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IV. Guarantee of Human Rights
In China's Judicial Work

The aim and task of China's judicial work is to protect the basic rights,
freedoms, and other legal rights and interests of the whole people in
accordance with law, protect public property and citizens' lawfully-owned
private property, maintain social order, guarantee the smooth progress of
the modernization drive, and punish the small number of criminals
according to law. All this shows that China attaches great importance to
human rights protection in the administration of justice.

China's public security and judicial organs follow the following
principles in carrying out their duties: (1) All citizens are equal in
regard to the applicability of law. In accordance with the law, each
citizen's legal rights and interests shall be protected, and any
citizen's offenses against the law and his criminal activities shall be
looked into; (2) China's public security and judicial organs shall base
themselves on facts and regard the law as the criterion in the conduct of
all cases; (3) The procuratorate and the court shall independently
exercise their respective procuratorial and judicial authority. They
shall only obey the law and not be interfered with by any administrative
organ, social organization or person. While dealing with criminal cases,
the people's court, the people's procuratorate and the public security
organ shall divide their work according to law, cooperate with and
moderate one another. They should exercise their authority only within
the scope of their own responsibilities and are not allowed to supersede
one another. Procuratorial organs shall oversee whether the activities in
public security organs, courts, prisons and reform-through-labor
institutions are legal. These principles of justice are clearly
stipulated in China's law, and they provide the legal guarantee for
safeguarding human rights in the state's judicial activities.

In every link of the work of public security and judicial organs and in
the judicial procedure, China's law provides definite and strict
stipulations to protect and guarantee human rights in an effective way.

1. Detention and Arrest

China's Constitution provides that it is prohibited to take people into
custody illegally or to deprive or limit citizens' personal freedom in
other illegal ways. Without the permission or decision of the people's
procuratorate or the decision of the people's court, and the dispensation
of public security organs, no citizen can be arrested. In order to
guarantee the proper use of the compulsory measure of arrest and to
prevent infringement of the right of innocent people, the Constitution
and the law vest procuratorial organs with the authority of investigation
and approval before any arrest is made. According to law, public security
organs have the authority to detain. If the internee is not convinced by
the detention, he may appeal to the public security or procuratorial
organs. If suspects detained by public security organs need to be
arrested, this should be approved by the people's procuratorate; if the
people's procuratorate does not approve the arrests, the public security
organs should release them upon receiving notice from people's
procuratorates. China's procuratorial organs and people's courts should
promptly investigate and deal with cases involving staff members in
governmental departments and other citizens depriving or limiting
citizens' personal freedom.

China's Law of Criminal Procedure provides specific regulations on the
deadline for handling criminal cases. At the same time, special
regulations have been formulated on the deadline for major and
complicated cases according to actual conditions. The Supplementary
Regulations on Deadline in Handling Criminal Cases, issued by the
Standing Committee of the National People's Congress in July 1984,
provides extension and calculation of the deadline for investigation and
detaining, the deadline for the first trial and second trial, and the
deadline for supplementary investigation of major and complicated cases.

2. Search and the Obtaining of Evidence

China's Constitution provides that it is prohibited to illegally search a
citizen's body, and to illegally search or intrude into citizens' houses.
The Law of Criminal Procedure provides that in order to search for
criminal evidence and seize criminals, public security organs can search
the body, articles, residence and other places concerned of the accused
as well as those who may hide criminals or criminal evidence, but should
do it strictly according to legal procedure. Procuratorial organs should
strictly supervise law enforcement in the investigating activities of
public security organs.

As a matter of principle and discipline for China's public security and
judicial organs in handling cases, it is strictly prohibited to extort
confessions by torture. Whenever a case of violating this principle and
discipline occurs, it should be dealt with according to law. In 1990,
China's procuratorial organs filed for investigation 472 cases which
involved extorting confessions by torture. This has not only protected
citizens' personal rights effectively, but also taught law enforcement
officials a lesson.

