EU-CHINA HUMAN RIGHTS NETWORK
Working Paper on Right to Defence
DIALOGUE SEMINAR ON HUMAN RIGHTS
BEIJING 28-29 JUNE 2004
The Secretariat of the EU-China Human Rights Network
at the Institute of Law of the CASS would like to acknowledge the work of
Associate Professor Xiong Qiuhong in the preparation of this discussion paper.
The EU-China Human Rights Network is a project funded by the European
Commission. The opinions, findings and conclusions expressed do not necessarily
represent the views of the European Commission.
1
Right to Defence
The modern criminal procedure system is closely related to the issue of protection of
human rights and the person charged with a criminal offence as the focal figure is the
first one to enjoy human rights protection in criminal procedure. The degree of the
development and perfection of the criminal defence system of a country is usually an
important symbol of the level of it’s democracy and rule of law. If the modern
criminal procedural system is viewed as a complicated “net” woven with many
principles, systems and procedures, the criminal defence can be seen as a “knot” of
the net. The Sino-EU Judicial Seminar has set the right to defence as the topic in order
to carry out a discussion on such issues the right of defence as its concept, contents,
theoretical basis, international and regional standards, practical situation, etc., thus
aiming to reach a deeper mutual understanding and to promote the human rights
protection through dialogue and exchange between both sides.
A. Concept of the Right to Defence
Generally speaking, defence means, for the sake of self-protection or protection of
others, to present causes and facts to argue that some view or behavior is correct, or
the mistakes of which are not so serious as alleged by others. The defence in criminal
procedure means that the person on criminal charge or his defender, for purpose of
protection of the lawful rights of the person on criminal charge, rebut the criminal
charge in facts and law, provide evidence and causes in favor of the person on
criminal charge to demonstrate that he is innocent or the crime is minor and,
accordingly, the criminal liability should be mitigated or he should be exempt from
the criminal liability. The defence against the criminal charge includes alibi, consent
of the victim, liability of “legal person”, tort exempted from legal liability,
compulsion, trap, negligence, minority, mental disorder, being drunk, statutory
authorization, necessity, property protection, public liability,
incompetence,
self-defence, protecting others, etc.. Details of defence activity are in the presentation
and demonstration of the materials and causes in favour of the person on criminal
charge based on facts and law. Besides in substantiality denying the criminal charge
and providing the materials and opinions to demonstrate that the person on criminal
charge is innocent, or the crime is minor and the criminal liability should be mitigated
or the person on criminal charge should be exempted from criminal liability, the
defending side may also while in the procedure allege the procedural rights that the
2
person charged with a criminal offence has to prevent the person charged from unfair
treatment or offense that should not happen.
Criminal procedure is a judicial activity emerging along with the phenomenon of
crimes and its aim is to investigate crimes, to punish crimes, and the person under
investigation inevitably pleads against and rebuts the criminal charge in order to have
the criminal punishment mitigated or have him exempted from it and therefore
criminal defence has existed since ancient times. However, under different historical
circumstances, this phenomenon has been treated differently.
For instance, in the
feudalist interrogatory litigation, the person charged with a criminal defence became
an object of the litigation and he had no procedural rights at all. The confession of the
person on criminal charge was deemed the most powerful evidence, “the king of
evidence”. In order to obtain the confession from the person on criminal charge, it
even sacrificed the person on criminal charge in cruel interrogation with torture. Not
only the pleading and rebutting of the person on criminal charge were not respected
but also it was very frequent that the person on criminal charge was sent to savage
torture for this. In recent and modern history, in criminal procedure, defence of the
person on criminal charge is protected as a right and the person on criminal charge is
encouraged to express his own opinions, allegations and requirements. In addition to
allowing the person on criminal charge to defend himself, the law also permits the
person on criminal charge to entrust a defender to defend for him and even provides
free defence lawyer for the person on criminal charge. In criminal procedure, special
state authorities have the obligation to guarantee the person on criminal charge to
exercise his right to defence according to law.
