On the morning of April 5, 2018, the second meeting of the Standing Committee of the Thirteenth National People's Congress opened, attracting much attention.
Whether it is the debut of the draft amendment to the Criminal Procedure Law, the second instance of the Law on the Protection of Heroes, or my country’s plan to establish a financial court in Shanghai, each one is worth analyzing in detail.At this meeting, Minister of Justice Fu Zhenghua, Minister of Ecology and Environment Li Ganjie, Minister of Agriculture and Rural Affairs Han Changfu, and Director of the Overseas Chinese Affairs Office Xu Yousheng also made appearances.
However, I am most interested in the draft amendment to the Criminal Procedure Law. The draft amendment clearly stipulates that corrupt officials who have fled abroad may be tried in absentia.
He is the highest-level official who fled
As soon as I heard the news, I ran to the official website of the Hangzhou Public Security Bureau to check it out.In October 2008, the official website issued a wanted arrest warrant for a senior minister-level official—Gao Yan.
According to the resume, Gao Yan served as the Secretary of the Yunnan Provincial Party Committee in June 1995, then as the Deputy Minister of the Ministry of Electric Power Industry in August 1997, and as the General Manager of the State Power Corporation in March 1998. He was 60 years old in September 2002Gao Yan fled abroad. If he is still alive, he would be 76 years old this year.
The arrest warrant issued by the Hangzhou Public Security Bureau shows that he has three ID cards. In addition to his real name, he also has two false identities, Gao Qinglin and Zhang Chuanwei, as well as four passports and a Hong Kong and Macau travel permit.In addition, it was also said that he suffered from lumbar spondylosis (difficulty in sitting, standing, and lying down during the onset).
As the CCP's highest-ranking official who fled abroad so far, his whereabouts have been a mystery for more than ten years.
According to Phoenix Weekly, Gao Yan, who is abroad, may have changed a new identity to live a free life, and may even have plastic surgery.According to the comprehensive judgment of the information obtained from consulting with multiple departments of the Australian government, none of the parties have accurate information.If Gao Yan is indeed in Australia, the Australian intelligence agency may know his whereabouts, but they will not make it public.
In April 2015, the Central Commission for Discipline Inspection issued a red notice stating that 10 people were believed to be hiding in Australia, and Gao Yan was not among them.However, Australian media reported that a Chinese official said Beijing and Australia were seeking cooperation to repatriate Gao Yan from Canberra.
Will Gao Yan be tried in absentia?
The Central Commission for Discipline Inspection suggested that when revising the Criminal Procedure Law in conjunction with the reform of the supervision system, provisions should be made on the criminal trial system in absentia, said Shen Chunyao, director of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, when explaining the draft on the 25th.
The draft amendment to the Criminal Procedure Law clarifies that mdash;mdash;
In criminal cases such as corruption and bribery, where the criminal suspect or defendant absconds abroad and the supervisory authority transfers it for prosecution, if the procuratorate believes that the facts of the crime have been ascertained, the evidence is reliable and sufficient, and criminal responsibility should be investigated according to law, it may file a public prosecution in the court.
After the court conducts a review, if there are clear facts about the alleged crime in the indictment, it shall decide to hold a trial.
If the draft amendment to the Criminal Procedure Law is passed in the future, will Gao Yan be tried in absentia?I consulted Wang Wenhua, a professor and doctoral supervisor at the School of Law of Beijing Foreign Studies University, and a researcher at the G20 Anti-Corruption and Fugitive Recovery Research Center.There is no problem in theory, she said, but the case must reach the point where the facts of the crime have been ascertained and the evidence is indeed sufficient before a trial in absentia can be allowed.
This is not the first time that the Criminal Procedure Law has dealt heavy blows to corrupt officials, and the procedure for confiscating illegal gains has been stipulated before -dash;mdash;
For major criminal cases such as corruption and bribery crimes and terrorist activities, where the criminal suspect or defendant escapes and cannot be brought to court after being wanted for one year, or the criminal suspect or defendant dies, his illegal income and other cases involved should be recovered in accordance with the provisions of the Criminal Law.property, the procuratorate may apply to the court for the confiscation of illegal gains.
Ren Runhou, the former vice-governor of Shanxi Province, was ordered by the court to confiscate his illegal income three years after his death.
Wang Wenhua explained that there is a difference between the confiscation procedure of illegal gains and the trial in absentia.
The standard of proof for a trial in absentia is stricter.The procedure of confiscation of illegal gains is aimed at property obtained illegally and does not involve conviction; the trial in absentia is aimed at lsquo;personsquo; and resolves the criminal responsibility of criminal suspects and defendants, because they may be convicted after a trial in absentia.The specific operation will be further regulated by the judicial interpretation/implementation rules after the draft Criminal Procedure Law is passed.
