China's draft law amendment in conformity with int'l conventions
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Xinhua, August 30, 2011
China's draft amendment to the Criminal Procedure Law will further help protect human rights, and conforms rather than contradicts international conventions, legal experts in Beijing have said.
The experts made the remarks in response to doubts cast by international media outlets on an article in the draft submitted to the Standing Committee of the National People's Congress (NPC), China's top legislature, last week. These outlets contend that the article violates international conventions and international law.
Article 73 of the draft provides that, in cases involving crimes regarding national security, terrorism or serious cases of bribery, the defendants or suspects can be put under residential surveillance in places outside their own homes if residential surveillance at the home of the suspect or defendant is likely to hinder an ongoing investigation.
The article also stipulates that when suspects or defendants are held under surveillance outside their homes, their family members should be informed within 24 hours of the surveillance as well as the reasons and the sites of the surveillance, except in cases when family members could not be reached or that notice could hinder the investigation.
The wording in the draft indicates that police will first consider the grounds requiring the authorities to give notice to family members, Wang Minyuan, a legal researcher with the Chinese Academy of Social Sciences and vice-president of the criminal procedure law branch of the China Law Society, told Xinhua.
Current law in China stipulates two types of compulsory measures taken against suspects: depriving suspects of personal freedom, including detention and arrest, as well as limiting personal freedom which includes residential surveillance and obtaining a guarantor or bail pending trial.
Residential surveillance is a measure limiting a suspect's personal freedom. It can be taken by authorities when an arrest is unnecessary, impossible or unsuitable in a specific case. It is generally enforced at the suspect's home.
The primary purpose of residential surveillance is to facilitate criminal procedures by preventing a suspect from fleeing, colluding in testimonies, destroying evidence or committing more crimes, said Song Yinghui, associate dean of the Law School of Beijing Normal University.
The draft amendment strictly restricts the use of surveillance in places outside suspects' homes to cases involving national security, terrorism and serious bribery, and it also requires strict approval procedures, Song said.
Regarding the clauses authorizing police not to inform a suspect's family members under certain conditions, Wang said, "These clauses are an exception, and will not become regular. This is a common consensus among the Chinese legal profession."
The current Criminal Procedure Law, once revised in 1996, only stipulates in articles 64 and 71 that police should notify the family members or the employer of an arrested party or detainee about the reasons for the arrest and site of custody within 24 hours after the arrest or detention, except in circumstances where such notice could hinder an investigation or there is no way of notifying them.
The draft amendment has strengthened, not weakened human rights protection, because measures when a suspect in taken into custody, such as arrest and detention, are much harsher than residential surveillance.
As for some opinions and concerns that residential surveillance will be handled as another form of detention, experts argue that surveillance is just a police measure to keep an eye on suspects in order to facilitate the investigation.
When suspects are under residential surveillance, they can still leave the surveilled place and meet with others as long as they have obtained approval from authorities. They should answer the authorities' summons within a reasonable amount of time, and their rights to go to work or school are guaranteed.
An important goal of China's laws is to strike a balance between combating crime and protecting human rights, Song said.
The draft amendment does not violate international conventions. Instead, it is in line with the purposes of international law that advocate the protection of suspects' rights by using the fewest compulsory measures possible in criminal procedure, he said.
Legislation in China is becoming more humane, with greater attention being paid to the protection of citizens' civil rights and an increasingly cautious approach to the use of compulsory measures, Wang said.
According to the draft amendment, if a criminal suspect or defendant who should be arrested is seriously ill or is a pregnant woman or a woman breast-feeding her own baby, residential surveillance can be carried out instead of enforcing the arrest.
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