As a legal right, the right to defence has the following features: (a) It involves
interests. The purpose of right to defence is to protect the lawful right of the person on
criminal charge that is a subject of right. (b) It should be claimed for. In criminal
procedure, the person charged with a criminal offence is the target whose criminal
liability the state investigates, it is very likely that the investigation of the state
impairs the justifiable interests of the person on criminal charge, so chances should be
given to the person on criminal charge to rebut and plead in order to allege or require
for his interests. (c) It necessitates the qualification for defence. In feudalist society,
the person on criminal charge had a moral competence to plead that he was innocent,
his crime was minor or the punishment should be mitigated. However, he did not have
the competence in law to defence against the criminal charge. Not until the latter-day
and modern society, the principle that “the person on criminal charge has the right to
3
acquirement of defence” has been placed in law so as to endow the person charged
with a criminal offence with the competence to defend against the criminal charge. (d)
It is authoritative. After the recognition of the state, the right to defence is protected
by the compulsory force and the violation of the right to defence may result in a legal
consequence and, if a procedural behavior which has been completed becomes invalid,
the special state authority accordingly undertakes the legal obligation to guarantee the
right to defence exercised by the person on criminal charge. To intensify the ability of
the person on criminal charge to defend his interest, the law provides that he may
entrust a defender or the court shall appoint a defender to assist him with protection of
his interests and fulfillment of his allegation. (e) It is performed with freedom. Since
the right to defence exists as a right, the person charged with a criminal offence is free
to choose defence for himself or reject defence for himself. In some continental law
countries, the law provides that compulsory defence will be implemented in special
cases so that such right to free choice is restricted to some extent.
In criminal procedure, such issues as the relationship between right to defence and
right to silence, how to view the rule of compulsory defence, how to view the status
and duty of the defender are to be discussed at this seminar.
B. Contents of the Right to Defence
“The right to defence” is usually used in abroad meaning or narrow meaning. In
China, it is generally believed that the person on criminal charge has the following
rights: the right to equality at the application of law without exception, the right to
using native language in litigation, the right to exemption from criminal liability
according to law, the right to defence, various rights to application, the right to appeal,
the right to petition, the right to requirement for open trial, the right to demand for
release, the right to demand for presentation of legal document, the right to demand
for proceeding with litigation within time limit, the right to check, supplementation
and correction of records, the right to counter-claim in private prosecution, the right to
complaint against the offense of his procedural right by the special authority, etc..
Among them, the right to defence refers to the right to rebutting and pleading against
the charge and to obtaining help of the defender. The “right to defence” in here is of
narrow meaning. The right to defence in narrow meaning is embodied through the
rights to statement, presentation of evidence, raising questions, debate, acquirement of
the help from the defender, etc.. The right to defence has a parasitic relationship with
4
other procedural right and they jointly compose the procedural rights system of the
person on criminal charge. Among these rights, the right to defence is the most
important procedural right of the person on criminal charge, is the core of the
procedural rights system of the person on criminal charge. The right to defence in
broad meaning, besides the right to defence in narrow meaning, also includes the
extension parts, such as the right to application for investigation on evidence, the right
to appeal, the right to petition, etc.. It could even be said in such a way that the right
to defence is the composition of all procedural rights of the person on criminal charge
because the purpose in general of the exercise of various procedural rights of the
person on criminal charge is to defend against the criminal investigation and
indictment and to protect the lawful rights of himself. In these rights, the right to
obtaining the help of the defender is the most effective one of all rights of the person
on criminal charge. It determines ability of the person on criminal charge to exercise
the other rights.
It is a universally recognized principle of law in various countries that the person on
criminal charge has the right to defence. It has crossed the boundaries of barriers of
social system, ideology, traditional culture of law and is widely established in the
criminal procedure laws in various countries. However, to what extent the person
charged with a criminal offence actually has to the right to defence varies. It is
generally believed that the person on criminal charge enjoys rather adequate right to
defence in adversary system, while such right is restricted to some extent in the
inquisitorial system. In general, there is a trend that the Right to defence of the person
on criminal charge expands and therefore the evolution of the history of the criminal
procedure is also called a history of the development of the right to defence.
In terms of contents of the right to defence, following details are described in the
provisions of laws in various countries: (a) the time when the person on criminal
charge appoints his defender and the number of the defenders; (b) qualification of the
defender, i.e., what kind of person may serve as a defender; (c) on what conditions,
when and how many may the defenders be appointed; (d) change of or waiver of the
defender; (e) situations in which compulsory measures are adopted; (f) conditions on
which the participation of the defender is excluded and the procedure thereof; (g)
disposal of the absence of the defender during the proceedings; (h) rules for joint
Defence; (i) duties and obligations of the defender; (j) particular rights of the person
on criminal charge and his defender at various stages in litigation; (k) disposition of
the null Defence of the defender; (l) obligations of the judicial authorities to guarantee
5
the adequate exercise of the Right to defence by the person on criminal charge and his
defender, for instance, to inform according to law the person on criminal charge of his
right to entrustment of defenders to defend for himself, to serve document relating to
the litigation on time, to adopt the right to defence opinions of the defending side, etc..
The defence systems in various countries have much deference owing to the influence
of the social system and historical traditions, but there are many common points. In
general, defence system have endured a constant progress of enrichment, increasing in
skill and development, which is regarded as a focus of the transformation of a
criminal judicial system.
Regarding the specific contents of the right to Defence, what are the rules in China
and EU, what rules can be learnt by the other side, what tendency has emerged in the
development of the Defence system in the criminal judicial reform, communications
will be made between the Chinese side the its EU counterpart on these issues.
