Stephanie Persson† | 3 Regent J. Glob. Just. & Pub. Pol. 223
INTRODUCTION
China is not known for a strong compliance with international law.1 This is particularly true in regard to international laws regarding human rights. 2 In at least one area, however, China is making impressive gains. In 2012, China passed a newly amended version of its Criminal Procedure Law. 3 These amendments included a brand new chapter on the treatment of juveniles.4 The chapter was remarkable for just how closely its reforms line up with international laws on children’s rights and juvenile justice. Even more notably, in the years since the passage of the bill, China appears to be making tremendous strides towards applying these legal reforms in practice — not only enforcing these standards, but proudly modeling them as “best practices.”5
Why is such progressive legal reform occurring in the field of juvenile justice, in a country which is often considered resistant at best towards implementing human rights reforms? 6 Why does China appear to be complying so well with international standards on human rights in one area of law, when it has not in many others?7
Understanding how this process of reform has occurred requires looking at both the social and political pressures that motivated the reform efforts, as well as the normative process through which they occurred. This process has been heavily influenced by an openness to legal experimentation and to the role of a variety of actors, including non-state actors, in introducing new concepts and models of dealing with juvenile crime. The juvenile justice system therefore provides a particularly interesting case study through which to explore modes by which the China implements legal reform.
I. THE 2012 CRIMINAL PROCEDURE LAW AND INTERNATIONAL LAW
On March 14, 2012, the Chinese People’s Congress adopted an amended version of the Chinese Criminal Procedure Law, which went into effect January 1, 2013. 8 Unlike previous versions of the Criminal Procedure Law, the amended version of the law has an entirely new section pertaining to juvenile defendants and how juveniles should be treated within the criminal justice system.9 The chapter is remarkable for how well the requirements outlined align with the requirements on juvenile justice as prescribed in international law.
The chapter includes eleven articles, each delineating specific requirements for how juveniles should be handled in the criminal justice system.10 Nearly all theories, language, and specific requirements set out in the chapter have been previously codified in international laws and guidelines on juvenile justice.11
The chapter sets out a theory of juvenile justice that promotes rehabilitation and reintegration with society. Article 1 of the amended Criminal Procedure Law (CPL) explains that officials should “[i]mplement the directive of education, reform, and rescue for juveniles committing crimes, and continue the principle of education first with punishment as a supplement.”12 This aligns with the theories expressed in both the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR) that the underlying theory of juvenile justice should be rehabilitative, rather than punitive. 13 The new chapter then proceeds to set out specific requirements regarding the treatment of juveniles, nearly all of which are required by international instruments such as the CRC, ICCPR, or U.N. guidelines.
The new chapter requires, for example, that all juveniles be given access to legal counsel, a key procedural right expressed by both the CRC and ICCPR.14 While this was previously set out in Chinese law, the effectiveness of this requirement was limited. 15 The new law now explicitly places the onus on public officials such as the courts, procuratorate, or other public security officials to ensure that juveniles are, in fact, represented by counsel in criminal cases.16 It also requires that juveniles should be given special treatment throughout the criminal justice process to protect their unique vulnerabilities. For example, the law suggests that officials working with children should be specially trained to handle such cases17 and that juveniles who are detained must be separated from adult offenders.18 The law also requires that all court records must be sealed in juvenile cases to protect the privacy of the juvenile defendant.19
† The author is a Staff Attorney at Children’s Rights in New York City. Prior to this she was a Visiting Fellow at the Center for Comparative and Public Law at the University of Hong Kong. My sincere thanks to the Salzburg Cutler Law Fellows Program which helped to spark and critique an initial conception of this paper, to Professor Katherine Franke and my brilliant classmates in her research and writing seminar, who reviewed early drafts and improved my writing tremendously, and to HKU’s Center for Comparative and Public Law for allowing me the opportunity and resources to finalize this as a Visiting Fellow.
1 Jacques deLisle, China’s Approach to International Law: A Historical Perspective, 94 AM . SOC’Y INT’L L. PROC . 267, 267 (2000).
2 See Camila Ruz, Human rights: What Is China Accused of?, BBC NEWS (Oct. 21, 2015), http://www.bbc.com/news?magazine-34592336.
