cases," which most often means taking bribes or abusing power; 109 were found criminally liable. Local governments appointed judges at the corresponding level of the judicial structure. Judges received their court finances and salaries from these government bodies and could be replaced by them. Local authorities often exerted undue influence over the judges they appointed and financed. Several high-profile corruption cases involved procuracy officials. In August the Anhui provincial deputy procurator-general was removed from his position after taking a government trip overseas based on a fraudulent invitation letter."

Document(s): Open document

11.03.2008 - Source: US Department of State

Courts lack the independence and authority to rule on the constitutionality of laws ("Country Report on Human Rights Practices 2007") [ID 22828]

"Courts lacked the independence and authority to rule on the constitutionality of laws. The law permits organizations or individuals to question laws and regulations they believe contradict the constitution, but a constitutional challenge first requires consultation with the body drafting the questioned regulation and can only be appealed to the NPC. Accordingly, lawyers had little or no opportunity to use the constitution in litigation.
The SPC is followed in descending order by the higher, intermediate, and basic people's courts. These courts handle criminal, civil, and administrative cases, including appeals of decisions by police and security officials to use reeducation‑through-labor and other forms of administrative detention. There were special courts for handling military, maritime, and railway transport cases."

Document(s): Open document

11.03.2008 - Source: US Department of State

Courts deciding civil matters suffered from internal and external limitations on judicial independence ("Country Report on Human Rights Practices 2007") [ID 22841]

"Courts deciding civil matters suffered from internal and external limitations on judicial independence. The State Compensation Law provides administrative and judicial remedies for deprivations of criminal rights, such as wrongful arrest or conviction, extortion of confession by torture, or unlawful use of force resulting in bodily injury. In civil matters, prevailing parties often found it difficult to enforce court orders, and resistance to the enforcement sometimes extended to forcible resistance to court police."

Document(s): Open document

06.03.2007 - Source: US Department of State

Judicial system ("Country Report on Human Rights Practices 2006") [ID 18970]

"The law states that the courts shall exercise judicial power independently, without interference from administrative organs, social organizations, and individuals. However, in practice the judiciary was not independent. It received policy guidance from both the government and the CCP, whose leaders used a variety of means to direct courts on verdicts and sentences, particularly in politically sensitive cases. At both the central and local levels, the government and CCP frequently interfered in the judicial system and dictated court decisions. Trial judges decide individual cases under the direction of the trial committee in each court. In addition, the CCP's law and politics committee, which includes representatives of the police, security services, procuratorate, and courts, had the authority to review and influence court operations at all levels of the judiciary; in some cases the committee altered decisions. People's congresses also had authority to alter court decisions, but this happened rarely.

Corruption often influenced judicial decision making, and safeguards against corruption were vague and poorly enforced (see section 3). In 2005 378 judges were investigated for taking bribes, and 66 were found criminally liable. Local governments appointed judges at the corresponding level of the judicial structure. Judges received their court finances and salaries from these government bodies and could be replaced by them. Local authorities often exerted undue influence over the judges they appointed and financed.

The SPC is followed in descending order by the higher, intermediate, and basic people's courts. These courts handle criminal, civil, and administrative cases, including appeals of decisions by police and security officials to use reeducation through-labor and other forms of administrative detention. There were special courts for handling military, maritime, and railway transport cases."

Document(s): Open document

06.03.2007 - Source: US Department of State

Courts lack the independence and authority to rule on the constitutionality of laws ("Country Report on Human Rights Practices 2006") [ID 19080]

"Courts lacked the independence and authority to rule on the constitutionality of laws. The law permits organizations or individuals to question laws and regulations they believe contradict the constitution, but a constitutional challenge first requires consultation with the body drafting the questioned regulation and can only be appealed to the NPC. Accordingly, lawyers had little or no opportunity to use the constitution in litigation."

