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VIII. Limits on Ability to Represent Clients

Not only do we see cases of forced confession under torture, illegal search, illegal detention, overtime detention, and other illegal action, but such cases are not promptly investigated. This fosters illegality, which leads to frequent miscarriages of justice.
—Legal Daily, August 25, 2005

We were warned not to represent Tibetans.
— A lawyer from Beijing who had volunteered to represent Tibetan arrested after the unrest in Lhasa, April 2008

Lawyers in China routinely complain that their ability to represent their clients and participate in court processes, particularly in criminal cases, is subject to many arbitrary restrictions imposed by judicial institutions and interference by other state institutions. They explain that judicial institutions routinely ignore their procedural requests, engage in obstructionist or delaying tactics, and at times threaten them with administrative or economic retaliation. Lawyers say that courts and police often  invoke the “exceptional” character of a case to deny them basic defense prerogatives such as gathering evidence, meeting their clients in detention, producing witnesses and experts in courts, cross-examining prosecution witnesses, and having access to complete court files.¹⁴³

Restrictions are even greater in cases involving human rights violations by state agents and politically motivated prosecutions. Lawyers say that the outcome of cases involving dissidents charged with state security or state secrecy crimes are dictated by the political authorities. Under the current court system, cases deemed important or “especially complicated” are reviewed by “adjudicating committees [shenpan weiyuanhui],” which are composed of senior judges and judges who are often members of the Party’s Political and Legal Committee.¹⁴⁴ Lawyers do not participate in adjudicating committees meetings and their views are not conveyed there.¹⁴⁵

“Under this system, ‘the judges who conduct the trial are not the ones adjudicating it, and those adjudicating the trial are not the one conducting it’ [shen er bu pan, pan er bu shen]—it completely invalidates the role of the defense,” one lawyer told Human Rights Watch.¹⁴⁶

As lawyers and legal experts are quick to point out, Chinese lawyers in effect rely on personal networks to circumvent these problems and compensate for the overall “weak status of the legal profession.”¹⁴⁷

Some scholars have argued that because lawyers enjoy so few effective powers, it is essentially through personal connections with members of the judicial system bureaucracy that lawyers are able to carry out any work at all.

The challenges [lawyers] routinely face include various forms of obstruction, harassment, and intimidation, and even physical abuse, often at the hands of personnel in the public security administration (the police system), the procuracy (the public prosecutor’s office), and courts…. Surviving and even thriving in their hostile institutional environment demands formal and informal ties to the state bureaucracy.… [A survey of 1,000 lawyers conducted in 2000 by the author showed that] ties to the state provided protection against various forms of institutionalized, state-sponsored harassment and rent-seeking. Lawyers more deeply embedded in the state reported fewer professional aggravations.¹⁴⁸

Since the promulgation in 1996 of the Law on Lawyers, the Chinese legal profession has generally been fairly successful in weaving informal links with judicial personnel.  It is these ties that ensure that a particular lawyer can assert many of the rights clients are guaranteed and, because cases are arbitrarily decided by the authorities, goodwill alone often determines whether lawyers are informed of a case’s current status, can gain access to court files, be notified in advance of hearing dates, or learn whether there are political considerations weighing on the case.  

The efficacy of these arbitrary ties often leads external observers to credit the legal profession in China with more legal authority in judicial processes than lawyers actually possess. More importantly, this type of relationship-based goodwill from the judiciary does not extend to cases that are particularly contentious or seen as politically risky, such as human rights abuses committed by judicial personnel or the police; the trial of political dissidents, religious dissenters, or members of groups explicitly designated as threats to the security of the state, such as Uighur or Tibetan nationalists; cases alleging corruption of government and Party leaders; and specific cases linked to incidents of social unrest. In such cases, ties with judicial system officials are by definition of little help; indeed, the very act of taking on such cases may destroy ties a lawyer has been working to build.

Lack of access to criminal suspects in detention

Criminal lawyers face immense obstacles in gaining permission to visit their clients in detention, particularly in the pre-trial stage, before they have been formally charged. This situation is a concern both in terms of the rights of defendants and the rights of defense attorneys, as detailed below. Furthermore, suspects are vulnerable because of their lengthy incommunicado detention by law enforcement agencies, extraction of confessions under duress, ill-treatment, and torture. 

