PROCESO PARA REALIZAR PAGO A CONDUCTORES
2.6.1. Análisis de datos
Statement of the Accused
Unlike the law in many adversarial systems, such as England & Wales, in which no
statement by an accused is admissible at her trial unless it is shown by the prosecution to
be voluntary, there is no requirement of voluntariness within Chinese Law. On the
contrary, the suspect has the duty to answer truthfully during police questioning.49
Although article 50 of CPL 2012 sets out the privilege against self-incrimination and
explicitly prohibits extorting confession by torture, threat, enticement, deceit or other
unlawful means, sanctions in regards to the violation of these principles are weak and
ineffective.50 Furthermore, legal advisers are not allowed to be present during the police
interrogation. Despite the introduction of video/audio recording, this only happens in a
select number of cases. In the absence of any effective legal safeguards or supervision of
the exercise of police power, the police interrogation is shielded from external scrutiny,
creating a haven for the arbitrary practice of police power.
The task of the interrogation is to confirm the pre-formulated 'truth' by procuring the
confession from the accused and securing it in writing. The recording process during the
police interrogation is extremely crucial, given the fact that the evidence dossier plays such
an important role in the adjudication. Although according to the law, the suspect is allowed
to check, make additions or corrections to the written record of interrogation before she
signs,51 in a process solely controlled by the interrogator, this right is not guaranteed. 52
With no authentication process or any mechanism to check the credibility of the record, the
49
See article 118 of CPL 2012.
50
These sanctions include article 247 of the criminal law, which provides that any judicial officer who extorts a confession from a criminal suspect or defendant by torture, or extorts testimony from a witness by violence, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detentions (a type of short term imprisonment). Article 54 of CPL 2012 provides that the illegally-obtained evidence in criminal cases should be excluded. This will be discussed at length in chapter 6.
51
Article 120 of CPL 2012.
52
It is a common phenomenon in Chinese criminal procedure law that there are a lot of legal principles without corresponding legal sanctions or legal remedies.
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recording of the interrogation, causes fundamental concern. Similar to the 'off the record'
practice between the police and suspects in England & Wales, conversations which serve
as a prelude to interrogation would not appear on the written record. 53 A defence lawyer
divulged to me what his client told him:
[BDL-1 Interview] Defence lawyer: Yesterday I talked to my client, who told me that when he confessed his crime the first few times, the investigating officers did not even write his confession down. That's because they believed that what he said did not conform to the direction in which the investigation was going. So they did not even record it!
Whilst some suspects' statements are taken off the record, other confession statements are
manufactured and falsified with the interrogation not even taking place. In the absence of
defence lawyers or other effective means to oversee the legality of the process, the police
are able to fabricate evidence by attributing to suspects admissions they have not in fact
made. Similar claims disputing the credence of statements have been made repeatedly by
suspects. 54 As a general feature of these statements, which suspects claim have been
falsified by the police, all elements of the crime in question had been confirmed and
included to ensure the finding of guilt. For example, during the prosecutorial investigation,
a suspect told the prosecutor what happened to him.
[Field note APU-30]Suspect: I did not hide anything from the police but I know the police fabricated my statement. They told me 'don't worry, it is the same. Just finish this paperwork and you can leave.' I glanced at the statement. It was not what I said. Then they asked me to sign and fingerprint it. They asked me to admit that I had taken the bag with me. I did not. I couldn't admit to something I never did. Why on earth did they do that to me?
The police interrogation record rigidly follows a standardised format. It starts with the
information of the duration and the location of the interrogation, the information of the
interrogator (s) and the record transcriber, and the notification of the suspect's rights. These
53
See Mike McConville et al, The case for the prosecution (Routledge 1991) 58.
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are important elements for an interrogation record. According to Article 82 of 'Several
explanations on the implementation of the Criminal Procedure Law by the Supreme Court
of P.R.C' (Judicial explanation 2012), if this information is missing, the statement is
inadmissible as evidence. Without effective supervision, it is difficult to discover whether
these elements are counterfeited. For example, an experienced defence lawyer who used to
work as a police officer revealed what had happened in police practice:
[BDL-1 interview] Defence lawyer: The workload put on them (the police) is very huge and they are constantly under pressure. Because of such a complex situation, there are many public workers who function like the police but they are not properly qualified police. They have different names, such as the police associates, the public security workers, and public safeguarding workers. They have subcontracted to do the interrogation work for the police. After they (public workers) have undertaken the interrogation, the interrogating police officers just signed their names on the statements. Due to the lack of the qualification as a police officer, their interrogation is invalid and should not be used as evidence. But there is no way to check out whether the people who have interrogated the suspect are the real police. These people are not qualified to interrogate and the statement should not be used in the legal procedure. However, there is no way to supervise this.
Despite the legal provisions, it seems that fabricating information is not perceived as
sinister. In fact, to make sure that the details in the official record conform to the legal
requirements, some critical elements such as the duration of the interrogation were often
left blank until the end of the investigation. Then a date would be selected and put in
retrospectively to ensure that the interrogation appeared to have been conducted lawfully.
