AS TO THE ADMISSIBILITY OF
Application no. 58073/00
by Yang Chun Jin alias Yang Xiaolin
The European Court of Human Rights (Second Section), sitting on 11 January 2001 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr A.B. Baka,
Mr G. Bonello,
Mrs V. Strážnická,
Mr M. Fischbach,
Mrs M. Tsatsa-Nikolovska,
Mr A. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 7 June 2000 and registered on 14 June 2000,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, a Chinese national born in 1971, is a citizen of China and of Sierra Leone. At present he is detained at the Budapest Police Headquarters’ detention facility. He is represented before the Court by Ms L. Farkas, a lawyer practising in Budapest and acting on behalf of the Hungarian Helsinki Committee. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 December 1999 the Budapest Regional Court held a hearing and ordered the applicant’s temporary detention with a view to his extradition to China. The decision was based on an extradition request, dated 17 December 1999, by the Interpol Beijing Office.
In the reasoning it was recalled that the applicant, having entered the country illegally in 1995, had been convicted in Hungary of the offences of kidnapping and of forgery of official documents and had been sentenced to four years’ imprisonment to be followed by expulsion. On 18 December 1999 he had served his prison sentence. The same day the Budapest Public Prosecutor’s Office had proposed his temporary detention with a view to extradition, relying on information submitted by the Budapest Chinese Embassy on 15 December 1999. The Embassy had specified that criminal proceedings on charge of the offence of ‘hooliganism’, punishable with imprisonment of up to seven years (Article 160 of the Chinese Criminal Code), had been in process against the applicant, in the context of which his extradition had been requested.
The Regional Court held that the facts of the case might be characterised as armed robbery under Article 321 (1) of the Hungarian Criminal Code and that, therefore, there was no legal obstacle to the applicant’s extradition. The Regional Court also pointed out that Sections 15 and 16 (1) of the Hungarian Law on International Legal Assistance required that the scope of subsequent criminal proceedings against the applicant in China should be restricted to the facts for which his extradition was actually requested.
In a legal opinion issued by the Sanming Dagong Law Firm to the applicant’s father on 6 January 2000, it was stated that the applicant’s offence might be characterised as ‘deliberate bodily assault committed with special cruelty and causing disabling injuries’, an offence potentially punishable with death under Chinese law unless mitigating factors occur. It was recalled that two other persons tried in the same context had been convicted and sentenced to death by the Sanming Town People’s Court, whose decision was upheld on appeal by the Fujian Provincial High People’s Court and the Supreme People’s Court.
In the formal extradition request issued by the Chinese Ministry of Justice on 12 January 2000, it was explained that the applicant was wanted by the Chinese authorities for having stabbed and shot a Mr L.Y. in Fuqing town, China, in May 1994. The victim suffered serious injuries, and the applicant was fleeing from Chinese prosecution since 15 September 1994 when the local police department was to proceed with his arrest. According to Article 134 of the Chinese Criminal Code 1979, such an offence was punishable with imprisonment of three to seven years. The document specified that the applicant would not be prosecuted for offences other than those for which his extradition had been requested.
On 18 February 2000 the Budapest Regional Court ordered the applicant’s detention with a view to his extradition. The decision recapitulated the relevant elements of the extradition request as follows.
On 24 May 1994 two persons hired by a Mr C.T. robbed and stabbed Mr L.Y. On 27 May 1994 the applicant attacked Mr L.Y. in his hospital ward and, using a shot-gun, shot him causing disabling injuries. In the ensuing criminal proceedings, Mr C.T. and one of the persons hired by him were sentenced to death and executed, whereas the applicant and the other perpetrator were fleeing from justice. The judgment in the case pointed out that there had not been sufficient evidence to show that the applicant had himself been hired by Mr C.T.
The Regional Court held that the facts of the case were to be characterised as ‘bodily assault causing disabling injuries’, an offence punishable with imprisonment of three to seven years under Article 134 of the Chinese Criminal Code 1979 and imprisonment of one to five years under Article 170 (4) of the Hungarian Criminal Code.