Document(s): Open document

01.2007 - Source: Human Rights Watch

Court system provides minimal redress ("World Report 2007") [ID 18562]

"Despite exponentially increasing demands for justice, dispute resolution, and vindication of constitutional rights, the court system provides minimal redress. Although the Chinese Communist Party (CCP) leadership acknowledges that many social protests have been fueled by abuses by local officials, institutionalized political interference in the judiciary allows local power holders to deny justice from plaintiffs and vulnerable groups. The lack of judicial remedies further exacerbates social unrest. The Ministry of Public Security reported August 9, 2006 that there were 39,000 cases of “public order disruptions” in the first half of the year, quadruple what it was a decade ago. Thirteen Chinese villagers arrested after such an incident in Dongzhou, Guangdong Province, where security officers shot at least three protesters, were sentenced on May 24, 2006, to prison terms raging up to four years."

Document(s): Open document

20.09.2006 - Source: Congressional-Executive Commission on China

Vague definition of crimes leaves application open to abuse ("Annual Report 2006") [ID 17375]

see report for further details - Chapter V(b)

"• The Chinese government continues to apply vague criminal and administrative provisions to justify detentions based on an individual’s political opinions or membership in religious, ethnic, or social groups. These provisions allow for the targeting and punishment of activists for crimes that ‘‘endanger state security’’ or ‘‘disturb public order’’ under the Criminal Law. The UN Special Rapporteur on Torture concluded in his March 2006 report to the UN Commission on Human Rights that the vague definition of these crimes leaves their application open to abuse, particularly of the rights to freedom of religion, speech, and assembly.

• Chinese authorities use reeducation through labor and other forms of administrative detention to circumvent the criminal process and imprison offenders for ‘‘minor crimes,’’ without judicial review and the procedural protections guaranteed by the Chinese Constitution and Criminal Procedure Law. The UN Working Group on Arbitrary Detention concluded in 2004 that the Chinese government has made no significant progress in reforming the administrative detention system to ensure judicial review and to conform to international law. Although proposed reforms would provide some added procedural protections, they would still not provide an accused individual the opportunity to dispute the alleged misconduct and contest law enforcement accusations of guilt before an independent adjudicatory body."

Document(s): Open document

20.09.2006 - Source: Congressional-Executive Commission on China

Judicial reforms ("Annual Report 2006") [ID 17381]

see report for further details - Chapter V(b)

"• The Chinese government continues to engage the international community on human rights and rule of law issues, including those related to the criminal justice system. The government’s application for membership in the UN Human Rights Council noted that it has acceded to 22 international human rights accords, and that it plans to amend its Criminal, Civil, and Administrative Procedure Laws and reform the judiciary to prepare for ratification of the International Covenant on Civil and Political Rights. As a member of the new Council, the government has pledged to fulfill its obligations under the terms of these accords, and is obligated under the rules of the Council to submit to peer review of its human rights record."

Document(s): Open document

20.09.2006 - Source: Congressional-Executive Commission on China

Access to justice ("Annual Report 2006") [ID 17394]

see report for further details - Chapter VII(c)

"• International human rights standards require effective remedies for official violations of citizen rights. Despite these guarantees, Chinese citizens face formidable obstacles in seeking remedies to government actions that violate their legal rights and constitutionally protected freedoms. External government and Communist Party controls continue to limit the independence of the Chinese judiciary. Party officials control the selection of top judicial personnel in all courts, including the Supreme People’s Court, China’s highest judicial authority. Since 2005, the government has restricted the efforts of private lawyers and human rights defenders who challenge government abuses. The All China Lawyers Association issued a guiding opinion that restricts the ability of lawyers to handle cases involving large groups of people. Local Chinese authorities have imposed additional restrictions on lawyer advocacy efforts.

• The constitutional and administrative mechanisms in Chinese law that allow citizens to challenge government actions do not provide effective legal remedies, and Chinese citizens seldom use them. Chinese citizens rarely submit proposals to the National People’s Congress for constitutional and legal review because the review process lacks transparency and citizens cannot compel review. Administrative court challenges to government actions have not increased since 1998. Provincial authorities report an overall decline between 2003 and 2005 in applications for administrative reconsideration, and the total numbers of such applications in major Chinese municipalities is a few hundred per year.

