Pursuing Corrupt Fugitives: On China’s Trial-in-Absentia System

Yang Xiuzhu

 Ms. Yang Xiuzhu in the dock

Chen Liang (陈靓)[1]

Table of Contents

Abstract

I. Introduction

II. Background of the TIA System

A. National Policies against General Corruption

1. Starting Point in Late 2012

2. Evolving Campaign by 2018

3. New System since 2018

B. Political Incentives on Chasing Corrupt Fugitives

1. Starting from 2014

2. Law Enforcement Projects

3. Calls for a TIA System

C. Conclusion

III. How the TIA System Works

A. Investigation Phase

1. Jurisdiction of the TIA System

2. When to Transfer a Case for Prosecution

3. Conclusion

B. Prosecution Phase

1. Statutory Requirements

2. Discretion

3. Conclusion

C. Adjudication Phase

1. When to Accept a Case with the TIA Procedure

2. What to Do after the Acceptance

3. Termination and Retrial

4. Conclusion

D. Conclusion

IV. Why the TIA System was Created

A. Failure of Methods Prior to the TIA System

1. Voluntary Appearance

2. Extradition

3. Conclusion

B. TIA System as a Response to  Defects

C. Conclusion

V. The TIA System and Right to be Present at Trial

A. The Right to be Present at Trial

1. Presence at Trial is both a Right and a Duty

2. Limitation on the Right to be Present at Trial

B. TIA System & Human Rights

C. Conclusion

VI. Conclusion

Abstract

Along with the nationwide anti-corruption campaign in China, the Chinese government created a novel trial-in-absentia system to deal with corrupt fugitives. This article reviews the policy background of the system’s birth and how the system works in theory. Then, by reviewing prior approaches to deal with corrupt fugitives, this article argues that the trial-in-absentia system can solve intrinsic defects of prior approaches and can bring more benefits to the Chinese government. Finally, by comparing the Chinese trial-in-absentia system with international human rights law on the defendant’s right to be present at trial, this article argues that the Chinese trial-in-absentia system against corrupt fugitives complies with international human rights law in theory.

Key Words: Trial-in-Absentia; Corrupt Fugitives; Anti-Corruption Campaign in China; Right to be Present

I. Introduction

Justice delayed is justice denied. Unlike houses or land, suspects may often flee away from legal proceedings such as arrest warrants, making it hard for justice to decide whether they are guilty or not.

Such delays happen to some suspects of corruption crimes in China. Take Yang Xiuzhu/杨秀珠, pictured above, as an example.[2] After her family member was investigated for corruption, Ms. Yang, former Deputy Director of the Construction Department of Zhejiang Province, fled to Hong Kong in 2003 and arrived in the United States in 2014. After her application for political asylum encountered obstacles in the United States, she finally decided to cancel the asylum application and went back to China to face trial in 2016. The gap between when an arrest warrant was issued against Ms. Yang and when she finally faced trial in China is 13 years. That is a long delay, mostly because she was physically outside of the jurisdiction of mainland China. Ms. Yang’s case is not alone. According to the National Supervisory Commission (国家监察委员会, “NSC”), 7831 fugitives went back to China for trial from 2014 to 2020,[3] indicating the total number of fugitives was much larger than 7831.

Partially under this background, China revised its Criminal Procedure Law[4] to include a novel trial-in-absentia (“TIA”)[5] system to target corruption crimes in 2018.[6] Although the framework of the TIA system is still being finalized, the authority has issued several general rules and drafts for rules. On 30 December 2019, the Supreme People’s Procuratorate (最高人民检察院, “SPP”) issued the new Rules of Criminal Procedure for People’s Procuratorates (“Prosecution Rules of Procedure”) to include a specific section on the TIA process.[7] On 26 January 2021, the Supreme People’s Court (最高人民法院, “SPC”) issued the Interpretation of the SPC on the Application of the Criminal Procedure Law (“Criminal Procedure Interpretation”), which includes detailed provisions on the TIA system.[8] On 17 May 2021, the NSC issued the Implementing Measures of the Supervision Law (Draft for Comments)[9] (“Supervision Measure Draft”), which includes a specific article on the TIA system.[10] Although there is still no final judgment in any TIA case,[11] the author expects that more and more cases would be brought after the finalization of the TIA system because frequent issuance of rules by the authorities indicates that the authorities are paying more attention to the TIA system.

In the following parts, this article will:

  1. Explain the background of the TIA system;
  2. Explore how the TIA system works according to available norms;
  3. Assess whether the TIA system can achieve its goal when compared to competing systems for pursuing fugitives; and
  4. Discuss whether the TIA system preserves the defendant’s human right to be present.

II. Background of the TIA System

Any system, including the TIA system, does not exist in a vacuum, and the TIA system is no exception. In order to have a comprehensive understanding of the system, a thorough assessment of the policy background of the TIA system’s birth is necessary. Considering the TIA system is closely related to China’s anti-corruption campaign, this section will review the anti-corruption policies of the Communist Party of China (“CPC” or “Party”) over the years.

To this end, the following parts of this section will:

  1. Describe how a nationwide political campaign against general corruption evolved up to 2018; and
  2. Explore how the political incentives contributed to a more active pursuit of corrupt fugitives.

A. National Policies against General Corruption

After Mr. Xi Jinping was elected as General Secretary of CPC in November 2012, a nationwide campaign against corruption was started and is ongoing. This part will focus on several key points and stages from 2012 to 2018 when the TIA system was created.

1. Starting Point in Late 2012

2012 marks the starting point of the anti-corruption campaign in China. The campaign was indicated in President Xi’s statement after his election and started with a strict rule on all Party members and an investigation of numerous high officials within the Party.

We can take a hint of the upcoming campaign from President Xi’s statement right after his election. On 15 November 2012, along with other newly elected CPC top leaders, President Xi held a conference with reporters from home and abroad. In that conference, President Xi clearly stated that “in the new situation, our Party is facing many hard challenges, and there are many intraparty problems unsolved. In particular, we shall spare no effort to solving the problem of corruption among party officers….”[12] From the emphasis in his statement, it is reasonable to expect a campaign against corruption was on its way.

As expected, a strict rule was issued, and a high official within the CPC was investigated for suspected corruption. Both actions were taken shortly, and the People’s Daily, an official newspaper of the CPC Central Committee, regarded them as the opening of the fierce anti-corruption campaign in China.[13]

On 4 December, the CPC Central Politburo issued the Eight Provisions on Improving the Working Style and Keeping Close Contact with the People (“Eight Provisions”), which requires party members to “strictly obey relevant rules of probity in politics.”[14] On 6 December, two days after the issuance of the Eight Provisions, the CPC Central Committee for Discipline Inspection (中共中央纪律检查委员会, “CCDI”)[15] confirmed that Mr. Li Chuncheng/李春城, former Deputy Secretary of the CPC Sichuan Provincial Committee, had been under investigation due to suspected violations of CPC policies.[16] On 12 October 2015, a court sentenced Mr. Li to 13 years in prison for accepting bribes and abusing power.[17]

To conclude, since President Xi’s election as General Secretary of CPC, anti-corruption became a crucial focus of the CPC. The Eight Provisions and the investigation of Mr. Li Chuncheng marked the start of the nationwide anti-corruption campaign.

