n December 2004 the UN Working Group on Arbitrary Detention
visited China, noticing how the country’s system of arrest and pretrial detention did not meet ICCPR standards. The assessment involved the length of police custody, prosecutors’ independence and the review of arrest decisions.
The UNWGA observed that
the decision by the procurator to approve the suspect’s arrest pending investigation if taken – as the Working Group was informed, without the procurator hearing the suspect does not satisfy international standards. The rationale behind the requirement that the person in custody shall be brought before a court or a judicial officer is that before taking a decision on his arrest, the suspect shall be given an opportunity to argue against this decision (here, at par. 32 (b))
In reality, legislation in force in 2004 allowed prosecutors to question suspect before approving their arrest. This possibility was however more theoretical than real. First, the Criminal Procedure Law did not contain a strict and unambiguous requirement:
(art. 66) When a public security organ wishes to arrest a criminal suspect, it shall submit a written request for approval of arrest together with the case file and evidence to the People’s Procuratorate at the same level for examination and approval. When necessary, the People’s Procuratorate may send procurators to participate in the public security organ’s discussion of a major case.
Prosecutors could 可以
take part to discussions held by the police – which is something different than having a suspect brought before them, and making a truly independent judgement on whether he needs to be arrested or not. The choice to whether join the police discussion or not seems to have been entirely discretional, and moreover limited to some
cases only. The Supreme People’s Procuracy Rules on Criminal Procedure 人民检察院刑事诉讼规则
did not shed much further light on the matter.
Article 97 gave prosecutors the chance to review evidence, question criminal suspects and hear witnesses during approval proceedings. Suspects could be heard only if evidence was dubious. The rationale behind article 97 was understanding whether evidence could be trusted – rather than giving suspects a chance to challenge prosecutors.
If read in combination with the CPL, this provision essentially meant that suspects could be heard only in major cases and only if the evidence was questionable.
This state of things should start changing from October 1, when the SPC and MPS rules on questioning criminal suspects during arrest approval procedures (最高人民检察院、公安部关于审查逮捕阶段讯问犯罪嫌疑人的规定
) will become effective.
The Rules pose the obligation to hear detained criminal suspects in five circumstances:
1. if the suspects asks to be heard;
2. if the suspect is underage. A guardian must attend the hearing, but there are ways to circumvent this requirement (art. 9);
3. if clues or evidence signal that torture, violence or unlawful means were used during investigation;
4. if it’s not clear whether the suspect needs to be arrested (age of criminal responsibility, dangerousness, contradictions or flaws in the suspect’s statements or evidence etc.)
5. if the circumstances of a case are dubious.
Defence lawyers can argue against the procuracy’s decision by submitting written statements. Their hearing is however still optional (13).