Can defense lawyers post online to expose the issue of torture to extract confessions–and discuss several specific issues in the case of Zhou Ze’s proposed administrative punishment
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The proposed administrative punishment of Mr. Zhou Ze for posting information on microblogs about the investigation of the Lv Xian San case, which was suspected of extorting confessions through torture, has attracted widespread attention from the legal community. From my observation, which may not be comprehensive and accurate, my friends in the public prosecution and law enforcement agencies are basically not in a position to speak, the lawyer community is almost unanimously in support of Zhou’s lawyer, while individual scholars (including those I respect very much) have some different views. These different views mainly think that Zhou’s practice is not based on the law, that the defense lawyer’s activities should be limited to the court (or the procedure), otherwise it may be suspected of public opinion to influence the justice. Therefore, although there has been a lot of good discussion, but since there is still no consensus, I would like to continue the discussion with a dog’s tail. Not necessarily a new idea, right as a simple personal thinking outline.
Zhou Ze’s encounter is intuitively about the general question of whether a defense lawyer can publish information on the Internet about a case officer suspected of extracting a confession under torture. In the following, I will focus on the following specific issues: 1) whether the fundamental rights provisions in the constitution, especially Article 41, can provide the basis for Zhou Ze’s behavior; 2) whether the existing legal provisions constitute restrictions on Zhou Ze’s behavior; 3) whether Zhou Ze’s behavior is in accordance with the principle of proportionality; and 4) whether Zhou Ze’s behavior is in accordance with the principle of goodness of law.
I. Whether the fundamental rights provisions in the Constitution, especially Article 41, can provide a right basis for Zhou Ze’s conduct
- In his petition for the protection of his rights, the proponents, including Zhou Ze’s lawyer, cited the following article of Article 41 of the Constitution, namely: “With regard to the illegal and negligent acts of any state organ or state employee, one has the right to file complaints, accusations or reports to the relevant state organ, but one may not fabricate or distort the facts to make false accusations and frame-ups.” However, the opponents may refute from the following two points: First, the constitution says “to the relevant state organs”, online speech is not “to the relevant state organs”; Second, the subject of this basic right is “citizens “Although lawyers are of course citizens, the practice of law is a special activity of special citizens, and it is still doubtful whether the Constitution and the law can be specially regulated.
- Regarding the first point of objection, the main idea is that the opponents believe that citizens can only “file complaints, accusations or reports to the relevant state organs” in the face of illegal acts of state organs and state employees, but they cannot say it publicly on the Internet. There are at least the following counter-arguments to this.
First, online speech involves the way to “raise”, and does not necessarily constitute a logical mutually exclusive with the “object” raised. “to the relevant state organs to submit complaints, accusations or prosecution” does not necessarily exclude the way through the network, nor does it necessarily exclude the way through the network and open.
Second, to take a step back, Article 41 states that “Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ or state employee.” This does not exclude the right to criticism and suggestions on the Internet. Zhou Ze’s online speech can at least be interpreted as criticism of state organs and state employees.
Third, in conjunction with Article 35 of the Constitution and the general approach of the relevant constitutional interpretation, the enumeration of citizens’ conduct in Article 41 should not be interpreted as a restriction of the right to freedom of expression in Article 35 of the Constitution. In other words, in the face of wrongdoing, Article 41 of the Constitution stipulates that citizens “have” the right to lodge complaints, accusations, or denunciations with the relevant state organs, which cannot be interpreted as “only” the right to lodge complaints, accusations, or denunciations with the relevant state organs.
As for the second objection, the main idea is that even if a citizen can expose the case online, the defense lawyer cannot do so. At least the following counter-arguments can be made to this.
First, is the defense attorney the subject of the basic constitutional rights? In chapter 2 of our constitution, “The basic rights and duties of citizens”, there are some special subjects, such as “workers”, “soldiers”, “mothers”, and “children”. The “mother”, “overseas Chinese” and so on, but not directly related to lawyers, nor to suspects or defendants. Thus it seems to be a question whether suspects, defendants, and their defense attorneys have to assert their rights under the fundamental rights clause of the Constitution. But first of all, as citizens, suspects and defendants certainly have rights including the right to personal freedom (Article 37 “personal freedom of citizens of the People’s Republic of China shall be inviolable”), the right to “human dignity” (Article 38 “the right to the inviolability of the human dignity of citizens of the People’s Republic of China shall be inviolable”), and the right to “human dignity” (Article 38). (Article 33 “The State respects and safeguards human rights”), and other basic human rights. In other words, the suspect, the defendant has the basic right not to be forced to confess by torture should be questioned.