C. Theoretical Basis for the Right to Defence
Why is the person on criminal charge endowed with the right to defence in criminal
procedure and an intact defence system to be built up? How to reveal the existence
foundation of the right to defence in modern judicial philosophy? These issues are not
avoidable in our discussion about how to perfect the legislation relating to the defence
system to facilitate the promotion of this system in judicial practice, or saying in such
a way, to achieve the best result of the implementation of law.
The defence system has endured many difficulties in China, and even came to an end
for a period of time. The right to defence of the person on criminal charge are some
times disregarded in practice. There are many reasons for this one of which is that the
theoretical basis of the right to defence is not well recognized.
In China, Marxist theory of antinomy and unification has been regarded as the
important theoretical basis for establishment of criminal defence system. In this view,
prosecution and defence are the two opposite sides in criminal procedure and they
exist in a contradictory unity. It is impossible to lack one of them. No prosecution, no
Defence. Defence aims at the prosecution and the latter in turn needs observation and
examination through Defence. The debate process between prosecution and Defence
is a progress in which the truth of case gradually comes out, also a course in which
6
people deepen their awareness of the case. Investigation of crimes is a complicated
progress in which the prosecution confronts with the Defence. Due to the limit and
deference of the abilities of staff members who handle the case, it is hard to avoid the
discrepancy between the subjective and the objective, which results in the
consequence that the truth of the case cannot be revealed through investigation and
the law cannot be right applied. The law of unity of opposites requires the
co-existence and struggle of the prosecution and Defence in criminal procedure and
that they unite each on the basis of respecting the facts and law. For the judge of the
case, the establishment of Defence system favors him “to listen to both sides and get
enlightened”. During a long period, some scholars tends to equate criminal procedural
activities with the recognition activities, during which the common task of the public
security authority and the judicial authorities is to find out the truth of the case and,
based on this, to handle the case pursuant to law. As a result, the positive role played
by the Defence system in finding out the substantial truth of the case is viewed as the
most import embodiment of its procedural value. Some people doubt, even take denial
attitude to the Defence system when they associate it with the disincentive in finding
out the substantial truth. In judicial practice, some judicial staff also regard Defence
system as an approach to find out the truth of the case by the public security authority
and attention to the protective role of Defence system in fulfillment of the procedural
justice has not be paid as it should have.
In recent years, some scholars assert the principle of the presumption of innocence
should be the theoretical basis for the right to defence and they hold that this principle
provides a basis through a presumption – the person on criminal charge has a status of
innocent in law before the court renders a verdict that the defendant is guilty - for
various human right protection system in criminal procedure. In the meantime, some
scholars assert against it for the following main reasons: (a) in logic, the principle of
the presumption of innocence makes the Right to defence to be exercised basically
with a passive attitude. In contrast, the principle of guilt presumption seems better to
drive the defendant into a positive exercise of the Right to defence. If the principle of
the presumption of innocence is determined as the basis of existence of the right to
defence, it will hamper the expansion of the Right to defence. (b) The principle of the
presumption of innocence cannot be used to explain why it guards against the right to
defence of the person captured when he is committing a crime and why in some cases
the defender begins his defence from acknowledging the guilt. (c) the principle of the
presumption of innocence cannot be used to explain why the defendant is endowed
with right to defence in the retrial proceedings.
7
The theoretical basis of the right to defence is an arguable topic in China. The
theoretical basis of the provisions of law of the European countries for the right to
defence is apparently different from that in China in some way. The deference of the
theoretical basis results in some deference in the relevant provisions of law (for
instance, the scope of Right to defence, rights, obligations and duties of the defender,
etc.) Therefore, it is necessary to discuss about the theoretical basis of the right to
Defence to get more common understanding at the ideological level for further
promotion of the criminal defence system.
D. International Standards of Criminal Defence
To promote effectively the worldwide co-operation in the criminal judicial area and to
urge every country to constantly improve the criminal judicial system, based on its
study of the reform experiences in criminal judicial system in various countries, the
United Nations has adopted a series of international documents to establish the
principles and standards on the criminal justice. As revealed in the contents of the UN
standards on the criminal justice, besides only a few are involved in the human rights
protection of the victim in criminal justice, the overwhelming majority are standards
on the protection of rights enjoyed by the person on criminal charge in criminal
justice. The right to defence as one of the most important procedural rights of the
person on criminal charge has drawn extremely great attention from the United
Nations.
