A particular subject of concern to criminal lawyers is their vulnerability to prosecution for the crime of falsifying evidence under article 306 of the Criminal Procedure Law (article 307 universally prohibits falsification of evidence and perjury). This article prohibits lawyers from tampering with evidence and coercing or luring witnesses into changing their testimony and applies in situations in which witnesses recant statements made earlier (in most circumstances, to investigative organs).125
Although article 306 is not on its face objectionable, in practice it has been manipulated to intimidate lawyers or prevent them from effectively representing their clients. Some lawyers have been charged under article 306 after defendants or witnesses misrepresented facts to them or fabricated evidence without their knowledge. In other cases, prosecutors have brought charges against defense lawyers because a witness or client claimed an earlier statement to investigators was made under duress or for other reasons was inaccurate.
The provisions of article 306 are particularly detrimental for the rights of the defense because they make challenging the evidence presented by the prosecution highly risky for a lawyer. Lawyers in general are adamant that many cases of alleged falsification of evidence are initiated in bad faith by the prosecution, as a way to retaliate against the defense, in what is commonly called judicial retribution [sifa baofu]:
A lawyer interviewed by Human Rights Watch said that the risks presented by article 306 had made criminal cases the least attractive to defend:
This situation has a clear chilling effect for defense lawyers, who may decide to defend clients less forcefully than they otherwise would for fear of displeasing the prosecution. As one lawyer told Human Rights Watch:
Zhang Jianzhong, a prominent lawyer and advocate who served as the head of the committee on lawyers rights of the Beijing Lawyers Association, was arrested in May 2002 and sentenced to two years in prison in December of the same year under article 307 for allegedly having assisted with the fabrication of evidence. Many lawyers speculated that this case was retribution for his having mounted a vigorous defense in two of the most high-profile corruption cases involving government officials in recent years, the cases of Li Zhou and Cheng Kejie. In an unusually strong and public response, over 500 lawyers signed a petition in his support, while legal academics and the All-China Lawyers Association submitted legal analyses to help his defense.
In another case, Chongqing lawyer Jiang Daocai spent 197 days in prison in 2004 on charges of helping his client to destroy evidence. Eventually the prosecution agreed to drop the case when the court deemed the charges baseless. While in jail Jiang was prohibited from taking up any cases. In its verdict, the Chongqing Yongchuan municipal court wrote that the procuratorate of Yongchuan had no basis for initiating the prosecution of Jiang Daocai. But Jiang had been sufficiently discouraged. He subsequently told a journalist:
Wang Wanxiong, a lawyer from Hubeis Tijiang municipality law firm, was arrested in July 2001 on the instruction of the Procuracy. In February 2002, the local court acquitted him and he was released, but the Procuracy appealed. It was not until March 2004 that the Hubei Peoples High Court finally fully exonerated him.130
Wang Yibing, a lawyer from a Heilongjiang law firm working in Kunming (Yunnan province) was detained in December 1997, before being acquitted by the appeals court two years later.
The manipulation of article 306 also contributes to the general impunity for police officers who engage in torture and ill-treatment of suspects in pre-trial detention, a time when officers are particularly eager to obtain confessions. Many lawyers would like to be able to challenge depositions obtained under duress, but are unwilling to do so because of the risks of prosecutions. The UN Special Rapporteur on Torture Manfred Nowak recommended in 2005 that the government Abolish Section 306 of the Criminal Law, according to which any lawyer who counsels a client to repudiate a forced confession, for example, could risk prosecution.131
Public concern in China has grown since 2005, when two high profile cases of wrongful convictions were revealed. She Xianglin, a villager from Hebei, was freed after serving 11 years for the murder of his wife, after she returned alive to her village. Another man, Nie Shubin, turned out to have been wrongly executed for a rape and murder after the real killer confessed. The president of the Supreme Peoples Procuratorate, Jia Chunwang reported in March 2006 that 930 officials had been investigated for torture of detainees in 2006, adding that the issue had not been effectively scrutinized and addressed.132
It is unclear how many lawyers have been prosecuted, detained, arrested, sanctioned or effectively prevented from defending their clients through the manipulation of article 306. According to a prominent lawyer interviewed by Human Rights Watch, a survey by the All-China Lawyers Association showed that over 500 lawyers were detained, accused, or sanctioned for falsification of evidence under article 306 between 1997 (when the article was introduced) and 2002, but 80% of them were ultimately cleared of any wrongdoing. The survey has not been published.
In 2006, sources quoted by the Ministry of Justice-run Legal Daily put the number of lawyers detained in connection with such charges at 200, though the article did not specify the period considered.133 Lawyers commonly assert that about 80 percent of cases in which lawyers are prosecuted are related to article 306 offences, although this may bundle together all the difficulties encountered in gathering evidence, not only with respect to article 306.134
Some legal scholars have argued that falsifying evidence became the weapon of choice to prosecute lawyers as soon as it was introduced, replacing the use of embezzlement charges, but that the number of prosecutions against lawyers has not increased overall.135 They also point out that retaliatory prosecutions also reflect the fact that criminal lawyers have become more adroit in defending the rights of criminal suspects:
In any case, the charge that article 306 is often manipulated by the Procuracy is supported by the fact that many cases involving such charges never reach the trial stage after police or prosecutorial investigation. But even if the case does not lead to an indictment, the lawyer loses considerable time and energy to defend himself, not to mention the amount of lost fees and his ability to work.137
This continues to make criminal cases unappealing to lawyers. Following an article describing the plight of lawyer Jiang Daocai in Chongqing, the head of a law firm in Sichuan province expressed thoughts typical of many in the legal profession:
Unsurprisingly, there is a wide consensus among lawyers that article 306 should be repealed. Many lawyers have written in professional publications to criticize the article and its misuse by the Procuracy to retaliate against the defense.