2. Evolving Campaign by 2018

The nationwide anti-corruption campaign evolved by 2017 and became more and more comprehensive. During this period, the Party paid more attention to strengthening its supervision commissions whose mandates[18] include anti-corruption and targeted the most top CPC leaders ever in history. At the same time, the State’s supervision system was also restructured to correspond with the emphasis on anti-corruption.

At the beginning of 2013, President Xi delivered a speech on 22 January 2013 in the Second Plenary Meeting of the CCDI and emphasized that “the anti-corruption situation is still grim. There are still many aspects with which people are not satisfied. … The anti-corruption campaign is a long-term, complicated and arduous assignment. … We shall be firmly determined to fight every corruption if any, continue to eradicate the soil where corruption grows and spreads, and satisfy the people with actual effects.”[19] If some then viewed President Xi’s statement in 2012 as a publicity strategy, President Xi’s statement, which focused on the soil contributing to corruption, successfully dissolved such doubts. It indicated that more specific and comprehensive actions would be taken to counter corruption. On 12 November, the CPC issued the Decision of the CPC Central Committee on Major Issues Concerning Comprehensively Deepening Reform, which in part requires “improving the system of punishing and preventing corruption”[20]. On 25 December, the CPC Central Committee issued the Working Plan for Establishing and Improving the System of Punishing and Preventing Corruption from 2013 to 2017 to address such requirements. The top-level Working Plan showed how vital the anti-corruption campaign was to the CPC.[21]

In 2014, the tone from the top became actions on the top. Three investigations were launched against Xu Caihou/徐才厚, a former member of the CPC Central Committee and a top leader of the People’s Liberation Army,[22] Zhou Yongkang/周永康, a former permanent member of the CPC Central Committee,[23] and Ling Jihua/令计划, a former member of the CPC Central Committee.[24] Before these three cases, never has the CPC anti-corruption campaign targeted officials at that top level. These tones or even actions from the top further illustrated the importance and seriousness of the anti-corruption campaign.

In 2016, there was a hint that the Constitution would be amended to further the anti-corruption campaign. In 2016, the constitutional structure under the National People’s Congress (全国人民代表大会, “NPC”) was “One Fu and Two Yuan (一府两院)” which refers to government (One Fu), and court and procuratorate (Two Yuan).[25] As for the supervision power of the State, it was vested upon the government, such as the Ministry of Supervision (监察部) and the National Bureau of Corruption Prevention (国家预防腐败局)[26] subject to the State Council (国务院), and the procuratorate, such as the General Bureau of Anti-Corruption and Anti-Bribery (反贪污贿赂总局) subject to the SPP. However, the NPC Standing Committee, following the Party’s proposal, passed the Decision of the Standing Committee of the National People’s Congress on Carrying out the Pilot Program of Reforming the National Supervision Mechanism in Beijing Municipality, Shanxi Province, and Zhejiang Province on 25 December.[27] According to the pilots, the supervision power of the State was consolidated into supervision committees independent from governments, courts, and procuratorates in these areas.[28] For clarity, the pilots focused on the State instead of the Party, so the Party’s supervision power was still vested in supervision commissions of the Party, such as CCDI.

In 2017, the pilots in Beijing, Shanxi, and Zhejiang were extended to the whole nation[29] on 4 December according to the Decision of the Standing Committee of the National People’s Congress on Promoting the Pilot Program on the National Supervisory System Reform all over the Country.[30] This decision is a clear hint that the Constitution of the People’s Republic of China (“Constitution”) would possibly be amended to formally transfer the supervision power carried out by the governments and procuratorates to the supervisory commissions.

To conclude, the nationwide anti-corruption campaign evolved with more attention by targeting top leaders of the Party and signaling plans to amend the Constitution to further the campaign in this period.

3. New System since 2018

Following the evolving trend, the Chinese amended the Constitution in 2018 and created a new supervision system along with the Constitution amendment.

On 11 March, the NPC passed the Amendment to the Constitution which, as indicated in the pilots, transferred the “One Fu and Two Yuan” system into the “One Fu, One Wei and Two Yuan (一府一委两院).” The Amendment inserted Chapter 3 Section 7 (Arts. 123-27) to create the supervisory commissions led by the NSC to be in charge of corruption and other crimes.[31]

On March 21, 10 days after the Amendment to the Constitution, the CPC Central Committee issued the Plan on Deepening the Reform of the Party and State Institutions, which proposed that the NSC should “work together with the CCDI, and undertake both disciplinary and supervisory mandates as the same working institution with two names.”[32] Such a proposal later became a reality. As stated by Mr. Zhao Leji/赵乐际 in his Working Report in the Third Plenary Meeting of the 19th CCDI on 11 January 2019, “the CCDI and NSC have fulfilled the requirements of working together.”[33] In other words, the NSC and CCDI have been sharing the same officials and offices since the implementation of such a proposal.[34]

To conclude, along with the Amendments to the Constitution, the supervisory commissions were created to exercise the State’s supervision power which had been vested upon governments and procuratorates.[35] However, the institutions exercising the Party’s supervision power are still supervision commissions of the Party. Legally speaking, the supervisory commissions of the State are independent of the supervision commissions of the Party. However, following the requirements of working together, these two kinds of institutions have been sharing the same officials and offices.

B. Political Incentives to Chase Corrupt Fugitives

As noted above, anti-corruption has been a focus of the Party and State since 2012, and chasing officials who were accused of corruption but went overseas (“corrupt fugitives”) is an essential part of the campaign as well.

1. Starting from 2014

The emphasis on chasing fugitives started in 2014, and many rules and mechanisms were created to pursue corrupt fugitives.

On 15 January, the Communiqué of the 18th CCDI 3rd Plenary Meeting clearly stated that the Party should “intensify more efforts to chasing fugitives and recovering assets, and shall never leave corrupted people unpunished.”[36]

In June, the Working Office for Internationally Chasing Fugitives and Recovering Assets (国际追逃追赃工作办公室) was created to address this issue.[37] The office consists of people from the CCDI, SPC, SPP, Ministry of Foreign Affairs (外交部, “MFA”), Ministry of Public Security (公安部, “MPS”), Ministry of State Security (国安部), People’s Bank of China (中国人民银行, “PBOC”), etc.[38]

On 9 November, the Asia-Pacific Economic Cooperation, to which China is a party, passed the Beijing Declaration on Fighting Corruption, promoting international cooperation on tackling corruption crimes. This declaration further clarifies that chasing fugitives is a central concern for China.[39]

2. Law Enforcement Projects

Apart from setting rules and mechanisms, many enforcement actions were taken as well.

In 2015, a project, namely Skynet/天网, was launched to target corrupt fugitives.[40] The Skynet Project is an interdepartmental project that includes the Organizational Department of the CPC Central Committee, SPP, MPS, PBOC, etc. During the cooperation, the “Operation Fox Hunt 2015/猎狐2015,” led by the MPS, was launched to counter corrupt fugitives as part of the Skynet project. Apart from the MPS, other departments, such as SPC, SPP, etc, also participated in the “Operation Fox Hunt 2015”.[41] In the same year, the International Criminal Police Organization (“INTERPOL”) issued Red Notices for 100 Chinese fugitives suspected of corruption.[42] By August 2020, 60 people among the 100 had been brought back to China for trial.[43]

3. Calling for a TIA System

As President Xi Jinping kept emphasizing anti-corruption from an international perspective, China called for more ways to pursue fugitives. As revealed by this article, one way adopted by the Chinese government is the TIA system.[44]

On 18 October 2017, President Xi Jinping specifically addressed again in his report at the 19th National Congress of the Party that “no matter where the corrupt officials flee, they shall be brought to justice.”[45] From such a statement, we can see that the tone from the top expressly conveyed the information that chasing corrupt fugitives is one of the main concerns of the CPC.