The right to access clients in detention

Under Chinese law, a criminal suspect can retain a lawyer after his first interrogation by the investigative organs or from the day the detention starts.¹⁴⁹ The right of a defense attorney to access accused persons in detention is guaranteed by theLaw on Lawyers and by the Criminal Procedure Law. One important exception in the Criminal Procedure Law concerns cases “involving state secrets,” for which the hiring of a lawyer is conditioned on approval by the investigating organs.¹⁵⁰ In those cases, the time limits and procedures to gain access are set by specific regulations issued jointly by the Supreme People’s Court and six other ministries and committees with legal responsibilities (hereafter “the Joint Regulations”), complemented by institutional regulations of the Public Security Bureau, the Procuracy, and other institutions involved.¹⁵¹

The Joint Regulations provide that law enforcement agencies must comply with a valid visit request from a retained lawyer within 48 hours in ordinary cases, and within five days if the cases involve organized crime or are “especially complicated.”¹⁵² In cases “involving state secrets” the right to visit is conditioned on the approval of the investigation organs.¹⁵³

Typical violations of the rights to access suspects documented by lawyers and legal experts include: failing to inform the criminal suspect of his right to retain a lawyer, refusing or delaying his request to appoint a lawyer, failing to inform the family of the detention and of their right to retain a lawyer on the behalf of their relative, failing to inform the lawyer designated by the criminal suspect that he has been selected, denying permission for the lawyer to visit the suspect, and falsely claiming that the case involves state secrets.

According to a Chinese study:

The impossibility for a lawyer who has been retained to see a criminal suspect remains the biggest and most often seen problem of criminal defense lawyers. Legally endowed rights cannot be exercised.¹⁵⁴

The few publicly available empirical studies seem to support this conclusion:

A survey of police station detention cells in Beijing’s Haidian district indicated that lawyers were able to visit only 14.6% of detainees under investigation, even though 46.3% of the demands to see a lawyer from pre- and post-trial detainees were met.¹⁵⁵

Another partial survey of 200 detainees in Beijing showed that 75.5% were never told by the investigators that they could request a lawyer. 17.3% of those who requested a lawyer were told that it was useless to do so, 12.2% were scolded by the investigators, and 12.2% were told to ask again later.  According to the Procuracy, 57% of criminal suspects have signed a retainer agreement with a lawyer.¹⁵⁶

A survey carried by the Beijing lawyers association showed that in one-third of the cases, lawyers were denied access to their client. “In most of these cases, the investigative organs refuse to organize access to the detainee with or without reasons; when lawyers seek to obtain a retainer agreement, often there are able to do it “only through using extralegal methods [fei falü de shouduan] like making representations to the leaders or the higher departments.’”¹⁵⁷

One lawyer told Human Rights Watch that the ACLA has complained repeatedly to the judicial authorities about the issue of access, attaching a compilation of actual cases in which access was denied, but none of these documents were made public. One such study, a survey carried out by the Committee on Lawyers Rights of the Beijing Lawyers Association in 2006, indicates that 90% of the respondents “must repeatedly apply before getting approval for a visit, and most of the time cannot see their client within the 48 hour limit.”¹⁵⁸

Restrictive practices

Many Chinese lawyers and legal experts claim that as a matter of course the Public Security Bureau often denies any contact with lawyers until at least after the investigation is completed, the defendant is formally charged, and the case has been handed over to the prosecution. Only a fraction of criminal suspects are able to meet their counsel before they are charged. In some cases, lawyers have been entirely unable to secure even a single meeting before the trial takes place.

When lawyers do manage to gain access to their clients, lawyers complain that visits are few, brief, and often conducted in the presence of a representative of the investigation or in non-confidential settings.

To see his or her client, a lawyer is required to fill out an “application to access criminal suspect” and obtain approval from the Public Security Bureau where the suspect is detained. Lawyers point out that internal Public Security or Procuracy regulations, which sometimes vary from place to place, expand on the exceptions set forth by the Criminal Procedure Law, often specifying other cases where the application can be turned down, such as “especially complicated cases,” or “cases related to organized crime.”¹⁵⁹ These provisions contribute to law enforcement officials’ perception that they can deny visits outright.

