This Human Rights Journal entry is the second in a two-part series that explores the Supreme
People’s Court’s recent disclosures of death penalty decisions, which were
made following China's human rights review in Geneva in January 2024.
Part I
explored the demographics of those sentenced to death as well as trends in
types of crime and decision review times. This entry, Part II, looks at why
some decisions were disapproved, the presence of counsel during rulings, and
inconsistencies in the information provided by the
disclosures.
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The Sichuan High People’s Court upheld the judgments for a case of
organized crime group and drug trafficking with 12 defendants in June
2022. Three principal defendants were sentenced to death. Image
credit: Sichuan High People’s Court, CCTV13
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Disapprovals & Reasons for
This batch of death penalty reviews included 16 disapprovals (individuals).
Prior to this, Dui Hua had only learned of four disapprovals from 2018 to
2021 from CJO. Few disapprovals were recorded when the judgment
website was still posting review decisions.
In this batch, the SPC disapproved the death sentences for seven individuals
convicted of murder and for nine people convicted of drug crimes. The SPC
only issued four revised sentences along with the disapproval decisions in
the new batch. The rest were sent back to provincial high courts to be
retried. Of the SPC-revised sentences, three were resentenced to death with
two-year reprieve and one was given a life sentence.
In the reviews for the seven murder cases, one recurring reason for
disapproval was that the defendant made amends to the victims’ families
and/or received forgiveness by the families. “Receiving forgiveness”
typically means that the defendant made monetary compensation to the
victim’s family. Of the seven cases, five defendants made compensation
and/or received forgiveness, but the exact amounts were not disclosed.
There were two other disapproval reviews. One was the aforementioned case in
which the SPC acknowledged as mitigating factors: the murder occurred during
a civil dispute and the defendant had voluntarily surrendered. The other
case involved two defendants, during which the SPC considered the younger
male defendant to be an accessory offender to the female defendant in the
killing. The SPC approved the execution of the female defendant and decided
that the male defendant should not be executed immediately. Both of their
death sentences were disapproved and sent back to the high court for
retrial.
For the nine drug crime convictions, the common reason for disapproval was
that the SPC determined that the defendants were accessories to the crime.
This was cited as one of the main reasons for disapproval in the reviews of
seven defendants.
In reviews for the other two defendants of drug cases, the SPC agreed with
the lower courts that the defendants were the main offenders and had
committed serious crimes (involving large quantities of drugs). However, the
SPC still considered the defendants’ voluntary surrender and expressions of
remorse as mitigating factors. Both cases were sent back to the Guangdong
High Court for retrial.
The SPC doesn’t seem to factor in the defendant’s age when considering
whether or not to approve the death sentence. This batch of reviews suggests
that the SPC has a higher threshold for accepting voluntary surrender as a
reason for leniency. In reviewing the death penalty, the SPC often disputed
whether the surrender itself was truly voluntary or if it occurred too long
after the crime.
Presence of Defense Counsel During Review
China passed the Legal Aid Law in August 2021, which expanded the scope for
providing legal aid during the death penalty review process. The law went
into effect on January 1, 2022. Prior to this, the convicted had to
retain their own counsel during the final review.
Although the sample size is small, Dui Hua sees the impact of the new law
reflected in the decisions. For the 93 convicted, 54 individuals had legal
counsel during the review process while 39 did not.
Of those with legal counsel, the decisions revealed that 40 individuals
had requested legal aid and that they received counsel in accordance with
the law. Twelve individuals or their families retained their own counsel.
Legal counsel was present at two reviews, but the decisions did not
disclose details. This can be seen as a positive development insofar as
the defendant’s due process rights are concerned. The possibility of
having legal counsel present during the review process was made known to
those under review and many accepted legal assistance.
The documents do not disclose the reasons why individuals did not have
legal representation during the review. This omission raises questions as
to whether the individuals were aware of the opportunity or if they
refused legal assistance.
Table 6. Presence of counsel & review time
If there was an impact on review time due to the presence of counsel, the
result is not obvious. Their presence did not seem to significantly prolong
the review process when compared to cases without counsel.
Table 7. Presence of counsel & outcome
The presence (or absence) of a counsel did not appear to have an impact on the
outcome of the SPC review. The SPC seems to have based its decisions on
evidence (findings presented by the procuratorate and the lower courts), the
seriousness of the crime, its social impact, and the role played by the
offenders. Also taken into account are the mitigating factors discussed above,
mainly expressions of remorse and obtaining forgiveness from the victim’s
family.
