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VII. Prosecution for Perjury

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]”:

Article 306 is vaguely phrased, and in particular there is no certainty about what exactly constitutes ‘luring [yin you]’ [a client or witness to falsify evidence]. In practice, if the client himself changes his testimony the lawyer is the one considered to have forged the evidence, and there are very big difficulties in defending against that sort of thing. This leads to a situation where many criminal defense lawyers can easily be detained.¹²⁶

A lawyer interviewed by Human Rights Watch said that the risks presented by article 306 had made criminal cases the least attractive to defend:

Lawyers in China often joke: ‘If you want to do law, avoid at all cost being a lawyer; if you want to be a lawyer, avoid at all cost criminal cases; if you do criminal cases, avoid at all cost gathering evidence; if you want to gather evidence, avoid at all cost taking testimonies. Ignore all this, and it is you who will end up in a cell!’¹²⁷

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:

If the prosecutor’s office tells you, ‘If you present this testimony in court we will arrest you for tampering evidence,’ what do you do? Do you go ahead and present the testimony nevertheless? In fact you have really no choice; you must find another entry point into the case to defend your client.¹²⁸

Zhang Jianzhong, a prominent lawyer and advocate who served as the head of the committee on lawyer’s 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:

I don’t know if I will ever be able to be a lawyer again, and I don’t know if I am still suitable to be a lawyer. I am now learning to be a driver, this is a great feeling…. Many of my lawyer friends have changed paths, because of the conditions prevailing in the legal profession.¹²⁹ 

Wang Wanxiong, a lawyer from Hubei’s 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 People’s 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 People’s 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:

Lawyers are intimidated and prosecuted because lawyers have become more proactive, aggressive and innovative in defending the rights of their clients and of their own, posing serious legal challenges that prosecution has never encountered before. This challenge is possible because criminal justice reform in China in the past ten years has created opportunities and incentives for a growing legal profession.¹³⁶

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:

This is why currently I am not doing criminal cases!

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 Justice’s Legal Daily in July 2007:

The only way to put our worries to rest is to abolish Article 306. Otherwise, relevant authorities can seek criminal investigations against lawyers on account of perjury and invoke Article 306 at any time.¹³⁹

A prominent lawyer who is also a delegate to the National People’s 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