For the police, the most important job for the investigation is to tidy up the written
documents compiled in the dossier, so that their investigative work appears impeccable
when the dossiers are reviewed.
[Field note APU-18] The police officer in the case explained why he needed to put that date on the record of interrogation even though the date could not match the fact given by other
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suspects.
Policeman: […] the main problem is if we write the time that we took them [the suspects] back to the police station, we have violated the law. According to the law, we have to interrogate the suspects within 24 hours after they are detained. However, the first time I interrogated the other three suspects was three days after they were taken back to the police station. Therefore if I use the time we took them back to the police station and confirmed their status, we have falsely imprisoned them for three days. So I have to put the right date in the statement.
The content of the interrogation is also susceptible to being manipulated in a way that the
guilt of the suspect can be secured. The statements are usually set out as if they were
straightforward narrative, which disguises the way that they are actually elicited. The
interchange between the police and the suspect is by questioning and answering. Some of
the answers given by the suspect are so implausible that they were obviously made by the
collaborative effort between the police and the suspect. For example, in a fraud case, one
of the interrogating records was about the personal information of the victims. In the first
interrogation, the suspect confessed the names of eighteen victims, their telephone
numbers, bank account numbers and the names of twenty hotels where the fraud took
place.55 This certainly raises a doubt that the suspect could memorise all these sixteen digit
bank card numbers and eleven digit telephone numbers without mistakes. As the fraud
activities occurred over a five year period, it also raised suspicion that the accused could
remember the precise times and dates that each fraud took place. In another theft case, the
suspect confessed the reference numbers of 209 stolen goods, including jewellery, clothes
and handbags from a shop when interrogated by the police for the first time.
[Field note APU-6] An excerpt of the record of interrogation (first time) of a theft case:
Police: What did you steal from this shop?
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Suspect: I stole 49 clothes, their serial numbers are: KVI-34-P90, JRV-54-V20, RKI-89-99V, RSK-39K-90K, REK-49-PE3, KVQ-90S-VI3, ISIP-39L-GIS, EKS-E30-SLK, KO0-LD-3L8 […]. I also stole 59 pieces of jewelleries, their serial numbers are: KOS-39S-SKJ, K39-SKI- SKP, QID-JI3-VIP, SIS-39K-SI3, DI9-3KS-S9S, ISI-SI9-3SI, DI0-D83-SKI, LA9-S9D- 3KD, IDK-3K9-S39, […] I also stole 101 bags, their serial numbers are: IP0-SKI-SKE, KI3- ISS-90S, SI9-SE9-SIV, SIS-DI8-S83 […]
Police: Did you confess the truth?
Suspect: Yes, I did.
It was inconceivable that the suspect would pay so much attention to the serial numbers
used by the shop, unless he had been aided by the relevant evidence produced in the
interrogation. In the same case, when the suspect was interrogated for a second time, these
large chunks of serial numbers appeared again in the same sequence. As one of the
strategies employed by the police, suspects' statements were replicated a couple of timesas
if the suspect had confessed consistently. 56 It is believed that these repeated confession
records are pre-typed by copying and pasting the suspect's previous statement, since
inaccuracies and spelling mistakes contained in the account remained unchanged. A
defence lawyer revealed what he knew about the suspect's statement.
[BDL-1 interview] Defence lawyer: There are many interrogation records that are pre-typed before the interrogation. That is why since computers are widely used today, the interrogation statements are worse than they used to be. The police used to record the interrogation by hand. Now we have seen the same spelling mistakes and the same styles of paragraph being repeated in different statements---they just use copying and pasting! I read many of the suspect's statements in the dossier. In the final four statements, the spelling mistakes and paragraphs were exactly the same!
Other inaccuracies occurred in the interrogation records, such as mistakenly putting the
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victim's name as the suspect's name.57 By virtue of article 120 of CPL 2012, the suspect has
the right to check the record of statement and make corrections before she signs. In
practice, suspects are required to sign their names on each page of the statement often with
a thumbprint on top of their names and other corrected areas. On the final page of the
statement, the suspect is also asked to write or copy a sentence declaring that 'I have read
the above content, which is the same as what I said'. Whilst the record of statement appears
genuine with the suspect's hand writing signatures and thumbprints, there is no guarantee
that these records of interrogation were conducted verbatim. The end product of these
written accounts is usually fraught with various distortions, exaggerations,
misunderstandings and falsifications. Quite often suspects complained that they had not
been given the time to read the record of interrogation before they signed.
[Field note APU-21] A prosecutor asked a suspect whether she confessed that she had the possession of the drugs.
Prosecutor: […] You said you wanted to keep them for yourself because you had a quarrel with your ex-boyfriend who had these drugs.
Suspect: No, it is not. I did not say something like that. It is made up by the policeman. They were my boyfriend's and I did not know how to deal with them, so I kept them where they were.
