In China, anyone who is suspected of having committed a crime is called a “suspect” in the stages of investigation by the police and examination by the public prosecution, he is then called a “defendant” at the trial stage of the court.
Generally speaking, criminal suspects or defendants of foreign nationality(foreign criminal suspects or defendants) enjoy the same procedural rights as Chinese citizens under the Criminal Law of China and the Criminal Procedure Law of China, such as petition for recusal, defense, and right to refuse to answer interrogations that are not related to the case, participation in court debates, appeals, filing complaint and the right to file charges against judicial personnel for infringement of their procedural rights and personal insults. Correspondingly, foreign criminal suspects or defendants have the same duties as Chinese citizens in criminal proceedings in China.
After a foreign suspect is detained or arrested, the police shall notify the embassy or consulate in China of the foreigner’s country of his name, gender, passport number, main facts of the suspected crime and compulsory measures taken etc. If a foreigner dies during the police investigation, the police shall notify the embassy or consulate of the foreigner’s country in China.
When handling criminal cases involving foreigners, the police should use the languages commonly used in China. If the foreign criminal suspect does not understand the Chinese language, the police shall translate for him.
Before the end of the investigation by the police, if foreign diplomatic and consular officials in China request visits to the detained or arrested citizens of their country, the police shall arrange visits in a timely manner. During custody, with the approval of the police foreign criminal suspects may meet with their close relatives and guardians and communicate with the outside world.
In addition to exercising the right to defend themselves, foreign criminal suspects and defendants may also entrust one or two persons as their defenders. Criminal suspects have the right to appoint a defender from the first interrogation by the police or the date when compulsory measures are taken; during the investigation, only lawyers practicing in law firms in China can be appointed as defenders. At the stage of court hearings, foreign defendants may entrust their guardians or close relatives to act as defenders.
Defense lawyers may provide legal assistance to foreign criminal suspects during the investigation; represent complaints and accusations; apply for changes in compulsory measures; learn about the suspected crimes and case-related circumstances of foreign criminal suspects from the police, and provide opinions. Defense lawyers may meet and communicate with foreign criminal suspects and defendants in custody. Where a defense lawyer holds a lawyer’s practice license, a certificate issued by his law firm and a power of attorney to request a meeting with a foreign criminal suspect or defendant in custody, the detention center shall arrange the meeting in a timely manner, no later than 48 hours.
Defense lawyers meeting foreign criminal suspects and defendants in custody can learn about the case and provide legal advice; from the day the case is transferred to public prosecution for review, they can ask foreign criminal suspects and defendants to verify relevant evidence. Defense lawyers shall not be monitored when they meet with foreign criminal suspects and defendants. From the date when the public prosecution examines the case, the defense lawyer may consult, extract, and copy the case file materials of the case.
Needless to say, for foreign criminal suspects suspected of felony crimes, experienced Chinese defense lawyers should be retained. In particular, China is a country that retains the death penalty. Among the 469 crimes so far stipulated in the Criminal Law, 46 crimes may be sentenced to death, including intentional homicide, intentional injury, drug smuggling/trafficking/transportation/ manufacturing, rape, kidnapping/ abduction/ trafficking of women and children, production and sale of counterfeit medicines, production and sale of poisonous and harmful food, arson, breaching dikes, explosion, poisoning and robbery etc.
By Linchang “Charles” Shen, Partner of Shanghai Puruo (Promise) Law Firm