Law enforcement agencies typically “give [only] pretexts or no reason at all” when denying or delaying lawyers’ requests to visit their clients.¹⁶⁰  According to one lawyer interviewed by Human Rights Watch:

The Public Security doesn’t grant you access; they just don’t. They don’t tell you why. You file your application [for a visit], and that’s it—no reply. What can you do? You have to know personally the court officials [to intercede], but sometimes it doesn’t help. You have to look at the local conditions. If the Public Security doesn’t want it, the fact is that nobody can force them.¹⁶¹

Judicial personnel also obstruct lawyers when they apply to visit their clients. A news report quoted a lawyer complaining that “the thing lawyers hear most often when applying to see a client is the sentence: ‘The handling person is not there.’ And this ‘handling person’ can never be found.”¹⁶²

Another lawyer complained about delaying tactics used by some courts.

Very often, the answer to a request for a visit is ‘Please wait.’ And you wait for one, two hours. There is no reason for it; this is just to wear you out. In the end they tell you that you can’t see your client.¹⁶³

Other typical excuses cited by a legal scholar include “the responsible person is on a business trip, it may be a long time until he comes back,” “the leaders are not there,” and, ”This is an economic case, the circumstances exceptional.”¹⁶⁴

Legal scholars have pointed out that this phenomenon is more than just a smattering of anecdotal complaints, but rather a deliberate practice of obstructing the work of lawyers by the judicial institutions:

Many departments ‘pass the ball around [tipi qiuI]’: The Public Security Bureau says that the case is already with the Procuracy; the Procuracy that it has not yet been filed, or that it is already with the court. And so on and so forth. The actual visit very seldom takes place within the fixed time limits. It takes at least a week, most of the time a month, sometimes even longer to gain access to a suspect. Sometimes, the visit is denied, especially if it is the Procuracy itself that is conducting the investigation.¹⁶⁵

Many lawyers have endured such ordeals. A lawyer from the established Liu Hule law firm in Yunnan province held the firm record of visiting the police station 22 times in 40 days, finally getting to see his client for a mere 30 minutes.¹⁶⁶ The lawyer for Hua Huiqi, an underground Christian, never gained access to his client, and Hua was even tried in camera with Hua himself kept from entering the court chamber.¹⁶⁷

Environmental activist Wu Hongli was visited by his lawyer only after many months of detention. His wife reported that Wu had told her he had been tortured in detention and that she saw torture marks on his body.¹⁶⁸

Another reason frequently advanced by law enforcement agencies to deny lawyers permission to visit their client is that the suspect is not in criminal detention but in one of the various forms of “administrative detention” such as “summoned for detention” (juchuan), bail (jubao houshen), or supervised residence (jianshi juzhu).  These measures have their own specific maximum time limits, but in practice are often manipulated to justify extended incommunicado detention by the investigators.

Invoking state secrets as a pretext to deny access to detained suspects

In politically sensitive cases and cases involving political offenses such as subversion or crimes against state security, the police frequently invoke the involvement of “state secrets” to deny attorney-client meetings. Recent cases include those of Zhou Heng, Lü Gengsong, and Yan Chunlin. 

The dissident Lü Gengsong was denied the right to hire a lawyer of his choice by the Public Security because his case allegedly involved state secrets. A former instructor at the Zhejiang Police College, Lu was arrested in August 2007 on suspicion of subverting state power and illegally holding state secrets after he wrote a series of articles about official corruption and the need for political reforms. Lu’s wife tried to hire two Beijing lawyers, but was notified in writing by the Xihu Public Security Bureau that Lu was not allowed to hire a lawyer because his case involved state secrets.¹⁶⁹

She then tried to travel to Beijing, but was stopped near her home town by officers of the State Protection Bureau. After she finally managed to retain Mo Shaoping and Ding Xingkui as lawyers, the same Public Security officials pressured her on two occasions to dismiss them and engage a local lawyer from Hangzhou. She stood firm.