3. Prosecution and Trial

Whether a case should be prosecuted after investigation or exempt from
prosecution should be decided by procuratorial organs after overall and
careful examination according to legal procedure; this is to ensure the
timeliness, accuracy, and legality of a punishment, and at the same time,
to prevent innocent citizens from unjust prosecution and prevent
citizens' rights from infringement. In 1990, after examining cases to be
prosecuted or exempt from prosecution, which were referred to them by
investigating organs, the procuratorial organs at various levels in the
country decided to exempt 3,507 people from prosecution.

The people's courts carry out a public trial system. Cases should be
tried publicly, except those involving state secrets or individual
privacy and involving minors, which according to law shall not be heard
publicly. The main points of a case, the name of the accused, the time
and place of the trial should be announced before the hearing, and
visitors should be allowed into the court. During the hearing, all the
facts and evidence on which the case on file is based should be
investigated and checked in court. All activities in court should be
carried out publicly except when the case is being reviewed during court
recession. These include issuing the indictment by the public prosecutor,
court investigation, questioning witnesses, debate and the final
statement by the accused. The verdicts in all cases, including cases of
non-public trial in accordance with law, should be pronounced publicly.

During the judicial process the people's court makes it a point to
collect the evidence as comprehensively as possible according to legal
procedure. With no other evidence except the confession of the accused as
a basis, the accused cannot be pronounced guilty or sentenced; without
the confession of the accused but with ample and reliable evidence, the
accused can be pronounced guilty and sentenced.

The accused has the right to defense. According to the Law of Criminal
Procedure, the accused, besides exercising his right to defend himself,
can also entrust a lawyer, or close relatives, or other citizens to take
up the defense on his behalf. When the public prosecutor institutes a
case before the court, if the accused does not entrust his defense to a
lawyer, the people's court can appoint one for him. During the trial, the
accused has the right to terminate a lawyer's action in his defense and
entrust another to take it up. After the people's court decides to hear a
case, a duplicate copy of the indictment should be made available to the
accused at least seven days before the opening session of the court in
order that he may learn what crime or crimes he is being prosecuted for
and the reasons why he is being prosecuted, and that he has enough time
to prepare his defense and get in touch with his lawyer. During the
prosecution, the people's court should strictly comply with the
regulations of the Constitution and the Law of Criminal Procedure, and
earnestly guarantee the right of the accused to defense.

The accused has the right to appeal to a higher court and the right of
petition. In deciding cases the Chinese courts follow the system whereby
the court of second instance is the court of last instance. According to
law, if a party refuses to accept the judgement and ruling of the first
trial, he may appeal to a higher people's court; if he remains
unconvinced by the judgement and ruling which are legal in effect, he may
petition to people's courts or procuratorial organs. Appealing to a
higher court will not increase the punishment.

China's Criminal Law has special regulations on juvenile crime and
criminal responsibility. Those who have reached the age of 14 but not of
16 should be responsible for crimes of murder, serious injury, robbery,
arson, hardened thievery and other felonies against public order; those
who have reached the age of 14 but not of 18 should receive lenient
punishment or mitigated punishment if they commit crimes; as for those
who are exempt from punishment because they have not reached the age of
16, their parents or guardians should be ordered to subject them to
discipline, and if necessary the government can take them away for
custody and education.

Lawsuit procedures and judicial activities are strictly supervised as to
their legality. In 1990, China's procuratorial organs put forward
suggestions for the correction of illegal practice in 3,200 instances,
thereby effectively guaranteeing citizens' legal rights and interests in
lawsuits and judicial activities.

China, like most countries in the world, maintains capital punishment,
but imposes very stringent restrictive regulations on the use of this
extreme measure. China's Criminal Law states, "Capital punishment is
applied only to criminals who are guilty of the most heinous crimes." It
also provides that capital punishment is not applied to criminals who
have not reached the age of 18 when they commit crimes or to women who
are pregnant when they are on trial. China's Law of Criminal Procedure
provides for a special review procedure in cases of capital punishment.
That is, the judgement in cases of capital punishment, except for those
made by the Supreme People's Court according to law, should be reported
to the Supreme People's Court or to a high people's court authorized by
it after the second, or final, instance; only after all the facts,
evidence, convictions, sentences and trial procedures are comprehensively
investigated and checked and approved can the judgement take legal
effect. After the examination and approval, if a lower people's court
finds that there may be mistakes in a judgement, it should stop
enforcement of the punishment and immediately report to a higher people's
court with the authority of examination and approval, or to the Supreme
People's Court, in order that a ruling may be made by it.