As for the academic side, although some Chinese scholars have researched trial-in-absentia in criminal law, most research was either too general[46] or focusing on topics other than pursuing fugitives.[47] In 2016, major scholars started proposing a TIA system to pursue corrupt fugitives,[48] and more and more scholars have started to discuss this topic since then.[49]

Finally, the political incentives and academic research converged in 2018. Within a few years after the statement by Xi Jinping, the TIA system was created by revising the Criminal Procedure Law on 26 October 2018.

C. Conclusion

To conclude, there are more and more political incentives to carry out a general anti-corruption campaign after Mr. Xi was elected as General Secretary of CPC. In the meantime, chasing corrupt fugitives is one of the most important matters for the CPC, and such incentives finally contributed to the birth of the TIA system.

III. How the TIA System Works

As a response to the political incentives occurring since 2012, the TIA system was introduced to China in 2018, but no cases have been finalized up to date. Mr. Zhang Jun, Attorney-General of the SPP, disclosed on 8 March 2021 that a TIA proceeding was first launched in 2020.[50] That said, that case is still ongoing, and there is no detailed information about that case. Therefore, this section will explore how the TIA system works in theory, given available norms.

Under the current structure, the TIA system can be divided into three phases based on the phases of the Chinese criminal justice system, and the following parts of this section will assess:

  1. The investigation phase by supervisory commissions;
  2. The prosecution phase by procuratorates; and
  3. The adjudication phase and possible termination by courts.

A. Investigation Phase

Every indictment, whether in absentia or not, starts only after investigation and transfer for prosecution. The TIA system is no exception. According to Art. 291 of the Criminal Procedure Law and Art. 505 of the Prosecution Rules of Procedure, only cases transferred from a supervisory commission for prosecution are potentially subject to the TIA system. Next, the author will

  1. Clarify the jurisdiction of supervisory commissions related to the TIA system; and
  2. Assess when a case will be transferred for prosecution.

1. Jurisdiction of the TIA System

As mentioned above, only corruption cases referred by a supervisory commission are potentially within the scope of the TIA system. By assessing the relevant rules, it can be found that the subject matters of the system are crimes under Chapter 8 of the Criminal Law (刑法) if they are committed by “a public official,” a term often used by the general public but without definition.

a. Crimes Covered by the TIA System

Chapter 8 of the Criminal Law listed the crimes covered by the TIA systems.

The crimes defined in Article 291 of the Criminal Procedure Law are corruption crimes (贪污贿赂犯罪) which has the same meaning as the title (贪污贿赂罪) of the Criminal Law Chapter 8. Such an explanation is supported by the Regulations on the Jurisdiction of the National Supervisory Commission (For Trial Use) which defined the term “贪污贿赂犯罪 (corruption crimes)” cases precisely the same as those covered by the Criminal Law Chapter 8.[51]

Accordingly, the crimes subject to the TIA system can be presented in the following chart.

Description of the Crime(s)[52] Article(s) of Criminal Law
1 Corruption (贪污罪) 382, 394
2 Misappropriating public funds (挪用公款罪) 384
3 Accepting bribes (受贿罪)[53] 385, 387, 388 and 388-1
4 Offering bribes (行贿罪) 389, and 391-393
5 Holding a huge amount of property with unknown sources (巨额财产来源不明罪) 395.1
6 Concealing overseas deposits (隐瞒境外存款罪) 395.2
7 Privately distributing state-owned assets (私分国有资产罪) 396.1
8 Private distributing confiscated assets (私分罚没财物罪) 396.2

(A List of Crimes Covered by the TIA System)

b. Personal Jurisdiction of the TIA System

According to the related articles of the Criminal Law, there are requirements on who can commit these crimes; in other words, only people with specific identities (usually jobs) can commit the crimes covered by the TIA system. However, considering such requirements can hardly be ascertained merely based on the Criminal Law, this article will assess the personal jurisdiction of the TIA system.

According to Art. 15 of the Supervision Law, the crimes subject to the TIA system can be committed by 6 types of people, and these 6 types are listed in the following chart with examples.

Type of the Actor(s) Example(s)
1 Civil servants of organs of the CPC, people’s congresses and their standing committees, people’s governments, supervisory commissions, people’s courts, people’s procuratorates, Chinese People’s Political Consultative Conference (“CPPCC”) commissions, democratic parties, and federations of industry and commerce, and other people managed accordingly under the Civil Servant Law An official in the CCDI, a deputy to the NPC, an official in MFA, an official in NSC, etc.
2 People engaged in public affairs in organizations managing public affairs upon authorization by laws or regulations or lawful entrustment by state organs An official in the Chinese Center for Disease Control and Prevention
3 Managers of state-owned enterprises A manager in the China National Petroleum Corporation
4 People engaged in management affairs in public entities of education, science, culture, health, sports, etc. A president of a public university
5 People engaged in management affairs at mass organizations of self-management at the grass-roots level A director of a residents committee
6 Other people who perform public duties according to the law[54] N/A

(A List of Persons Subject to the TIA System)

2. When to Transfer a Case for Prosecution

A supervisory commission must meet both substantive and procedural requirements when transferring a case for prosecution under the TIA system.

a. Substantive Requirements

As for the substantive side, Art. 45 of the Supervision Law stipulates that a supervisory commission can transfer the case to a procuratorate only when it finds upon investigation that “the criminal facts are clear, and the evidence is credible and sufficient (犯罪事实清楚,证据确实、充分),”[55] which sets a two-pronged test consisting of facts and evidence. It is widely held that the first prong is a subjective requirement within the authority’s discretion,[56] indicating the focus should be drawn to the second prong.

This standard is the same for a public security authority (police office) to transfer an ordinary case to a procuratorate, according to Art. 162 of the Criminal Procedure Law. Accordingly, considering that the supervisory commissions have not yet issued relevant regulations, this article considers it proper to take public security authorities’ rules as reference. According to the Provisions on the Procedures of Public Security Bureaus on Handling Criminal Cases, evidence is credible and sufficient when (1) every fact determined is supported by evidence; (2) every piece of evidence that is used for determining the facts is confirmed with due diligence; and (3) the reasonable doubt has been precluded in light of the comprehensive evidence of the case.[57]

To conclude, the supervisory commission should believe that it has adequate evidence to preclude any reasonable doubt and establish that enough evidence supports the facts.

b. Procedural Requirements

For the procedural side, the general rule is that a local supervisory commission has the discretion to decide on its own to transfer this case for prosecution according to Art. 11 of the Supervision Law. However, there may be potential exceptions to that general rule when the case comes within the TIA system.

Although there is no valid rule on this point, it could be that the Supervision Measure Draft issued by the NSC on 17 May 2021 provides a hint. According to Art. 233 of the Supervision Measure Draft, if a local supervisory commission[58] proposes to investigate cases that are intended to be directed into the TIA system, the commission shall report this case to the NSC level by level for approval, which might be due to the importance of chasing fugitives.[59] In addition, when transferring this case for prosecution, the Opinion for Prosecution should be discussed by the supervisory committee dealing with the case before it is handed over to the procuratorate. These are higher requirements comparing with usual cases, indicating the importance of the TIA system.