Zhou Heng, a bookshop operator in Urumqi (Xinjiang province) and member of an underground Christian group, was denied access to his lawyer for over six weeks by the Public Security Bureau on allegations that his case involved “state secrets.” Zhou was arrested on August 3, 2007, after a large shipment of bibles sent to him from overseas was seized by the police. (Under Chinese law, bibles and religious material can only be printed by domestic pre-approved printing presses.) He was held on suspicion of illegal business activity and detained at the Public Security-run Xi Shan detention centre. His lawyer was finally able to meet him on September 14, but two police officers sat in on the meeting.¹⁷⁰

Yang Chunlin, an activist representing a group of evicted farmers in Jiamusi, Heilongjiang province, was denied any contact with his lawyer after his arrest in July 2007. Yang was formally arrested on suspicion of “subverting state power” in September 2007. Yang had led a group of farmers to demonstrate in front of a government building, carrying banners with the slogan “We want human rights, not Olympic games.” Yang’s wife contacted a Beijing lawyer, Li Fangping, to defend him. The Public Security Bureau, who was apparently monitoring her telephone, tried to dissuade her from hiring Li, reportedly telling her “If you hire a lawyer from Beijing the sentence will be heavier.” Yang’s lawyer applied to visit his client on September 7, 2007. He was informed that permission was denied because the case involved state secrets.¹⁷¹

Lawyers state that they have no effective recourse against denial of access to their client, and legal statutes provide no specific remedies aside from an administrative lawsuit under the administrative litigation law. Human Rights Watch is aware of very few cases where such challenges have been successful. Some courts have ruled that administrative acts emanating from the judicial power cannot be reviewed in administrative courts.¹⁷² This leaves no recourse at all when law enforcement agencies do not comply with a request for a visit.

As detailed above, may dissidents, civil rights activists, religious figures, and defendants charged with vaguely worded state security offenses, such as subversion, state secrets, harming state security, or separatism have been detained for lengthy periods of time, sometimes the entire pre-trial period, without access to a lawyer.

Lack of redress for violations of procedures

Chinese legal experts point to the disproportionate power wielded by law enforcement agencies, which are easily able to flout procedural rules,¹⁷³ in obtaining redress for procedural violations. Chen Guangzhong, a criminal procedure law professor at China’s Politics and Law University, says that the root of the problem is that “the Public Security has too much power”:

The Court decides about guilt, the Procuracy about arrest, but it is the Public Security who decides about visits. The Court and the Procuracy are absolutely helpless with respect to access to lawyers.¹⁷⁴

According to another Beijing criminal lawyer, in many cases the Procuracy itself shies from challenging the Public Security over forced confessions. If the Procuracy has doubts about the veracity of witness statements or confessions, it may try to invalidate them by finding mistakes and ruling out the evidence on that basis rather than directly rejecting the evidence because it was obtained under duress.

The newly revised Law on Lawyers, which will take effect on June 1, 2008, has removed all exceptions to the right to meet with an accused person in detention, including for cases “involving state secrets.” However, only when the Criminal Procedure Law—which at present allows for such restrictions–is similarly revised in the same sense will the change be effective.¹⁷⁵ After the revisions to the Law on Lawyers were promulgated in October 2007, lawyer Mo Shaoping told the South China Morning Post that he did not expect the revisions to effectively protect the rights of lawyers: “A police officer could say no to a lawyer’s request under the Lawyers’ Law, claiming that he is not governed by the industry-specific law,” Mr. Mo said. “Without changing other relevant legislation, amending the Lawyers’ Law alone cannot protect lawyers’ rights.” ¹⁷⁶

Above all, lawyers insist that the main obstacle to their carrying out their duties remains the government’s failure to implement the existing rules.

Lack of access to case files

In criminal trials, the right and ability of the defense to access appropriate case information, files, and documents—including the evidence on which the prosecution is based—is a key component of  due process and a fair trial.  Chinese lawyers commonly rank “difficulties gaining access to court documents [yuejuan nan]” as one of the top three difficulties that the legal profession faces.