Inconsistencies & Omissions
Considering the importance of a review decision on the application of the
death penalty by China’s highest court, there are important omissions in
several documents.
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The details of legal counsel were not disclosed in the decisions.
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The ethnicity of 25 individuals, more than a quarter of the batch, were
also omitted in the decisions.
The new batch of documents also seems to break with past releases. Only one
decision included the full name of the convicted, Lao Rongzhi (劳荣枝). Lao
was accused of having been involved in several kidnappings and murders from
1997 to 1999 and had been on the run for 20 years before she was apprehended
in November 2019 in Xiamen, Fujian. Her case was sensationalized on social
media. The SPC took slightly more than a year to complete the review. She
was executed on December 18, 2023, in Nanchang, eight days after the SPC's
approval.
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Lao Rongzhi, at the Zhejiang High People’s Court for the appeal trial.
The judgment was upheld by the court in November 2022. Image credit:
Supreme People’s Procuratorate
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All other documents did not disclose the full names of the convicted. A
possible reason for obscuring the names might be to protect the victims’
privacy, especially in cases where the victims were underage. However, even
the SPC itself does not always follow this reasoning. In May 2023, to
highlight the country’s determination to protect the rights of juveniles, the
SPC announced in a new release that it had approved the executions of three
individuals accused of serious assaults against underage girls. The SPC’s news
release disclosed the full names and some details of the crimes. And even
though the three cases were categorized as case study examples for crimes
against juveniles, the full review decisions for the approvals were not
released.
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In 2021, the SPC established the Office of Juvenile Trial Work with
the purpose of protecting the rights of the child, such as by
implementing trial procedures for juvenile defendants and
strengthening punishments for crimes against juveniles. Image
credit:
chinacourt.org
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Curious Timing
The timing of the release of this new batch of decisions is interesting. The
first post date was almost immediately after the submission of China’s UPR
in January 2024. Dui Hua,
in its submission as an NGO with special consultative status, highlighted issues such as judicial transparency in death penalty review
decisions. Other states parties and NGOs also highlighted the death penalty
in China. In its response to UPR recommendations, China rejected 17
recommendations from other countries concerning its use of the death
penalty. Of these, 14 recommendations – almost all of them from European
nations – called on China to enact a moratorium on the use of the death
penalty or abolish it outright. Three recommendations urged China to
restrict the number of crimes punishable by death and to stop applying it to
non-violent crimes.
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Chen Xu (front, center), permanent representative of China to
the UN office at Geneva, attends China's UPR on January 26, 2024.
Image credit: UNWebTVUNWebTV
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Issues surrounding the death penalty in China have long been a focus of UPRs.
China is believed to be the world’s leading executioner, and the opacity with
which it conducts executions was a recurring issue in the most recent review.
The UN High Commissioner for Human Rights has repeatedly called for a
moratorium on the executions, particularly executions in non-violent drug
cases. The brief resumption of posting death penalty review decisions might be
a reaction to these criticisms. The selected reviews give the impression that
China's judicial system is more deliberative and judicious, not simply a
rubber stamp for decisions reached by lower courts as is often assumed. If
these disclosures were an attempt to anticipate and mitigate such concerns,
the omission of decisions on Uyghurs and Tibetans undermines confidence in the
disclosures.
A possible reason for the timing of the release is to showcase review time
lengths and the Court’s efforts to arrive at fair, cautious decisions. These
features refute criticisms that the SPC, and China’s justice system in
general, simply validate rulings in cases that have already been decided.
Additionally, even though the presence of legal counsel seemingly does not
influence review times or outcomes, the provision of legal counsel during the
review can nonetheless be seen as an indication that “due process” is
respected throughout China’s judicial system.
The launch of CJO in 2013 raised hopes about judicial transparency and
legal reform in China. In its submission to China’s 2018 UPR, Dui Hua
applauded this step and other measures that strengthened judicial
transparency. Conversely, Dui Hua’s 2024 UPR submission detailed how the
steady retreat from transparency has undermined the achievements that so many
practitioners had applauded a decade ago.
In the spirit of promoting judicial transparency, the Chinese government
should be encouraged to continue releasing judgments, even for sensitive cases
that can draw criticism and controversy, including cases involving the death
penalty. A court’s willingness to explain itself can also build trust in a
legal system that still remains partially in the shadows.