3. Conclusion

To conclude, the TIA system can be applied only when a public official committed, or from a criminal procedure perspective, is accused of a crime under Chapter 8 of the Criminal Law. The local supervisory commission investigating this case must meet a high standard of proof and follow special procedural requirements such as reporting to the NSC level by level for approval before transferring the case to a procuratorate for prosecution.

B. Prosecution Phase

After a supervisory commission transferred a case to a procuratorate, the procuratorate[60] will take over to decide whether to initiate the TIA procedure. Under the current system, after the case meets the statutory requirements to continue under the TIA system, the procuratorate has the discretion to decide whether to continue the TIA procedure.

1. Statutory Requirements

The procuratorate bears the same standard of proof as the supervisory commission does in furthering the TIA procedure. However, the procuratorate does not and will possibly not have procedural requirements such as reporting to the SPP – since the case has been reported to the top authority once, there is no need to do it again.[61]

On the substantive side, according to Art. 176 of the Criminal Procedure Law, the standard for the procuratorate is also “the criminal facts are clear, and the evidence is credible and sufficient.” As discussed before, this is a high standard of evidence. In addition, as the name of the TIA system indicates, the procuratorate must establish that the defendant is abroad with convincing evidence.[62]

There are no unique stipulations regarding the procedural aspect, but the relevant procuratorial committee may discuss the case. The Prosecution Rules of Procedure mirrors the abstract procedures stipulated in the Criminal Procedure Law.[63] In addition, unlike the supervisory commission system, there will possibly be no special procedural requirements for the procuratorate system for two reasons. Firstly, the supervisory commissions are centers of the programs of chasing fugitives.[64] As the NSC is de facto CCDI, the NSC would have a stronger voice on this issue than procuratorates and courts. Therefore, since the NSC, as a top-level authority, has reviewed whether to launch the TIA system, there is no need for the prosecution side to report the case back again to a top-level authority, i.e.,  SPP from the prosecution side. Secondly, the indication that no special procedural requirements can be drawn from the path of the special confiscation procedure under Chapter 4 of the Criminal Procedure Law. The special confiscation procedure was expected to carry similar functions as the TIA procedure,[65] but there are still no special procedural requirements, such as reporting, for the procuratorate to follow after its 9-year practices. That said, considering the potential importance and complexity of a case subject to the TIA system, it may be reported to the procuratorial commission/检察委员会 of the local procuratorate to decide whether to file the prosecution.[66]

Therefore, it is possible to believe that no special procedural requirements will be set for a procuratorate to follow before prosecuting a TIA case to a court, but the case may be discussed by the procuratorial committee to decide whether to prosecute.

2. Discretion

Even if the aforementioned requirements are met, the local procuratorate still has the discretion to decide whether or not to launch a prosecution, but the factors considered in exercising this discretion are not apparent yet.

The local procuratorate has the discretion to prosecute or not. According to Art. 291 of the Criminal Procedure Law, the word authorizing the procuratorate is “may (可以),” indicating the power can be waived even if other requirements are met. However, since the rules are silent on this point and there are no completed cases, the considerations behind the reluctance to prosecute are yet unknown.

3. Conclusion

To conclude, a prosecution can be filed when the substantive requirements of burden of proof are met, but the prosecutor still has discretion on whether to bring the case or not.

C. Adjudication Phase

After a prosecutor files a TIA case in a court, the court will decide whether to accept this case under the TIA system. In addition, even after the TIA system starts operating, the court will terminate the TIA proceedings in certain conditions. The following parts will:

  1. Explain when a court will accept a case under the TIA system;
  2. Explain what a court would do after accepting a case under the TIA system; and
  3. Explain when a court will terminate the TIA proceedings.

1. When to Accept a Case with the TIA Procedure

When a case is prosecuted to a court under the TIA procedure, the court should first decide whether to accept the case under the TAI procedure.

In light of Art. 291 of the Criminal Procedure Law and Art. 598 of the Criminal Procedure Interpretation, there are 7 points to be met for a court to accept a TIA case, and these 7 points and the following chart present the case’s results if one of the 7 points is not met.

Category[67] Description Results if not Met
1 Subject matter of the TIA system Whether this case is within the scope of the TIA system Remand the case to the procuratorate
2 Jurisdiction of the court Whether this court has jurisdiction Remand the case to the procuratorate
3 Formality requirements Whether the defendant’s basic information, including a clear residence abroad and contact information, is listed Require the procuratorate to supplement the materials or information within 30 days; if the procuratorate fails to, remand the case to the procuratorate
4 Formality requirements Whether main facts that the defendant is engaged in relevant crimes are listed with evidence Ibid
5 Formality requirements Whether the name, identity, address, contact information, etc. of close relatives of the defendant, if any, are listed Ibid
6 Formality requirements Whether the type, amount, value, location, etc. of the illegal incomes and other properties involved in this case are listed with evidence Ibid
7 Formality requirements Whether a list and other relevant legal requirements of seizure and freezing of illegal income and other properties involved in this case are attached Ibid

(A List of Aspects to be Reviewed by a Court)

2. What to Do after the Acceptance

A case does not stop when a court accepts it under the TIA procedure. Instead, the court must take further actions to safeguard the defendant’s rights. Once a court decided to accept the case under the TIA procedure, it undertakes further obligations of notifying the defendant.

Firstly, the court must service of process. According to Art. 292 of the Criminal Procedure Law and Art. 600 of the Criminal Procedure Interpretation, the court must send the summons and a copy of the indictment to the defendant. The summons shall specify the time limit for the defendant to appear before the court and the legal consequence of not appearing as required. In addition, the court must send a copy of the indictment to close relatives of the defendant with notification that they can appoint an advocate on behalf of the defendant. Neither the Criminal Procedure Law nor the Criminal Procedure Interpretation specified any special rights advocates enjoy in the TIA system, indicating the advocate will have the same rights as prescribed for ordinary corruption cases.[68]

Secondly, the court should notify the defendant after reaching a judgment. According to Art. 294 of the Criminal Procedure Law, the court should deliver the judgment to the defendant, his/her close relatives, and his/her advocate. If the defendant or his/her close relatives are not satisfied with the judgment, both of them can appeal to a higher court.

3. Termination and Retrial

The operation of the TIA procedure does not mean the case will keep running without any obstructions. If certain conditions occurred, the TIA procedure would be terminated, and a retrial will be granted to the defendant. To be more specific, if the defendant passes away, the defendant appears before the court or the crime decided by the court is beyond the subject matters of the TIA system, the court shall terminate the TIA procedure and grant a retrial with the defendant’s appearance in the following scenarios.

Firstly, the court shall terminate the TIA procedure if the defendant passes away. As a general rule of criminal procedure law, the court shall terminate any criminal proceeding if the defendant passes away with only one exception, and the exception is that the current proceeding will render a judgment of acquittal.[69] This general rule has been mirrored into a specific provision under the TIA system, i.e., Art. 297 of the Criminal Procedure Law.

Secondly, the court shall terminate the TIA procedure and grant a retrial if the defendant appears. According to Art. 295 of the Criminal Procedure Law, if the defendant appears, either voluntarily or involuntarily, during the trial period, the court shall stop the TIA procedure and launch a retrial; and if the defendant appears after a judgment or a decision is valid with an objection, the court shall launch a retrial.

