China continues to be responsible for more executions than any other country, although the number of executions, the identity of those executed, and the crimes for which they were executed are not fully known because this information is considered a State secret.
The Rights Practice held a side event at the Congress, titled ‘Engaging China on the death penalty: challenges and opportunities’, to discuss how the death penalty might be challenged in China’s authoritarian environment. The discussion was chaired by Nicola Macbean, Director of The Rights Practice.
Three panellists – a lawyer, a legal scholar and an NGO staff member – shared their experience and insights. Because of the politicised nature of the death penalty in China, they saw little prospect for abolition in the short term. However, they believed the number of executions could be reduced and this was the main focus of their research, training, case work and policy advocacy.
The legal scholar said that some good research on the death penalty is now available in Chinese, but lawyers and practitioners are either not aware of it or do not find most of it useful. A number of researchers have focused on the notion of ‘most serious crimes’ in domestic Chinese law, but little research has been done on other important topics, such as the use of sihuan, the Chinese practice of imposing death sentences suspended for two years.
Domestic Chinese researchers are largely unfamiliar with international standards on capital punishment. As a result, international law tends not to influence their work. Little empirical research is being done in China. This is partly because relevant data are categorized as a state secret and unavailable, and partly because researchers lack training in empirical research methods. Lawyers often complain that the research that is available is too theoretical and without practical value.
Training is taking place, however. Several workshops have been held to introduce young scholars to new research approaches and international debates on the death penalty. Unfortunately, restrictions on foreign funding mean that it is difficult to hold these workshops in mainland China and domestic sources of funding are inadequate or unavailable. A book is currently being prepared on the role of research in policy advocacy with the aim of encouraging more empirical research on the death penalty in China.
The lawyer highlighted the challenges that lawyers face in China, particularly when they defend death penalty cases. A key challenge is that criminal cases are under the control of the three state judicial institutions (the police, the procuratorate and the courts) and, in practice, defence lawyers are treated as adversaries. The police often face pressure from the public and other institutions to secure a guilty verdict and are unwilling to share information with defence counsel. The evidence chain in cases is often weak, but there is little that defence lawyers can do to investigate the case themselves. For their part, judges often refuse defence arguments but do not provide the reasoning for their decision. In civil cases lawyers can actively raise and put forward evidence, but most lawyers are wary of doing so in criminal cases. Public pressure on the authorities also means that lawyers who appear for the defence in death penalty cases can be at risk themselves.
As already noted, Chinese lawyers either have a very limited understanding of international law or do not consider it relevant. This is partly because judges do not consider international standards. If lawyers cite international law, judges usually refuse to accept their arguments; indeed, citing international law can be detrimental to a case.
On the positive side, international law principles are starting to have some influence as lawyers become more aware of their relevance, and there have been some relevant legal reforms in recent years. The regulations on evidence in death penalty cases were redrawn in 2010, for example, and a legal aid law is currently being drafted. (Researchers will have an opportunity to comment on it later in 2019.) Since 2007 all condemnations due for immediate execution have been reviewed by the Supreme People’s Court, a decision that appears to have reduced the number of executions.
The Chinese NGO partner described the role of civil society, the media and public opinion. She said that the topic of capital punishment is not itself sensitive for NGOs. The Chinese authorities are less concerned by what issues NGOs address than by how they run their activities and who participates. For example, they frequently disrupt trainings because they fear they promote human rights ideas. NGOs must be creative to work in this restrictive environment but it is still possible to raise awareness, discuss issues at local level, and publish information on certain cases through the local media.
A question was raised about the death penalty in Xinjiang, given the large scale detentions that have taken place in the region as well as reports of deaths in custody. Unfortunately, reliable information is not available and we do not know whether the number of executions has increased. The Rights Practice was aware of reports that the former Xinjiang University President had been given a two-year suspended death sentence in 2017.