Universal Periodic Review Submission: Promoting Increased Transparency in China’s Criminal Justice System
Joshua D. Rosenzweig
The Dui Hua Foundation
There is a close linkage under international law between the public, open nature of court proceedings and the fair administration of justice. Public court proceedings are an important safeguard against judicial corruption and violations of defendants’ due process rights. Opening court hearings has the added benefit of fostering confidence in the legal system’s procedures and outcomes. The European Court of Human Rights has stated the connection thusly: “By rendering the administration of justice visible, publicity contributes to the achievement of the aim of . . . a fair trial, the guarantee of which is one of the fundamental principles of any democratic society . . .”
The International Covenant on Civil and Political Rights (ICCPR) states clearly: “Everyone shall be entitled to a fair and public hearing by a competent, independent tribunal established by law.” The public nature of court hearings is held to be “an important safeguard in the interest of the individual and of society at large.” There are, of course, exceptional instances in which the public interest in opening court proceedings is counterbalanced by other interests, in which case courts may legitimately restrict access to all or part of a trial. These exceptional circumstances include moral grounds, threats to public order (ordre public) or national security, or certain privacy interests involving the parties to the case. However, it is clear that these exceptions to a public hearing are meant to be construed narrowly and that court proceedings must, as a rule, be open to the public.
Regardless of whether exceptional circumstances require the public to be excluded from a trial, the ICCPR requires that “any judgment made in a criminal case or in a suit at law shall be made public,” except in cases involving juveniles, matrimonial disputes, or the guardianship of children.
Current Chinese law basically establishes the internationally recognized principle of public court proceedings. China’s constitution states: “All cases handled by the people’s courts, except for those involving special circumstances as specified by law, shall be heard in public.” This constitutional guarantee is further embodied in the Criminal Procedure Law (CPL), which also sets out the exceptional circumstances in which trials of first instance may be heard in closed hearing: cases involving state secrets or individual privacy and certain cases involving juvenile defendants. Regulations issued by the Supreme People’s Court in 1999 further grant lower courts discretion to approve requests by litigants to close proceedings on grounds of protection of trade secrets. Moreover, the CPL unambiguously states: “Judgments shall be pronounced publicly in all cases.”
On paper, China’s provisions regarding publicity of trials are generally in accord with international law. As with many other aspects of China’s criminal justice system, however, principles that are established in law are not consistently guaranteed in practice. In some cases, this is because limitations acceptable under international law are applied in China using different standards, such as the overreaching use of state secrecy as grounds for excluding the public from court proceedings. In other cases, it is an institutional culture that tends toward secrecy and bureaucratic administration, coupled with lax enforcement of legal standards, that results in the failure of Chinese courts to guarantee full public access to court proceedings.
Access to Court Proceedings is not a Privilege
It is important to acknowledge that China’s courts have taken many important steps to encourage public access to trials. China’s Supreme People’s Court (SPC) has made a priority of promoting expanded publicity in court proceedings and issued, notably, instructions calling on lower courts to “strictly implement” a system of openness. Most courts are believed to be fulfilling their legal obligation to provide advance public notice of scheduled court proceedings, although there are isolated exceptions. Some courts have even gone so far as to make such information available on the Internet; however, only several dozen courts have so far made such efforts and the results have not always been consistent or long-lasting.
Part of the problem lies in the system through which the public is allowed access to trials in China. The rules in Chinese courts currently require prospective observers to register with an office of the court, where they present identification and request an “observer pass” (旁听证) that enables access to a particular hearing. Intentionally or not, this type of “gatekeeper” system, by its very existence, restricts access and risks turning courts’ obligation to provide access to their proceedings into a privilege to be granted at the discretion of court employees. This unnecessary layer of screening should be eliminated.
Even when trials are technically open, a variety of methods is used to restrict access to court hearings—particularly in sensitive cases. Trial dates in criminal cases—especially in sensitive cases—are only required to be publicized a mere three days in advance. Prospective observers frequently arrive at the courthouse on the designated day only to be told that there are “no more seats” or that the one or two seats remaining are being reserved for family members. Upon entering the courtroom, family members and defense lawyers have observed seats reserved for spectators filled with police officers (both uniformed and plainclothes) and officials from the local procuratorate, justice bureau, or other government agencies.
It may be argued that such maneuvering to prevent members of the public from observing trials occurs in only a relatively small number of cases and does not reflect an overall tendency to bar the public from access to court proceedings. Even if this were in fact true and these were isolated incidents, one wonders whether an effective process exists in China whereby those individuals who have been illegally barred from observing a trial may lodge a complaint that will be thoroughly and independently investigated, with that investigation leading to appropriate disciplinary measures designed to eliminate further such incidents. If the system of “letters and visits” (信访) is any guide to how such complaints would be dealt with, it does not inspire much confidence that these “isolated” violations will be truly remedied.
