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China: Criminal Procedure Law Amended to Allow Criminal Trials in Absentia in Corruption Cases

(Jan. 10, 2019) On October 26, 2018, the Standing Committee of the National People’s Congress (NPC) of the People’s Republic of China (PRC or China) passed an amendment to the PRC Criminal Procedure Law (CPL). Among other things, the new CPL allows criminal trials in absentia particularly in corruption and bribery cases in which the suspects or defendants have fled overseas. The decision took effect on the same day it was enacted. (Decision of the NPC Standing Committee on Revising the PRC Criminal Law (Oct. 26, 2018) (in Chinese), NPC website; PRC Criminal Procedure Law (adopted by the NPC on July 1, 1979, revised Mar. 17, 1996, Mar. 14, 2012, and Oct. 26, 2018) (in Chinese), NPC website; English translations available on Westlaw China (by subscription).)

The amendment adds a chapter of seven articles as chapter 3, “Procedures for Trial in Absentia,” under part V, “Special Procedures.” According to the new article 291, the special procedures for trials in absentia can be used in the following criminal cases in which the suspects or defendants are overseas:

  • corruption and bribery cases
  • cases seriously endangering national security or of terrorist activities, which must be verified by the Supreme People’s Procuratorate and need to be tried promptly

Trials in absentia under article 291 may be conducted only by intermediate people’s courts. (Id.) Furthermore, the defendant or close relatives of the defendant may retain a defense counsel. If no such counsel is retained, the court is to request a legal aid center to assign a lawyer to represent the defendant. (Id art. 293.)

Trials in absentia may also be used in retrials of cases in which an innocent person has been wrongfully executed. According to article 297 of the revised CPL, a court may conduct a trial in absentia when a case is retried in accordance with the trial supervision procedures and the defendant has died. (Id. art. 297.) The Supreme People’s Court appears to have conducted such a retrial in absentia in 2016, when the Court overturned the conviction of Nie Shubin, who was convicted of rape and murder, sentenced to death, and executed in 1995. (Laney Zhang, China: Rules of Online Publication of Court Judgments Revised, GLOBAL LEGAL MONITOR (Feb. 9, 2017).)

This is the third time the CPL has been amended since it was first passed by the NPC in 1979. The Law was previously amended in 1996 and 2012 by the NPC General Assembly. The third amendment was deemed “not involving changes to the basic principles of the CPL,” and was therefore passed by the NPC Standing Committee. (Shen Chunyao, Explanation of the Draft Criminal Procedure Law of the People’s Republic of China (Oct. 26, 2018), NPC website (in Chinese).)