Trial in absentia: from paper to action
● Trial in absentia, which corresponds to the "trial in opposition", refers to the trial and judgment of the case by the court when the defendant does not appear in court.
Criminal proceedings are subject to trial in principle, but trial in absentia is only available under special circumstances
● Trial in absentia shall comply with the ethical standards of judicial fairness.
Judicature focuses on obtaining credibility, which is based on substantive justice based on evidence and procedural justice under the principle of rights protection.
The Criminal Procedure Law has a series of procedural rights protection provisions for defendants who do not appear in court to ensure that their defense rights are not unrealized due to the defendant’s absence
● The application of the default trial procedure to Cheng Sanchang, a corruption suspect who has absconded for 19 years abroad, is a zero breakthrough in my country's criminal proceedings. It activates the default trial system and realizes the transformation from "laws on paper" to "laws in action". It has a practical beginning, and at the same time, it has formed a real legal deterrent for expatriates.
□ Our reporter Jiang Anjie
On March 8, the Fourth Session of the Thirteenth National People's Congress held the second plenary session in the Great Hall of the People. Zhang Jun, Chief Prosecutor of the Supreme People's Procuratorate, delivered a report on the work of the Supreme People's Procuratorate to the conference.
The report stated that in 2020, the procuratorial organs will make good use of the statutory special procedures to urge the pursuit of escaped and stolen goods.
The confiscation of illegal proceeds was initiated against 7 suspects of escaping, hiding and dying of corruption and bribery; the trial procedure was applied in absentia for the first time, and Cheng Sanchang, who had absconded abroad for 19 years, was prosecuted.
It is understood that this case is the first duty crime case handled by the procuratorial organs in absentia under the unified organization and coordination of the Central Fleeing Office.
Establish a trial system in absentia
Effectively combat fleeing corrupt officials
On October 26, 2018, the third amendment to the Criminal Procedure Law was completed.
The newly revised Criminal Procedure Law specifically sets up a chapter "Procedures for Trial in Absence" in the fifth "Special Procedures", establishing a criminal trial by default system with Chinese characteristics.
According to Zhang Jianwei, a professor at the Law School of Tsinghua University, a trial in absentia corresponds to a "trial in opposition", which refers to the trial and judgment of the case by the court when the defendant does not appear in court.
In principle, criminal proceedings are conducted by trial, and only in special circumstances are trial by default.
This is because criminal trials involve the guilt of individuals or units and are of great importance.
Our country’s system of trials in absentia is mainly used in cases of corrupt persons fleeing.
Due to the serious flight of corrupt officials, it is really necessary to establish a trial by default system in my country.
For these corrupt and fleeing individuals, our country needs to take effective measures to pursue them, and pass legislation to meet the actual needs of anti-corruption and cooperation with the international community. The default trial system was created to meet this need.
Zhang Jianwei pointed out that the establishment of a trial by absentee system can more effectively combat corrupt officials.
This is because when applying for extradition or negotiating with a country where corrupt officials are absconding, some countries will often consider whether they have been convicted in accordance with the law in the country they have fled.
Once the identity of the offender is determined, according to the Convention, the signatory country is generally obliged to support the extradition application.
Therefore, the worldwide wanted for corruption crimes has become a common problem faced by all countries, and how to effectively combat corrupt persons fleeing abroad has become a key consideration in setting up a trial by absentee system in my country.
Wang Xiumei, vice president of the Institute of Criminal Law Science of Beijing Normal University and vice chairman of the International Criminal Law Association, said in an interview with a reporter from the Rule of Law Daily that the trial in absentia is a criminal case of corruption and bribery, and that it needs to be tried in a timely manner. The Supreme People’s Procuratorate approved In cases of crimes or terrorist activities that seriously endanger national security, the criminal suspects or defendants are abroad, and the supervisory organs or public security organs transfer prosecutions, and the People’s Procuratorate believes that the facts of the crime have been ascertained and the evidence is reliable and sufficient, and criminal responsibility should be pursued in accordance with the law. You can file a public prosecution with the people's court.
This system is a special trial procedure for criminal defendants who have not attended court trials in special criminal cases to resolve their criminal liability issues.
For our country's criminal justice procedure, this is a brand new procedure from scratch.
Trial in absentia
Comply with the requirements of the rule of law
Zhang Jianwei said that the prosecution of Cheng Sanchang, a suspect of corruption, is the first case in which this trial system has been applied in similar cases since the 2018 Criminal Procedure Law was amended to establish a trial by default system.
Zhang Jianwei believes that the application of the default trial system has strict conditions.
Cases in absentia are limited to corruption and bribery crimes, serious national security crimes, and terrorist crimes that have certain special circumstances, rather than general cases. For expatriates, there must be evidence that the defendant is outside the country. If the defendant is If he has not been caught and his whereabouts are unknown, but there is no evidence that he has fled abroad, the trial in absentia cannot be applied.
The Cheng Sanchang case meets this condition. Taking this case as the beginning of the application of the trial by default system conforms to the requirements of the rule of law.
In Zhang Jianwei's view, trials in absentia should conform to the ethical standards of judicial fairness.
Judicature focuses on obtaining credibility, which is based on substantive justice based on evidence and procedural justice under the principle of rights protection.
The Criminal Procedure Law has a series of procedural rights protection provisions for defendants who do not appear in court to ensure that their right to defense is not unrealized due to the defendant's absence.