Beyond this, there appears to be a great deal of confusion about whether Chinese courts should provide access to only Chinese citizens (公民) or to a broader “public” (公众) that would include non-citizens. The situation should be quite simple: According to the SPC’s 1999 regulations on the subject of “strictly implementing” a system of open court proceedings, “Foreigners and stateless persons who carry valid documents and wish to observe a trial should be handled in accordance with the regulations for observing trials applicable to Chinese citizens.” In an October 2004 speech in San Francisco, SPC President Xiao Yang reiterated that the public—“including foreigners”—may attend trials in China as observers, except in those cases explicitly required by law to be heard in closed session.
However, as many have observed, gaining access to criminal trials is anything but routine for foreigners in practice. Based on the personal experience of myself and others in my organization, access to trials varies by location, with some cities more “open” than others. There appears to be widespread confusion about what the proper procedure is for allowing foreigners access to court proceedings and a great deal of anxiety about the possible consequences if proper procedure is not followed exactly. Courts seem to be operating under SPC guidance issued nearly 25 years ago, which instructed courts to handle individual requests for access to trials by foreigners through a bureaucratic system of reporting, careful selection, and permissions.
Neither these instructions nor the suspicious attitude toward foreigners that underlies them have been updated to reflect the new openness promoted by China’s courts over the past several years. In light of this, we would welcome clearer, stronger guidance from the SPC on the subject of removing all distinctions between citizens and non-citizens with respect to access to China’s courts for the purposes of observing proceedings. Doing so would go a long way toward guaranteeing that Chinese court hearings “be open to the public in general . . . [and] not, for instance, be limited only to a particular category of persons.”
“State Secrets” Overused as Grounds to Restrict Access
One of the limitations to public trials allowed under the ICCPR is on grounds of “national security,” and Article 152 of the CPL requires Chinese courts to close court proceedings in cases “involving state secrets.” The reasonableness of this limitation is, of course, dependent on the legitimacy of the standards used to classify state secrets. China’s use of vague and flexible standards of classification with respect to secrecy is a major impediment to the transparency of the entire criminal justice system. In particular, the broad range of topics subject to secrecy classification in China serves to restrict access by the public to court proceedings and, therefore, threatens defendants’ right to a fair trial.
If the limitation in the CPL is interpreted to mean that criminal proceedings in which state secrets may be introduced as evidence, then it would be reasonable for courts to restrict public access to those proceedings. However, current practice allows for an “all-or-nothing” decision in which entire trials are either public or closed. From the perspective of guaranteeing public access to trials, it would be far preferable for courts to restrict access to proceedings only to the extent strictly necessary for the purposes of considering evidence that has been classified as a secret.
Moreover, based on our current understanding of the way that trial closure is justified on the grounds of state secrets in China, it appears that access is restricted for far broader reasons. The regulations governing the handling of state secrets in Chinese courts are not well understood (being themselves subject to classification). It appears that entire criminal cases may be classified as secret from the police investigation stage onward, based solely on the politically sensitive nature of the alleged criminal activities at issue, and that this classification holds over when the case is tried in court.
This situation is illustrated in the recent case of Yang Tongyan (杨同彦), convicted by the Zhenjiang Intermediate People’s Court in Jiangsu Province on charges of subversion and sentenced to 12 years’ imprisonment in May 2006. After being placed under residential surveillance (监视居住) in December 2005, local police authorities requested the Jiangsu Provincial Public Security Department to determine the secrecy-classification level of Yang’s case. In a January 2006 response, the provincial department’s secrecy committee (保密委员会) ruled that because Yang’s case involved making contacts with overseas representatives of the China Democracy Party and engaging in opposition party-organizing activities, the case should be classified as a second-grade state secret (机密). Consequently, Yang’s case was subsequently tried in closed court.
Denying the public access to trials such as these on the grounds of “protecting state secrets”—as determined solely by the police making the initial arrest—goes far beyond the bounds of what should be considered acceptable under international law. According to the Siracusa Principles, which cover limitations to rights granted by the ICCPR, “national security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.” It is difficult to see how involvement in opposition party activities meets the standard of threatening the “existence of the nation or its territorial integrity or political independence.”
The Siracusa Principles go on to state: “national security . . . may only be invoked when there exists adequate safeguards and effective remedies against abuse.” If Chinese courts are to continue restricting public access to trials on grounds of “state secrecy,” there must be a viable process by which defendants may challenge court decisions to limit their rights to this aspect of a fair trial.
Expand Public Access to Court Judgments
There is a long history in China of using individual cases as a tool for promoting better understanding of the law—yi an shuo fa (以案说法). As part of the effort to promote greater openness, courts have increased the number of court judgments that they make available to the public and taken advantage of new channels such as the Internet to broaden the scope of availability. These preliminary steps are laudable, but we would like to see bolder, more complete steps taken in this regard.
