As my expertise on criminal law matters is quite limited, this is mostly a FYI post. If you live in certain jurisdictions, you may not be familiar with the concept of unsolicited judicial guidance being issued by the nation’s top court. In the U.S., for example, the Supreme Court may not simply write an opinion about a point of law without there being a dispute brought before the court. In many countries, however, the highest court has no such constraints and is expected to help out with guidance on troublesome legal issues.
Earlier this year, China passed amendments to its law on criminal procedure, and so this judicial interpretation, which was issued yesterday, is the Supreme People’s Court (SPC) chiming in with its explanation on several points. This interpretation will be effective at the beginning of next year along with the new criminal procedure law amendments. There were several different areas of criminal procedure that the judicial interpretation commented on, but I’ll just choose one in particular (see below after the quote):
The country’s top court on Monday released a judicial interpretation for the amended Criminal Procedure Law to help courts better adapt to the revised law and ensure clients’ rights.
[ . . . ]
The revised law stresses protecting suspects and defendants from “illegal restriction, detention and arrest.” The judicial interpretation contains specific stipulations on new legal proceedings for juvenile criminal cases and compulsory medical treatment cases to ensure legal judgments. It also stipulates the appearance of the witness, identifier and expert to ensure the parties’ right of confrontation. Compensation standards for incidental civil actions are also clarified in the interpretation, according to the SPC statement.
The SPC statement said the interpretation, which will go into effect along with the new Criminal Procedure Law on January 1, 2013, will help ensure the effective implementation of the law and safeguard human rights. (Xinhua)
Here’s the announcement by the court, if you’re interested (Chinese only).
The issue I found most interesting, as the topic in general relates to more than just criminal trials, concerns technology and court proceedings. Xinhua ran a separate story on the judicial interpretation’s take on the use of certain kinds of devices that some have used to broadcast or otherwise transmit information about a court proceeding, often in real time:
Participants or bystanders in legal proceedings cannot record or videotape trials, nor can they broadcast the court’s activities live via e-mail, microblog or other forms of media, China’s top court said Monday.
Journalists who have permission from the courts are still allowed to report on trials, according to a judicial interpretation of the amended Criminal Procedure Law issued by the Supreme People’s Court (SPC).
Participants are also forbidden from applauding or taking other actions that could disturb the trial, according to the interpretation.
This issue has come up numerous times in the past couple of years, but with discretion in the hands of judges and the law pretty much silent on this new tech, a lot of questions remained prior to the issuance of this judicial interpretation.
If your knee-jerk reaction is to interpret this as yet another example of information control by the government here, I’d caution you to take a closer look at this issue. Judges have always had discretion with respect to the behavior of parties and guests in their courtrooms. If they wanted to allow journalists to come in and view proceedings, they could do so, and the interpretation does not remove that authority.
I think the concern here was much broader. There have been instances where spectators and even lawyers have been sending out emails, IMs and microblog posts during proceedings, which some judges have seen as undermining their authority and violating the rights of the parties involved in the dispute.
Sounds reasonable to me. I’m all for free speech, but when it comes to civil and criminal disputes, some limits are necessary. A lot of countries have grappled with this issue, and many have either curtailed speech rights and/or given discretion to judges to make the call on a case-by-case basis.
It’s important to increase transparency with respect to both civil and criminal suits, and to that end, China recently said it will begin reporting all civil case rulings (this is a very big deal). But allowing a prosecutor or defense attorney to surreptitiously record the proceedings on their phones and upload them to weibo? Uh uh; that’s going too far.