The Regional Court explained that the final extradition request’s departure from the contents of the initial one did not affect the legal basis for the extradition. Likewise, the mere fact that Mr C.T. and his accomplice had been sentenced to death had no bearing on the extradition, since the facts of the case revealed no direct link between their offence and that committed by the applicant. In any event, had there been any likelihood that the applicant could face death penalty, Section 15 of the Hungarian Law on International Legal Assistance required the Minister of Justice to seek appropriate assurances from China. Lastly, the Regional Court recalled that Section 16 (1a) of that Law obliged the Minister of Justice to seek guarantees, before approving extradition, that the applicant would not be tried for offences other than those for which his extradition had been requested.
In a letter dated 8 March 2000, sent to the Hungarian Ministry of Justice by the applicant’s lawyer and the President of the Hungarian Helsinki Committee, Amnesty International’s findings were recalled according to which 1,067 persons had been executed in China in 1998, a figure including perpetrators of the offences of ‘armed robbery’ or ‘bodily assault causing disabling injuries’.
On 16 May 2000 a three-judge bench of the Regional Court, acting as second instance, dismissed the applicant’s appeal against the decision of 18 February 2000.
In their reply dated 12 June 2000 to an enquiry by the applicant’s lawyer, Amnesty International explained:
“[…] Article 134 [of the Chinese Criminal Code 1979] also provides that, if the victim of the injury dies as a result of it, the punishment for the crime shall be minimum seven years’ imprisonment (no maximum is stipulated, which means that the death penalty can be applied). Furthermore, a Decision adopted by China’s National People’s Congress in 1983 made the death penalty applicable to specific categories of crimes coming under various provisions of the [Chinese Criminal Code], including Article 134 as a whole, whether or not ‘causing injury’ had resulted in the victim’s death. Another related 1983 Decision (concerning the “rapid adjudication” of the cases listed in the first Decision) had the effect of curtailing the procedures otherwise provided by law for prosecution and trial of these cases - in other words it instituted summary trials for all these cases. In view of the above, what is said in the Chinese text [of the quotations from Chinese laws included in the documents supporting the extradition request] is no guarantee that [the applicant] will not be sentenced to death, unless the Chinese authorities have specifically given this assurance separately to the Hungarian authorities.
There are also reasons to be concerned that [the applicant] could be summarily tried under the 1983 Decision cited above. Even if this Decision was not invoked, given the arbitrary way in which the law is applied in China, the chances for him getting a fair trial are very slim.”
Upon subsequent enquiries by the Hungarian Ministry of Justice, on 19 October 2000 the Chinese Ministry of Justice made the following formal undertaking:
“The death penalty will not be imposed on or, if … imposed, will not be carried out against [the applicant] after his extradition to China.”
On 13 December 2000, upon further enquiries by the Ministry of Justice, the Chinese Ministry of Justice formally promised that:
“summary proceedings will not be applied to hearing the case of [the applicant who is] suspected of the offence of intentional injury. In addition, [the applicant’s] case will be heard publicly according to the laws, and [he] is entitled to entrust legal counsel(s). The People’s Court may designate the lawyer who is obligated to provide legal aid to defend [him] if he will not entrust anyone to be his legal counsel because of financial difficulties or other reasons. The legal counsel will have sufficient time to consult the materials in the case-file and meet [the applicant in person]. During the court hearing, [the applicant] is entitled to defend himself [personally] and his legal counsel will [also] defend him.”
Under the relevant domestic laws, the Hungarian authorities may maintain the applicant’s detention with a view to his extradition until 31 January 2001 at the latest.
The applicant complains that, if extradited to China, he may face an unfair trial, be detained under harsh conditions, subjected to torture or sentenced to death. He invokes Articles 3 and 6 of the Convention and Article 1 of Protocol No. 6.