Article 11 of the Universal Declaration of Human Rights adopted and promulgated by
the United Nations General Assembly in 1948 states that any one on criminal charge
has the right to be seen as innocent before he is identified guilty according to law on a
open trial everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has had all
the guarantees necessary for his defence. The United Nations Commission on Human
Rights was aware of the importance of the Right to defence and conducted a study on
“the right to communication of the arrested person to guarantee his Defence or the
protection of his interests” in 1961. Article 14 of the International Convention on
Civil and Political Rights adopted by the General Assembly of the United Nations in
1966 (the Convention) states the following: everyone shall be entitled to the following
minimum guarantees, in full equality: …(b) To have adequate time and facilities for
8
the preparation of his Defence and to communicate with counsel of his own
choosing; …(d) To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment by him in any such case
if he does not have sufficient means to pay for it. Article 93 of the Standard Minimum
Rules for the Treatment of Prisoners adopted by the First United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council in its resolution No. 663(XXIY) of 31
July 1957 states that for the purposes of his defence, an untried prisoner shall be
allowed to apply for free legal aid where such aid is available, and to receive visits
from his legal adviser with a view to his defence and to prepare and hand to him
confidential instructions. For these purposes, he shall if he so desires be supplied with
writing material. Interviews between the prisoner and his legal adviser may be within
sight but not within the hearing of a police or institution official. Article 5 of the
Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty
adopted by Economic and Social Council resolution 1984/50 of 25 May 1984
provides that capital punishment may only be carried out pursuant to a final judgment
rendered by a competent court after legal process which gives all possible safeguards
to ensure a fair trial, at least equal to those contained in article 14 of the International
Convention on Civil and Political Rights, including the right of anyone suspected of
or charged with a crime for which capital punishment may be imposed to adequate
legal assistance at all stages of the proceedings. Rule 15.1 of United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”)
Adopted by General Assembly resolution 40/33of 29 November 1985 states
“throughout the proceedings the juvenile shall have the right to be represented by a
legal adviser or to apply for free legal aid where there is provision for such aid in the
country.” The Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment（The Body of Principles）Adopted by General Assembly
resolution 43/173 of 9 December 1988 details the Right to defence of the detained
person or the person in prison. Article 40 of the Convention on the Rights of the Child
adopted by the General Assembly of the United Nations resolution 44/25
of 20
November 1989 provides the minimum protection for the child on criminal suspicion
or criminal charge, including the Right to defence. Whereas the important role of the
lawyer or the person who does not have the formal status of lawyer but exercises the
lawyer’s function in promotion of justice and public interests, the Basic Principles on
the Role of Lawyers （Basic Principles）adopted by the Eighth United Nations
9
Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba,
27 August to 7 September 1990 covers several provisions on lawyer defence.
The United Nations not only has confirmed in some international documents the
principle that the person on criminal charge has the right to obtaining Defence but
also formalized the standards on exercise of criminal Defence in various countries,
especially the Body of Principles and the Basic Principles, these two international
documents provide a rather systematic rule for criminal Defence. The UN
international standards on criminal Defence roughly cover the following:
(A) The person on criminal charge has the right to defend himself and the right
to choosing the lawyer to assist him with defence
Besides Article 14 of the Convention, Paragraph 1 of the Principle 11 of the Body of
Principles also clearly state that the detained person should have right to defence for
himself or to the lawyer’s assistance in Defence according to law. Article 1 of the
Basic Principles further state that everyone has right all persons are entitled to call
upon the assistance of a lawyer of their choice to protect and establish their rights and
to defend them in all stages of criminal proceedings.
Self-defence and representative defence are two forms that the person on criminal
charge exercises his right to defence. The person on criminal charge is the target
against whom the criminal procedure is conducted, he is very clear in his mind as to
whether he has committed the crime and how he committed the crime. His
self-defence is helpful to judicial authorities paying adequate attention to the opinions
of the person on criminal charge when determining the facts of the case in order to
render right verdict. The defence of the entrusted lawyer is a necessary means of the
person on criminal charge to exercise the Right to defence. In general, the person on
criminal charge lacks legal knowledge to some extent, what’s more, a compulsory
measure is adopted against him so that his freedom is restricted in some way and he
cannot get to know much about the case and collect materials in favor of himself,
sometimes may loose the basis for self-defence. This makes the lawyer defence role
become the most important protection of right to defence to be exercised for the
person on criminal charge. In addition, the participation of the lawyer may play a role
in supervision of the judicial staff in their case handling.
(B) Each country should formulate the procedure and mechanism for the
10
protection of the right to Defence of the person on criminal charge.
Article 2 of the Basic Principles state that governments shall ensure that efficient
procedures and responsive mechanisms for effective and equal access to lawyers are
provided for all persons within their territory and subject to their jurisdiction, without
distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex,
language, religion, political or other opinion, national or social origin, property, birth,
economic or other status.
