The Great Britain China Center (London), the Chinese Academy for Social Sciences (CASS, Beijing) and the Max Planck Institute for Foreign and International Criminal Law (Freiburg) carry out a joint comprehensive project entitled “Strengthening the Defence in Death Penalty Cases in China.” Besides training of defence lawyers, the project examines the role defence lawyers play in Chinese criminal proceedings and particularly in death penalty proceedings. It aims to single what can and should be done to empower defence councils to play an effective role in death penalty eligible cases and, more generally, to establish an effective system of legal aid. Effective defence is, in fact, a key element in fair criminal proceedings and in successfully preventing that wrongful convictions lead to the execution of innocents.
Research program (Criminology): Development of Criminal Policy and the Rule of Law in Transitional Societies Status of project: Completed Project languages: English Project category: Research project Organizational status: Departmental project Department: Criminology Project duration: Project start: 2005
Project end: 2006
This project examines the role of defence councils in Chinese criminal proceedings that can end up with the imposition of the death penalty. It aims to review the problems defence lawyers face in such proceedings, the defence strategies they apply and to examine whether the assignment of a defence lawyer makes a difference in the outcome of a criminal trial. Moreover, the project explores what can and should be done to empower defence councils to effectively represent suspects and accused in death penalty eligible cases.
The objective of the study is to shed light on the problems experienced by criminal defence councils when defending capital crime cases and to generate information on how death penalty cases are processed through the Chinese system of justice as well as the determinants of the outcomes death penalty eligible criminal cases.
The study is based on (in-depth) interviews with defence councils (N=25) and on case file analysis in four locations in China (N=322). Random sampling was not possible in three of the four locations of case file analysis, but convenience samples have been drawn.
The information gained from the interviews demonstrates that defence councils experience problems when meeting with clients. The access to the client is severely restricted and in particular during the investigative stage effective defence is not possible, as lawyers are not allowed to discuss the case with their clients and conversations are monitored fully by police. Full access to case files is mostly not possible and placed under restrictions issued by the public prosecutor. Prosecutors also do not disclose everything that may be relevant for the defence council. Investigation by defence councils is made difficult by the criminalization risks (§306 Chinese Criminal Code)and by the need of obtaining a permission by the court to carry out investigations on behalf of the accused. Fees for defending in a death penalty case are very modest. According to current rules and practice, it is reasonable not to defend and to pay for not complying with legal aid requirements (1000 yuan) than to defend and to receive some 500 yuan from legal aid resources. Legal aid fees do not allow efficient defence (in terms of defence councils engaging themselves in investigation).
Defence strategies that are applied concern mostly strategies of mitigation based on arguments of the minor role the defendant played in the commission of the crime, the reduced mental capacity of the offender, the circumstances of the crime or general merits of the defendant. This finding is corroborated by the case file analysis and is also confirmed by other studies. It may be also assumed that courts sometimes - instead of acquittal - respond to evidence problems by mitigating the sentence (imposing then a suspended death penalty or life imprisonment). Such responses point to poor implementation of the “in dubio pro reo” standard.
The data which have been collected from the case files show that there is considerable variation as regards the sentencing outcomes in criminal cases that carry the risk of capital punishment already at the stage of the first instance trial. This points in principle to an important role the defence council could play in such proceedings. There are considerable changes as regards cases where the death penalty has been imposed in the first instance trial in subsequent phases of the proceedings. The question of what factors are associated with the variation in sentencing was explored in order to be able also to answer the question of what role the defence council might play in this process.
However, it seems that offence seriousness does not play a major role in determining the outcome of the sentencing phase of the trial. For murder cases it could be established that the victim-offender relationship plays a significant role, as stranger to stranger crimes are treated evidently more harshly than crimes occurring in intimate or close relationships. For drug cases, it is obvious that cases receiving more lenient punishment (in terms of a suspended death sentence) are those that are close to the minimum amounts making drug trafficking eligible for the death penalty. However, our analysis shows that other factors do not contribute to explain variance observed in criminal sentencing. This makes the implementation of an effective defence strategy difficult. The fact that offence seriousness is not related to the outcome of sentencing (in selected groups of offences such as murder or drug trafficking) might be also explained by a lack of established sentencing criteria and the impact of extra-legal sentencing factors. The latter could not be controlled for in the case file analysis. However, the interview data provide evidence that the judicial decisionmaking process is influenced both by informal channels as well as extra-legal sentencing factors such as the “public opinion”.
The defence council is assigned to a case rather late in criminal proceedings. In general, assignment takes place after the defendant has confessed and after investigation has been finalized. Capital cases are processed rapidely through the criminal justice system, leaving not much room for unfolding effective criminal defence. Death penalty proceedings are carried out at a rapid pace. The average time law enforcement authorities and judicial organs need to finalize death penalty cases from arrest up to execution of the offender points to swift and efficient management of case processing and punishment. This may be explained by the eminent relevance of deterrence (both negative and positive) for Chinas´ criminal justice system. It is, however, clear, that effective defence within this framework of conditions cannot unfold but is restricted seriously in particular considering the late involvement of a defence council in death penalty proceedings. When comparing death penalty proceedings in the Peoples´ Republic of China with those in the United States of America, the result is evident. The average time a US offender sentenced to death spends on death row (after the sentence has become final) is approximately the ninefold of the time a death penalty case in China takes from arrest to execution.
The project is financially supported by the European Union.