The applicant complains that his extradition might expose him to the danger of being sentenced to death and executed in breach of Article 1 of Protocol No. 6. If sentenced to imprisonment, he might be detained under harsh circumstances or be tortured - a treatment amounting to a violation of Article 3 of the Convention. Moreover, he submits that in China he might be tried in a manner incompatible with the guarantees contained in Article 6 of the Convention.
Article 1 of Protocol No. 6 provides:
“The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.”
Article 3 of the Convention provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 6 § 1 of the Convention, in so far as relevant, provides:
“In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.”
As regards the general situation of human rights in China, the Government submit that in recent years a considerable progress in this field has been reported by international organisations. China is party, inter alia, to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and signatory to the International Covenant on Civil and Political Rights (“ICCPR”). Significant progress has been achieved in codifying the country’s legal practice including changes in procedural criminal law, bringing the latter closer to compliance with international human rights instruments. The country has expressed its intent to proceed promptly with the ratification of the ICCPR (cf. UN Commission on Human Rights, Doc. E/CN.4/2000/L.30, 11 April 2000).
As to the conditions in Chinese prisons, the Government acknowledge that treatment amounting to torture occurs, however, its targets are primarily persons belonging to ethnic or religious minorities and prisoners of conscience rather than common criminals (cf., e.g., China Rights Forum, Summer/Fall 2000, p. 34). In 1994 a new Prison Law was introduced in order to improve treatment of detainees and to increase respect for their rights. The Chinese Government’s stated goal is to convert half of the nation’s prisons and 150 ‘reeducation-through-labour’ camps into ‘modernised and civilised’ facilities by the year 2010. There are communications that persons held in new ‘model’ prisons receive better treatment than those held in other facilities. In general, average prison conditions are below European standards but there are new detention facilities where the conditions comply with international standards. The conditions of the applicant’s detention would largely depend on the actual location but, in any event, China, party to the CAT and signatory to the ICCPR, is obliged to ensure some minimum standards of detention conditions.
The Government also maintain that, although the general situation in the requesting state is very important in considering the possible effects of extradition, the particular circumstances of the applicant’s case must likewise be taken into account. In this respect, they emphasise that ordinary criminals are not the main targets of ill-treatment. In the Hungarian proceedings concerning his extradition, the applicant never claimed to have falsely been accused with the crimes for which his extradition was sought or to have been wanted for political reasons. The offence he is charged with is recognised as an offence in all Member States of the Council of Europe, and he failed to adduce any evidence of a political motivation behind the extradition request or to show that he belonged to any social group at the real risk of ill-treatment in detention.
As regards fairness of the trial awaiting the applicant, the Government submit that the UN Committee Against Torture appreciated, in May 2000, the efforts of the Chinese Government to introduce such amendments in its legislation and practices as would bring them into line with international norms of human rights, and to implement a number of the Committee’s previous recommendations with regard to, inter alia, amendments to the Criminal Law and Procedure pertaining to fair trials, timely access to defence counsel and presumption of innocence (cf., Doc. CAT/C/SR. 423/Add.1). The amendments to the Criminal Procedure Law, which came into effect in 1997, represented a significant improvement in the statutes governing arrest and detention. The amendments provide for prompter and broader access for defendants to legal counsel and the abolition of a regulation that allowed summary trials in certain cases involving the death penalty. The amended law gives most suspects the right to seek legal counsel shortly after their initial detention and interrogation. It is true, however, that political activists still have significant problems obtaining competent legal representation of their own choosing given that police often use loopholes in the law to circumvent a defendant’s right to seek counsel. In fact, while the new Criminal Procedure Law represents an improvement over past practice, anecdotal evidence indicates that its implementation remains uneven and far from complete, especially in politically sensitive cases. Differing interpretations of the Law taken by different judicial and police departments have contributed to contradictory and incomplete implementation. In 1998, the competent authorities issued supplementary implementing regulations to address some of these weaknesses. During the year, the Chinese Government continued its efforts to educate lawyers, judges, prosecutors, and especially the public on the provisions of this and other new laws. The Chinese Ministry of Justice announced that 500,000 officials would undergo training in the near future as part of a ‘massive effort to improve the quality of all judicial workers in the country’. The President of the Supreme People’s Court likewise announced that all senior judges would attend training courses with an emphasis on new laws and regulations.