• Chinese law also permits citizens to petition government officials directly to redress their grievances through the xinfang (‘‘letters and visits’’) system. Official news media report that Chinese citizens presented 12.7 million petitions to countylevel and higher xinfang bureaus during 2005, in contrast to the 8 million total court cases handled by the Chinese judiciary during the same period. Local officials are disciplined more severely for high incidences of petitioning. Absent alternative political or legal channels to check the power of local officials and obtain redress, this punishment structure provides an incentive for Chinese citizens to take their grievances to the streets in order to force local officials to act. But this punishment structure also gives local authorities an interest in suppressing mass petitions and preventing petitioners from approaching higher authorities. A December 2005 study of the xinfang system by a U.S. NGO found that some local authorities have resorted to ‘‘rampant violence and intimidation’’ to abduct or detain petitioners in Beijing and force them to return home.

• The Supreme People’s Court 2004–2008 court reform program imposes stronger external and internal controls that may further weaken the independence of courts and judges. The court reform program, however, also sets some positive longterm goals for judicial reform in the areas of court financing, adjudication, retrial procedures, and juvenile justice. Party efforts to address growing social unrest have resulted in new government programs to strengthen institutions that assist citizens with legal claims and disputes. Official Chinese statistics show that the number of government legal aid centers rose from 2,774 in 2003 to 3,081 in 2005. The total number of cases handled by these centers rose from about 166,000 in 2003 to an estimated 250,000 in 2005, or roughly 3 percent of all cases handled by the Chinese courts in 2005."

Document(s): Open document

01.06.2006 - Source: Human Rights Watch

No public reports of a transparent investigation into the case of security forces firing at villagers who were protesting insufficient compensation for land taken for power plant construction in Guangdong province in December 2005; government claims that the relevant people have already been gravely disciplined ("Dongzhou Killings Must Be Investigated") [ID 17127]

Document(s): Open document

08.12.2005 - Source: Human Rights Watch

Report on treatment of Chinese citizens who travel to Beijing to demand approval of or answers to their complaints of mistreatment by officials (petitioning system, abuses against petitioners, list of detained petitioners) (""We Could Disappear At Any Time": Retaliation and Abuses Against Chinese Petitioners") [#40389],  [ID 3578]

Document(s): Open document
Pressemitteilung zum Bericht

11.10.2005 - Source: Congressional-Executive Commission on China

Legal restraints on state power ("Annual Report 2005") [#37506],  [ID 3579]

see report for further details - Chapter V(b)

"The Chinese government has affirmed the right of citizens to petition the National People’s Congress Standing Committee for review of regulations that violate the Constitution or national law. The effect of this right remains limited, however, since Chinese citizens have no right to compel such review or to challenge the constitutionality of government actions.
Constitutional enforcement remains a politically sensitive topic in China, and the near-term prospects for the establishment of a more robust constitutional enforcement mechanism are remote. The Chinese government has ruled out establishing a constitutional court or giving people’s courts the power to review the constitutionality of laws and regulations.
The Chinese government has enacted laws to curb administrative abuses, but Chinese officials retain significant administrative discretion. Existing legal mechanisms provide only limited checks on arbitrary or unlawful government actions."

Document(s): Open document

11.10.2005 - Source: Congressional-Executive Commission on China

Judicial System, reforms, independence limited ("Annual Report 2005") [#37506],  [ID 3580]

see report for further details - chapter V(c)

"Chinese judicial officials announced ambitious reform goals in 2005 that would address structural problems affecting the Chinese judiciary. These include changes to court adjudication committees, the system of people’s assessors, and judicial review of death penalty cases.
Communist Party authorities and local governments continue to limit the independence of China’s courts. Internal administrative practices of Chinese courts also compromise judicial efficacy and independence.
The Chinese judiciary has improved the educational level of Chinese judges and the quality of their judicial opinions. Rural courts, however, are rapidly losing judges to urban areas."