Limited rights under the law

Under Chinese law, lawyers enjoy the right to “consult, excerpt, photocopy and duplicate case material” during the prosecution and court stages from the first day the case is filed.¹⁷⁷ Upon the filing of a written request, the People’s Procuratorate must provide the defense counsel with a specified list of procedural documents, such as detention and arrest warrants, search and seizure orders, lists of witness affidavits, and forensic diagnostics. Once the case is filed in court, the lawyer is also entitled to access “the material of the facts of the crime,” ¹⁷⁸ the latter being defined not as all the evidence brought by the prosecution, but only as “the principal evidence.”

The concept of “principal evidence[zhuyao zhengju]” is highly constraining, because it leaves judicial authorities with virtually untrammeled discretion in deciding what should be communicated to the defense counsel. For instance, lawyers often are provided not with actual testimonies of witnesses from whom depositions were taken by investigators, but only the list of witnesses interrogated. Key documents, such as the deposition of the criminal suspect, full witness statements, and key physical evidence are not generally made available.

Another serious burden on defense rights is that only evidence in support of the accusation is considered as “principal evidence.”  There is no obligation for the Procuracy to communicate potentially exculpatory evidence. This puts the defense at a significant disadvantage. As one Chinese legal expert writes:

Using this system of ‘communication of the principal evidence,’ the procuracy….  simply selects what supports the accusation, and according to them this cherry-picked evidence unquestionably becomes the ‘principal evidence.’¹⁷⁹

Since evidence withheld from the defense is not precluded from being used at trial, even key evidence is at times kept from the defense lawyer, “so as to reserve the ‘heavy artillery’ for the hearing,” as one lawyer put it.¹⁸⁰

In essence, as Chinese study on lawyers concludes, lawyers are “powerless” in accessing substantive documents:

It is not hard to fathom, that at any given stage, the main documents that the lawyer can check are procedural documents. He has no means to acquaint himself fully with the substantive ones. This results in the lawyer basically being powerless to fully grasp the details of the case.¹⁸¹

Routine procedural violations

Lawyers also complain of other difficulties in accessing case files, even when those difficulties explicitly violate clearly-stated rights. The prosecution often disregards time limits. “The law says that the prosecution has a maximum of five days to grant access to the case file, but in general the minimum is one week, most often one month, some times even more,” according to one lawyer interviewed by Human Rights Watch.¹⁸²  At times, the prosecution sometimes justifies its refusal to let lawyers access the case files by claiming that the case involves “other suspects that have escaped,” or “state secrets,” or that the case is “especially complicated.” At other times, the applications for the consultation of the case file are simply left unanswered.

Personnel of the Procuracy and courts also frustrate lawyers through tactics that run counter to their obligation to “facilitate” lawyers access to case documentation, as set by court regulations. The tactics include: impractical locations for reading the documents (a lawyer reported that he had once to bring a flashlight because the light bulbs in the windowless room were dead), poorly maintained photocopy equipment and exorbitant photocopying charges, arbitrary delays, and hostile behavior of court employees. Lawyers believe that many of these obstacles are intended to remind them of their low status within the larger legal system. 

Lawyers have no effective remedies against these obstructions. A typical assessment made by lawyers is that their procedural “rights” are empty: “Despite the guarantee of the lawyer’s right to access documents, because there is no operative definition of this right, it remains without any force.”¹⁸³

One lawyer told Human Rights Watch:

The judicial organs will only give you what they want, and it is not uncommon to see the real evidence only on the day of the trial. This is like a tiger blocking the road. Chinese lawyers are powerless.¹⁸⁴

Lawyers agree that they face even greater hurdles when they represent sensitive political cases.

If the case is politically sensitive, everything is decided by higher-level authorities: the court officials have to ask for instructions before they give you access to the court file, they won’t dare to take the responsibility themselves. They tell you ‘this is a special case, we are not in a position to decide’.¹⁸⁵

Court officials also delay access on small pretexts. For instance, court personnel reportedly told lawyers for rights activist Guo Feixiong they could not access his court files because they could not find the key to the file cabinet. Guo had been formally indicted on charges of alleged “illegal business activities” on May 15, 2007, but the court delayed access to the case files until May 23. Guo’s lawyers, Mo Shaoping and Hu Xiao, flew from Beijing to Guangzhou for the appointment. But on arrival, personnel told them that a “technical issue” made it impossible to see the file: the court official with the only key to the file cabinet was away and would not return until the next afternoon.¹⁸⁶ A few days later, Guo’s lawyer finally obtained the file, although it contained none of the depositions made by Guo or his allegations that he had been  tortured.