It is far from enough that the law provides principles saying that the person on
criminal charge has the right to acquirement of the defence. The right to defence
would be in vain if it lacks of the protection in procedure a mechanism. Principles of
equality, promptness and effectiveness should be observed in formulation of the
protection mechanism of right to defence. “Equality” requires every person on
criminal charge should be treated equally without discrimination, “promptness”
requires the earliest participation of the lawyer in litigation and “effectiveness”
requires the lawyer to provide legal services of high quality. Only this can the right to
defence of the person on criminal charge be adequately protected.
(C) Appointing the lawyer to provide legal aid for the poor.
The Convention provides legal aid for the person on criminal charge. Paragraph 2 of
Principle 17 of the Body of Principles states that if a detained person does not have a
legal counsel of his own choice, he shall be entitled to have a legal counsel assigned
to him by a judicial or other authority in all cases where the interests of justice so
require and without payment by him if he does not have sufficient means to pay
Article 6 of the Basic Principles provide that any such persons who do not have a
lawyer shall, in all cases in which the interests of justice so require, be entitled to have
a lawyer of experience and competence commensurate with the nature of the offence
assigned to them in order to provide effective legal assistance, without payment by
them if they lack sufficient means to pay for such services. The Basic Principles
further provide that governments shall ensure the provision of sufficient funding and
other resources for legal services to the poor and, as necessary, to other disadvantaged
persons. In addition, according to the rules of the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice, the legal aid enjoyed by the minority
is not only limited to the poor minority, nor limited in the scope of the cases where the
“interests of justice” so require. Article 27 of the Guidance on the Prevention of
11
Crimes and Criminal Justice in the Development of New International Economic
Order adopted at the 7th UN Conference on the Prevention of Crimes and Treatment
of Criminals in 1985 demands every country to do its best to provide legal aid, or
where there is no such mechanism, to establish appropriate mechanism to provide
legal aid and protect the fundamental human rights.
(D) The time for the person on criminal charge to choose his lawyer.
The Convention provides that the person on criminal charge should have adequate
time and facilities for the preparation of his defence and to communicate with counsel
of his own choosing. Principle 15 of the Body of Principles provides that
communication of the detained or imprisoned person with the outside world, and in
particular his family or counsel, “shall not be denied for more than a matter of days”;
while Principle 17 states that the person shall be informed of his right to the assistance
of a legal counsel by the competent authority “promptly” after arrest. Article 1 of the
Basic Principles require the lawyer to defend for the person on criminal charge in “all
stages of criminal proceedings”; and Article 5 provides that governments shall ensure
that all persons are immediately informed by the competent authority of their right to
be assisted by a lawyer of their own choice upon arrest or detention or when charged
with a criminal offence; while Article 7 says that governments shall further ensure
that all persons arrested or detained, with or without criminal charge, shall have
prompt access to a lawyer, and in any case not later than “forty-eight hours from the
time of arrest or detention”. The significance of the above rules urges the lawyer to
participate in the criminal litigation as soon as possible. The time for initiation of the
criminal procedure is also the time for the person on criminal charge to exercise his
right to obtaining the lawyer’s help. The lawyer’s participation at the earliest time can
effectively prevents illegal conducts such as inquisition by torture and can collect
relevant evidence in time in order to effectively protect the lawful rights of the person
on criminal charge.
(E) Rights of the person on criminal charge to communication and meeting with
his lawyer.
The Standard Minimum Rules for the Treatment of Prisoners provides that an untried
prisoner shall be allowed to receive visits from his legal adviser and interviews
between the prisoner and his legal adviser may be within sight but not within the
hearing of a police or institution official. Principle 18 of the Body of Principles states
12
the following: (i) A detained or imprisoned person shall be entitled to communicate
and consult with his legal counsel. (ii) A detained or imprisoned person shall be
allowed adequate time and facilities for consultation with his legal counsel. (iii) The
right of a detained or imprisoned person to be visited by and to consult and
communicate, without delay or censorship and in full confidentiality, with his legal
counsel may not be suspended or restricted save in exceptional circumstances, to be
specified by law or lawful regulations, when it is considered indispensable by a
judicial or other authority in order to maintain security and good order. (iv) Interviews
between a detained or imprisoned person and his legal counsel may be within sight,
but not within the hearing, of a law enforcement official. (v) Communications
between a detained or imprisoned person and his legal counsel mentioned in the
present principle shall be inadmissible as evidence against the detained or imprisoned
person unless they are connected with a continuing or contemplated crime. Article 8
of the Basic Principles say that all arrested, detained or imprisoned persons shall be
provided with adequate opportunities, time and facilities to be visited by and to
communicate and consult with a lawyer, without delay, interception or censorship and
in full confidentiality. Such consultations may be within sight, but not within the
hearing, of law enforcement officials.