Document(s): Open document

05.10.2005 - Source: Amnesty International

Deputy Director of Supreme People’s Court (SPC) announced re-instatement of SPC review of death sentences ("Re-instatement of Supreme Court review of death sentences – a step towards abolition?") [#37323],  [ID 3581]

Document(s): Open document

15.06.2004 - Source: Committee to Protect Journalists

Guangdong Province: 2 editors from the Guangzhou-based Nanfang Dushi Bao (Southern Metropolis Daily), received reduced prison sentences on appeal at the Intermediate People's Court in Guangzhou ("Journalists' sentences reduced") [#23320],  [ID 3582]

Document(s): Open document

06.01.2004 - Source: Amnesty International

AI: Information response: Procedures at the chinese military court ("Stellungnahme vom 6.1.2004 an VG Potsdam - 2 K 1029/02.A -") [#18611],  [ID 3583]

"Frage 1: Handelt es sich bei den Militärgerichten Chinas um förmliche Gerichte, vor denen durch gesetzliche Bestimmungen vorgeschriebene Gerichtsverhandlungen stattfinden?

Das "Organic Law of People's Courts" der Volksrepublik China (beschlossen am 01.07.1979, revidiert am 2. September 1983) sieht in § 2 neben den normalen Volksgerichten sowie dem Obersten Volksgericht auch "Militärgerichte und andere spezielle Volksgerichte" vor. Diese Gerichte arbeiten nach § 4 zwar formell unabhängig und sind an die gesetzlichen Bestimmungen gebunden. In der Praxis ist die chinesische Justiz jedoch bis heute nicht unabhängig und unterliegt beispielsweise dem Einfluss von Regierungsbehörden wie Parteikomitees. Ferner ist immer wieder ein hohes Maß an Willkür zu beobachten.

Frage 2: Ist es wahrscheinlich, dass der Kläger seinerseits in einem Militärgerichtsverfahren wegen der Taten des von ihm freigelassenen Vorgesetzten bestraft wird und dessen Schuld übertragen bekommt?

Nach § 14 des chinesischen StGB liegt eine "vorsätzliche Straftat" vor, wenn "der Täter wissentlich eine Straftat begeht in Kenntnis dessen, dass das eigene Handeln für die Gesellschaft gefährliche Folgen herbeizuführen vermag und er den Eintritt dieser Folgen wünscht oder in Kauft nimmt".

Da der Kläger sich an den Waffenlieferungen offensichtlich nicht beteiligt hat, wäre formell eine Bestrafung des Klägers in Vertretung des Vorgesetzten nicht möglich. Allerdings kann aufgrund der vorliegenden Informationen über den Kläger nicht ausgeschlossen werden, dass ihm vorgeworfen wird, er habe bei einer "gemeinschaftlich begangenen Straftat eine Nebenrolle oder helfende Rolle" gespielt, für die er nach § 27 StGB als Nebentäter mit einer "Strafe leichteren Grades oder abgemildert leichten Strafe" belegt werden könnte.

Es muss davon ausgegangen werden, dass der Tatbestand einer Waffenlieferung an eine oppositionelle Organisation von den chinesischen Behörden als außerordentlich schwerwiegendes Delikt angesehen wird. Daraus ergibt sich ein hoher Erfolgsdruck bei den ermittelnden Behörden.

Frage 3: Welche Strafe würde dem Kläger dann drohen? Käme eine Bestrafung wegen Hochverrats in Betracht?

Sollte dem Kläger eine Nebenrolle oder helfende Rolle unterstellt werden, so könnte er auch wegen Gefährdung der staatlichen Sicherheit (§ 102), der Organisation oder Planung eines bewaffneten Aufstands (§ 104) strafrechtlich belangt werden. In diesem Fall droht dem Kläger insbesondere in Kombination mit § 106 eine mehrjährige Haftstrafe. Sollten die chinesischen Behörden in der Waffenlieferung eine "besonders ernste und schwerwiegende" Gefährdung "gegen Staat und Volk" erkennen, kann auch die Verhängung der Todesstrafe nach § 113 nicht ausgeschlossen werden.

