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You do not have the right to remain slient - if you being arrested in China.

 

Author: Lawman Tseng

1. Illusion

You have the right to remain silent. Anything you say can and will be used in the court of law against you. You have the right to an attorney. If you cannot afford one, one will be provided to you. This is the famous Miranda Warning, which is used and can be seen in every arresting scene of Hollywood movies, as well as “I will not say¬†anything until my lawyer arrives”. As many foreigners, or even Chinese, may perceive that these are the rights of a suspect. However, it is not the case in China.

 

2. Regulations

2.1 The right of silence

Article 118, the CRIMINAL PROCEDURE LAW OF THE PRC, When interrogating a criminal suspect, the investigators shall first ask the criminal suspect whether or not he has committed any criminal act, and let him state the circumstances of his guilt or explain his innocence; then they may ask him questions. The criminal suspect shall answer the investigators' questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.

The law does not give the suspect the right of silence, but the right to refuse irrelevant questions to the case. So, who is entitled to define the relevancy? Apparently, it could be anyone but the suspect.

2.2 The right of being accompanied by an attorney when interrogated

Not mentioned in any laws and to our knowledge not happened before.

2.3 The right to an attorney

Article 33, A criminal suspect shall have the right to retain a defender from the day when the criminal suspect is interrogated by a criminal investigation authority for the first time or from the day when a compulsory measure is taken against the criminal suspect; during the period of criminal investigation, a criminal suspect may only retain a lawyer as a defender.

When a criminal investigation authority interrogates a criminal suspect for the first time or takes a compulsory measure against the criminal suspect, it shall inform the criminal suspect that the criminal suspect has the right to retain a defender.

The law gives the right to the suspect to retain an attorney for the first interrogation.

2.4 The right of being provided with an attorney

Article 34 Where a criminal suspect or defendant has not retained a defender for financial hardship or other reasons, the criminal suspect or defendant or his or her close relative may file an application with a legal aid agency. If the legal aid conditions are met, the legal aid agency shall designate a lawyer to defend him or her.
Where a criminal suspect or defendant suffers vision, hearing, or speech impairment or is a mental patient who has not completely lost the ability to recognize or control his or her behavior, if he or she has not retained a defender, the people’s court, people’s procuratorate,and public security authority shall notify a legal aid agency to designate a lawyer to defend him or her.

Where a criminal suspect or defendant who may be sentenced to life imprisonment or death penalty has not retained a defender, the people’s court, people’s procuratorate, and public security authority shall notify a legal aid agency to designate a lawyer to defend him or her.

An attorney will be only provided under certain conditions and it has to go through an applying, reviewing, approving and designating procedure.

 

3. Practice

When the police arrests a suspect, the police will identify themselves and tell the suspect what crime he may commit and bring him back to the police station for further investigation. The police is required to make a custody or a release decision in 24 hours, if the suspect is taken into custody, the police will announce the decision to the suspect and notify, likely by a post which takes days or weeks to arrive, the suspect’s family members since such decision is required to be written in paper. Once the decision is announced, the suspect will be transferred from the police station to a detention center immediately.

After the arrest, the suspect is not allowed to communicate with the “outside world”. In many previous cases that we handled, the intervening of an attorney happens after days and weeks as the family members received the decision so late, which missed the GOLDEN TIMEto help the suspect.

If the suspect is a foreigner, it is more complicated and takes more time since the Power of Attorney signed by the family members and domestic relation certificate between suspect and his family members are required to be notarized by a notary of home country and certified by a local Chinese Embassy if the family members are unable to physically present in front of a Chinese notary to sign a Power of Attorney. 

Even though the embassy of the home country is allowed to entrust an attorney for the suspect, the notifying procedure and embassy's policy are issues worth concerning as well.

4. Advice

4.1 Get an attorney ready for “a rainy day”

As mentioned before, the police shall inform you the right to an attorney before interrogation. You are advised to request the police to inform your attorney immediately and put such request in the record.

4.2 Give the detail information of your attorney to the police

You are not able to use internet or wechat to approach an attorney after the arrest, carrying a name card of your attorney and present it when needed.

4.3 Sign a power of attorney in advance

Only the suspect himself, his family members and the embassy of home country can sign the power of attorney. For whatever reasons, if the suspect is transferred to a detention center before the attorney intervenes and acquires a written power of attorney in the police station, the officers in the detention center have no obligations to inform your attorney or family members and will only permit an attorney who carries a written power of attorney to meet the suspect.

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