The application of trial in absentia should pay attention to the protection of the defendant's litigation rights.
Therefore, the Criminal Procedure Law stipulates that when the people's court tries cases in absentia, the defendant has the right to appoint a defender, and the defendant’s close relatives can act as the appointed defender.
In a trial in absentia, if the defendant has not hired or entrusted a defender to appear in court, the court shall appoint a legal aid lawyer to act as the defender for the defendant who is absent.
In addition, in absentee trials, serving the defendant is also indispensable, but because the defendant fled abroad, many people hid abroad, making the service quite inconvenient.
In cases where there are certain difficulties in serving the defendant who fled abroad, the court may adopt appropriate methods of service depending on the specific circumstances of the case.
Not only that, for default judgments, the people's court should also serve the judgment on the defendant’s close relatives and defenders.
If the defendant or his close relatives disagree with the judgment, they have the right to appeal to the people's court at the next higher level.
The defender may file an appeal with the consent of the defendant or his close relatives.
"An observation point in the application of the trial in absentia is: how the procedure operates in this case, especially the protection of the rights of the defendant. The Cheng Sanchang case provides an opportunity to observe this practical issue." Zhang Jianwei said.
For the first time, the procuratorial agency applied the procedure of trial in absentia to prosecute the corrupt official Cheng Sanchang. Zhang Jianwei believes that it is of great significance. The prosecution agency is a public prosecution agency.
Not only that, in order to ensure the quality of trial cases in absentia and the seriousness and standardization of related judicial activities, the application of the trial system in absentia requires strict control. Among them, crimes of endangering national security and terrorist activities need to be approved by the Supreme People’s Procuratorate.
Zhang Jianwei believes that the Cheng Sanchang case is a suspected corruption and bribery case. Although it does not require the Supreme People’s Procuratorate to approve, the case was initiated by the Supreme People’s Procuratorate before the trial procedure was initiated in absentia. The agency is rigorous and realistic, reflecting the thoughts of prudent prosecution and the serious attitude in the quality control of case prosecution.
"The application of the trial procedure by default to Cheng Sanchang is a zero breakthrough in my country's criminal litigation. It activates the system and realizes the transition from'law on paper' to'law in action', giving it a beginning for practice, and at the same time Fleeing people form a real legal deterrent." Zhang Jianwei said.
Release a strong anti-corruption signal
If you escape, you must chase to the end
According to Wang Xiumei, since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at its core has insisted that corruption must be countered and corruption must be eliminated, and the "tigers" and "flies" have been fighting together. The anti-corruption struggle has achieved an overwhelming victory.
From 2014 to June 2020, a total of 7,831 escaped persons were recovered from more than 120 countries and regions, including 2,075 party members and state officials, 348 "red pass personnel", and 60 "100 red pass personnel". The returned stolen money was 19.654 billion yuan, effectively reducing the stock of expatriates.
However, it is undeniable that the situation in the fight against corruption is still grim and complicated. The work of tracing and recovering stolen goods has entered a critical period and deep water. By urging overseas fugitives in official crime cases to surrender and surrender, through extradition, repatriation, overseas arrest, and off-site prosecutions The law enforcement cooperation method is still unable to effectively recover the corrupt elements who fled abroad.
Wang Xiumei believes that the application of the trial procedure in absentia has multiple meanings: it can facilitate the timely collection and fixation of evidence of criminal suspects committing corruption crimes, improve the punishment and efficiency of criminals fleeing corruption abroad, and solve the problems in the international cooperation in anti-corruption, escape and recovery. Dilemma: It has enriched the international legal methods for the work of fleeing and recovering stolen goods, greatly deterring the corrupt elements who refuse to return to the case. It is a prominent manifestation of the rule of law thinking and methods of anti-corruption, fleeing and recovering stolen goods. .
"The more important meaning is to show the central government's firm determination to fight corruption,'every escape, chase to the end'." Wang Xiumei emphasized that this is a strong signal that there is no haven for corruption crimes, and at the same time fleeing corrupt officials and foreign officials. Attempting to flee corrupt officials shows that the Party Central Committee adheres to the international cooperation principle of "zero tolerance, zero loopholes, and zero obstacles" in preventing and combating corruption crimes.
Zhang Jianwei believes that the case of Cheng Sanchang’s absentee trial has the benchmarking significance of the relevant rule of law from legislation to specific practice. It reflects the establishment of a new way of rule of law in my country’s anti-corruption work in judicial practice, and shows that my country’s anti-corruption judicial efforts have achieved new results. The legal network for secretly punishing corruption and bribery crimes not only deter corrupt elements, but also serves as a warning to domestic political and commercial officials, which is conducive to the realization of the country's goal of curbing corruption and building a clean public power system.
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Cheng Sanchang, the former chairman of the Yugang (Group) Company, served as the head of a township, county, and mayor. Later, he served as the secretary of the Luohe Municipal Party Committee in Henan Province and was a "star figure" in Henan politics.
He fled to New Zealand in February 2001 due to suspected corruption crimes. He talked about the official business experience and fleeing experience abroad, and undisguisedly told the illegal and criminal facts of his participation in power and money transactions and buying and selling officials. The impact was extremely bad.
In 2002, Interpol issued a red arrest warrant, but Cheng Sanchang has not been brought back to the court.
In 2020, the Supreme People's Procuratorate instructed Henan's procuratorial organs to prosecute the application of the trial procedure by default, which is currently under trial.