by NGO Humanity for Chinese Citizens, 2023
The protection of fundamental rights, specifically the rights to liberty and security of people and freedom of movement, is an essential component of legal systems based on the rule of law. It is the duty of the State to safeguard these rights for all individuals under its jurisdiction and provide remedies for any violation that may occur. This analysis will focus on the issuance of arrest warrants in absentia in China, examining the relevant national procedures, the competence of the issuing authority, and the extent to which these warrants adhere to international human rights standards.
In China, the responsibility to issue arrest warrants is not exclusively held by judicial authorities. According to Chinese law, prosecutors also have the authority to issue such warrants. However, it is crucial to consider whether these warrants issued by prosecutors align with international human rights protection standards.
The UN Working Group on Arbitrary Detention (WGAD) acknowledges that it does not replace national judicial authorities and does not act as supranational tribunals when reviewing the application of domestic law. Its mandate is limited to assessing whether international human rights obligations have been duly observed. Even where the arrest warrant complies with national law, WGAD must ensure that the law has been applied in accordance with international human rights law.
The WGAD's practice indicates that an arrest warrant issued by a prosecutorial body cannot be considered a judicial authority (Opinions No. 41/2020, para. 60; No. 5/2020, para. 72; and No. 14/2015, para. 28). This finding is also supported by the UN Human Rights Committee's general comment No. 35 ( 2014), par. 32, which emphasizes that "It is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with (521/1992, Kulomin v. Hungary, para. 11.3.). Accordingly, a public prosecutor cannot be considered as an officer exercising judicial power under art. 9 para. 3 of the International Covenant on Civil and Political Rights (1547/2007, Torobekov v. Kyrgyzstan, para. 6.2; 1278/2004, Reshetnikov v. Russian Federation, para. 8.2; concluding observations: Tajikistan (CCPR/CO/84/ TJK, 2005), para. 12.)”. It is worth noting that in an Opinion of WGAD it was emphasized that "Nothing in the materials received indicates that the Nanning City Public Security Bureau or the Nanning City Prosecutor’s Office [of China] has independent judicial authorities'', also in the same Opinion nothing indicates that an individual "was able to challenge his detention when he was "formally arrested" and then indicted by these bodies" and "even after he had first met his lawyer, there is no indication that he was able to challenge his pretrial detention before an independent judicial authority” (Opinion No. 41/2022, para. 47). Furthermore, the absence of an effective appeal remedy for arrest warrants issued by prosecutors in China raises concerns. If there is no recourse for individuals to challenge the arrest warrant, it would violate their right to a fair trial. The right to challenge the lawfulness of detention before a court is a self-standing human right, which is essential to preserve legality in a democratic society. This right, which is in fact a peremptory norm of international law, applies to all forms of deprivation of liberty, even including situations when an arrest warrant is issued in absentia.
In situations where a court or prosecutor issues an arrest warrant in absentia and indicates guilt, it undermines the presumption of innocence. This principle is vital to protect human rights and places the burden of proving guilt on the prosecution. Also, this principle imposes guarantees on the prosecution that no guilt can be presumed until the charge has been proven beyond reasonable doubt; ensures that the accused has the benefit of doubt; and requires that persons accused of a criminal act must be treated in accordance with this principle. Expressing clear views regarding an individual's guilt during pretrial detention violates their rights to the presumption of innocence.
The general principle of proportionality requires that a balance be struck between the importance of respecting the rights to liberty and security of person and freedom of movement, and the public policy objectives of limiting or denying these rights. The authorities must not take any action exceeding that which is strictly necessary to achieve the pursued purpose in the individual case. An arrest warrant must be justified by an individualized determination that it is reasonable and necessary to prevent flights (running away or hiding), interference with evidence, or the recurrence of a crime. This evaluation should be conducted by an independent and impartial authority. If legislation mandates the automatic and mandatory application of arrest warrants, it undermines the essential function of judicial authorities to assess the necessity and proportionality of each warrant.
The Chinese legislation obliging the issuance of preventive detention warrants to individuals outside its borders violates the right to an effective remedy under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It places individuals outside the protection of the law and infringes upon their right to be recognized as persons before the law.
Also, once the body of prosecutors has the right to issue arrest warrants in absentia, there would be a high probability that anyone's right to a fair trial would be violated since his arrest warrant procedure was conducted behind closed doors. In this regard, the UN Human Rights Committee, in its General Comment No. 32, Chapter III, has stated that: "Article 14, para.1, acknowledges that courts (or the prosecutor) have the power to exclude all or part of the public for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties requires this, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons.
In the situation where either the prosecutor or the court, which according to Chinese national legislation are empowered with the powers to issue arrest warrants, must justify any restriction applied, otherwise this restriction would be disproportionate and would constitute, from this point of view, a violation of the principle of a fair trial. There have never been any cases in China where the arrest warrant issued by the prosecutor was issued in compliance with the universal principle of publicity.
At the same time, it is imperative that national legislation be accessible and predictable with regard to the procedure for bringing the arrest warrant to notice to the person against whom an arrest warrant is issued, even in absentia. If it is not possible to locate the person in question, at least it will be necessary to provide the arrest warrant to the lawyer for communicating purposes (if this lawyer is officially hired), or to inform the person's relatives so that they may hire a lawyer. Unfortunately, Chinese law does not provide, in any way, the procedure for bringing to notice an arrest warrant issued in absentia by the prosecutor to the person concerned, or his lawyer or his relatives. In this case, it is an obvious legislative vacuum. Failure to comply with this violates Article 9 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights and makes the arrest warrant issued in the absentia of the person concerned without any legal basis.
In conclusion, arrest warrants issued in absentia in China by prosecutors may not meet the international standard of human rights protection. Prosecutors should not be considered judicial authorities, and the absence of an effective remedy to challenge such warrants violates the right to a fair trial. Expressing clear views on guilt during pretrial detention undermines the presumption of innocence. Additionally, the lack of necessity and proportionality assessment for arrest warrants raises concerns. Chinese legislation does not provide a fixed deadline for the validity of the arrest warrant in absentia, and in the absence of the regulatory framework indicating how a warrant is brought to the attention of the individual concerned, and if his whereabouts are not known, then the legislation does not provide a method of informing the mandate of his lawyer (if there is one) or his relatives so that they can hire a lawyer, a situation that is not compatible with art. 9 (3) of the International Covenant on Civil and Political Rights. Chinese law that mandates the mandatory application of pre-trial detention warrants if the individuals are outside the country, without a proper assessment by an impartial and independent authority, violates the rights of individuals, placing them outside the protection of the law. It is apparent that the rights of individuals subject to arrest warrants issued in absentia by Chinese prosecutors would be presumed to have been violated under international human rights standards.
Author to whom correspondence should be addressed: info@humanity4chinesecitizens.org
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