3 Wendy Zeldin, China: Amendment of Criminal Procedure Law, LIBR. CONGRESS: GLOBAL LEGAL MONITOR (Apr. 9, 2012), http://www.loc.gov/law/foreign-news/article/china-amendment-of-criminal-procedure-law/.
4 Id.
5 See John Kamm, Trying Juveniles, N.Y. TIMES (Nov. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/global/trying-juveniles.html.
6 THOMAS LUM, CONG. RESEARCH SERV., RL34729, HUMAN RIGHTS IN CHINA AND U.S. POLICY 1–3 (2011).
7 Kamm, supra note 5
8 Zeldin, supra note 3.
9 Id.
10 Zhonghua Renmin Gongheguo Xingshi Susong Fa (中华人民共和国刑事诉讼法) [Criminal Procedure Law of the People’s Republic of China] (promulgated by the Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013) pt. 5, ch. 1, translated in UN TREATY BODY DATABASE , http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_ADR_CHN _20050_E.doc (last visited Mar. 3, 2017) [hereinafter Criminal Procedure Law].
11 There are eight documents which set out the majority of the international laws and standards on juvenile justice. Two of these are binding international treaties. These are the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3; International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171. China has signed both of these documents and ratified the CRC. TREATY SECTION, OFFICE OF LEGAL AFFAIRS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 204, 389, U.N. Sales No. E.09.V.3 (2009). There are also five relevant United Nations rules and guidelines that provide countries with further standards on developing their juvenile justice systems. See High Comm’r for Human Rights, Rep. of the High Commissioner for Human Rights on the Protection of Human Rights of Juveniles Deprived of Their Liberty, ¶ 5, U.N. Doc. A/HRC/21/26 (Aug. 3, 2012) (collecting the five sets of rules and guidelines). Although these guidelines are not binding, they can be seen as interacting with, and sometimes clarifying, the rights described in the CRC and ICCPR. Additionally, the Committee on the Rights of the Child, the body charged with monitoring compliance with the Convention on the Rights of the Child (CRC), has issued a variety of general comments, which provide greater clarity on how the Convention on the Rights of the Child should be interpreted. In particular, General Comment No. 10 provides on how to interpret the CRC’s requirements on juvenile justice. Comm. on the Rights of the Child, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, ¶ 4, CRC/C/GC/10 (Apr. 25, 2007) [hereinafter General Comment No. 10].
12 Criminal Procedure Law, supra note 10, art. 266.
13 The Convention on the Rights of the Child (CRC) states that juveniles accused of violating criminal law should be treated in a way that promotes the child’s reintegration and productive role in society, as well as promoting “the child’s sense of dignity and worth.” Convention on the Rights of the Child, supra note 11, art. 40(1). The ICCPR requires that states should “take account of . . . the desirability of promoting [the] rehabilitation” of children in conflict with the law. International Covenant on Civil and Political Rights, supra note 11, art. 14(4). General Comment No. 10 says “[t]his principle reflects the fundamental human right . . . in article 1 of [the Universal Declaration of Human Rights].” General Comment No. 10, supra note 11, ¶ 13.
14 Article 267 of the Criminal Procedure Law states “[w]here a minor criminal suspect or defendant has not entrusted a defender, the people’s court, people’s procuratorate or public security organ concerned shall notify a legal aid agency to assign a lawyer as the defender of the minor.” Criminal Procedure Law, supra note 10, art. 276. The Convention on the Rights of the Child requires that “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance,” and “to have legal or other appropriate assistance in the preparation and presentation of his or her defense.” Convention on the Rights of the Child, supra note 11, arts. 37(d), 40(2)(b)(ii). General Comment No. 10 clarifies that when interpreting “[l]egal or other appropriate assistance,” legal assistance should not be denied simply because other assistance is available. General Comment No. 10, supra note 11, ¶ 49. The right to counsel and free legal aid is also required by both the ICCPR and the Beijing Rules. International Convention on Civil and Political Rights, supra note 11, art. 14(3)(d); G.A. Res. 40/33, annex, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), rs. 7.1, 15.1 (Nov. 29, 1985) [hereinafter Beijing Rules]. Although international law imposes no direct duty on any specific actors to ensure a juvenile’s access to counsel, best practice guides have recommended that legislation or guidelines for police or prosecutors “should impose a duty on [them] . . . to assist the child in obtaining legal [assistance].” CAROLYN HAMILTON, UNICEF, GUIDANCE FOR LEGISLATIVE REFORM ON JUVENILE JUSTICE 45–46 (2011).