China's law also provides a system allowing a two-year reprieve in
carrying out a death sentence. That is, in cases where criminals should
receive the death penalty but the sentence need not be carried out at
once, capital punishment can be announced with a two-year reprieve and
reform through forced labor, in order to observe the offender's behavior.
If the offender sincerely repents and mends his ways, after the twoyear
reprieve expires, the punishment can be reduced to life imprisonment; if
a criminal really repents, mends his ways and performs meritorious
services after the two-year suspension expires, his punishment can be
reduced to a set term of imprisonment from 15 years to 20 years. Practice
has shown that most of the criminals who are given the death penalty with
reprieve have had their punishment reduced to life imprisonment or a set
term of imprisonment, after expiration of the two-year reprieve. The
system of announcing the death sentence with a two-year reprieve and
forced labor, as provided in China's Criminal Law, is an original
creation in the application of capital punishment. It is an effective
system by which strict control is exercised over the use of capital
punishment in China.

4. No "Political Prisoners" in China

In China, ideas alone, in the absence of action which violates the
criminal law, do not constitute a crime; nobody will be sentenced to
punishment merely because he holds dissenting political views. So-called
political prisoners do not exist in China. In Chinese Criminal Law
"counterrevolutionary crime" refers to crime which endangers state
security, i.e., criminal acts which are not only committed with the
purpose of overthrowing state power and the socialist system, but which
are also listed in Articles 91-102 of the Criminal Law as criminal acts,
such as those carried out in conspiring to overthrow the government or
splitting the country, those carried out in gathering a crowd in armed
rebellion, and espionage activities. These kinds of criminal acts that
endanger state security are punishable in any country. In 1980, in
handling the case of the Lin Biao and Jiang Qing counterrevolutionary
cliques, the special court of the Supreme People's Court strictly
implemented this principle by prosecuting members of the cliques
according to law for their criminal acts while leaving alone matters
concerning the political line.

5. Prison Work and Criminals' Rights

At present there are in all 680 prisons and reform-through-labor
institutions in China, holding 1.1 million criminals in detention. The
rate of imprisonment is 0.99 per thousand of the total population.
Compared with the rate of imprisonment of 4.13 per thousand in one of the
Western developed countries according to 1990 statistics of its ministry
of justice, China's rate is quite low.

China's prisons and reform-through-labor institutions receive, strictly
according to law, criminals sent to them to enforce sentences passed by
the courts. If they find the relevant legal documents not complete or the
judgement not yet in effect legally, they have the legal right to refuse
to take the persons in custody. Prisons and reform-through-labor
institutions should notify a prisoner's family members of his whereabouts
within three days after taking him into custody. According to China's
law, most prisoners are allowed to serve their sentences in the area
where they reside to make it convenient for their family members to visit
them and for the units where they used to work to help educate them. The
allegation that in China some citizens are sent to labor camps without
trial or sent away in some form of exile within the country is a
distortion of the system whereby prisons and reform-through-labor
institutions in China take criminals into custody; it is a groundless
fabrication.

In China, the rights of prisoners while serving their sentences are
protected by law.

According to China's law, all prisoners, with exception of those who have
been legally deprived of their political rights, have the right to vote.
Prisoners also have the right to appeal, the right of defense, the right
of immunity from insult to their dignity and from infringement of
personal security and of legal property, the right of complaint, the
right of accusation, and other civic rights which have not been curtailed
by the law.

Convicted criminals, while serving their sentences, have the right to
contact family members and other relatives regularly by correspondence or
visits. If an important event happens in a criminal's family such as
critical illness or the death of a directly-related family member, and if
it is really necessary for the criminal himself to go back home to handle
matters, he can be permitted to go home for a short period of time.