The Chinese government has acknowledged that lawyers face unreasonable obstructions in accessing court documents, and have urged judicial authorities to address the problem. In March 2006, for instance, the president of the Supreme People’s Court, Xiao Yang, reiterated that “[the judicial authorities] must establish conditions to provide necessary convenience for lawyers to consult, summarize, photocopy, and duplicate case material.”¹⁸⁷

Intimidation of witnesses and lack of access to evidence 

The ability of Chinese lawyers to gather evidence either independently or through the courts, to produce and examine witnesses, and to seek judicial redress when their rights are violated in the course of such attempts is sharply limited by statute and by practice. These limitations are particularly severe in criminal cases, as well as in cases deemed sensitive by the authorities, such as those alleging human rights violations. Generically termed as “difficulties in gathering/collecting evidence [shou zheng nan],” these limitations feature as one of the “three top difficulties [san lao nan, san da nan]” lawyers face, along with access to clients in detention and to case files detailed above. 

Most testimonies in Chinese courts are in the form of written affidavits. According to a comprehensive survey carried in 2004, fewer than 1 percent of witnesses who give depositions before trial subsequently appear in court to testify.¹⁸⁸ This puts the defense at a significant disadvantage, as they have no ability to examine prosecution witnesses or produce their own witnesses. They are not entitled to attend depositions.

“It is usual for the Public Security to threaten witnesses,” one criminal lawyer told Human Rights Watch. “They say: ‘We already have your testimony … if you change it, we will accuse you of perjury and arrest you.’”¹⁸⁹

Chinese and foreign legal scholars who have examined how to improve witness examination procedures point to the courts’ lack of financial resources, overwork, and poor coordination with other officials, particularly police, as key constraints.¹⁹⁰ But lawyers contend that this situation is made worse by the obstacles they face in taking depositions effectively or without interference, especially in the light of other existing restrictions, such as limited access to case files.

Many lawyers told Human Rights Watch that the police often interfere with their activities and intimidate plaintiffs and witnesses.

Because the Public Security often ‘gives pressure’ to witnesses, it is very hard to interview them. They are afraid…. When you go to a small town and the police are following you all the time, what kind of testimonies can you get?¹⁹¹

Sometimes, lawyers are forcibly kept away or sent back by the local authorities.

We went to this rural place to take the deposition of forcibly evicted farmers… but the Public Security stopped us at the restaurant where we were having lunch. They said that this matter had already been investigated…. A few individuals were ‘creating trouble,’ and for our own security [the police] could not let us go around freely…. They drove us back to the nearby township and stayed with us until we boarded the train back.¹⁹²

Another common problem is impunity for acts of intimidation by non-state agents who appear to be acting at the behest of local power holders. A lawyer told Human Rights Watch about a trip undertaken to investigate a dispute over compensation for resettlement in Sichuan province.

The whole time we were interviewing the residents [who claimed they were owned compensation after having been resettled] unidentified individuals followed us.… They harassed us, blocking our way, making snide remarks, trying to dissuade residents from talking to us … We complained to the police but they didn’t do anything.¹⁹³

Many lawyers point out that such hurdles are inevitable:

These are lawyers’ ‘professional risks’. In China, this is the way it is…. We have our techniques. For instance, when we go investigate a particular place, we never stay in a hotel on site but spend the night in a neighboring town…. Also, we never go alone. This way, it is safer.

As illustrated throughout this report, these techniques are far from being foolproof. When two Guangzhou lawyers retained by a group of Taishi villagers in 2005 attempted to investigate the situation there, they were attacked by a group of unidentified men and one of them was slightly injured. Their law firm unilaterally decided to end their representation of the villagers.¹⁹⁴

In another case, Ren Hua, a well-known lawyer from Beijing and author of a public appeal to the National People’s Congress and the State Council to abandon the petitioning system of “Letters and Visits,” went missing for three days after an attack by thugs in Hunan province in August 2007.

