The Limits Of Interference With Fundamental Rights In Criminal Procedure — An Analysis Based On The Balancing Method

The serious crime in forms of terrorism, organized crime, and economic crime gave birth to the reduction of fundamental rights within the criminal law among western democracies, which brought up the question of so-called “enemy criminal law(Feindstrafrecht)” in Europe. By contrast, egregious examples of disrespect of fundamental rights have been repeatedly revealed(including the recent scandals of tortures and wrongful convictions in Chongqing city) in the four nationwide “Strike-hard”(“Yan Da”) campaigns against serious crime launched by the central government of China from 1983 to 2010, which highlight the requirement for more comprehensive and solid protection of fundamental rights, rather than the other way around. In China’s newly reformed Criminal Procedural Law(hereinafter CPL) which took effect in Jan. 1st 2013, on the one hand more protections of rights are guaranteed for defendants who are charged of normal offences, and on the other hand more stringent measures are allowed in proceedings against some listed serious crime.The primary aim of this research is to verify, by the international human rights standards, whether a reasonable balance has been reached in China’s current criminal justice system between interests of protecting fundamental rights and fighting against serious crime. To achieve this goal, the research is going to take as a starting point the generally acknowledged human rights principles and criteria through an examination of interpretations of the European Convention of Human Rights(hereinafter the ECHR) made by the European Court of Human Rights(hereinafter the ECtHR). Based on its productive experience of harmonising the national diversity and uniform standards of human rights, the system of the ECHR, as the research will further elaborate, serves as a preferable frame of reference to ascertain what issues should be noticed and what steps should be taken to help China get out of the chronic dilemma between persisting harsh control of serious crime and embracing modern human rights standards.1. The Institutional Settings of Trade-off between Security from Serious Crime and Protection of Fundamental RightsIn the context of international human rights law, the definition of serious crime in substantial law falls into the spectrum of State’s margin of appreciation, and is not, in general, the issue in question in cases of claimed violation of fundamental rights. What the research concerns about is those impugned institutional arrangements that impose significant influence to citizen’s fundamental rights in the proceedings against serious crime.The first target of the research is to present a sketching overview as to how the protection of fundamental rights is compromised in the institutional settings of China’s criminal proceedings against serious crime. The research will not only concentrate on fundamental rights in China’s Constitution, but also on those rights enshrined in the International Covenant on Civil and Political Rights(the ICCPR) and already recognised in China’s statutory laws. For further comparison, the research is also about to examine the legal mechanism in the ECHR that leaves sufficient room to accommodate interests of public security while preserving individual rights.The crux of the problem in this session is the difficulty to offer logical interpretations of some perplexing aspects of China’s institutional settings, one of which is a great deal of intrusive procedural measures that go far beyond what the “enemy criminal law” conception can cover are ex parteavailable to relevant authorities and immune to ex ante judicial review. Possible explanations will extend to the absence of a reliable system, on both constitutional and statutory levels, to defend fundamental rights.2. Justifications for the State’s Interference and the Effective Protection of Fundamental RightsThe popular defence of the unsatisfied protecting human rights in China’s criminal justice conveniently resorted to the reason of State(raison d’ Etat)- the national conditions(Guo Qing) that while China is battling against pervading serious and violent crimes, the nation’s financial resources fail to afford high-level, western-like mechanism of rights protection. Additionally, discussions on the “firewall” or the essence of a fundamental right that defies authorities’ interference are underdeveloped in China. Therefore, the verification of the aforementioned defence and the examination of standards of effective protection of fundamental rights rely on a delicate combination of beneficial lessons from the ECHR and the social and judicialrealities of China.The research will clarify whether there are factors needed to be considered other than the sheer nature of the crime when the legitimacy and proportionality of Member States’ interference are put into scrutiny. The focus will be on the following rights in the ECHR: the right not to be tortured or degradingly treated, the right to personal liberty, the right to privacy, the right to a fair trial. A number of other rights relevant to the research subject could also be mentioned. Moreover, by analysing specific criteria on the very essence of rights in the ECHR, the research is concerned with the following questions: how has the ECtHR applied the interpretative principles geared towards changing threats of crime over time? Has the ECHR standards been diluted to accommodate the fledgling democracies in central and eastern Europe?3. Approaches to Improve or Rebuild China’s Criminal Justice System to Protect Fundamental Rights in Cases of Serious CrimeThe research proposes that the top priority in China’s reform schedules be to grant criminal courts genuine and enforcing authorities to enable them to nullify secondary legislations and practical measures that violate fundamental rights entrenched in statutory laws, and to offer effective remedies in individual cases. As a desirable goal in the long-run, the ICCPR should be recognised as China’s Magna Carta and absorbed in the Constitution. Even the legislation of National People’s Congress or the judicial interpretation encroaching upon fundamental rights will be invalidated on the ground of violating the Constitution or the ICCPR, and the effective redress for that violation will be made accordingly.However, it does not necessarily follow that the overhaul of purely legal institutions will suffice to produce a criminal justice system consistent with international norms of human rights. The transition from the crime-controlled paradigm to the right-based paradigm in China’s criminal justice system will begin with nowhere as long as the dependent position of judicial institutions and the cooperating relationship between the police, prosecutors and judges have not been altered. What has to be done to prompt the transition? What strategies and approaches should be applied? To grasp the nettle, the research will embark upon the analysis of various materials and perform fieldwork surveys concerning these questions.