As noted above, Article 163 of the CPL states: “Judgments shall be pronounced publicly in all cases” (emphasis added). SPC regulations further require courts to provide copies of judgment documents to plaintiffs, defendants, lawyers, prosecutors, and defendants’ immediate family members. Beyond this limited scope of distribution, however, such court documents are frequently treated as if they were classified—particularly in cases where trial proceedings were not held publicly. Lawyers and defendants’ family members are warned against circulating verdicts, and courts routinely refuse to provide additional copies of verdicts and bar members of the general public who seek verdicts access to court registries.
We view this failure to provide general access to court judgments to be a violation of the principle of publicity implicit in the guarantee to a fair trial. There is an inherent contradiction between requiring courts to announce judgments publicly and restricting access to the written versions of the same judgments. In the interest of improving the rights of Chinese defendants to fair trials, Chinese courts should resolve this contradiction and allow full public access to court judgments without restriction. (There may be legitimate cause for redacting certain pieces of information on grounds of privacy or national security; however, these grounds should not be used as blanket excuses to restrict access to court documents in their entirety.)
While we welcome the call made by Prof. He Weifang to require courts to make all judgments available publicly on the Internet, we recognize that there are many technical hurdles China must overcome before such an ideal may be realized throughout the country. This does not mean that concrete measures cannot still be taken in the meantime. The SPC should issue guidelines clearly stating that all judgment documents in criminal cases should be made publicly available to anyone who wishes to examine them—again, including non-Chinese citizens.
As Prof. Chen Ruihua and others have pointed out, providing mere access to court proceedings and judgment documents is not a full check against judicial injustice because it does not shed light on the process by which courts arrive at their judgments. While we agree that implementing a system by which courts are required to present fuller explanation of the reasoning behind their judgments would be a welcome step toward increasing transparency in the Chinese judicial system, we believe it is important first to have full implementation of existing measures guaranteeing publicity of court proceedings before moving on to realize other measures aimed at transparency.
Conclusion and Summary of Recommendations
Both Chinese and foreign observers have a legitimate interest in understanding how China’s laws are applied over the wide range of criminal cases, and not simply in those cases that officials want to emphasize. Shedding light on the workings of China’s criminal justice system is an essential element of promoting transparency and ensures the fair administration of justice, and it should in no way be perceived as a threat to law and order, national security, or sovereignty. With the goal of encouraging China’s increased implementation of international legal standards for fair and public trials, we summarize our recommendations as follows:
Eliminate the requirement for the public to obtain “observer passes” before attending court proceedings.
Enact effective, transparent measures to pursue complaints of court refusal to allow access to proceedings in violation of the law.
Issue clear, universally binding guidelines instructing courts that there should be no distinction between citizens and non-citizens with respect to access to China’s courts for the purposes of observing proceedings or viewing judgments.
Modify court regulations so that proceedings may be closed to the public only to the extent strictly necessary for the purposes of considering evidence that has been classified as a secret.
Publish all regulations governing the handling of state secrets in the criminal justice system.
Establish and implement provisions allowing defendants to challenge court decisions to hold proceedings in closed session.
Allow full public access to criminal court judgments in their entirety, allowing for limited redaction as strictly necessary on grounds of national security or individual privacy.
 Sutter v. Switzerland, judgment of 22 February 1984, Series A no. 74, at para. 26.
 (1966) UNTS 171, at art. 14(1).
 United Nations Human Rights Committee, General Comment 13 (21) (adopted in 1984), UN Doc. HRI/GEN/1/Rev.2 (1996), at p. 15, para. 6.
 Constitution of the People’s Republic of China (1982), at art. 125.
 Criminal Procedure Law of the People’s Republic of China (1997), at art. 152.
 Supreme People’s Court Rules Regarding the Strict Implementation of an Open Trial System 最高人民法院关于严格执行公开审判制度的若干规定 (1999), at art. 2(4).
 Criminal Procedure Law, supra note 6, at art. 163.
 Supreme People’s Court Rules, supra note 7, at art. 10.
 See General Comment, supra note 3, at para. 6.
 The Dui Hua Foundation, “Documents Shed Light on Use of Secrecy Classifications in Handling Political Crime in China,” Dialogue 24 (Summer 2006): 6-7. See also “Dui Hua Releases English Translation of Verdict in Subversion Case of Yang Tongyan” (https://www.duihua.org/2006/06/dui-hua-releases-english-translation_21.html).
 The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4 Annex (1985), at p. 5, para. 29.
 Id., at para. 31.
 E.g., “Justice Remains the Great Brick Wall of China,” Financial Times (22 April 2006): 5.
 He Weifang 贺卫方, “Where’s the Difficulty in Putting Judgments Online?” 判决书上网难处何在？, Legal Daily 法制日报 (15 December 2005): 9.
 Chen Ruihua 陈瑞华, “What Are Open Trials?” 什么是公开审判, in Visible Justice 看得见的正义 (Beijing, 2000).