College for Criminal Law Science of Beijing Normal University

Right to speedy trial, is an important right entitled by international human rights covenants to detained suspect. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) provides for a series of rights for suspects held in pre-trial custody and section 3 stipulates that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. China signed the ICCPR on Oct 5 1998, which in itself means that China shoulders the obligation of not taking any conduct which may hinder the actualization of the purpose of the Covenant. Recently years, China has been actively preparing for the ratification of the Covenant by continuously amending domestic laws. This essay will introduce and comment on the recent situation of safeguarding the right to speedy trial in terms of improving internal working mechanism by law enforcement institutions.

By analyzing its wording, I would suggest that Article 9 (3) seems to stress three basic points in terms of the right to speedy trial. The first is that this principle seems to focus on the rights of the criminal suspects who are held in pre-trial custody; secondly, it stresses the speediness of pre-trial proceedings, requiring that the accused be brought promptly before a judicial officer. Thirdly, it also attaches importance to the speediness of trial procedure, requiring the judicial institution try or release the accused within a reasonable time. Therefore, this article demands the speediness in both the pre-trial stage and the trial stage.

The fulfillment of international obligation by each country depends on the recognition and implementation of the documents in its domestic law. For the principle of speedy trial, many countries make relevant stipulations in the Constitution or criminal procedure law. For instance, the 6th amendment of the federal Constitution of the United States stipulates that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. Article 11 of the Canadian Charter of Human Rights and Freedoms says that Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence and to be tried within a reasonable time; Japanese Constitution provides for that, once a person is accused of crime, he is entitled to fair and speedy trial within reasonable time limits.

In China, the right to speedy trial is embodied by some legal provisions of the CPL aiming at preventing against unduly delayed judicial activities. For instance, the CPL provides for the general time limits for investigation, prosecutorial examination and adjudication of normal criminal cases. Meanwhile, for difficult, major or complicated cases where the law enforcement institutions cannot solve the cases within normal period, the CPL allows for extension of the time limits with the permission of the authority in advance. In respect of the practice, the principle of speedy trial is also guaranteed. The law enforcement institutions in China, i.e. the Public Security Organ, the Prosecution Service and the Court, have set up an internal working mechanism to promote concluding cases in short period. They require the case concluding rate be above 90% which means the cases received shall be concluded within specified time limits. If the divisions or individual law enforcement officers fail to reach the quota without justification, it would produce a negative impact on the measurement of their work performance. This internal working mechanism could play an essential role in safeguarding the accused’s rights to speedy trial.

The actualization of the right to speedy trial depends on how fast the law enforcement institutions can handle criminal cases. Correspondingly, the speedy resolution of case would promote the actualization of this right. Recent years, the judicial institutions in China have increasingly stressed the importance of speedy resolution of criminal cases due to the following considerations:

Firstly, as China has been in a transiting period these years, the disparity between the rich and poor increasingly widened and the amount of crime has been continuously high. Therefore the relationship between the increasing case amount and the limited judicial resources is rather tense. Beyond, while amending its Criminal Procedure Law in 1996, China introduced some adversarial elements to the trial procedure. This requires more input of judicial resources especially in the handling of cases where suspects or defendants do not admit guilty. The conflict between case amount and judicial resources cannot always be solved by adding further resources. So how to get speedy resolution and increase efficiency in handling cases has been an important topic of Chinese legal reform.

Secondly, when there is a crime, the original social order is damaged and the social relations involved are placed in unstable status. Whenever a case involves a victim, the suspected criminal conduct would violate his/her personal rights and bring about pecuniary loss. The victim cannot get compensated by the defendants until the judicial institution handles the case and determine the responsibility of each party if any. The delayed case handling will always lead to a delayed justice which is often not deemed as justice any more. On the contrary, when the suspect and the victim reach the reconciliation, criminal case can be handled speedily whereby the social contradicts can be solved timely. It would promote the actualization of a harmonious society which is a paramount task of China.

Thirdly, in the criminal procedure of China, the proportion of granting bail in pre-trial stage is rather low. Take Beijing for example, it is around 20%. Most suspects and defendants are held in custody while awaiting trial. They are isolated from their family, friends and society and experiencing big pressure. They are easy to feel contradicted to the society which will hinder their back to the society in the future. Furthermore, while a case is undetermined, suspect or defendant is held in detention center. Compared with the inmates in prison, the accused’ s rights to communication and to visits are subjected to more restriction so as to prevent against their potential obstructing activities. Criminal cases therefore need to be resolved speedily so as to better protect detainees’ rights.