Thirdly, the TIA should be terminated if the court finds the crime not to be a subject matter of the TIA system. According to Art. 604 of the Criminal Procedure Interpretation, if a court intended to find the defendant guilty of a crime beyond the subject matters of the TIA system, the court should terminate the TIA proceeding before reaching a verdict.

4. Conclusion

To conclude, the court will accept a case under the TIA procedure if (1) the case is within the subject matters of the TIA system, (2) the court has jurisdiction, and (3) other formality requirements are met. After accepting the case, the court further undertakes notification obligations to the defendant. In addition, the court will terminate the TIA proceedings and grant a retrial if the defendant passes away, the defendant appears before the court, or the crime decided by the court is beyond the subject matters of the TIA system.

D. Conclusion

From the analysis above, a supervisory commission will investigate a crime under the Criminal Law Chapter 8 committed by “a public official.” The supervisory commission will transfer the case to a prosecutor for prosecution if it (1) believes that it has adequate evidence to preclude any reasonable doubt and establishes that enough evidence supports the facts; and (2) obtains an approval after it reports this case to the NSC level by level.

After a case is transferred for prosecution, a prosecution can be filed when the substantive requirements of burden of proof are met, but the prosecutor still has discretion on whether to bring the case or not.

After the prosecution was filed, the court will accept this case with the TIA process if (1) the indicted crime is subject to the TIA system; (2) the court has jurisdiction; and (3) other formalities are met. After the court accepts the case, the process can be terminated if (1) the defendant passes away; (2) the defendant appears before the court; or (3) the crime intended to be decided by the court is beyond the subject matters of the TIA system.

For convenience, the following flowchart can serve as an illustration of the TIA system.

A Flowchart of the TIA System by the Author

(A Flowchart of the TIA System by the Author)

IV. Why the TIA System was Created

As discussed in the previous section, the TIA system is complicated. Without incentives, it is unreasonable to bring such a novel revision to the criminal procedure system – only when the TIA system can prevail over the competing methods in chasing corrupt fugitives will a policymaker bring in the system despite the high costs of so doing.

Therefore, to better understand why the Chinese government created the TIA system, the following parts will:

  1. Assess the methods of chasing corrupt fugitives used prior to the TIA system and reveal their intrinsic defects as to the efficiency of pursuing corrupt fugitives; and
  2. Assess whether the TIA system can help to address these defects.

A. Failure of Methods Prior to the TIA System

As elaborated in the Lotus case by the International Court of Justice, a state’s sovereignty is limited to its own territory.[70] Therefore, China cannot extend its power of arresting a fugitive into another state’s territory. Prior to the TIA system which is territorial by its nature, there were two main ways for China to deal with the problem, i.e., (1) by persuading the corrupt fugitive to appear in China voluntarily; and (2) by requesting another state to extradite the corrupt fugitive to China.[71] Although the Chinese government did not clearly state these two reasons,[72] this article argues that these two solutions have intrinsic defects, making them inadequate to deal with the comprehensive and demanding anti-corruption campaign.

1. Voluntary Appearance

The voluntary appearance of the fugitive in China is the most popular approach. According to the CCDI, more than half (about 57%; 390 out of 680) of the fugitives tried in China in 2015 appeared after their voluntary surrender.[73] In addition, even after the TIA system was established, the NSC, SPC, SPP, MPS, and Ministry of Foreign Affairs (“MFA”) issued an Announcement on the Urging Duty-Related Fugitives to Surrender,[74] indicating the voluntary appearance approach is endorsed by the authorities. Despite its popularity, this approach has two negative aspects from the author’s perspective,[75] i.e.:

      1. The fugitive has a great deal of bargaining power in this approach;
      2. This approach is costly to the Chinese authorities;
      3. This approach runs the risk of annoying other states.

Firstly, this approach grants too much bargaining power to the fugitive. As indicated by its name, the voluntary appearance approach relies mainly on the fugitive’s discretion. In other words, if the fugitive declines to go back to China for trial, the authority will have few alternatives to persuade the fugitive further. Some Chinese scholars proposed that the Chinese authority can persuade foreign states to launch legal proceedings against corrupt fugitives; facing trials in a foreign state, the corrupt fugitive may surrender to China to escape from such legal proceedings.[76] However, from the author’s perspective, such an approach cannot thoroughly resolve the defects. For example, a defendant may accept the foreign state’s jurisdiction, and stay in that state at the cost of potential punishments.

Secondly, the voluntary appearance approach is costly for the authority both in time and finance. For the time side, like the Yang Xiuzhu case, which this article discussed initially, it took 13 years for Ms. Yang to appear in China for trial in the end voluntarily. For another example, Huang Yurong/黄玉荣, another fugitive listed in the INTERPOL Red Notices, voluntarily appeared in China in 2015, 13 years after she fled to the United States in 2002.[77] For the finance side, chasing fugitives cost money. As long as the process goes on, the Chinese authority has to pay for the campaign, which may be expensive in jurisdictions like the United States, considering the attorney fees are relatively higher in these jurisdictions.[78]

Thirdly, the voluntary appearance approach runs the risk of annoying other states. Persuasion should not only be made through policies, such as the Announcement on Urging Duty-Related Fugitives to Surrender, but also requires officers to discuss with corrupt fugitives in person. Considering the latter actions often occur in another state, the action may annoy the sovereignty of that state and may even potentially constitute a crime in that state. Take “Operation Fox Hunt” as an example. The United States Department of Justice issued a press release on 22 July 2021 that 9 individuals, including a serving Chinese prosecutor, were indicted for their participation in the “Operation Fox Hunt” in the United States.[79]

2. Extradition

The second approach taken by the Chinese government is to apply for extradition. With the international legal frameworks such as the United Nations Convention against Corruption (“UNCAC”)[80] and United Nations Convention against Transnational Organized Crime (“UNTOC”),[81] and many bilateral agreements, it seems easy for China to seek extradition for a corrupt fugitive. However, that is not the truth because:

  1. The extradition under international legal frameworks is hard to enforce, and 
  2. Chinese bilateral treaties with other jurisdictions cannot cope with a large number of fugitives suspected of corruption crimes.

Firstly, the international legal frameworks can hardly be enforced. Even though the UNCAC incorporates Art. 44 to specifically deal with extradition issues, Art. 44(6) leaves spaces for states to assert that their extradition is contingent upon treaties.[82] By so stating, many states have de facto opted out of the system by conditioning extradition on bilateral treaties,[83] which, as this article will explain later, makes it hard for China to seek extradition.[84] As for the UNTOC, Art. 16 also leaves spaces for converting an extradition application according to the UNTOC into that according to bilateral treaties.[85]

Secondly, the bilateral treaties between China and other jurisdictions are not adequate to address the extradition needs. Even though the extradition treaties China reaches with other countries have been increased to 59 up to date,[86] China has not reached any treaty with many Western countries, among which are the United States, Canada, and Australia. Considering the tense relationship between China and these three countries, China can hardly reach such treaties in the short or medium term. However, researchers have pointed out that Western countries are the most popular destinations of corrupt Chinese fugitives,[87] and the top 3 favorite destinations are accidentally the United States, Canada, and Australia,[88] creating difficulties for the Chinese authorities to apply for extradition.[89]

3. Conclusion

To conclude, the voluntary appearance and extradition approaches are two main ways for the Chinese authority to pursue corrupt fugitives prior to the TIA system. Although the Chinese government did not explicitly comment on these two approaches, the author contends that they can hardly fulfill their objectives because (1) the voluntary appearance approach assigns the fugitive with too much bargaining power, is costly both in time and finance, and runs the risk of annoying other states; and (2) the extradition approaches can hardly be applied due to the inefficiency of international legal frameworks and lack of bilateral extradition treaties.