[Field note APU-21] In a drug dealing case, a prosecutor asked the suspect whether he signed the record of interrogation.
Prosecutor: Did you sign the record?
Suspect: No. They did not let me read what they wrote. They forced me to sign my name.
Suspects frequently reported that signatures on the statement were extorted by force or
psychological compulsion. Very often, suspects claimed that threats, physical violence or
57
As Field Note APU-19 records, a prosecutor found the name of the suspect on cover of the dossier was actually the name of the victim.
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even tortures were resorted to, even if they are explicitly prohibited by law. According to
the allegations made by suspects, psychological pressure was employed by threatening the
families of the suspect. As far as these suspects were concerned, non-cooperation was not
only frightening but also selfish and unwise, which might bring harm to their family.
[Field note APU-47] In a trial of a drug trafficking case, the judge asked the suspect whether he confessed in front of the police.
Judge: Defendant, did you tell the truth in that statement?
Defendant: No. I was threatened by the police. When I was in the detention centre, the police threatened me to get the answer that they wanted.
Judge: What did the police do to you?
Defendant: They threatened me and asked me to sign the statement. If I did not sign, my family would be in danger.
Although all the police officers whom I interviewed declared that torture has been
diminished significantly in the last few years, certain statistical surveys conducted by
Chinese scholars indicate that the employment of torture remains prevalent and the
situation is still worrisome. In Sun Changyong (2010)'s study, of 98 detainees in the
detention centre, 53 per cent of suspects suffered from torture before they were transferred
to the detention centre and 17 per cent of suspects indicated that they suffered serious harm
through the use of torture after they were admitted to the detention centre.58 During my
observation in site A, despite less frequency than previously recorded, suspects still
reported that torture had been employed by the police to elicit a confession. 59
[Field note APU-21] In a robbery case, a prosecutor asked the suspect whether he confessed in front of the police questioning.
58
See Sun Changyong et al, Fanzui xianyiren de quanli baozhang yanjiu (The protection of the suspect's rights) (China Law 2010) 69.
59
During my observation period in the prosecutor's office in site A, only 3 out of 86 suspects claimed that torture had been applied to extort confession from them. This is less than the survey recorded in Sun Changyong et al (2010)'s study.
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Suspect: […] I did not rob anything! I was hung and beaten up by the police. My waist was badly injured. It was so painful. When the preliminary investigating officer asked me, I told him the same thing. I did not rob anything.
Prosecutor: Why did you sign on the statement in the police station?
Suspect: I did not admit it. But they hung me for a couple of days and I had no choice.
The revised criminal procedure law (Article 117) provides that during the course of
detention and interrogation, the suspect's meal and resting times should be guaranteed.60
Whereas this has been reflected in the records of police interrogation, according to which
the interrogator would routinely ask whether the suspect needed a break or a meal, in
reality, deprivation of life necessities, such as food, water, sleep or access to toilet
facilities, was often reported by the suspect. Consecutive interrogations conducted by
different police officers were occasionally carried out in serious cases. As physical harm
caused by violence could be used as evidence against the police, deprivation of basic
necessities is a preferred method used by the PSB due to its low-visibility. In my research,
certain police officers divulged that torture was mostly applicable to high profile cases and
with prolific offenders. During a the discussion of the hotly debated Zhu Ling case, an
experienced investigative police officer implicitly revealed how the suspect was treated
during the police interrogation in an on-line communication:
For such serious cases like this one, there are at least four interrogators, who are the most experienced officers in the police station, conducting the interrogation. 'Taking some measures' is a must. We call it 'adding the catalyst'. Without the catalyst, how can we pry open the mouth of the suspect? Of course, it depends on how we 'put the catalyst'. There are civil ways or less civil ways. It is dependent on the investigator. The suspect may have the choice of speaking or not speaking, but we will definitely have the method to make him
60
Like the other legal principles, there is no sanction to address the violation of the article and no legal remedy is provided for the suspect.
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speak! There is no hero in the interrogation room. If I am the interrogator, I will not beat him up but I don't believe he will not make a confession and sign on his statement! 61
Based upon such interrogative tactics, it is not surprising that miscarriages of justice
repeatedly occurred in China. With the police being the only witness to the interrogation,
the suspect's confession is procured in a coercive way and its reliability is called into
question. Written statements which are not verbatim will not of course contain details of
voice inflection, gesture, and arguments made by both prosecution and defence. Many of
these statements in writing are constructed and signed under oppression. In order to fulfil
their task under the Appraisal System, police officers utilised a variety of coercive means
to produce the evidence against the accused people, who are disempowered and could be
potentially innocent.
2. 3 Lecturing, Incarceration and Inconsistent Statements
As has been discussed earlier, the integrity of the interrogation record is compromised by
the 'off-the-record' exchange between the police and the suspect. However, these informal
conversations are certainly not unproductive. On the contrary, it is part of the essential