Frage 4: Welche Strafe droht dem Kläger wegen der Freilassung seines Vorgesetzten und wegen des Verlassens seiner Einheit ins Ausland?

Mehrere Delikte, die im Kapitel "Straftaten der Verletzung von Dienstpflichten durch Militärpersonen" des chinesischen StGB beschrieben sind, könnten dem Kläger zur Last gelegt werden. So könnte ihm aufgrund seines Verhaltens die Vernachlässigung der Pflichten als "Angehöriger des Dienst habenden oder Wache stehenden Personals" (§ 425) zum Vorwurf gemacht werden. Da er sich offensichtlich ins Ausland abgesetzt und dort Informationen über die Waffenlieferung weitergegeben hat, könnte er ferner beschuldigt werden, dass er sich "in verräterischer Weise abgesetzt und militärische Interessen des Staates gefährdet" (§ 430) oder die Truppe unerlaubt verlassen hat (§ 435). Würde der Angeklagte eines dieser Delikte für schuldig befunden, droht ihm eine mehrjährige Haftstrafe."

Document(s): Open document

10.2003 - Source: UK Home Office

Country Assessment - October 2003: Legal Issues ("Country Report - October 2003") [#49232],  [ID 3584]

"Judiciary

5.15. The Supreme People's Court stands at the apex of the court system, followed in descending order by the higher, intermediate and basic people's courts. Only courts can sentence prisoners to facilities managed by the criminal justice system. However, government authorities can assign persons accused of minor public order offences to re-education-through-labour camps in an extra-judicial process (see below).

5.16. Below the Supreme People's Court are the Local People's Court system, comprising of higher, intermediate and basic courts; and the Special People's Courts, including all military, maritime and rail transport courts.

5.17. The basic principles behind the PRC judiciary and the criminal legal system are different from English law. Judges and the courts are primarily established to pronounce sentence on persons established as guilty and answerable by the People's Procuratorates.

5.18. Integral to the Chinese system are the People's Procuratorates who undertake allegations and investigate not only whether there is a case to be answered but also whether the proof of evidence of guilt. On that basis an arrest is made (though there are other detention measures other than a full arrest - see below, Legal Right / Detention) and the presumption is that the defendant is guilty from that point on in the process.

5.19. Since1998 the judiciary has promoted greater public scrutiny of its operations. Courts have opened public galleries and hotlines have been set up so the public can report misconduct and incompetence by judges and prosecutors. In July 1998 China Central Television transmitted the first live broadcast of a court case at Beijing's First Intermediate People's Court. The Supreme People's Court issued rules in March 1999 enforcing public access to trials except in cases deemed "inappropriate". The new rules were effected in year 2000 and the US State Department report for that year holds that "the [Chinese] Government worked to make progress towards correcting systematic weaknesses of the judicial system". Cases involving state security, personnel privacy or minors are exempted from the legal requirement to be held in public.

5.20. Most of the 200,000 plus judges in the PRC have had no legal training, the typical career path being military service followed by a Party appointment. In July 2002, the president of the Supreme People's Court, Xiao Yang, announced a five-year reform plan to bring judges into line with the professional qualifications of civil servants and to develop legal training. From 2002, new judges will be required to pass two exams and undergo professional training.
[...]

State Compensation Law

5.27. The State Compensation Law of 1995 provides a legal basis for citizens to recover damages for illegal detentions. Although the majority of citizens are apparently are unaware of this law there is evidence that it is having some limited impact.

5.28. The use of legal procedures to redress problems is on the increase, as is the use of private lawyers. Government figures (for 1997) indicate that there are now 8,300 lawyers' offices in China, with 114,000 lawyers. The Supreme People's Procurate reported that citizens filed 90,000 lawsuits against government officials in 1997.