Secondly, the right of defense is a derivative of the above-mentioned basic rights of suspects and defendants, and it is still a civil right rather than a group right or governmental power in terms of its attributes. In particular, since the purpose of the right of defense is to guarantee the basic rights of suspects and defendants such as human rights, the limited enumeration of it in the face of a powerful state naturally cannot be interpreted as a denial or limitation of unenumerated rights. Fundamentally, when a lawyer defends a suspect or defendant, he or she not only has the specific rights as a lawyer under the Criminal Procedure Law or the Lawyer Law (such as the right to read the file, the right to meet, etc.), but also can, of course, exercise the basic constitutional rights of the suspect or defendant as a citizen (such as the right of expression under Article 35, the right to appeal, accusation, prosecution and other supervisory rights under Article 41), while not giving up his or her own constitutional rights as a The Law on Lawyers also provides that It is precisely for this reason that the lawyer law provides that in addition to “to safeguard the legitimate rights and interests of the parties”, but also “to maintain the correct implementation of the law, to maintain social justice and fairness.” That is to say, the lawyer for the exercise of the right to defend not only as a representative of the suspect, the defendant to exercise the basic rights of the Constitution (such as Article 41), and even further, the right of defense lawyers also naturally include the basic rights of the Constitution, such as Article 41.
II. Whether the existing legal provisions constitute a restriction on Zhou Ze’s relevant conduct
- Possible constitutional restrictions. There are boundaries of rights, and basic rights are not necessarily unrestricted. The restrictions on the basic constitutional rights can be broadly divided into two ways: “general restrictions” and “individual restrictions”.
The first is the general limitation clause, which refers to Article 51 of the Constitution: “In exercising their freedoms and rights, citizens of the People’s Republic of China shall not harm the state, social or collective interests or the legitimate freedoms and rights of other citizens.”
Next are the individual restriction clauses, cf. the special restriction clauses in each individual fundamental right. Specifically, in Article 41, the restriction clause is “but shall not fabricate or distort the facts for false accusation and frame-up.”
The above-mentioned restriction clause of basic rights can in fact be used as the basic basis for interpreting and analyzing the Lawyer Law and the Measures for the Administration of Lawyer Practice in Zhou Ze’s case. In other words, if we want to restrict Zhou Ze’s behavior, we must first look at whether he “harmed the state, society, collective interests and other citizens’ legitimate freedom and rights”, and whether he “fabricated or distorted the facts”? If not, then it is likely that Zhou Ze’s behavior belongs to his constitutional fundamental rights and should not be restricted or even punished.
- Whether the relevant provisions of the Measures for the Administration of Lawyer Practice constitute restrictions
The Prior Notice of Administrative Punishment of Beijing Chaoyang District Judicial Bureau found that Zhou Ze’s conduct violated Article 38(4) of the Measures for the Administration of Lawyers’ Practice.
Article 38(4) is: Lawyers shall perform their duties in accordance with legal procedures and shall not influence the handling of cases in accordance with the law in the following improper ways: (4) disclose or disseminate information or materials of closed cases in violation of the regulations, or important information or evidential materials about the case that they or other lawyers learn in the course of handling the case.
Regarding the path of interpretation of this article, there are at least the following points worth considering.
Firstly, is Zhou Ze’s behavior “in accordance with the law”? In fact, the aforementioned constitutional provisions provide a clear explanation. Our constitution and laws are very clear about respecting and safeguarding human rights, and never say that forced confessions are part of the “handling of cases in accordance with the law”, nor do they say that the exposure of forced confessions or the filing of charges or reports affects the “handling of cases in accordance with the law”.
Secondly, the second is “influence”. In the end is the “intention” impact, or the “actual” impact, if the actual impact, the impact of the consequences of how? How harmful? The determination of the violation and its punishment, the need for substantive judgment.
