The Supreme People's Procuratorate (SPP) of China has introduced
a new regulation to protect lawyers' rights in criminal litigation,
which is regarded by law experts as a critical move to protect the
rights of the accused.
The move comes as the country's legislature is discussing a
draft amendment to the Constitution that for the first time
enshrines the protection of human rights.
"The accused will benefit most if lawyers can play a full role
in criminal litigation. I think the regulation shows the country's
growing concerns for human rights," said Professor Chen Weidong of
the Renmin University Law
School.
The SPP issued the regulation on February 19 and solicited
opinions from attorneys and other law experts.
Lawyers' full participation in criminal litigation will help the
procuratorates do their job better and contribute to justice, said
Sun Qian, Deputy Procurator-General of the SPP, at a meeting held
in Beijing Thursday.
Chinese lawyers have long been hindered by difficulties in
meeting detained clients and obtaining documents and evidence.
"In half of the criminal cases I did, I was refused permission
by the police or procuratorate to meet the client in custody," said
Qian Lieyang, an attorney with the Beijing Zhongfu Law Firm.
The regulation requires procuratorates to arrange meetings
between lawyers and detained clients within 48 hours after the
lawyer submits an application.
Permissible topics of discussion between lawyers and their
clients in such meetings are also clarified in the regulation.
"In a 15-minute meeting, I spent at least five minutes
bargaining with the prosecuting attorney about what I could say to
my client," said Zhang Yansheng, a lawyer from Beijing-based Dayu
Law Office, recalling a meeting with a detained client in Xuzhou
City, east China's Jiangsu
Province.
"Now with the regulation I don't think there will be any
bargaining," she said.
The new regulation allows lawyers to submit to the
procuratorates or higher procuratorates allegations against
prosecuting attorneys they believe have violated laws and
regulations.
Prosecuting attorneys are required to consider defense lawyers'
advice during their investigations and append the record of their
opinion to the indictment. Before the regulation was issued, this
would not be done until they started determining whether to submit
the case for trial.
A number of lawyers are unwilling to represent clients on
criminal charges due to the great difficulty and low pay.
Zhang handled three criminal cases last year, but says, "I have
done quite a lot compared with many other lawyers."
"I hope the regulation will encourage more lawyers to take
criminal cases and improve the quality of their work," said
Professor Song Yinghui from the China University of Political
Science and Law.
Vice Minister of Justice Duan Zhengkun also pledged Thursday to
set up a cooperation mechanism with the SPP to solve problems
lawyers face in criminal litigation.
However, the regulation issued by the SPP will not completely
ease lawyers' concerns, since they are also at a disadvantage to
the police and some administrations, Chen Weidong said.
The Law of Criminal Procedures does address the rights of
lawyers, but lacks details on how to ensure these rights are
respected and penalties for violations, he said. "We need to
improve the Law of Criminal Procedures."
The Standing Committee of the National People's Congress (NPC),
China's top legislature, has listed as one of its priorities in the
next five years the amendment of the Law of Criminal
Procedures.
Meanwhile, the Beijing No. 2 Intermediate People's Court has
become the first local court in the capital to make the entire
process of executing judgments transparent to the public. Other
local courts are expected to follow suit.
Some litigants win in court only to find it difficult to get the
rulings executed, especially in lawsuits involving damages. They
must seek the courts' help for forced execution.
An electronic inquiry system was set up at the No. 2 court on
Wednesday; and litigants can follow the latest developments through
a computer system that contains data on all cases concluded from
November 1, 2003.
After being put into experimental use in October last year, the
system is now fully operational, said Wang Huaiqin, director of the
court's judgment execution administrative office.
Litigants can now check with judges responsible for execution or
track files on judgment execution.
"Making the whole procedure of judgment execution open to the
public will ensure supervision of the court's work," Wang said.
Wang also believes that the new measure will put pressure on
judges.
"The litigants' right to know and to participate in enforcing
the judgment will be better guaranteed through the system," the
judge said.
A plaintiff who won a damages case in 2002 said, "I was doubtful
of the job done by the court when the judgment could not be
executed for a long time, but in fact, the court finally helped me
receive the compensation. So I believe the court's new measure will
help make litigants feel more confident."
(Sources including China Daily and Xinhua News Agency March 12,
2004)