Ren had been conducting investigations with three other persons for two days in Jiangshui township, where some residents were accusing the local authorities of embezzlement, forced eviction, and official collusion with businessmen. On August 5, 2007, unidentified thugs burst into their hotel room, in the nearby city of Yongzhou. Ren sent a text message to friends in Beijing describing the incident and mentioning that two people were injured, and then disappeared for three days. The local Public Security Bureau denied any knowledge of his whereabouts to relatives and journalists from Radio Free Asia. Although Ren never spoke publicly about the incident, other lawyers told overseas media that he had been detained by thugs acting at the behest of local officials wanting to prevent scrutiny of their administration.¹⁹⁵

Lawyers also say that they often face great difficulties in gathering physical and documentary evidence. The Law on Lawyers stipulates in general terms that lawyers have the right to request evidence from work units (the Chinese term for public and private bodies) or individuals.¹⁹⁶ The extent of this right is detailed in the Criminal Procedure Lawand various regulations and interpretations issued by the judicial authorities.¹⁹⁷

In criminal matters, the right of lawyers to “collect evidence,” including witness testimonies and depositions, is conditioned on prior approval by the prosecution and agreement by the institution or individual to which the inquiry is directed. This system of “double permission [shuangchong xuke]” mandates that the defense submit a written application to the prosecution or the court to approve discovery procedures, ¹⁹⁸ such as obtaining official records from public or private institutions and individuals, taking testimonies, producing witnesses in court, and obtaining subpoenas for witnesses and documentary evidence.¹⁹⁹

Lawyers also complain that judicial authorities typically ignore or frustrate their efforts to collect information and evidence during the pre-trial stage. One lawyer from Hainan told Human Rights Watch:

Collecting evidence is an impossible task for Chinese lawyers. The gongjianfa’s [judicial organs’] mentality is still that we are the ‘enemy,’ so they will not cooperate. You can present your own evidence but the court will just ignore it, saying it is not valid.²⁰⁰

Numerous professional publications by lawyers and legal experts echo the systemic problems encountered in gathering evidence. A typical article published in China Lawyers, published by the All-China Lawyers Association (ACLA), deplores lawyers’ inability to collect information:

Under a situation where it is impossible to get appropriate relief from the judiciary, lawyers are powerless in trying to conduct normal investigation and collect evidence. This translates into difficulties in defending plaintiffs.²⁰¹

Despite repeated promises by the government since the enactment of the Law on Lawyers in 1996 that the judicial authorities would improve their “cooperation” with lawyers, specific procuracy and court regulations make clear that those authorities enjoy almost unfettered discretion in granting or refusing lawyers’ applications for discovery of evidence or examination of witnesses. One provision in the People’s Court Regulations, for instance, indicates that courts are to consent to a lawyer’s demand “if the court believes it is indeed necessary [renwei queyou biyao de].” There are no further provisions explaining what criteria courts are to apply in determining whether the evidence is “necessary.”

According to a Beijing criminal lawyer, courts often resort to unmotivated refusals:

Whether it is the procuracy or the court, the answer is always the same: ‘We believe there is no necessity.’ There is nothing you can do about it. It’s discouraging.²⁰²

Even when the judicial authorities agree to a lawyer’s request to obtain evidence from a third party, the absence of explicit legal provisions relating to the disclosure of information gives ample ground for refusal to cooperate from those who have been asked to provide information. According to a Shanghai lawyer:

When lawyers direct their inquiries to an official ministry, the relevant departments put up all sorts of obstacles such as ‘refusal on the grounds that they give material to the procuracy, not to lawyers.’²⁰³

The difficulties that lawyers and their clients have in obtaining hospital records are an illustration of the problem. In Beijing, lawyers representing HIV-AIDS patients, and patients who had been subjected to trial drugs without their informed consent, faced enormous difficulties in obtaining simple information such as patient records, financial documents, and administrative records from the hospital:

The least you can say is that they were not forthcoming. We asked for certain documents, such as consent forms and they refused…. We pressed them, and finally they provided them to us. But then we realized they were forgeries: the dates were wrong.²⁰⁴

Lawyers say that it is difficult and time consuming to try to obtain a court order when third parties are not cooperating, and futile when state organs are concerned.