The meeting right of the detained person on criminal charge with his lawyer is the
fundamental procedural right of the person on criminal charge. Through meeting, the
lawyer may get to know the relevant situations of the case from the person on
criminal charge, get to know whether the person on criminal charge has been treated
inappropriately by the investigation authority and can provide legal advice for the
person on criminal charge. This is the basis for the fulfillment the defence function by
the lawyer in the process of litigation. The meeting should be confidential because
only in this way has the meeting right its meaning as it should have. To prevent the
person on criminal charge from breaking prison or other accident from happening, the
law enforcement staff members may supervise to “such an extent that it is visible but
inaudible”. It facilitates the fulfillment of the role of the meeting right to guarantee
that the person on criminal charge has “adequate chance, time and facilities” for
meeting with his lawyer.
(F) To guarantee the effective defence for the person on criminal charge by the
lawyer.
The Basic Principles provide measures for the person on criminal charge to obtain
13
effective Defence of the lawyer in the following aspects:
(a) Qualifications and training of the lawyer. The Lawyer should have good ethics and
be professional in practice. This is the necessary condition for the lawyer to conduct
effective defence. The Basic Principles require that the government, lawyers’
professional organizations and educational institutions of every country should
guarantee that the lawyer has appropriate educational background and training and
has the basic awareness of a lawyer’s ideal, ethical obligations and the human rights
and freedom universally recognized by the domestic law and international law.
(b) The lawyer’s obligations and duties. The Basic Principles provide the following: (i)
Lawyers shall at all times maintain the honour and dignity of their profession as
essential agents of the administration of justice, shall seek to uphold human rights and
fundamental freedoms recognized by national and international law and shall at all
times act freely and diligently in accordance with the law and recognized standards
and ethics of the legal profession. (ii) Lawyers shall assist clients in every appropriate
way, and taking legal action to protect their interests. Lawyers shall always loyally
respect the interests of their clients. In criminal proceedings, on the one hand, the
lawyer as the protector of the person on criminal charge must adhere to utilization of
all means and ways and legal knowledge available and permitted by law to reflect the
interests of the person on criminal charge in the proceedings as possible as he can.
The Lawyer is not allowed to act against the person on criminal charge. On the other
hand, the lawyer should observe their ethics and cannot help the person on criminal
charge conceal, destroy or counterfeit the evidence or act in collusion to make
confessions of the persons on criminal charge identical, or threaten, attempt to make
the witness change his testimony or to provide false testimony, cannot adopt the
methods totally deviate from the objective facts and the fundamental spirit of law to
maintain the interests of the person on criminal charge.
(c) Rights to practice as the lawyer. (i) The lawyer is immune from the civil and
criminal liabilities. The Basic Principles provide that lawyers shall enjoy civil and
penal immunity for relevant statements made in good faith in written or oral pleadings
or in their professional appearances before a court, tribunal or other legal or
administrative authority. To immunize the lawyer from civil and criminal liabilities is
for the purpose of extricating the lawyer from internal pressure and compelling their
misgivings of liabilities so that he is bold to defend for the person on criminal charge.
(ii) To guarantee the right of the lawyer to reference to the file. The Basic Principles
14
state that it is the duty of the competent authorities to ensure lawyers access to
appropriate information, files and documents in their possession or control in
sufficient time to enable lawyers to provide effective legal assistance to their clients.
The Basic Principles require that such access should be provided at the earliest
appropriate time. The right to reference to the file is an extremely important
procedural right of the lawyer. Through reference to the file, the lawyer may get to
know situations of the case in all aspects and get to know to materials in favor of the
person on criminal charge and find out the doubtful points in the case so as to provide
strong defence opinions. (iii) To establish the principle of professional confidentiality
for the lawyer. The Basic Principles provide that governments shall recognize and
respect that all communications and consultations between lawyers and their clients
within their professional relationship are confidential. It is a fundamental principle
which should be observed in the relationship between the lawyer and the person on
criminal charge that the lawyer shall keep secrets in his profession. Only when this
principle is established can the person on criminal charge be encouraged to provide to
the lawyer the complete description of the case to help the lawyer play his Defence
role.
(d) Measures to guarantee the lawyer’s performance of his defence duty. To ensure
that the lawyer can formally perform the defence duty in criminal proceedings, the
Basic Principles have established the following rules: (i) To guarantee the lawyer’s
independence and personal safety in their practice. Governments shall ensure that
lawyers are able to perform all of their professional functions without intimidation,
hindrance, harassment or improper interference; are able to consult with their clients
freely; and shall not suffer, or be threatened with, prosecution or administrative,
economic or other sanctions for any action taken in accordance with recognized
professional duties, standards and ethics. Where the security of lawyers is threatened
as a result of discharging their functions, they shall be adequately safeguarded by the
authorities. (ii) To have the lawyers’ professional organization fully play its role.