B. TIA System as a Response to Defects

The TIA system is a possible solution to solve the aforementioned defects and can even bring new benefits. Under the TIA system:

    1. The Lotus limitation on state sovereignty is avoided;
    2. The unbalanced bargaining power and costly proceedings under the voluntary appearance approach are better addressed;
    3. The extradition application is no longer required; and
    4. The Chinese government can more easily recover a fugitive’s assets overseas.

Firstly, the TIA system is free from the Lotus limitation. The TIA system, by its nature, is a domestic judicial system that targets a Chinese citizen’s action that brings substantial effects to China, which is an action not prohibited by international law.[90] It is beyond doubt that China can hold such a domestic proceeding as furtherance of its sovereignty. In addition, the risk of annoying other states is also mitigated since no actions will be taken in the territory of another state.

Secondly, the TIA system can solve the defects met by the voluntary appearance approach. As mentioned above, the defects of the voluntary appearance approach are the unbalanced bargaining power between the fugitive and Chinese authorities, the high cost, and the risk of annoying other states. For the prong of bargaining power, the TIA system reserves the power of initiating the process to the authority as it does in other ordinary prosecution procedures. In addition, the fugitive would be notified by the court, and the court would adjudicate this case according to the law. Therefore, better balanced-bargaining power is preserved under the TIA system. For the prong of cost, the TIA system can save time and money. Under the TIA system, no consent of the fugitive is required for the start of the procedure, indicating many years for persuasion may be possibly saved; in addition, since the length of a case would be considerably shortened, the cost of these actions would be lower, especially considering most of the procedures are conducted in China, a familiar jurisdiction for the authorities.

Thirdly, the TIA system can solve the defects met by the extradition approach. The defects under such an approach can find their nature in international cooperation. In other words, every defect is tied to the limitation of one state’s territorial sovereignty. Under the TIA system, the appearance of the fugitive is no more necessary for a criminal trial, making it unnecessary to obtain the fugitive from other states through extradition.[91]

Fourthly, in addition to solving intrinsic defects of the prior approaches, the TIA system also makes it easier for the Chinese government to recover overseas assets of the fugitive but research shows the process is likely to be complicated. The Chinese government may rely on Article 57(3) of UNCAC, under which it can request another state party to return assets to China. UNCAC generally requires that the requesting state (China) have rendered a final judgment unless the relevant state party has waived that requirement.[92] Additionally, the Chinese government may rely on a bilateral criminal judicial assistance treaty. Those do not usually condition asset recovery upon a valid judgment, but that will depend on local law. Also, the language in the treaties generally gives the local court the discretion to transfer assets to the requesting state. Local legislation may also involve complicated procedures. So the TIA system will better enable the Chinese government to recover overseas assets, but the ease of recovery will depend on the jurisdiction.

C. Conclusion

To conclude, in the author’s view, a TIA system is necessary because it can solve defects of other prior approaches and contribute to the pursuit of overseas assets of the fugitive.

V. The TIA System and Right to be Present at Trial

No system is perfect, and the TIA system is no exception. As the name “trial-in-absentia” indicates, the TIA system would encounter some legitimate questions. Among them, the most controversial question is whether the defendant’s right to be present at trial can be safeguarded under such a trial-in-absentia system.

To better address this fundamental question of human rights, this section will:

  1. Clarify the contents of the right to be present; and
  2. Analyze the TIA system under the defendant’s right to be present.

A. The Right to be Present at Trial

The right to be present at trial is “a precondition for the realization of a fair trial,”[93] which is a fundamental human right enshrined under Art. 10 of the Universal Declaration of Human Rights.[94] The right to be present at trial is also enumerated as a human right under many influential human rights covenants, such as Art. 14.3(d) of the International Covenant on Civil and Political Rights (“ICCPR”),[95] Art. 6(3)(c) of the European Convention on Human Rights,[96] etc. Even though China is not a party to the ICCPR,[97] considering ICCPR reflects customary international law in the field of human rights, the following analysis of the right’s contents will mainly focus on the jurisprudence of ICCPR and other influential human rights agreements.

The following parts will:

  1. Clarify that the presence at trial is both a right and a duty, and
  2. Discuss when the right to be present at trial is limited.

1. Presence at Trial is both a Right and a Duty

Before conducting a substantive analysis of the right to be present at trial, the nature of the presence at trial should be clarified.

Firstly, the presence at trial is a right of the defendant. As an aspect of the right to a fair trial, the presence at trial has long been recognized as a human right, and it was codified into the ICCPR for the first time in history. Art. 14.3(d) of the ICCPR states that the defendant has the right “[t]o be tried in his presence.”[98] Even though the ICCPR does not use the terminology of the right to present at trial, the Human Rights Committee (“HRC”) confirmed the equal meaning of the two in later cases.[99]

Secondly, the presence at trial is a duty of the defendant. Despite the well-founded basis to argue the presence at trial is a right, there is an escalating voice that the present at trial is a duty as well.[100] As observed by the European Court of Human Rights in Poitrimol v. France, which is a leading case in this field, “a defendant should appear … because of the need to verify the accuracy of his statements and compare them with those of the victim — whose interests need to be protected — and of the witnesses.”[101] This statement emphasized the opposite side of the present against a mere right of the defendant, and it revealed that the public interest should be weighed. Therefore, the author contends that being present at trial is also a duty of the defendant.

To conclude, in the view of this author, being present at trial is a right of the defendant to protect his own interests and a duty of the defendant in the public interest.

2. Limitation on the Right to be Present at Trial

Since presence at trial conveys both a right and a defendant’s duty, whether the right should be preserved is upon the balance of private and public interests.[102] As numerous cases revealed, the defendant’s right to be present at trial can be waived if there is compelling public interest with due process.[103]

As elaborated by the HRC in Mbenge v. Zaire, a leading case in this field, “proceedings in absentia are in some circumstances … permissible in the interest of the proper administration of justice.”[104] As for a specified circumstance, the HRC pointed out that when the defendant declines to exercise the right to be present at trial after being informed of the proceedings sufficiently in advance.[105] In other words, when the defendant waived his/her right to be present, proceedings in absentia are consistent with the human rights requirements. In addition, the HRC further pointed out in Maleki v. Italy that the due process requirements include that a defendant is “entitled to a retrial in his presence when [the defendant is] apprehended in [the forum state].”[106] In other words, the accused’s appearance can reverse the proceedings in absentia even if a valid judgment has been rendered.[107]

To conclude, in the author’s view, the right of a defendant to be present at trial is not violated in proceedings in absentia if (1) the proceedings are for the public interest; (2) the defendant refused to appear after being informed of the proceedings; and (3) the defendant is entitled to a retrial once s/he appears in the forum state.

B.  TIA System & Human Rights

Under the TIA system, all three requirements are met for limitations on the defendant’s right to be present at trial. Therefore, in the view of this author, the TIA system complies with human rights requirements.

Firstly, there are compelling public interests to pursue an anti-corruption campaign. As noted by Professor Peters, corruption is a violation of international human rights.[108] Therefore, it is reasonable for a government to protect its citizens from human rights violations caused by corruption.