Thirdly, whether the “important information and evidential materials about the case that I or other lawyers learned in the process of handling the case” must be the legal interest protected by law in the first place, if it is not the legal interest protected or should be protected by law, then the relevant information should not constitute “important information and evidential materials about the case. Evidence is “material that can be used to prove the facts of the case” (Article 50 of the Criminal Procedure Law), and the fact that the confession was extracted by torture is material that can be used to prove the facts of the case? Obviously not. Is it important information that should be protected from disclosure? Of course not. (Professor Meng Jinling’s posting has a detailed expansion of this point)
Fourth, what “regulations” have been violated? Many commentators, such as Liu Changsong lawyers have pointed out that the provisions here is actually “lawyers handling criminal cases” Article 37, which is a professional code, can not be used as the basis for administrative punishment. Perhaps the rebuttal will say, I cited here is the “lawyer practice management measures”, but if it fails to prove what laws, administrative rules or regulations on the violation of what provisions, it may constitute a circular argument.
Fifthly, who has been influenced to handle the case according to the law? What is “improper manner”? The subject of the complaint is the Hefei City Public Security Bureau, theoretically, it seems to be affected by the case. But as Liu Changsong lawyer said, Zhou Ze published the post when the investigation has long been completed, the Hefei Public Security Bureau complaint is somewhat inexplicable. I want to add is, “the lawyer practice management measures” the article at least in the text does not include public security personnel, the reason is: the lawyer practice management measures of the legislative basis is the lawyer law, the article is actually for the “lawyer law” article 40 (5) of the specific implementation.
Article 40: lawyers in practice activities shall not have the following acts: (5) to judges, prosecutors, arbitrators and other relevant staff to bribe, introduce bribery or instruct, induce the parties to bribe, or other improper ways to influence the judges, prosecutors, arbitrators and other relevant staff to handle the case according to law.
In fact, from the above article can also be seen, about what is “improper way”, should be similar to “bribery, introduction of bribery or instructing, inducing parties to bribery” and other ways, if it is to expose wrongdoing, to maintain the correct implementation of the law, what is “improper way”?
Sixth, from the lawyer law can be seen in Article 31, the lawyer should not only protect the suspect, the defendant’s rights, should also protect their other legitimate rights and interests. (“The lawyer as a defender, according to the facts and the law, the suspect, the defendant shall put forward the innocent, lesser, or reduce or eliminate their criminal responsibility materials and opinions, to protect the suspect, the defendant’s procedural rights and other legitimate rights and interests.”) Therefore, the exercise of the right of defense does not necessarily have to be limited to the courtroom or the litigation, but may extend to others. For example, is it possible to be interviewed by journalists regarding the defendant’s reputation in relation to the case? Although there is no clear basis in the criminal prosecution law or lawyer law, but of course, it should be possible. In particular, individual case organs often use the media to report or even exaggerate the case in advance, and even violate the rules for the media to meet and interview the suspects and defendants, in order to balance, the defense lawyers certainly have the right to take certain measures to eliminate the impact.
- Whether Zhou Ze’s behavior is in accordance with the principle of proportionality
Some scholars believe that the principle of proportionality can be applied to various occasions in law. In the criminal proceedings, the lawyer’s main field of activity should of course be in the courtroom or litigation, if the emphasis on out-of-court, then it may indeed affect the normal litigation activities in the courtroom, or constitute “speculation case”. But the key question is, is Zhou Ze’s behavior like this?
First, Zhou Ze’s behavior is restrained. His postings (including video or text) only implicate the wrongdoing of the investigators, but not the substantive facts or evidence of the case.
- Secondly, Zhou Ze’s posting is indeed a case of necessity. Black case, has gone through the first trial. We may ask ourselves, he can find any better way to “maintain the correct implementation of the law”?
Fourth, whether Zhou Ze’s behavior is in line with the principles of good law
This is the last and most important point, the law should not bow to the lawlessness. The interpretation of legal provisions cannot be separated from the value of goodness. What kind of values should we advocate? Are we encouraging the use of torture to extract confessions? Are we seriously practicing “making the people feel fairness and justice in every case”?
All cases reflect general rules, all interpretations reflect values, and all history is indicative of the future.
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(This is a legal aid case I have worked with Mr. Zhou Ze, and I am impressed by his passion and carefulness.
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