Lawyers should have their rights to establish and participate in their professional
organization managed by themselves to represent their own interests, promote their
enjoying education and training and protect their professions to consummate. The
executive organ of the professional organization should be elected and formed by its
members and carry out its duties without external interference. Lawyers’ professional
organization should guarantee the lawyer to provide opinions to and assist his client
without inappropriate interference and according to law as well as the universally
recognized professional standards and ethics. (iii) The disciplinary proceedings
15
against the lawyer should be conducted in justifiable proceedings. Firstly, the lawyers’
ethics should be formulated by the legal domain through its relevant institution or by
the legislation according to the domestic law and practice as well as the universally
recognized international standards and rules. Secondly, the charge or complaint
against the lawyer should be promptly and justifiably handled in proper proceedings.
The lawyer should be entitled to be tried fairly, including to obtaining the assistance
of a lawyer of his choosing. Thirdly, the disciplinary proceedings against the lawyer
should be presented to an impartial and disinterested discipline board established by
the legal sector to handle it, or be presented to an independent statutory body or to the
court to handle it, which should also be subject to the judicial scrutiny. Lastly,
judgment should be rendered according to the lawyers’ ethics and other widely
accepted rules and lawyers’ professional ethical standards in every disciplinary
proceeding.
The principle of safeguarding the equal, timely and effective access of the accused to
the aid of legal counsel and the particular standards on criminal defence system
established in the UN documentary have a universal significance of guidance in the
development and consummation of the criminal Defence system in every country. It is
a issue worthy to be concerned how to correctly understand the international standards
of the criminal Defence.
(G) The EU standards and practice of criminal Defence.
Paragraph 3 of Article 6 of the European Convention on Human Rights states that
everyone charged with a criminal offence has the following minimum rights: (b) to
have adequate time and the facilities for the preparation of his defence; (c) to defend
himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of
justice so require…. The rules of the right to defence in the European Convention on
Human Rights (The European Convention) are roughly the same with those of the
International Convention on Civil and Political Rights.
The European Commission on Human Rights and European Court of Human Rights
further interpret the above rules through cases as following:
(a) Regarding the “adequate time”. The European Commission on Human Rights
holds that Article 6 (3) (b) of the European Convention guarantees the right of the
defendant not to be tried hastily. It depends on the particulars of each case to evaluate
16
whether there is “adequate time”. The following factor should be considered: the
nature of the charge, the level of jurisdiction, the nature of the scrutiny, etc.. In
calculation of the length of the time, such time should also be considered as when the
charge is informed of, when the hearing notice is given, when the arrest is adopted
and when the lawyer is appointed, when the indictment is received, when the
defendant entrusts his lawyer. In practice, it takes 8 months, or 4 months and even 30
days for preparation in the first instance in some cases, and the Convention Authority
has not held that it violates the requirement of the Convention.
(b) Regarding the “adequate facilities”. The European Commission on Human Rights
pointed out in the report of the Can v. Austria case that Article 6 (3) (b) of the
European Convention guarantees the defendant through the appropriate method to
organize his Defence and guarantees the defendant as possible as it can to produce all
of the relevant Defence causes without limitation in the court and to affect the
consequence of the proceedings. If this possibility has not been provided, it would
constitute the breach of the Convention. In a specific case, it depends on the situation
of the case to determine whether the “adequate facilities” have been satisfied. The
conditions of defence mainly involve the following aspects: (i) To present the
evidence and refer to the file. According to the report of the European Commission on
Human Rights on the Jespers v. Belgium case, the prosecutor has the obligation to
present any material it has that is in favor of the defendant’s defence. The European
Commission on Human Rights holds that reference to the file is a right guaranteed by
the Convention and the defendant, as the prosecutor, should be able to know all of the
contents of the file. (ii) To be informed of the time for hearing. (iii) To have adequate
chance in the trial proceedings to respond charges and to produce his evidence.
(c) Regarding the legal aid. Article 6 (3) (c) guarantees the right to free legal aid, but
conditioned on two premises: (i) the individual concerned cannot afford enough the
payment for the legal aid; (ii) the “interests of justice” requires the European Court of
Human Rights to believe that the legal aid should be offered. In its interpretation of
this rule, the European Court of Human Rights pointed out to the effect
that …interests of justice cannot… be interpreted as the automatic grant of legal aid in
the following cases: a sentenced person, who has accepted a fair trial in the first
instance as defined by Article 6, hopes to appeal with no objective possibility of
winning the case at all. When determining what constitutes ‘the interests of justice so
requires’, the European Court of Human Rights will take into consideration the nature
of the proceedings, power of the court, the capability of the un-represented parties to
17
the proceedings (defendant or claimant) to raise the argument, and assessment of the
significance of the issue in light of the severity of the judgment. The right to legal aid
does not extend to guaranteeing the defendant’s right to the choice of attorney or
pleading to the court on the choice of attorney.
