*EPF204 06/17/2003
Excerpt: U.S. Expert Commission Concerned for Defense Lawyers in China
(Congressional-Executive Commission on China report) (730)

The U.S. Congressional-Executive Commission on China (CECC) issued a report May 27 examining the case of Zhang Jianzhong, a prominent lawyer from the People's Republic of China prosecuted for assisting with "evidence fabrication," and presenting concerns about the prosecution and harassment of defense lawyers in China.

The paper, entitled "Defense Lawyers Turned Defendants: Zhang Jianzhong and the Criminal Prosecution of Defense Lawyers in China," argues that the intimidation of defense attorneys poses a major challenge to China's criminal justice system and the Chinese leadership's stated goals of building the rule of law and protecting the rights of Chinese citizens.

The CECC report concludes with several steps it calls upon the Chinese authorities to take in order to improve the situation.

The CECC was created by Congress in October 2000 with the legislative mandate to monitor human rights and the development of the rule of law in China. It consists of nine senators, nine members of the House of Representatives, and five senior administration officials appointed by the President. The current Chair is Representative Jim Leach (Republican of Iowa), and the Co-Chair is Senator Chuck Hagel (Republican of Nebraska).

For the complete text of the CECC report, go to: http://www.cecc.gov/pages/news/zhang_052703.php

Following is an excerpt from the introduction to the CECC report:

(begin excerpt)

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

DEFENSE LAWYERS TURNED DEFENDANTS:
ZHANG JIANZHONG AND the CRIMINAL PROSECUTION
OF DEFENSE LAWYERS IN CHINA

...

1. Introduction

On February 25, 2003, Zhang Jianzhong, one of China's most prominent and outspoken defense attorneys, was tried in Beijing on charges of assisting in the fabrication of evidence in a major corruption case. Zhang's case has sent shockwaves through China's legal profession and highlighted longstanding concerns that some Chinese prosecutors are using criminal provisions on evidence fabrication to unfairly harass defense attorneys. As such tactics have become more common in recent years, Chinese attorneys have come to view criminal defense work as a "high risk" activity. Many Chinese lawyers and legal scholars cite this concern as a principal reason for low morale in China's criminal defense bar, a lack of aggressiveness in criminal defense, and a steady decline in the percentage of Chinese criminal defendants represented by legal counsel. In a legal system where criminal defendants and defense attorneys already face numerous obstacles and disadvantages, such trends are a step in the wrong direction.

This paper examines the Zhang Jianzhong case and, more broadly, concerns about the treatment of criminal defense lawyers that his case highlights. Specifically, it recommends that China consider the following steps to address concerns about the Zhang case and the problem of defense attorney intimidation:

-- Chinese authorities should recognize the implications of the Zhang Jianzhong case for rule of law development in China and respond to public concern about his prosecution by demonstrating that Zhang has been treated fairly under the law. Specifically, in its judgment in the case, the court should address the legal arguments in Zhang's favor raised by a panel of Chinese legal experts. A reasonable and transparent treatment of Zhang's case will show China's commitment to building a strong, yet accountable, criminal defense bar.

-- The National People's Congress should repeal Article 306 of the PRC Criminal Law, a legal provision on evidence fabrication that specifically targets defense attorneys. Article 307 of the PRC Criminal Law prohibits evidence fabrication. Article 306 is unnecessary and contributes to the perception among Chinese lawyers that criminal defense is a high-risk activity.

-- The National People's Congress or Supreme People's Court should raise the evidentiary requirements for convicting an attorney of evidence fabrication and define evidence fabrication more precisely under the law. At present, there are no legal interpretations to guide the application of evidence fabrication provisions in the Criminal Law, making such provisions a convenient mechanism for attorney harassment.

-- The All China Lawyer's Association, the Ministry of Justice, and relevant law enforcement organs should agree to allow the All China Lawyers Association to establish a disciplinary committee, with oversight by the procuratorate or the Ministry of Justice, to handle cases of evidence fabrication and similar misconduct involving defense attorneys. Such an ACLA committee would provide a check on the procuratorate, which has a conflict of interest in bringing these cases and few institutional checks to ensure that such charges are fair.

...

(end excerpt)

(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)

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