Furthermore, the Chinese Government have continued a campaign to correct weaknesses in the judicial system and make it more accountable to public scrutiny. The new Law requires that all trials be held in public; however, in practice, many trials are not - a circumstance forcing the Supreme People’s Court to issue regulations requiring all trials to be open to the public (except for those involving state secrets, personal privacy or minors, divorce cases in which both parties request a closed trial and cases involving commercial secrets). Chinese official media reported recently that all Beijing municipal courts had opened their trials to the public and claimed that some 6,518 cases were tried openly in one month, with some 10,000 citizens observing the trials and 1,000 journalists reporting on them.
The Criminal Procedure Law forbids the use of torture to obtain confessions, but one weakness of the law is that it does not expressly bar the introduction of coerced confessions as evidence. Traditionally, defendants who failed to show the correct attitude by confessing their crimes were sentenced more harshly. The conviction rate in criminal cases was over 90 per cent. In most politically sensitive trials, guilty verdicts were handed down immediately following court proceedings that rarely lasted more than several hours. The revised Criminal Procedure Law was designed to address many of these deficiencies and give defence lawyers a greater possibility to argue their clients’ cases. The amendments abolish a form of pre-trial detention called ‘shelter and investigation’, expand the right to counsel, put limits on non-judicial determinations of guilt, and establish a more transparent, adversarial trial process.
Admitting that Chinese criminal procedure does not offer the same guarantees as Article 6 of the Convention, the Government maintain that this cannot be required as a condition for extradition from a contracting State to another country. According to information provided by the Hungarian Embassy in Beijing, reaffirmed by the 1999 Country Report of the US State Department, the 1983 Decision on summary trials is no longer in force. Nevertheless, although considerable improvements in Chinese criminal procedure have taken place in recent years, certain serious problems in the application of the law persist - a consideration requiring the Hungarian Ministry of Justice to seek the guarantees which were eventually obtained from the Chinese Ministry of Justice on 13 December 2000. According to information gathered by the Hungarian Embassy in Beijing, requesting procedural guarantees as a precondition for extradition to China is a standard practice of other States including member States of the European Union.
The applicant, for his part, invokes two case-reports of Amnesty International with regard to the strength of the Chinese assurance not to sentence him to death or to execute such a sentence. One concerns Mr W.J. who was executed in 1995 after he had been returned to China from Thailand. According to his widow, the Chinese authorities had given assurances to Thailand that her husband would not be sentenced to death. Mr W.J. himself referred to this promise in his final appeal hearing, according to the court records. The text of the final judgment, passed by the Guangdong Provincial High People’s Court (no. 50/1995, judgment of 31 July 1995), also cited Mr W.J.’s argument in reference to this promise whose existence was never formally denied by the Chinese authorities. However, the judgment concluded that:
“[Mr W.J.] fled to a foreign country to avoid punishment and was expelled by that country for illegally entering the country, and was consequently taken back under [Chinese] escort […], and therefore, the question of extradition or any promise made had never existed. This argument of his is not tenable and shall not be taken into consideration” (Amnesty International Urgent Action, AI Index: ASA/17/18/96, 17 January 1996).
The second case concerns Mr F.Y. who, expelled from Canada in January 1999 as an illegal immigrant, was tried on charges of embezzlement and sentenced to death in China in June 2000 (AFP’s report of 13 June 2000). The Canadian authorities had apparently been assured by the Chinese ones that he would be sentenced to ten years in prison at the most. Upon his arrival in China, the Canadian escort officials had been told by Chinese ones that he would most probably receive a prison sentence of seven to ten years. At present no information is available as to the implementation of the death penalty in this case.