How should corrupt officials be held accountable after they abscond?
Wang Wenhua said that after corrupt officials fled abroad, my country has several methods to hold them accountable, such as issuing red notices to chase them away, extradition under the framework of international conventions and extradition treaties, or repatriation by the requesting country in accordance with immigration laws and other regulations, or The host country will prosecute and try to solve the criminal responsibility of corrupt officials, or persuade them to return to their country and surrender themselves.However, before the passage of the law, according to the provisions of the current law, it is not possible to conduct a trial in absentia.
On the same day as the meeting, the official website of the Central Commission for Discipline Inspection released a message that Skynet 2018 kicked off.This is the first time after the 19th National Congress of the Communist Party of China, the implementation of the Supervision Law and the establishment of the State Supervisory Commission.Compared with previous years, there is another obvious change in this year's Skynet operation—the special operation of international fugitive and stolen goods for duty-related crimes was led by the National Supervisory Commission rather than the Supreme Procuratorate.
According to official analysis, after the reform, in terms of system and mechanism, the party's unified leadership over anti-corruption work has been further strengthened, resources for handling fugitive and stolen goods cases have been further integrated, and the working mechanism of the integration of the upper and lower levels has become more clear.Incorporate all new surveillance objects into the anti-escape system, extend the tentacles of anti-escape to state-owned enterprises, public units, grass-roots mass autonomous organizations and other departments, issue guidance on anti-escape work, and build a strong anti-escape dam.
Fleeing corrupt officials can still hire a lawyer
Next, let's talk about the trial in absentia. Which courts will try it?
The draft amendment to the Criminal Procedure Law clarifies that the case shall be heard by a collegial panel formed by the intermediate people's court at the place where the crime was committed or where the defendant resides (if necessary, jurisdiction may still be designated in accordance with the provisions of the Criminal Procedure Law).
It is also stipulated in various procedures.
For example, the court shall serve the summons and a copy of the people's procuratorate's indictment on the defendant through the judicial assistance method stipulated in the treaty of the relevant country or other methods permitted by the law of the addressee's location.
If the defendant fails to return to the case as required after receiving the subpoena and the copy of the indictment, the court shall hold a trial, make a judgment in accordance with the law, and deal with the illegal gains and property involved in the case.
At the same time, corrupt officials who have fled can still hire lawyers, and if they refuse to accept the judgment, they have the right to appeal.
When a court tries a case in absentia, the defendant has the right to entrust a defender, and the defendant's close relatives may entrust a defender on his behalf.
If the defendant and his close relatives have not entrusted a defender, the court shall notify the legal aid organization to appoint a lawyer to provide him with a defense.
The court shall serve the judgment on the defendant, his close relatives, and defenders.If the defendant or his close relatives refuse to accept the judgment, they have the right to appeal to the higher court.
Wang Wenhua told reporters that if the trial is absent, criminal suspects or defendants who are overseas can also entrust a defense lawyer.
according to rules,Foreign lawyers can be entrusted, and domestic lawyers can be hired as defenders.If a criminal suspect or defendant does not hire a lawyer, the judiciary of our country will also guarantee his right to obtain help from a lawyer, including appearing in court for defense.
In short, the legal rights of the fugitives are fully guaranteed.
What should I do if I am arrested during the trial in absentia?
What should I do if the defendant voluntarily surrenders or is captured during the trial?The draft amendment to the Criminal Procedure Law clearly states that the court should retry the case.
What if the verdict takes effect before the case is brought to justice?
If the criminal is brought back to justice after the judgment or ruling becomes legally effective, the court shall hand over the criminal to execute the punishment.
Before being handed over for execution, the court shall inform the criminal that he has the right to raise objections to the judgment or ruling.If the criminal raises an objection to the judgment or ruling, the court shall retry the case.
Such provisions do not violate the principles of fair trial and procedural participation in criminal proceedings, and also meet the requirements of internationally accepted judicial norms.Shen Chunyao, director of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, said.
Not only that.
The draft amendment to the Criminal Procedure Law stipulates that mdash;mdash;
The trial is suspended for more than 6 months because the defendant is seriously ill and cannot appear in court, and the defendant is still unable to appear in court. If the defendant and his legal representative apply for or agree to continue the trial, the court may be absent without the defendant not appearing in court.Trial, judgment according to law.
If the defendant dies, the court shall rule to terminate the trial.However, if there is evidence to prove that the defendant is not guilty, and the court confirms his innocence after a trial in absentia, a judgment shall be made according to law.
