TNAG-2387-FCO40-3469-Extradition-from-the-UK-to-Hong-Kong-case-of-Lorrain-Esme-Os-1991 — Page 127

(a)

The Chinese Criminal Procedure law declines to adopt the principle of presumption of innocence.

(b)

The law allows the use of analogy in conviction. 79 of the Criminal Law provides:

Article

Those who commit acts not explicitly defined in the specific parts of the criminal law may be convicted and sentenced, after obtaining the approval of the Supreme People's Court, according to the most similar article in the law.

This analogy principle is in conflict with one of the basic maxims of criminal justice: Nullem crimen sine lege (No crime without a preexisting law making the act a crime), which is also incorporated in Article 11, paragraph 2, of the International Declaration of Human

of Human Rights, adopted by unanimous vote of the United Nations General Assembly, December 10, 1948, U.N. Doc. A/810

(1948).

(0)

Articles 148-150 of the Criminal Law permits the reopening of a criminal case and the retrial of a defendant on the different charges and prescribes no time limit, such as within 5 or 10 or more years, for so doing. All types of offenses

same

can be retried.

(d) Chinese judicial practice in fact denies fair public trial for a suspect. A recent U.S. Department of State report describes the situation as follows:

Due process rights are stipulated under the Constitution but are often ignored in practice. The law requires that all trials be held in public, except those involving state secrets, juveniles, and "personal secrets." It also states that a defendant may be held in custody during investigation prior to

to the trial for a maximum of 2 months, although a 1-month extension may be requested from the next highest procuratorate. The procuratorate then has 1 months to decide whether or not to prosecute the case. An additional month is permitted if "supplementary investigation" is needed. Any further delay requires approval of the Standing Committee of the NPC [National People's Congress). In practice, the period of pretrial detention can be much

be much longer. Two American citizens arrested for alleged fraud and forgery were held for 7 months before a decision was made not to prosecute.

The procuratorate sends to trial only those persons it determines are guilty. Persons appearing before the court are presumed guilty, and trial are thus, in effect, sentencing hearings. Defense lawyers almost never

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