15 The right to counsel had actually already been specified in Chinese law in 2006. Zhonghua Renmin Gongheguo Wei Chengnian Ren Baohu Fa (中华人民共和国未成年人保护法) [Law of the People’s Republic of China on the Protection of Minors] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2006, effective June 1, 2007), art. 51, translated in Law of the People’s Republic of China on the Protection of Minors (2006 Revision) [Revised], PKULAW.CN (last visited Mar. 4, 2017) [hereinafter Law on the Protection of Minors]. That law, however, stated that should a minor be in need of legal aid, a legal aid institution should provide it to him. Id. The burden therefore lay on the legal aid institutions (who are themselves a relatively new and problematic institution in China and who often have little power in the system) and put no direct burden on any of the actual key players in the criminal process. Legal Aid, CONG.-EXECUTIVE COMMISSION
ON CHINA , https://www.cecc.gov/legal-aid (last visited Feb. 3, 2017).
16 Criminal Procedure Law, supra note 10, art. 267.
17 Article 266 of the Criminal Procedure Law specifies that officials working in the juvenile justice system should be “familiar with the physical and mental characteristics of minors.” Id. art. 266. This echoes language in the U.N. Guidelines that “[l]aw enforcement and other relevant personnel, of both sexes, should be trained to respond to the special needs of young persons,” G.A. Res. 45/112, annex, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), ¶ 58 (Dec. 14, 1990) [hereinafter Riyadh Guidelines], and that “police officers who frequently . . . deal with juveniles” should be “specially instructed and trained,” Beijing Rules, supra note 14, r. 12.1.
18 Article 269 of the Criminal Procedure Law requires that juveniles “held in custody or arrested or who are serving sentences . . . [should be held] separately from adults.” Criminal Procedure Law, supra note 10, art. 269. The CRC in Article 37(c) states that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.” Convention on the Rights of the Child, supra note 11, art. 37(c); see also, e.g., International Covenant on Civil and Political Rights, supra note 11, art. 10(2)(b) (requiring that juveniles accused of crimes be kept separate from adults).
19 The Criminal Procedure Law requires that juvenile records be sealed. Criminal Procedure Law, supra note 10, art. 275. The Chinese Law on the Protection of Minors previously required that public sources such as the news or “computer network[s]” should not share information about juvenile defendants. Law on the Protection of Minors, supra note 15, art. 58. However, the amended Criminal Procedure Law now requires that all juveniles under the age of 18 who are sentenced to five years or less shall have their criminal records sealed, and only court officials will be able to access these documents. Criminal Procedure Law, supra note 10, art. 275. Such a requirement for privacy is expressed in the CRC in Article 40(2)(b)(vii), which states that a juvenile defendant has a right “[t]o have his or her privacy fully respected at all stages of the proceedings.” Convention on the Rights of the Child, supra note 11, art. 40(2)(b)(vii). This vague language has been clarified by the Committee in General Comment No. 10, explaining that “[a]ll stages of the proceedings” starts at the point of “initial contact with law enforcement” bodies and extends until either a “final decision” or “release from supervision.” General Comment No. 10, supra note 11, ¶ 64. General Comment No. 10 further clarifies that there should be some form of domestic legislation requiring trials to occur “behind closed doors” and that records should be kept “strictly confidential.” Id. at ¶¶ 64–66. The Beijing Rules similarly specify the juvenile’s “right to privacy” so as to “avoid harm being caused to her or him by undue publicity or by the process of labeling” and that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.” Beijing Rules, supra note 14, rs. 8.1–2. “Records of juvenile offenders shall be kept strictly confidential . . . .” Id. r. 21.1.