Criminal Defense for Foreigners in China: Procedures and Key Points from Experienced China Lawyer
This article is intended to give foreigners in China basic information on how the Chinese criminal law system functions. It is not a substitute for legal advice, which can only be provided by a Chinese lawyer qualified to practice in Chinese law firms.
According to Chinese Criminal Law, if you break the law, you are subject to the judicial system of China. Being a foreigner or not knowing the local laws is not an excuse.The criminal law systems are significantly different among different countries.This can increase the stress and practical problems arising from arrest and imprisonment in China.
For example, please note that in China:
Detainees can only meet with their lawyers and, in the case of foreign nationals, consular officials; they cannot normally speak to family members or friends during detention.
Following final sentencing, prisoners can only be visited by family members, not friends. After the official arrest, the law allows for an investigation and prosecution review period of up to 13.5 months before formal charges must be laid.
Arrest and Detention
Chinese criminal law is applicable to both citizens of China and foreigners who commit crimes within the territory of China.
The police can detain suspects for up to 37 days before the prosecutor approves the arrest. Specifically, after you are detained, the police will file, normally within three days, an arrest request for the prosecutor’s review and approval. Under special circumstances the filing time can be extended by one to four days. If, however, you are suspected of committing crimes in multiple places, being a repeat offender or being part of a gang, Chinese law provides for up to 37 days’ detention before official arrest.
After an official arrest, you may be detained for up to 13.5 months before formal charges are laid and the case is transferred to the court.
If you are detained, you will usually be taken to a detention facility and your passport will be confiscated by the police. Please inform your Consular Official if this happens to you. You are not normally able to make phone calls or meet with family members until the final judgment takes effect. Under the Chinese Criminal Procedure Law, a suspect has the right to hire a practising lawyer from the date on which he/she is first interrogated by the investigating authority or is subject to compulsory measures. There are some exceptions where permission must be granted by the investigating authority and access to a lawyer may be denied. Chinese law does not allow for “the right to remain silent.” You can have access to an interpreter, usually provided by the case handling authorities, if you are not able to communicate in the local language, but the availability and quality of interpretation varies.
Investigation and Bail
The investigating authority has up to 7 months to conduct an investigation before a case must be sent to the prosecutor.
All detainees, including foreign nationals, may apply for release on bail by providing security in the form of an individual guarantor or cash deposit. This is done with the assistance of a lawyer. A suspect or defendant may be released on bail if the police, the prosecutor or the court deems it appropriate under certain circumstances, such as the detainee is suffering from a serious illness, is pregnant or breastfeeding, or might be punished by fixed-term imprisonment or a more severe punishment, but would not pose a threat to society if released on bail.
During the bail period, you are required to comply with a series of restrictions including appearing before the court when summoned, not leaving the city or county where you reside and reporting any change of residential/working address or contact details to the police within 24 hours. You may also be ordered to surrender your passport or driver’s licence to the police and be instructed not to visit certain places and/or meet with certain people. If you violate these restrictions, you may forfeit your cash deposit or be subject to residential surveillance or other punishment.
If you meet the conditions for bail but are neither able to provide an individual guarantor nor able to pay cash deposit, you may be placed under residential surveillance. During the residential surveillance period, you are required to observe certain restrictions including not leaving the residence under surveillance or not meeting or communicating with others without permission, appearing before the court when summoned and surrendering your passport or driver’s licence to the police.
Chinese law provides for a maximum of 12 months for bail and six months for residential surveillance.
Prosecution Review and Timeline Extension
After the case is transferred to the prosecutor for review, the prosecutor is required to decide, within 1.5 months, whether to prosecute. The prosecutor can, however, refuse to issue an indictment and send the case back to the investigating authority for supplementary investigation up to 2 times, each supplementary investigation can take up to 1 month per time. The timeline for prosecution review will be recalculated if the case is transferred to the prosecutor after each supplementary investigation. Therefore, it can take up to 13.5 months from the official arrest to the criminal trial.
The Criminal Trial
A criminal trial typically consists of five parts:
court-opening session;court investigation;court debate;final statement(s) of defendant(s); andjudgment pronouncement.There can be more than one court hearing during a trial. Family members (number may be limited) are usually able to attend court hearings and observe the hearing; they are prohibited from speaking to you. The judgment, including sentencing, is normally pronounced during a final court hearing held specifically for this purpose. In some cases, the judgment is presented to you in written form only.
Duration of a Trial and Sentencing
Under the current Chinese Criminal Procedure Law, the court has 2 to 6 months, from the date a case is transferred to the court, to hold court hearings and issue an initial judgment. This process can be longer with the approval of the Chinese Supreme People’s Court. The severity and complexity of a case usually have an impact on the length of a trial.
During the trial, under certain circumstances, such as the need for supplementary investigation or additional charges, the prosecutor may suggest a postponement of the hearing. The trial timeline can be reset if a case is transferred to the court after supplementary investigation.
A trial may be suspended due to reasons such as a defendant’s serious illness or escape. The suspension time of a trial will not be counted as being part of the overall trial length. The trial will be resumed only after the cause of the suspension is resolved.
You have the right to file an appeal, through the original trial court or directly with the court of appeal, within 10 days from the day following receipt of the judgment. The prosecutor can also appeal the judgment. Under current law, the appeal should take around 3 to 6 months. This process can be longer with the approval of the Chinese Supreme People’s Court.
You can also file a petition to the court or the prosecutor against a judgment or ruling that has already taken legal effect, but filing the petition will not stop the execution of the judgment or ruling.
You can file a petition to the court that provided the judgment or order within two years of the start of the execution of the criminal punishment. If the petition meets certain conditions, the court must retry the case. If the court rejects the petition, it may be filed to a higher-level court. Should the Supreme People’s Court retry the case or reexamine and reject the case, no further petitions will be accepted.