Regarding the European standards and practical situations of the criminal Defence,
they need further explanations of the European scholars at the seminar in order to
afford favorite experience to consummate the legislation and justice of criminal
defence in China.
(H) Criminal Defence in China.
The Criminal Procedure Law of China promulgated in 1979, besides it expressly
provides the principle that “a defendant shall have the right to Defence, and the
People’s Courts shall have the duty to guarantee his Defence”, provides rules in a
special chapter on “Defence”. The Provisional Rules of Lawyers promulgated in 1980
provide the lawyer’s task, rights, the lawyer’s qualifications and the lawyer’s working
institution. In March 1996, China amended the Criminal Procedure Law to a large
extent. It was one of the targets of this reform to “intensify the protection of the
lawful rights of the criminal suspect, the defendant and to raise the positions of the
criminal suspect and the defendant.” The amended Criminal Procedure Law has
greatly advanced to time for the participation of the lawyer of other defenders in the
criminal procedure and clearly prescribes the number, qualifications of the defenders,
the scope of the appointment of defenders is expanded and the procedural rights of the
lawyer or other defenders are expanded. In May, 1996, the Law of Lawyers was
promulgated in China. The Law of Lawyers provides systematic rules on the
conditions for lawyer’s practice, the law firm, businesses of the lawyer, the rights and
obligations of the licensed lawyer, legal aids, the association of lawyers, legal
liabilities of the lawyer, etc.. The reformed criminal Defence system in China has
expanded the right to defence owned by the person on criminal charge and intensified
the protection of the right to defence of the person on criminal charge, narrowed the
gap between its standards and those of the UN criminal judicial standards. However,
in contrast with the rules of the international standards, a fair gap still exists. For
instance, the Criminal Procedure Law says “the investigation organ may, in light of
the seriousness of the crime and where it deems it necessary, send its people to be
present at the meeting” and in some way restricts the right of the criminal suspect to
meeting with the lawyer, which has some disparity when compare with the
18
international rule that the meeting should be in confidentiality. The defence lawyers at
the trial stage can only consult, extract and duplicate “the catalogue of evidence, list
of witnesses and duplicates or photos of the main evidence” that the Procuratorate has
transferred to the court, the right of first information of the defendant side is not fully
guaranteed. The crime of forgery of evidence of the lawyer provided in the Criminal
Law greatly increases the risk in practice for the lawyer. The legal aid system is still at
the primary stage of establishment, in comparison with those of the European
countries, the legal aid has a rather narrow coverage, etc..
At present, the Criminal Procedure Law of China is facing another amendment. It is
an important issue that merits attention in the amendment of the Criminal Procedure
Law how to further enhance the guarantee of Right to defence of the person on
criminal charge through the reform of the criminal judicial system.
The principle of safeguarding the equal, timely and effective access of the accused to
the aid of legal counsel is a guiding ideology observed by the United Nations when
formulating the international standards of the criminal defence, it should also be the
target to improve and consummate the criminal defence system in every country. The
development and consummation of the criminal defence system is a systematic
project which involves the legislative amendments, correct understanding and
implementation of law in judicial practice and further distillation of the people’s
awareness of the criminal defence system. For this reason, we have prepared such 6
topics as the theoretical analysis of the criminal defence system, human rights
Convention and the reform of the criminal defence system, the defence in the pre-trial
proceedings, the defence in the trial proceedings, the defence in the case of death
penalty, the criminal defence and the legal aid in order to discuss deeply about the
issue of defence of the person on criminal charge from the angle of combination of
theory, legislation and practice.
Relevant Reference Materials:
1. Article 11 of the Universal Declaration of Human Rights;
2. Article 14 of the International Convention on Civil and Political Rights;
3. Article 6 of the European Convention on Human Rights;
4. UN Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment;
5. UN the Basic Principles on the Role of Lawyers;
19
6. General comment of the UN Human Rights Committee on Article 14 of
International Convention on Civil and Political Rights;
7. Manfred Nowrk: Commentaries on ICCPR, Chinese edition, translators: Xia Yong
and so on; pp. 252－253; pp. 254－257;
8. Stephanos Stavros: the Guarantees for Accused Persons under Article 6 of the
European Convention on Human Rights: An Analysis of the Application of the
Convention and a Comparison with Other Instruments, pp. 175 – 186; pp. 201－222.
9. Relevant materials of “Seminar on Initiating Project of Enhancement of Defence in
Death Penalty Cases in China;
10. Relevant materials of “Network Seminar on the Access to Justice”, EU-China
Human Rights Network
20