China -  Chinese law firm

What rights to counsel are there in a criminal case? (17/04/2007)


1. What is the difference between the right to counsel in a criminal case before and after formal charges have been brought?

Art 33 of the CPL says that a criminal defendant “shall” have the right to counsel after the file of a case has been transferred for prosecution. This article only allows access to a lawyer (explicitly stated) for the purposes of providing legal advice, file an administrative appeal, or lodge a complaint.  Because no charges have been filed, there is no basis for defense.

Art 96 of the CPL says that a criminal suspect “may” appoint counsel after the
first day of interrogation. According to this provision, a defendant's right to counsel (defined more broadly than just lawyers) for the purposes of engaging in activities on behalf of defending the client against the charges against him or her. 

Article 96 goes on to say that access to counsel is subject to approval in cases involving State secrets.
2. What does the use of "may" in Art 96 signify as compared to the use of "shall" in Art 33? Is the right to counsel during the investigation stage, as it is stated in the CPL, absolute subject only to the State secret exception, or does the CPL intend that the right to counsel in the investigation will in all cases be subject to police discretion?

The right to counsel is NOT an absolute legal right in China (as state secret exception stands), and further curtailed in practice.
The "shall" means that the PSB/SPP is obligated to provide access to counsel after first interrogation or being detained.

The "may" means that the defendant/suspect shall have the right to decide whether to exercise such right or forego it altogether.

However, in practice, the exercise of such right is largely depending upon whether he has the money to hire one immediately, or whether he is entitled to legal aid, or whether his family is notified and has decided to hire one on his behalf, etc.

All of the above is contingent upon whether the first interrogation is expressly stated or not, and whether the notification of such right is given or not, and most important, whether the access to counsel is facilitated by PSB/SPP if he is detained.
As to other hurdles such as state secret exception, the right to counsel is subject to approval. That means the right to counsel may be denied in a case involving state secret which can be overly expanded to include cases involving, not any military, political, but economic, religious ones, etc., anything to do with any state information which the defendant/suspect is not supposed to possess or disclose (for definitions, please see state secret law and criminal law, Anti-subversion law, etc.).

3. Are lawyers allowed to represent people facing detention in re-education-through-labor camps?

Re-education through labor has been used throughout the mainland since 1957 to punish minor offenders such as petty thieves, hooligans and Falun Gong followers who are not subject to criminal prosecution. A panel of police officers or government officials determines whether the accused should be detained at a labor camp.
The workings of the system are opaque because there is no legislation covering its administration. Detainees can serve up to three years in a camp, in contrast to convicted criminals - who have the opportunity for probation and may avoid serving time in jail altogether.

There are no official statistics on how many people have been put into the camps, but some estimates suggest there are more than 300,000 nationwide.
Reforms were necessary.

Thus, Chongqing has begun allowing lawyers to represent people facing detention in re-education-through-labor camps - an unprecedented move to shed light on the system's notoriously secret procedures.  The Chongqing Justice Administration announced the step on its website and said it had taken effect this month. The regulation had been finalized with the municipal Public Security Bureau, it said.
The administration said the rules meant lawyers could meet suspects, get details of cases from the authorities and offer legal opinions on the procedures, whether a defendant had broken the law and suspected human rights violations.
The rule would "be conducive to openness in decisions and having lawyers take an active role in these cases", the statement said.
The Chongqing regulation represents promising progress but that legislation and more fundamental changes are needed to remedy the system.

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