While serving their sentences, prisoners can read newspapers, magazines
and books, watch television, listen to the radio, and take part in
recreational and sports activities that are beneficial to the body and
mind. In prisons and reform-through-labor institutions there are
libraries where criminals can go to read. Like ordinary citizens,
prisoners who are serving their sentences have the freedom of religious
belief. Prisoners with religious beliefs can maintain their beliefs, and
allowances are made for the customs and habits of prisoners of minority
nationalities.

Prisoners are accorded the material treatment necessary in their daily
lives. The state covers their living and medical expenses, and their
grain, edible oil and non-staple food rations are set according to the
same standards for local residents. All prisons and reform-through-labor
institutions are staffed with an appropriate number of doctors; in
professional medical institutions, medical facilities and hospital beds
are set aside in prisoners' exclusive service; on an average, there are
14.8 hospital beds for every thousand prisoners, and those critically ill
are sent to hospitals outside the prison for treatment or, on approval,
may seek medical treatment on bail according to law. Prisoners' needs for
medical care are guaranteed.

The people's procuratorates provide legal supervision of the protection
of criminals' legitimate rights and interests. They send full-time
prosecuting attorneys to jails and other places of surveillance to check
whether the working and living facilities and conditions and the
surveillance work are legitimate, to hear the opinions of those under
surveillance, accept and look into their complaints and appeals, and deal
with violations of law promptly when discovered.

The prisons and reform-through-labor institutions in China are not
designed merely to punish the criminals but to educate them and turn them
into law-abiding citizens by organizing them to take part in physical
labor, learn legal and ordinary knowledge and master productive skills.
Prisoners who have taken educational or technical training courses and
passed examinations given by local education or labor departments are
given certificates corresponding to their levels of education or
technical grades. The validity of such certificates is recognized in
society. By the end of 1990, about 720,000 certificates for literacy or
diplomas for completing courses up to the college level had been issued
to those serving terms in prisons and reform-through-labor institutions;
over 510,000 had attended various technical training courses, and 398,000
received certificates of technical qualification. Prisoners thus find it
easier to find jobs on release after serving their sentence.

China's law stipulates that prisoners who really show repentance and have
rendered meritorious service can, upon rulings of the people's courts,
have their sentences commuted or be put on parole. In 1990, 18 percent of
the criminals in custody were accorded such treatments.

Thanks to the humanitarian, scientific and civilized management of the
prisons and reform-through-labor institutions, the recidivism rate has
for many years stood at 6-8 percent. Many prisoners have returned to
society and become key members or engineers in their enterprises, and
some of them have become model workers or labor heroes. Compared with the
situation in one developed country in the West, where, according to 1989
judicial statistics, 41.4 percent of exprisoners returned to jail, China
has come a long way in reforming and educating criminals. China's prisons
and reform-through-labor institutions have won global acclaim for their
achievements in turning the overwhelming majority of criminals, including
the last emperor of the feudal Qing Dynasty and war criminals, into
law-abiding citizens and qualified personnel helpful to the country's
development.

6. Prison Labor

China's law stipulates that all prisoners able to work should take part
in physical labor. This is also the practice adopted in many countries
worldwide. China's policy of reforming criminals through labor is
designed to help those serving prison terms mend their old ways by
acquiring the labor habit and fostering a sense of social responsibility,
discipline and obedience to the law. This policy enables criminals in
custody to stay healthy through a regular working life and avoid feelings
of depression and apathy resulting from a prolonged monotonous and idle
prison life. It also helps them learn productive skills and knowledge of
one kind or another so that they can find a job after being released from
prison and avoid committing new crimes because of difficulties in making
a living. China's policy of reforming criminals through labor is not
simply for the purpose of punishment; it is a humanitarian policy
conducive to the reform, and the physical and mental health, of the
criminals.