The October 2007 revisions of the Law on Lawyers indicate some willingness to strengthen the right of lawyers to access case documents, in particular specifying that the work units and individual “ought to cooperate [yindang yuyi peihe].” But the accessible information remains limited to the “principal evidence” as decided by the prosecution, and domestic legal experts insist that only a revision of the Criminal Procedure Law could effectively improve access to case information.  

Restrictions on free expression and use of media by lawyers

The ability of lawyers to obtain justice for their clients is constrained by limits on freedom of expression and information.²⁰⁵ While the central government makes use of media exposure and “public opinion supervision [yulun jiandu]” to promote its policies and keep local officials’ corruption and abuses of power in check, it maintains that the media should not be allowed to become a platform for criticizing or opposing CCP rule, which in turn may result in limiting the exposition of official wrongdoing.

Academics are now mostly free to discuss any legal topic in academic settings, although publishing in newspapers or journals remains tightly controlled and some outspoken advocates of legal reform have been blacklisted or temporarily suspended from teaching.²⁰⁶ An increasing number of controversial cases are debated in the media, and lawyers themselves often make the media part of their overall litigation or defense strategy.²⁰⁷ Widening internet access has also eroded the government’s traditional monopoly over the means of publication.

At the same time, Party authorities routinely censor the coverage of cases that may embarrass the authorities, typically stating that the case could have “a negative influence on public sentiment” or could be “detrimental to social stability.”

Many cases that expose wrongdoing by local officials or local governments are likely to be suppressed in the local media, which are under the supervision and control of the local authorities (through the News Publishing Bureau, the Propaganda Department, and various Party committees). But in some cases, the influence of these local power-holders does not extend to media from other provinces or to national media. Chinese journalists are well aware of this and the practice of “reporting from another location [yidi baodao]”—exposing a problem in one province in the media of another province—is a common technique to circumvent local censorship.

Numerous national television programs report on cases of local official wrongdoings that have been brought successfully to court, often through long tribulations. But according to journalists, a significant proportion of these investigations are also never broadcast because either they are considered too sensitive by the government or because the local authorities have been able to convince the central authorities not to air them.  According to a journalist working for a domestic newspaper, “once the Propaganda Department or the News Publishing Bureau, for whatever reason, has issued an edict censoring a particular subject, it will be very difficult to release it. No one will want to take the risk to report about it.”²⁰⁸

When reporting on a case is banned by local media, lawyers sometimes turn to overseas Chinese media and to the foreign press in the hope of overcoming resistance and protecting themselves by gaining a degree of notoriety. But such international exposure can also turn into a liability for the lawyers, and their clients, and many lawyers have been warned repeatedly not to accept or conduct interviews with foreign media. In addition, a number of local regulations governing the administration of lawyers explicitly limit their right to talk to domestic and foreign media.²⁰⁹

The case of Teng Biao, a lawyer at the Beijing Huayi Law firm and a lecturer at the University of Politics and Law, is emblematic of the risks run by lawyers who campaign publicly for their causes.

On March 6, 2008, at around 8.30 p.m., Teng was abducted by plainclothes policemen as he was coming home. He was restrained, bundled into an unmarked car, blindfolded, and brought to a secret location where he was kept for 40 hours. Police told him he had been detained because of articles he had written on protecting the rights of citizens, including an open letter to the government penned with fellow activist Hu Jia,²¹⁰ who was sentenced to three years’ imprisonment a few weeks later. The police threatened to have Teng disbarred, dismissed from his university position, and arrested on subversion charges.²¹¹

“I was taken away on Thursday night. They shoved me into a car and put a bag over my head,” Teng told Agence France Presse after his release.²¹² “They didn't show me any identification, but they said that they were from the Beijing Public Security Bureau.”²¹³

“They told me not to talk to foreign journalists,” Teng said. “I can’t tell you exactly what they said. They told me that I shouldn’t speak. There is a lot of pressure on me. There is no law that gives them the right to silence me, it is only their threats.”²¹⁴

A former visiting scholar at Yale University's law school, Teng had received the French Republic Award for Human Rights in December 2007. In April 2008, Teng co-signed an appeal by 28 lawyers offering legal assistance to Tibetan protesters who had reportedly been detained after the uprising in Lhasa. The appeal was censored on all internet sites in China.