5.27. The role of the defence lawyer is beginning to change, as the system takes on new aspects. Under the 1996 Criminal Procedural Law, defence lawyers are able to take earlier and a more extensive involvement in criminal trials.

5.28. Chinese defence lawyers rarely produce the most vigorous defence of a case i.e. disputing the facts, preferring to look for procedural errors or highlight a defendants' previous good character.

5.29. Regulations for the introduction of legal aid came into force on the 1 September 2003.

5.30. The conviction rate is over 90 per cent. Coerced confessions are frequently introduced as evidence. While there is an appeals process, appeals do not generally reverse the original verdict. Though they have occasionally resulted in a reduced sentence.

5.31. The Law on Administrative Appeals was adopted in April 1999, to take effect on 1 October 1999. Under the Law, citizens are entitled to appeal against government infringement of their rights and interests, and also against "illegal" government public documents.
[...]

Death Penalty

5.33. The death penalty is widely used as a punishment in China, with 65 crimes in the Criminal Code carrying the death sentence. Hundreds have been executed for drug-related crimes and for separatist activities in Tibet and Xinjiang. In its March 2003 report, the US State Department estimated the number of executions carried out in the PRC to be at least 4,000 for the year 2002. They acknowledged however that the real figure could be far higher as the PRC regards the number of executions carried out as a state secret and therefore publishes no figures."

Document(s): Open document

09.04.2003 - Source: Freedom House

Freedom House: Politcal Rights and Civil Liberties ("The world`s most repressive regimes 2003") [#12683],  [ID 3585]

"The government controls the judiciary, with the CCP directing verdicts and sentences in sensitive cases, according to the U.S. State Department report. Recent reforms aimed at making ordinary trials fairer “have not brought the country’s criminal procedures into compliance with international standards,” the report said. Officials often subject prisoners to “severe psychological pressure” to confess and use legal loopholes to prevent suspects from obtaining counsel, according to the report. Trials generally are little more than sentencing hearings. Moreover, corruption and inefficiency in the judicial system are “endemic,” the report added.

Officials bypass the courts entirely in jailing without trial hundreds of thousands of Chinese each year under two types of administrative detention. “Re-education through labor” camps held some 310,000 Chinese as of early 2001, and the number has very likely grown since then, Amnesty International said in an October report. Meanwhile, a system called “custody and repatriation” is used to detain one million Chinese each year, many of them homeless people and other “undesirable” city dwellers, the report said.

By most accounts, Chinese prisons, re-education camps, and detention centers hold thousands of political prisoners, although the exact number is not known. Even after they are released, many former political prisoners face unrelenting police harassment that prevents them from holding jobs or otherwise leading normal lives.

China executes thousands of people each year, and more than all other countries combined, according to Amnesty International. Many are executed immediately after summary trials, and often for non-violent crimes. As part of Beijing’s national “Strike Hard” campaign against crime that began in 2001, many Chinese have been executed for non-violent offenses such as corruption, pimping, hooliganism, and theft of farm animals or rice.

Law enforcement officials routinely torture suspects to extract confessions, Amnesty International said in a September report. Courts recently have sentenced some officials convicted of torture to heavy prison sentences, although most perpetrators go unpunished. Deaths of criminal suspects in custody continue to be a concern, according to the U.S. State Department report, which did not provide figures on the number of such deaths each year.

Conditions in Chinese prisons and labor camps for both political prisoners and ordinary criminals are “harsh and frequently degrading,” the U.S. State Department report said. Prisoners are kept in overcrowded jails with poor sanitation and often receive inadequate food and medical care. Forced labor in prisons is “common,” the report added."

Document(s): Open document

09.07.2002 - Source: Frankfurter Rundschau

In chinesischen Gerichten sollen künftig Juristen die Urteile fällen ("In chinesischen Gerichten sollen künftig Juristen die Urteile fällen") [#8076],  [ID 3588]

Document(s): chi090702fr-just-court.doc