Secondly, the TIA system can only work after the defendant refuses to be present after due process. Recalling the operation mode of the TIA system, the court should send the summons and a copy of the indictment to the defendant, and the summons shall specify the time limit for the defendant to appear before the court and the legal consequence of not appearing as required according to Art. 293 of the Criminal Procedure Law and Art. 600 of the Criminal Procedure Interpretation. If the defendant appears, the TIA procedure would be terminated according to Art. 295 of the Criminal Procedure Law. Therefore, the negative waiver of the right after due process has been fulfilled.

Thirdly, the defendant is entitled to a retrial once appearing in China. Recalling the operation mode of the TIA system, if the defendant appears, either voluntarily or involuntarily, during the trial period, the court shall stop the TIA procedure and launch a retrial; and if the defendant appears after a judgment or a decision is valid with an objection, the court shall launch a retrial according to Art. 295 of the Criminal Procedure Law.

To conclude, the TIA system has fulfilled all three requirements to launch proceedings in absentia without violating the defendant’s right to be present at trial.

C. Conclusion

The right of the defendant to be present at trial allows proceedings in absentia only when (1) the proceedings are for the public interest; (2) the defendant refused to be present after being informed of the proceedings; and (3) the defendant is entitled to a retrial once s/he appears in the forum state. According to the background of the TIA system, Arts. 293 and 295 of the Criminal Procedure Law and Art. 600 of the Criminal Procedure Interpretation, the TIA system fulfills the requirements to launch proceedings in absentia against a defendant.

VI. Conclusion

A state’s territory does not limit corruption, and officers accused of corruption from China may flee abroad to escape from the authority bring them to justice. Since Mr. Xi Jinping was elected as General Secretary of CPC in 2012, a nationwide anti-corruption campaign calls for a novel TIA system to deal with corrupt fugitives, and the TAI system finally came out along with the revision on the Criminal Procedure Law in 2018.

Starting with the investigation phase by supervisory commissions, which were newly created in 2018 along with the Amendment to the Constitution, only corrupt crimes fall within the scope of the TIA system; in addition, the local supervisory commission would have to report this case level by level to the NSC for approval before handing over this case to a prosecutor. After the prosecutor decides to file a case before a court, the court will decide whether to accept this case under the TIA system and notify the defendant after accepting the case. If the defendant passes away or appears, or the court found the crime was outside of the scope of the TIA system, the TIA proceedings would be terminated by the court, and a retrial would be granted on application.

Despite its complexity, the TIA system, in the author’s view, may cure the intrinsic defects embedded in other methods for the authority to pursue corrupt fugitives. Prior to the TIA system, the authority tends to either wait for the fugitive voluntarily or seek extradition. However, the voluntary appearance approach assigns the fugitive with too much bargaining power, is costly both in time and finance, and runs the risk of annoying other states. The extradition approaches can hardly be applied due to the inefficiency of international legal frameworks and the lack of bilateral extradition treaties. With the TIA system, these intrinsic defects can be cured. The system may even bring more benefits to the Chinese authorities, such as better enabling the recovery of overseas assets of the corrupt fugitive.

As its name indicated, the TIA system would encounter criticisms based on the human rights to be present at trial. However, in the author’s view, such a right is not absolute.  A departure from the right can be justified if there are compelling public interests and due diligence is well preserved. Behind the TIA system lies compelling public interest to counter corruption which is a violation of human rights. In addition, the rules of the TIA system conditions the operation of the TIA system on the court’s notification of the defendant, which is consistent with the due process requirements.

The author has contended that the TIA system works well and complies with international human rights law in theory, but a theory is not the end of a system. It is not even the beginning of the end, but it is, perhaps, the end of the beginning. With more emphasis on pursuing fugitives, the author believes there will be more and more cases in this field, and those practices can test if the TIA system will work as the Chinese authorities expect.