The next question then would be how to define “speedy”. The covenant in itself does not provide a definition for “speedy”. The subordinate committee of UN suggested that, all governments shall through legislation make the arrested and detained tried within three months after an arrest is authorized. The UN Committee of Human Rights has found some cases violated the right to speedy trial. In these cases, the time for bring the accused to trial have been delayed to 3 months to 8 years and the government did not gave any reason for the delay. We hold that the three-month time limit is arguable. While evaluating whether a case is solved speedily, the specific circumstances of a case shall be taken into account. For the purpose of implementing the ICCPR, while evaluating whether it is speedy we cannot draw a single line without considering the nature and characteristics of a particular case. No country would demand an absolutely equal treatment to a shoplifting crime and a gang crime or terrorism crime. In my view, I would suggest to understand “speedy” in two aspects: on the one hand, it emphasizes a value which is in all criminal cases the authority is obliged to get suspect see the judicial officer promptly and to judge the accused criminal conduct promptly. On the other hand, the requirement of “speedy” trial is of particular value in certain types of cases. For major and complicated cases, the material truth is highly likely to be lost if we simply pursue a speedy resolution without truly clarifying the case facts. For minor offenses, however, speedy shall be attached greater importance. The minor offences here mean the cases where the facts are clear, the potential penalty is light and most important of all, the accused admit guilty and there is no dispute both in facts and in law. Under such circumstances, the mode of criminal procedure is no longer adversarial but cooperative, which means the accused is cooperative to official investigation, prosecution and trial. This would help the gathering of evidence, clarifying the cases facts, which is always the prerequisite of simplifying procedures and speeding trial.

Under such a background, on Feb 2 2007, the SPP issued the Opinion on Speeding Resolution of Minor Criminal Cases in Accordance with the Law (hereinafter referred to as “Opinion”), demanding the prosecution services at various levels to speed the resolution of minor offences so as to improve litigation efficiency and suspect’s rights protection. The opinion sets out the conditions where speedy resolution shall be applied. Firstly, the case facts are clear and the evidence is sufficient; secondly, the possible sentence would be below three years imprisonment; thirdly, the suspects and defendants give confessions and fourthly, there is no dispute over the law involved in the case. With the prerequisite of satisfying these conditions, specified types of cases which are set out as the following shall be handled quickly: the first type is those cases involving juvenile, high school or college students, elders, blind and dumb people, woman who is pregnant or breastfeeding baby, and the first-time offender and suspects committing crime negligently; the second type of cases are those triggered by disputes between relatives and neighbors. The third one is the cases where civil reconciliation has been reached. The last one is those where the circumstances of offering light sentence or mitigated, exempted punishment are present.

According to the Opinion, while handling the cases falling within the above situations, procuratorates in various places shall shorten the time of case handling. During the prosecutorial examination period, the decision shall be made within 20 days. For those prosecutions services where the caseload is heavy and the conflict between case amount and personnel resources are prominent, the decision shall be made within 30 days and the duration shall not be prolonged. In this way, in contrast to the existing requirements in the CPL which is over four months, the time limits for prosecutorial examination would be shortened greatly. In addition, in the arrest approval period, the existing criminal procedure law demands the prosecution service make the decision within seven days. And the Opinion shortened this period to three days for the suspects who are detained and five days for the suspects who are not detained. More importantly, the Opinion calls for the procuratorates in various places to reinforce the communication and coordination with the Public Security Institution and the People’s Court so as to extend the speed resolution channel to the investigation stage and trial stage separately.

According to Chinese Constitution, the procuratorate at higher level leads the work of the procuratorate at lower level. Thus since its release, the Opinion has been actively implemented by the procuratorates at various local levels. It is reported that the Procuratorate, Public Security Organ and the People’s Court in the Luohu District of Shenzhen, Guangdong Province jointly signed a Methods for Speed Resolution of Minor Cases, requiring the handling period for minor cases including the investigation period, prosecutorial examination period and the trial period shall be within 37 days. As for the Procuratorate of Haidian District where I work in, we began to experiment the working mechanism of speeding resolution of minor cases since September 2006. While handling specific types of cases in the past one year, we speeded the resolution of cases during the arrest approval and prosecutorial examination period. Furthermore, we suggested the Public Security Institution accelerate the pace of investigation if a suspect is arrested. Compared with the past, the current rhythm of case handling has been accelerated dramatically and the duration reduced is 3 days, 30 days and 10 days separately for the arrest approval stage, post-arrest investigation and prosecutorial examination period. And for the total duration of case handling 43 days is reduced. In this way, the efficiency has been greatly improved.
    For the above reasons, we hold that the Opinion released by the SPP is of significant importance in terms of promoting the right to speedy trial for criminal suspects and defendants. As we know, the actualization of suspects’ rights always puts corresponding obligations to the law enforcement institutions. Once the law enforcement institutions speed the resolution of cases, the right to speedy trial would necessarily be improved. But for years, the stipulations regarding case speedy resolution are not adequate in Chinese criminal procedure law and other relevant laws. When the criminal procedure law was revised in 1996, speed resolution for minor cases attracted certain attention and the result of which was adding a simplified procedure for minor offenses to the CPL. But this procedure applies only to the trial stage. For the investigation and prosecutorial examination stage where usually quite a long time is spent, this kind of simplified procedure is absent. The law does not provide for a more simplified system for minor and simple cases. According to the existing CPL, the duration of pre-trial custody is divided to two kinds, one is for normal cases and the other is for complicated, hard or major cases. The simple and minor cases are not yet diversified from normal pre-trial proceedings. Therefore, it is necessary to introduce a working mechanism to speed the resolution of minor cases so as to provide a more comprehensive mode of criminal proceeding in China. In this sense, the Opinion issued by the SPP has made great exploration in this regard. It indicates the formal introducing of speedy case resolution at the level of working mechanism. Its application will provide helpful preparation and experiences for the formal establishment of a comprehensive system of speeding case resolution at various stages of criminal proceedings. In a long run, this will necessarily promote the accused’s right to speedy trial.