Opinion | Criminal justice: China's reforms help victims and point the way

By Grenville Cross

The criminal justice system has various objectives, which include upholding the law and bringing offenders to account. This cannot be achieved by the police alone, and the cooperation of victims is vital. If they do not report crimes or otherwise refuse to assist, offenders may not only evade justice, but also remain a threat to society.

Victims, therefore, must know it is worth their while to assist, and that the legal system will protect their interests. This is why, in its "Victim of Crime Charter," the Department of Justice requires the law enforcement agencies to prioritize the rights of victims. Respect apart, victims are entitled to information on the progress of their cases, to personal protection, to privacy and confidentiality, and to the right to be heard.

As for prosecutors, the charter states they "shall bring to the attention of the court the circumstances and views of the victim, whenever appropriate". While this is helpful in areas like personal welfare and compensation, it does not include punishment, and the victim's views on the defendant's sentence are of little or no relevance. As the Court of Appeal has explained, "The opinions of victims and their relatives on the appropriate level of punishment is not a matter to which a sentencing court can properly have regard (CACC 317/2012)."

On the Chinese mainland, however, there has recently been a sea change over the way in which the criminal justice system treats victims, and it deserves to be better understood. In 2014, for example, the Supreme People's Court (SPC) issued its "Guiding Opinion on Sentencing of Common Crimes", and this allows the victim, in some circumstances, to influence the sentence. It stipulates that, if the victim's "economic damages are actively compensated and their forgiveness obtained, the base sentence may be reduced by up to 40 percent on comprehensive consideration of the nature of the crime".

The victim's attitude toward the sentence is, therefore, crucial, and it has to be ascertained by the court before it imposes its punishment.

In 1996, when China's Criminal Procedure Law (CPL) was reformed, the victims of crime had their status raised, becoming parties to the proceedings. As Professor Yue Liling, a criminal law procedure expert at the China University of Political Science and Law in Beijing, explained in her seminal work, Principles of Chinese Criminal Procedure (2021), the effect of this has been to "strengthen the protection of the victim's rights in criminal proceedings".

Although the reforms did not go as far as some people had hoped, the revised CPL provided victims with the right to question a witness and also the defendant (Article 156). A victim could also request that a new witness be summoned, that material evidence be obtained, and that an updated expert analysis be sought (Article 159). It also gave victims the right to address the court generally on the quality of the evidence (Article 160).

Although, as Yue pointed out, the later amendments to the CPL in 2012 did not significantly enhance the procedural rights of the victim (and his agent, normally a lawyer), the SPC's subsequent CPL Interpretation of them was very positive (in China's legal system, Interpretations are issued after a law's enactment, and they explain how provisions should be construed). The Interpretation confirmed that the victim's agent had the right to access the information contained in the court's case files, thus promoting transparency.

Any shortcomings notwithstanding, the CPL's 2012 amendments created a mechanism whereby reconciliation between the defendant and the victim in a public prosecution can be achieved as a means of settling the case. The SPC Interpretation, moreover, took things further, and it provides that if the victim dies, his or her relatives can also settle the case with the defendant through the reconciliation procedure (Article 588, SPC Interpretation).

One laudable aspect of criminal justice on the Chinese mainland is the way in which its operations are kept under ongoing review, and this includes the treatment of victims. In 2018, the CPL was again amended, to cover such things as guilty pleas and leniency. Once these came into force in 2019, the SPC (and other enforcement bodies) issued an Interpretation, titled "The Guiding Opinions on Leniency", and it focused on protecting the rights and interests of victims.

In particular, the Interpretation prioritizes the victim's right to be heard. It requires the police and the prosecutors to listen to what victims have to say, and to make a record in the case file (Article 16, of the Opinion). If, moreover, the victim and his agent do not agree that the defendant should receive a lenient sentence, the degree of the leniency will be reduced if the defendant fails to return his illicit gains, or does not pay compensation for losses, or obstructs a case resolution with the victim (Article 18).

Although Beijing has yet to introduce a specific law to provide victims with financial support, there has, as Yue explained, been great progress. In the National Human Rights Action Plan (2009-2010), it was proposed that there should be a national legal aid system for victims. In 2009, moreover, the SPC, the Central Political and Legal Affairs Commission, the Supreme People's Procuratorate (SPP), and eight other ministries and organizations, issued their "Several Opinions on Carrying Out Criminal Victim Aid Work". After much deliberation over several years, this was then followed up with their "Opinions on Establishing and Improving the System of State Judicial Aid (for Trial Implementation)", and the impact has been profound.

These Opinions have now established the principle of financial support of victims. They stipulate that "State judicial aid is for the victims of crime, or the victims of civil tort, parties who cannot obtain effective compensation through litigation." They also indicate the procedures to be followed, and how State funds should be managed. Once the Opinions were issued, both the SPC and the SPP turned them into a reality by formulating their own implementation rules.

According to the SPC's statistics (quoted by Yue), between 2015 and 2018 the courts handled 166,500 judicial aid applications, with over 300,000 crime victims receiving financial support. Judicial aid overall amounted to 3.747 billion yuan ($524.9 million), which shows the system is being highly funded.

By any yardstick, therefore, this strengthening of the victims' rights regime in the Chinese mainland is radical and farsighted, although it has largely gone unremarked internationally. It certainly goes far further than most other places, including common law countries, many of which pay lipservice to victims' rights but confine themselves to cosmetic gestures. If Western countries could, for once, stop maliciously criticizing China's legal arrangements, they could learn a lot, and this might help them to improve the way in which crime victims are treated in their own jurisdictions.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The article was first published in China Daily.