Furthermore, the applicant recalls that China has not yet ratified the ICCPR and is thus not under the obligation to comply with its provisions or to respond to individual complaints brought thereunder. Comparing the process of ratifying the ICCPR with that of ratifying the CAT and observing China’s attitude towards reporting under the latter raises concerns as to whether or not China is at present committed to being bound by the ICCPR. China signed the CAT on 12 December 1996 and deposited the document of ratification on 4 October 1998. However, substantial reservations were made to its application and, in the absence of a declaration to that effect, China does not allow inter-state and individual complaints to be brought thereunder. In its ‘Considerations’ of China’s latest report, the UN Committee Against Torture reiterated a number of concerns, namely, allegations of torture - especially involving Tibetans and other national minorities -; absence of statistics regarding cases of torture; failure to implement penal reforms uniformly and equally in all parts of China; and absence of effective mechanisms to investigate into allegations of torture. It was recommended, inter alia, that China abolish the need to apply for permission before a suspect can have access to a lawyer while in custody (cf. 09/05/2000, CAT/C/24/3). In sum, recent actions taken by the Chinese Government cannot be considered such as to curtail a real risk of treatment running counter to international human rights standards. In particular, the applicant would not have access to a remedy before competent UN bodies as China does not allow individual complaints.
Concerning his personal circumstances, the applicant maintains that only general statements are available regarding prison conditions in China. This absence of data is mostly due to the country’s restrictive attitude towards reporting about, or allowing monitors into, detention facilities. Aware that the prospects of the conditions of his detention would depend on the actual facility, the applicant points out that no details are available as to the precise location and, therefore, he cannot advance more specific argumentation on this point. The question whether the level of severity of the conditions and treatment in a Chinese prison would actually fall within the scope of Article 3 may therefore only be assessed on the basis of general information available. Data presented below support his fear that suffering or humiliation in Chinese prisons would go beyond the inevitable element thereof connected with a given form of legitimate punishment.
The applicant disputes the view that torture in prison is targeted only towards members of ethnic or religious minorities or prisoners of conscience. In this respect it is to be observed that the United States Department of State found that
“the law prohibits torture; however, police and other elements of the security apparatus employed torture and degrading treatment in dealing with detainees and prisoners. [There were credible reports] that officials used electric shocks, prolonged periods of solitary confinement, incommunicado detention, beatings, shackles, and other forms of abuse against detained men and women. […] Conditions in penal institutions for both political and common criminals are generally harsh and frequently degrading” (1999 Country Reports on Human Rights Practices, 25 February 2000, China, 1. c).
Amnesty International are of the view that
“[reviewers of] local newspapers […] would find numerous cases of torture leading to death of common criminal suspects, and examples of sentenced prisoners being tortured and ill-treated by prison guards or “cell bosses” - prisoners assigned managerial duties - who routinely ill-treat prisoners at the instruction or with the acquiescence of prison guards” (response to information request, 14 December 2000).
Information received from the US Lawyers Committee for Human Rights states that
“it is not true that people imprisoned for ordinary crimes receive better treatment than those convicted of political offences. The contrary is often the case. Conditions in Chinese prisons are generally bad and instances of physical abuse are not uncommon” (response to information request, 13 December 2000).