By the Chinese law, criminals work for no more than eight hours a day and
take time off during holidays and festivals; they are entitled to the
same grain, edible oil, and non-staple food rations and the same labor
and health protection as accorded to workers of state-run enterprises
engaged in the same type of work; those who overfulfill their production
quotas are given bonuses and those holding technical titles at and above
the middle grade are entitled to monthly technical allowances and
opportunities of on-the-job vocational and technical training.

Prison labor products are mostly used to meet the needs within the prison
system, and only a small quantity enters the domestic market through
normal channels. The export of prison products is prohibited. China's
foreign trade departments, which handle the export of Chinese commodities
in a unified way, have never granted foreign trade rights to
reform-through-labor institutions.

7. Education through Labor and the Rights of Those Being Educated through
Labor

The work of education through labor in China is based on the 1957
Decision on Education through Labor and other regulations adopted by the
Standing Committee of the National People's Congress. Education through
labor is not a criminal but an administrative punishment.
Education-through-labor administrative committees have been set up by the
people's governments of various provinces, autonomous regions,
municipalities as well as large and medium-sized cities, and the work is
under the supervision of the people's procuratorates. It is stipulated
that those eligible for education through labor should meet the
requirements of relevant laws and regulations. For example, they should
be at or above the age of 16 and have upset the public order in a large
or medium-sized city but refused to mend their ways despite repeated
admonition, or they have committed an offense not serious enough for
criminal punishment. The decision to put a person under
education-through-labor is made through a strict legal procedure and
under a system of legal supervision in order to avoid subjecting the
wrong person to the program.

After the education-through-labor administrative committee has according
to related regulations made the decision to put a person an
education-through-labor program ranging from one to three years, the
person and his family members are entitled to be informed about the
reasons for the decision and the duration of the program. If the person
takes exception to the decision, he may appeal to the administrative
committee or lodge a complaint with the people's court according to the
Law of Administrative Procedure. If the education-through-labor
institution finds that the person does not conform to the qualifications
for the education-through-labor program or that he should have been
sentenced to criminal punishment, it may report the case to the
reeducation-through-labor administrative committee for review.

Those undergoing education through labor are entitled to civic rights
prescribed by the Constitution and the law, except that they must comply
with the measures taken according to the regulations on education through
labor to restrict some of their rights. For instance, they are not
deprived of their political rights and have the right to vote according
to law; they have the freedom of correspondence and the right to take
time off during festivals and holidays; during the period of education
through labor they are allowed to meet with their family members, those
who are married can live together with their spouses during visits, and
they can be granted leave of absence or go home to visit family members
during holidays. Those who have acquitted themselves well while being
educated may have their term reduced or be released ahead of time. Every
year about 50 percent of the people undergoing the
education-through-labor program have their term reduced or are released
ahead of time.

The education-through-labor institutions follow the policy of educating,
persuading and redeeming the offenders, with the emphasis on redeeming.
Classes are opened, and instructors assigned, in these institutions to
conduct systematic ideological, cultural and technical education.
Offenders under the education-through-labor program work no more than six
hours every day.

An average of 50,000 people have been brought under the
education-through-labor program annually since it was instituted. The
overwhelming majority of those who have been reeducated have turned over
a new leaf, and many have become valuable participants in building the
country. According to surveys conducted over the last few years, only 7
percent of those released from the education-through-labor program have
lapsed into offense or crime. The program has done what families,
workplaces and schools cannot do: to prevent those who have dabbled in
crime from committing further anti-social actions and breaking the law
and to turn them into constructive members of society. Both the public
and family members of the offenders speak highly of the program for its
role in forestalling and reducing crime and maintaining public order.

China's public security and judicial organs have carried out their
responsibilities strictly according to law and played an important role
in protecting and guaranteeing the citizens' rights and freedoms. That
explains why China has long been one of the countries with the lowest
incidence of criminal cases and crime rate in the world. In 1990, the
incidence of criminal cases and crime rate in China were 2 per thousand
and 0.6 per thousand respectively, considerably lower than the figures in
some developed Western countries, which ran as high as 60 per thousand
and 20 per thousand respectively.

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