As Chen Ruihua, a law professor at Beijing University who has argued repeatedly against this provision, stated to the Ministry of Justices Legal Daily in July 2007:
A prominent lawyer who is also a delegate to the National Peoples Congress, Zhang Yan, has repeatedly called for the repeal of article 306. As early as 2000, she introduced a resolution calling for the withdrawal of the article. In 2006, she again introduced a resolution to that effect, listing four main reasons for the abolition, including the unwillingness of lawyers to take up criminal cases.140
Lawyers publications often cite the fact that the average number of criminal cases taken up each year by lawyers in Beijing dropped from 2.64 in 1990 to 0.78 in 2000, although this does not take into account the fact that the number of lawyers grew considerably during the same period.141 The risks of prosecutorial retaliation, along with a system of fixed-fees that make criminal cases financially unattractive, are cited by lawyers as major factors that dissuade them from taking up criminal cases.
Article 306 has a particularly deleterious effect on the ability of lawyer to represent human rights cases. Victims of abuses committed by agents of the state, especially by the public security, are already an irritation to the judicial authorities, thus presenting a considerable disincentive for lawyers to take them as clients, especially if the victims face criminal charges. It is telling that the numbers of lawyers representing high-profile dissidents are very small; in fact, a single law firm, that of Mo Shaoping, has represented the great majority of them. And, as he points out, I have yet to win a single case.142
125 Article 306 provides that If, in criminal proceedings, a defender or law agent destroys or forges evidence, helps any of the parties destroy or forge evidence, or coerces the witness or lures him into changing his testimony in defiance of the facts or give false testimony, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Where a witnesss testimony or other evidence provided, shown or quoted by a defender or legal agent is inconsistent with the facts but is not forged intentionally, it shall not be regarded as forgery of evidence.
126 Human Rights Watch interview with G.W., a Guangzhou lawyer, January 2007.
127 Human Rights Watch interview with G.J., a non-criminal lawyer in Beijing, April 2007.
128 Human Rights Watch interview with M.Y., a criminal lawyer in Beijing, May 2007.
129 First case of perjury for lawyers brought by Chongqing municipality disintegrates, Time & Truth News, January 8, 2005 [重庆市首起律师伪证案尘埃落定, 时代信报, 2005-01-08], http://www.y-tlaw.com/bbs/read.php?tid=502&page=lastpost&fpage=4 (accessed April 8, 2008).
130 Hopes of elimination of the crime of perjury for lawyers, China Newsweek, April 26, 2004 [律师伪证罪有希望取消, 中国新闻周刊, 2006-04-26], pp. 29-31.
131 United Nations, Special Rapporteur on Torture Highlights Challenges at End of Visit to China, Beijing, 2 December 2005, http://www.unhchr.ch/huricane/huricane.nsf/view01/677C1943FAA14D67C12570CB0034966D?opendocument (accessed February 1, 2008).
132 Didi Kirsten Tatlow, Justice on trial: Two defense lawyers have taken up the cause of hundreds of men and women facing execution, who they say have been jailed under a flawed judicial system, South China Morning Post, October 30, 2007.
133 Lawyers call for the abolition of the perjury crime for lawyers three reasons listed, Xinhua News Agency, June 1, 2005 [律师呼吁取消 律师伪证罪列举三条理由, 新华网, 2005-06-01],
http://news.sina.com.cn/c/2005-06-01/08596046391s.shtml (accessed April 8, 2008).
134 A legal scholar put the proportion lower, based on a study of 70 cases from 1984 to 2006 where 33 were for fabrication of evidence. Fu Hualing, When Lawyers are Prosecuted: The Struggle of a Profession in Transition, Social Science Research Network, May 2007, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956500 (accessed November 7, 2007).
135 Fu Hualing writes that [P]olice and prosecution principally used the offences of covering up and malpractice for personal gains before 1997 to punish aggressive lawyers for challenging prosecutions case or for falsifying evidence, and when the amended CL [Criminal Law] became effective on 1 October 1997, they immediately switched to Article 306, abandoning the former charging practice. Fu Hualing, When Lawyers are Prosecuted: The Struggle of a Profession in Transition, Social Science Research Network, May 2007.
136 Fu Hualing, When Lawyers are Prosecuted: The Struggle of a Profession in Transition, Social Science Research Network, May 2007.
137 Human Rights Watch interview with G.W., a Guangzhou lawyer, January 2007.
139 A bottleneck in the system for lawyers gathering evidence Looking for a legislative breakthrough, Legal Daily, July 29, 2007 [律师调查取证遭遇 制度瓶颈 寻求立法突破, 法制日报, 2007-07-29], http://news.xinhuanet.com/2007-07/29/content_6446050.htm (accessed April 8, 2008).
140 Lawyers call for the abolition of the perjury crime for lawyers three reasons listed, Xinhua News Agency, June 1, 2005 [律师呼吁取消 律师伪证罪列举三条理由, 新华网, 2005-06-01.]
142 Mo Shaoping on the harmonious society, interview with Phoenix TV (Hong Kong), April 2007 (exact date not known), http://rfaunplugged.wordpress.com/2007/04/13/mo-shaoping-on-the-harmonious-society/ (accessed April 8, 2008).