China’s new judicial interpretation (2021) of Criminal Procedure Law provides for the trial and judicial assistance for foreign-related criminal cases.
In 2018, China promulgated the newly revised Criminal Procedure Law, with only two provisions (Arts 17, 18) concerning crimes committed by foreigners. On 26 Jan. 2021, the Supreme People’s Court promulgated the Interpretation on the Application of the Criminal Procedure Law of the People’s Republic of China(the “Judicial Interpretation”), which specifically sets out the procedures for foreign-related criminal cases in Chapter 20.
I. What does the 2018 Criminal Procedure Law say about Foreign-related cases?
First, if a foreigner commits a crime and the case shall be heard by a Chinese court, like in cases where the accused is Chinese, China’s Criminal Procedure Law shall be applied, except for foreigners with diplomatic privileges and immunities.
Second, Chinese and foreign judicial authorities may mutually request criminal judicial assistance.
II. How does the 2021 Judicial Interpretation explain those two provisions?
The 2021 Judicial Interpretation expands the two provisions of the 2018 Criminal Procedure Law into two sections in Chapter 20, respectively on the trial of foreign-related criminal cases and judicial assistance, with a total of 21 provisions.
1. Noteworthy issues
It is worth noticing that Chapter 20 focuses mainly on trial.
China’s criminal litigation procedures include four stages, namely investigation (by public security organs and state security authorities), examination and prosecution (by the people’s procuratorates), trial (by the court), and enforcement (by the prison).
Chapter 20 of the Judicial Interpretation does not mention investigation, examination and prosecution, and enforcement, because courts are generally not responsible for the three stages, except in a few limited circumstances, say, enforcement of the death penalty, fine, and confiscations of property.
For the treatment of foreign parties at the investigation stage, you may refer to the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs (公安机关办理刑事案件程序规定) promulgated by the Ministry of Public Security on 20 July 2020.
As for the examination and prosecution stage, however, the Rules of Criminal Procedure for People’s Procuratorates (人民检察院刑事诉讼规则) issued by Supreme People’s Procuratorate does not provide special rules for foreign-related cases.
2. What are foreign-related criminal cases?
There are three types of foreign-related criminal cases:
(1) cases involving crimes committed by foreigners within China, or by Chinese citizens against foreign countries or foreigners within China;
(2) cases involving Chinese citizens committing crimes outside China;
(3) foreign citizens committing crimes against China or Chinese citizens outside China. (Article 475)
3. Will foreign governments be informed if their citizens are involved in criminal proceedings in China?
At the trial stage, Chinese courts shall notify the embassy or consulate of the foreign party’s country of nationality in China. The notice shall be delivered in accordance with bilateral consular treaties, the Vienna Convention on Consular Relations, or the principle of reciprocity. (Article 480)
The courts shall notify the foreign embassy or consulate of the following information (Article 479):
(1) circumstances where the court decides to take compulsory measures (such as custody or exit restriction) on foreign defendants;
(2) the time and place of the hearing, and whether the hearing will be conducted openly;
(3) the time and place of the judgment being pronounced; and
(4) the death of the foreign defendant during the trial (if any).
If the court rules to execute the death penalty of a foreign defendant, the court shall notify the foreign embassy or consulate before the execution of the death penalty. (Article 479).
After the execution of the death penalty, the court shall notify the foreign consulate to deal with the following matters, such as:
(1) to transfer the criminal’s testament and last words his/her family;
(2) to notify the criminal’s family members to collect the cremains of the criminal within the time limit, or to collect the body if it is not suitable for cremation due to ethnic or religious reasons. (Article 510)
It is worth noticing that, in general, the court will not notify the foreign embassy or consulate of the judgments. The foreign embassy or consulate may observe the pronouncing of the judgment, or they may request the court to provide them with the judicial instruments. (Article 489)
4. What are the rights and obligations of foreign parties?
Foreign parties enjoy the same litigation rights and obligations as Chinese parties. (Article 478).
The court shall notify the detained foreign defendant that he/she enjoys rights to contact the embassy or consulate of his/her country of nationality in China, to meet and communicate with his/her guardian or close relatives, and to request the people’s court to provide for an interpreter. (Article 481)
5. Can foreign parties be visited?
During the trial, if the foreign defendant is in custody, the officers of the embassy or consulate of his/her country of nationality in China, the defendant’s guardian or close relatives may request to visit him/her. The court shall arrange for the officers of the embassy or consulate to visit the defendant and decide whether to allow the guardian or close relatives to visit. (Article 482)
6. Will the foreign-related cases be heard openly?
The trial of foreign-related criminal cases shall be conducted openly, except for the cases that shall not be heard openly in accordance with the law.
For foreign-related criminal cases that are heard openly, the officers of the embassy or consulate of the defendant’s country of nationality in China may request to observe the trial. (Article 483)
7. Can foreign parties have access to translation?
The courts shall hear the foreign-related criminal cases in Chinese, but they shall provide translation for the foreign parties.
The litigation instruments shall be issued in Chinese. However, if the foreign party does not know Chinese, the court shall provide him/her with a translated version, but the Chinese version shall be the authentic text.
If the foreign party understands the Chinese language and refuses to be translated by others, or does not need a foreign language translation of the litigation instruments, he/she shall issue a written statement of refusal. (Article 484)
8. Can foreign parties have access to a defense lawyer?
A foreign defendant may authorize a lawyer who has the qualification of a lawyer of the People’s Republic of China and has obtained a practicing certificate as a defender. He/she may also entrust the guardian or a close relative as the defender.
If the foreign defendant is in custody, his/her guardian, close relatives, or the embassy or consulate of the defendant’s country of nationality in China may authorize a defender for him/her. (Article 485)
9. Will foreign parties be restricted from leaving China?
Chinese courts may decide to restrict the defendants in foreign-related criminal cases from leaving China, and require the witnesses who must appear in court to defer their exit.
If courts decide to restrict foreigners or Chinese citizens from leaving China, they shall notify the restricted person in writing not to leave China before the conclusion of the case.
The court may also detain the party’s passport or other entry-exit documents, or require the exit-entry border inspection authorities to adopt border control measures. (Article 487)
10. How to carry out criminal judicial assistance?
Judicial assistance shall be requested and provided by the foreign judicial authorities in accordance with the Law of the People’s Republic of China on International Criminal Judicial Assistance and relative international treaties. (Article 491)
Contributors: Guodong Du 杜国栋