20/10/2020

Legal appeals in China’s criminal law

  •   
  •  
  •  
  •  
  •  
  •  
  •  

The right to appeal is internationally recognised (International Convenant on Civil and Political Rights, article 14(5)). Recently introduced amendments to China’s criminal law makes only minor modifications to its systems of appeals. The fundamental problem in the appellate process in China remains: the reluctance of defenders to appeal, This may be due not only to the general unsuccessful of appeals, but moreover to the discouraging possibility that an appeal will be more unfavourable to the defendant than the original verdict.

Available published statistics for 1994 reveal that over 75% of appeals in China in that year resulted in no change in the verdict. Of the 25% of the cases where the appeals court either entered a new verdict or remanded for retrial, a substantial, but indeterminate, number actually resulted in a heavier sentence.

Gaden Tashi
Gaden Tashi

The testimonial of Ganden Tashi, interviewed by TCHRD in March 1997 in Dharamsala, India, demonstrates the undesirability of using the Chinese appellate process. Ganden Tashi, a former Ganden monk, was arrested in March 1988 for demonstrating for the release of the Tibetan political prisoner Yulo Dawa Tsering. He was detained first in Gutsa Detention Centre (close to Lhasa) for two months, before being transferred to Outridu Detention Centre in the Sangyip prison complex. After five months, in 1990 he was moved to Drapchi Prison.from where he was released on medical grounds in 1993.

Ganden reported that from the day after his sentencing in January 1989 he was permitted 10 days in which he could lodge an appeal. At the same time he was told to weigh up very carefully the important role of the law of China and the gravity of his offences when making the decision to appeal. The prisoners were advised that there must be compelling reasons before they chose to appeal.

Ganden’s appeal was sent first to the office of the Procuratorate (the Chinese Governmental organisation responsible for investigating and prosecuting criminal cases) where, after analysis, it was rejected on the basis that he had no valid grounds of appeal. The case was then forwarded to the High Court which automatically endorsed the finding of the Procuratorate, and gave the official legal weight to the decision that Ganden’s conviction should stand. Ganden was then taken to prison and reported that he and other prisoners were given an address to which to send appeals. Again they were warned as to the seriousness of such an action and that it should be carefully thought through. Ganden, undeterred, sent more than thirty appeal letters to the address provided while he was in prison but on no occasion did he receive a response.

Ganden later had to attend a second trial as a result of independence activities while in prison. During the trial he spoke of his many appeals and the lack of response. He was subsequently sentenced to a further nine and a half years in prison to which he decided not to appeal.

Ganden also reported the case of Topden who had been convicted on murder charges and was also in Drapchi Prison. Topden appealed a total of three times and after each appeal his sentence was increased. After the third appeal his sentence was increased to a life term and he was threatened by Chinese authorities that if he appealed again it would result in his execution. Ganden said that the other prisoners chose not to lodge appeals for fear of having their sentences similarly increased. There is no known case of a Tibetan prisoner ever successfully appealing his or her case.