Apart from the conditions and treatment in prison, the Chinese assurance dated 19 October 2000 may give rise, in the applicant’s view, to a further issue under Article 3. Amnesty International’s opinion in this respect is that
“[it is] right to be concerned that this may not be a water-tight assurance. [We] assume that [the expression] “or if imposed, would not be carried out against” refers to the procedure within the Criminal Law for suspending the implementation of a death sentence [for two years] once it is imposed. However, the wording leaves that ambiguous and clarification should be sought from the Chinese Government. If [they] are referring to this suspension of implementing the death sentence, it is important to note that […] under Chinese law [this is not] considered a separate punishment to the death penalty. It is simply an alternative implementation method and commutation is not automatic at the end of the two-year suspended period. In addition, in [the present] case, the Chinese Government have stipulated that the Criminal Law (1979) will be the law on which the prosecution is based. By that reasoning, it may follow that the articles in the 1979 Law relating to the suspended death penalty would also apply in this case. Clarification should be sought from the Chinese Government on this point. If confirmed, then the 1979 Law provides even less assurance that the death penalty once imposed will not be carried out during the period of suspension. In terms of the practice, the Chinese Government have repeatedly asserted that the “great majority” of suspended death sentences are commuted. Human rights organisations […] have urged them on numerous occasions to provide factual information, concrete examples and statistics to back that assertion, but [such] data have never been provided [though would be] needed in order to assess the utility of the assurances given in this case. As statistics on the death penalty are still regarded as a state secret, Amnesty International is not in a position to verify the [Chinese] Government’s general assertion. The organisation has however uncovered reported cases where the suspended death sentence was not commuted” (response to information request, 15 December 2000).
Given that, despite the assurance, he could be sentenced to the two-year suspended death penalty, the applicant asserts that he could suffer serious psychological trauma during the period of suspension. The considerable delay before he may be certain that the death penalty imposed on him will not be carried out would subject him to constant anguish which should be taken into account when assessing his treatment under Article 3.
The applicant also recalls that
“public spectacle remains firmly part of the death penalty process in China. The criminal procedure law does not prohibit the public display of prisoners sentenced to death” (Amnesty International, China: The death penalty in 1997, ASA 17/28/98, 9 September 1998, p. 5).
He submits that he has reason to fear that he would also be forced to undergo such a public display, which is to be considered humiliating or degrading treatment within the meaning of Article 3.
As regards fairness of the trial awaiting him in China, the applicant asserts that various sources call attention to the fact that
“[there is a] widespread failure in practice to conform to the 1996 [Chinese Criminal] Law” (Lawyers Committee for Human Rights, response to information request, 13 December 2000).
He maintains that any procedural flaws which might have occurred in the case of his accomplices already executed would bear on the proceedings against him. Even if obtained through coercive measures, the testimonies of his accomplices could be admitted as evidence against him while their cross-examination would no longer be possible. As regards other witnesses for the defence,
“the revised Law still fails to guarantee the defence’s right to examine prosecution witnesses and to call new witnesses in court. Witnesses’ testimony can still, as previously, be presented in writing […] and, when witnesses are called in court, cross-examination is subject to approval by the chief judge […]. This may therefore be denied at the chief judge’s discretion. As to the right to call new defence witnesses in court, this is at the discretion of the trial court […]” (Amnesty International, China: Law Reform and Human Rights, ASA/17/14/97, 1 March 1997, p. 8).
As it is arguable that the crime with which he is charged is punishable by the death penalty, the applicant submits that the potential criminal proceedings against him in China need to be assessed along the lines of information available about death penalty cases. Amnesty International’s opinion in this respect is as follows:
“The provisions regarding review of death sentences in the revised Criminal Procedure Law (CPL) are the same as they were in the 1979 Law. Those sentenced to death, like other defendants, are entitled to one appeal and, if they do not appeal, there is an automatic review of the case by a court at a higher level than that which passed sentence. Appeals in death penalty cases are usually heard by the high courts. In addition, the CPL states that all death sentences have to be approved by the Supreme People's Court. However, under another law, the Supreme People's Court can delegate its power to approve death sentences to the provincial high courts in some cases. The delegation to the high courts of the power to approve death sentences has often meant in the past that the procedure for approval of the sentence was amalgamated with that for appeal or review of the case. The revised CPL, like the 1979 Law, includes no mechanism allowing prisoners sentenced to death to seek pardon or commutation of the death sentence, which is an internationally recognised right.
International standards generally require that the most careful legal procedures and all possible safeguards for the accused be guaranteed in death penalty cases, including the right to a fair and public hearing by a competent, independent and impartial tribunal, the presumption of innocence, the right to have adequate time and facilities to prepare the defence – including, as noted above, the right to have adequate legal assistance at all stages of the proceedings – and the right to seek pardon or commutation of the sentence. Despite positive changes brought by the revision of the CPL, these safeguards remain either unavailable or inadequately guaranteed in the Chinese justice system.
The provisions for carrying out death sentences have been modified in some respects in the revised CPL. One change concerns cases where a death sentence has been passed with a two-year suspension of execution – which is an alternative to the death penalty ''with immediate execution''. Under the 1979 CPL, at the end of the two-year period of suspension, the death sentence was carried out if the prisoner was found to have ''resisted reform in an odious manner'' and it was commuted if the prisoner was deemed to have ''truly repented'' or to have performed ''meritorious service'' while imprisoned during the two-year suspension of execution. The revised law has changed this provision. Execution or commutation of the death sentence now depends on whether or not the prisoner has ''intentionally committed crimes'' during the period of suspension of execution […]. While this is an improvement over the 1979 CPL, the revised law does not specify what types of new crimes might warrant the carrying out of the death sentence. It is therefore possible that prisoners under suspended death sentences may be executed for fairly minor offences committed in prison during the period of suspension of execution. This is particularly of concern in view of a new provision in the law, which allows the prison authorities to investigate themselves crimes allegedly committed by convicted prisoners within prisons […], with all the potential for bias this involves” (response to information request, 15 December 2000).
With regard to the Government’s argument that since the 1997 revision of the Chinese Criminal Procedure Law, trials are generally conducted in public in order to increase public scrutiny of the judiciary, the applicant refers to a further passage in the report quoted by the Government, according to which
“under the new regulations, ‘foreigners with valid identification’ are to be allowed the same access to trials as citizens. However, requests by at least one foreign mission to send an observer to politically sensitive trials have been ignored consistently by the government. Moreover, none of the numerous trials involving political dissidents were open to the general public […]” (US Department of State: 1999 Country Reports on Human Rights Practices, 25 February 2000, China, 1. e).
Furthermore, evaluations have been published according to which
“it is not true that people charged with ordinary crimes have a better chance of a fair trial than those charged with political offences. There is a considerable risk that common criminals may be tried and convicted in criminal proceedings in breach of international fair trial standards. As documented in the 1996 [Lawyers Committee for Human Rights] report, this is the case even if the trial is carried out in accordance with the 1996 CPL. This risk is further increased by the widespread failure in practice to conform to the 1996 law” (Lawyers Committee for Human Rights, response to information request, 13 December 2000).
Concerns with regard to procedural flaws in cases involving crimes punishable with the death penalty cases are corroborated by the following source:
“The lack of due process is particularly egregious in death penalty cases. The number of capital offences has increased from 26 to 65 as amendments were added to the 1979 Criminal Law. […]. A higher court nominally reviews all death sentences, but the time between arrest and execution is often days and sometimes less, and reviews consistently have resulted in the confirmation of sentences” (US Department of State: 1999 Country Reports on Human Rights Practices, 25 February 2000, China, 1. e).
With regard to the assurance dated 13 December 2000, the applicant submits that, while it is in fact a reiteration of the relevant provisions of the Chinese Criminal Procedure Law, it is not formulated in a language specific enough to allow detailed comments on it. Reportedly, the level of conformity of practice with written law is largely dependent on where he would be tried, it would therefore be of primary importance to have information about the actual court which his case would be referred to.
The Court considers that the application raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits. It follows that the application cannot be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court, by a majority,
Declares the application admissible, without prejudging the merits of the case.
Erik Fribergh Christos Rozakis
JIN v. HUNGARY DECISION
JIN v. HUNGARY DECISION