  1. Chen Liang is a J.D./J.M. candidate at Peking University School of Transnational Law. Professor Susan Finder advised the author, and the author is immensely grateful for Professor Finder’s kind support. The author also thanks Professor Zhao Chenguang (赵晨光) Professor Chen Xuan (陈璇), Ms. Wang Zhipei (王之霈), Mr. Shao Yang (邵阳) and other legal professionals who offered timely support.
  2. See Case Concerning the Embezzlement and Corruption of Yang Xiuzhu/杨秀珠贪污、受贿案, Chu No. 71 Criminal Judgement of Zhe 01 (Intermediate People’s Court of Zhejiang Province Hangzhou Municipality, 2017)/浙江省杭州市中级人民法院(2017)浙01刑初71号刑事判决书.
  3. See Yang Xiaodu/杨晓渡, “Report of the National Supervisory Commission on the International Anti-Corruption Works of Chasing Fugitives/国家监察委员会关于开展反腐败国际追逃追赃工作情况的报告,” CCDI, 10 August 2020 <https://www.ccdi.gov.cn/toutiao/202008/t20200810_223555.html> accessed 1 June 2021.
  4. “Criminal Procedure Law of the People’s Republic of China/中华人民共和国刑事诉讼法,” revised 26 October 2018.
  5. According to Art. 291 of the revised Criminal Procedure Law, the TIA system can be applied to three kinds of crimes, i.e., corruption crimes, national security crimes, and terrorist crimes if other requirements are met. However, in light of this article’s purpose, the term “TIA system” in this article refers only to the system applicable to corruption crimes.
  6. See “Decision of the Standing Committee of the National People’s Congress to Amend the Criminal Procedure Law/全国人民代表大会常务委员会关于修改《中华人民共和国刑事诉讼法》的决定,” 26 October 2018.
  7. See “Rules of Criminal Procedure for People’s Procuratorates/人民检察院刑事诉讼规则,” Gao Jian Fa Shizi [2019] No. 4/高检发释字〔2019〕4号, 30 December 2019, Chapter 12 Section 3.
  8. See “Interpretation of the SPC on the Application of the Criminal Procedure Law最高人民法院关于适用《中华人民共和国刑事诉讼法》的解释/”, Fa Shi [2021] No. 1/法释〔2021〕1号, 26 January 2021, Chapter 24.
  9. See “Notification on Seeking Public Opinions on the Implementing Measures of the Supervision Law (Draft for Comments)/关于《中华人民共和国监察法实施条例(征求意见稿)》公开征求意见的通知,” CCDI, 17 May 2021 <https://www.ccdi.gov.cn/djfg/fgsy/202105/t20210520_242311.html>, accessed 1 June 2021.
  10. See Supervision Measure Draft Art. 233.
  11. Zhang Jun/张军, Attorney-General of the SPP, disclosed in his annual report to the National People’s Congress that the first case under the TIA system had been launched in 2020. However, the case is still ongoing, and there is no more information about this case apart from the abstract disclosure. For Zhang Jun’s disclosure, see “Working Report of the People’s Supreme Procuratorate (Excerpt)/最高人民检察院工作报告(摘要),” People’s Daily/人民日报, 9 March 2021, at 3.
  12. “新形势下,我们党面临着许多严峻挑战,党内存在着许多亟待解决的问题。尤其是一些党员干部中发生的贪污腐败……问题,必须下大气力解决。” See Xie Huanchi/谢环驰, “People’s Aspiration for a Better Life is Our Goal/人民对美好生活的向往 就是我们的奋斗目标,” People’s Daily/人民日报, 16 November 2012, at 4.
  13. See Jiang Jie/姜洁, “Important News about the Anti-Corruption Campaign since the 18th National Congress of the Party (New Practices of State Governance)/党的十八大以来正风反腐要闻录(治国理政新实践),” People’s Daily/人民日报, 3 February 2016, at 1 and 11.
  14. “严格遵守廉洁从政有关规定”。See CPC Central Politburo, “Eight Provisions on Improving the Working Style and Keeping Close Contact with the People/关于改进工作作风、密切联系群众的八项规定,” 4 November 2012.
  15. Legally speaking, supervision commissions of the Party, including the CCDI, are organs of the Party but not departments of the State. However, there is a long tradition that the supervision commission of the Party works together (合署办公) with the State’s supervision departments, such as the SPP.
  16. See “CCDI: Li Chuncheng is Suspected of Seriously Violating Disciplines, and is under Investigation by the Party/中纪委:李春城涉嫌严重违纪 正接受组织调查,” Xinhua Net, 6 December 2012 <http://www.xinhuanet.com//politics/2012-12/06/c_113923447.htm> accessed 30 April 2021.
  17. See “Li Chuncheng, Former Deputy Secretary of the CPC Sichuan Provincial Committee, was Sentenced to 13 Years in Prison during the First Instance/四川省委原副书记李春城一审被判处有期徒刑13年,” SPP, 13 October 2015 <https://www.spp.gov.cn/zdgz/201510/t20151013_105756.shtml> Accessed 30 April 2021.
  18. For the full mandates of supervision commissions of the Party, please see “Constitution of the Communist Party of China/中国共产党章程,” amended 24 October 2017, Art. 46.
  19. “反腐败斗争形势依然严峻,人民群众还有许多不满意的地方。……反腐败斗争是一项长期的、复杂的、艰巨的任务。……我们要坚定决心,有腐必反、有贪必肃,不断铲除腐败现象滋生蔓延的土壤,以实际成效取信于民。” See Xi Jinping, Xi Jinping on State Governance/习近平谈治国理政 (Foreign Language Press/外文出版社, 2014) 386.
  20. “健全惩治和预防腐败体系。” See CPC Central Committee, “Decision of the CPC Central Committee on Major Issues Concerning Comprehensively Deepening Reform/中共中央关于全面深化改革若干重大问题的决定,” 12 November 2013.
  21. See CPC Central Committee, “Working Plan for Establishing and Improving the System of Punishing and Preventing Corruption from 2013 to 2017/建立健全惩治和预防腐败体系2013-2017年工作规划,” 25 December 2013.
  22. See “CPC Central Committee Decided to Expel Xu Caihou from the Party/中共中央决定给予徐才厚开除党籍处分,” CCDI, 30 June 2014 <https://www.ccdi.gov.cn/yaowen/201406/t20140630_132353.html> accessed 27 May 2021.
  23. See “CPC Central Committee Decided to Investigate Zhou Yongkang for his Serious Violations of Disciplines/中共中央决定对周永康严重违纪问题立案审查,” CCDI, 29 July 2014 <https://www.ccdi.gov.cn/yaowen/201407/t20140730_132628.html> accessed 27 May 2021.
  24. See “CPC Central Committee Decided to Expel Ling Jihua from the Party, Remove him from Public Office, and Transfer him to Judicial Organs for Dealing with his Suspected Crimes/中共中央决定给予令计划开除党籍开除公职处分 将令计划涉嫌犯罪问题及线索移送司法机关依法处理,” CCDI, 20 July 2015 <https://www.ccdi.gov.cn/scdc/zggb/djcf/201607/t20160704_115989.html> accessed 27 May 2021.
  25. Lin Yan/林彦, “Constitutional Method for the National Supervisory System Reform from Perspective of Four-Fold Structure of One Government, Two Courts System/从“一府两院”制的四元结构论国家监察体制改革的合宪性路径,” 3 Law Review/法学评论 163 (2017).
  26. The Ministry of Supervision was working together with the CCDI. See “Notification of the State Council on Institutional Framework/国务院关于机构设置的通知,” Guo Fa [1998] No. 5/国发〔1998〕5号, 29 May 1998.
  27. See “Decision of the Standing Committee of the National People’s Congress on Carrying out the Pilot Program of Reforming the National Supervision Mechanism in Beijing Municipality, Shanxi Province, and Zhejiang Province/全国人民代表大会常务委员会关于在北京市、山西省、浙江省开展国家监察体制改革试点工作的决定,” 26 December 2016, Art. 1.
  28. See “Decision of the Standing Committee of the National People’s Congress on Carrying out the Pilot Program of Reforming the National Supervision Mechanism in Beijing Municipality, Shanxi Province, and Zhejiang Province/全国人民代表大会常务委员会关于在北京市、山西省、浙江省开展国家监察体制改革试点工作的决定,” 26 December 2016, Art. 1.
  29. There is no explicit constitutional authority for the NPC Standing Committee to implement the pilots either in certain areas, such as Beijing, Shanxi, and Zhejiang, or in the whole state, but such authority can be inferred from Art. 13 of the Legislation Law of the People’s Republic of China. See Zhu Fuhui/朱福惠 and Zhang Jinbang/张晋邦, “Academic Elaborations of the Supervision System Reform and Constitutional Amendment/监察体制改革与宪法修改之学历阐释,” 44(3) Journal of Sichuan Normal University (Social Sciences Edition)/四川师范大学学报(社会科学版) 5 (2017).
  30. See “Decision of the Standing Committee of the National People’s Congress on Promoting the Pilot Program on the National Supervisory System Reform all over the Country/全国人民代表大会常务委员会关于在全国各地推开国家监察体制改革试点工作的决定,” 4 November 2017.
  31. See “Constitution of the People’s Republic of China/中华人民共和国宪法,” amended 11 March 2018, Arts. 123-127.
  32. “同中央纪律检查委员会合署办公,履行纪检、监察两项职责,实行一套工作机构、两个机关名称。” See CPC Central Committee, “Plan on Deepening the Reform of the Party and State Institutes/深化党和国家机构改革方案,” 21 March 2018.
  33. “各级纪委监委全面贯彻合署办公要求”。 See Zhao Leji, “Faithfully Perform the Duties Given by the Party and the Constitution, and Strive to Achieve High-Quality Development of Discipline Inspection and Supervision in the New Era/忠实履行党章和宪法赋予的职责 努力实现新时代纪检监察工作高质量发展,” CCDI, 11 January 2019 <https://www.ccdi.gov.cn/toutiao/201902/t20190220_188859.html> accessed 2 June 2021.
  34. The exact date when the proposal was fully implemented was not clear, but it should be before Mr. Zhao’s report on 11 January 2019.
  35. The supervision power was vested upon the Ministry of Supervision, the National Bureau of Corruption Prevention, and the General Bureau of Anti-Corruption and Anti-Bribery. The first two departments are both within the administration system while the latter is within the prosecution system.
  36. See “Communiqué of the CPC 18th CCDI 3rd Plenary Meeting/中国共产党第十八届中央纪律检查委员会第三次全体会议公报,” 15 January 2014.
  37. See Zhang Shengjun/张胜军 and Wang Zhuo/王卓, “Remarkable Progress has been Made in Internationally Pursuing Fugitives and Recovering Assets/反腐败国际追逃追赃工作成效显著,” CCDI, 12 August 2020 <https://www.ccdi.gov.cn/toutiao/202008/t20200812_223638.html> accessed 4 June 2021.
  38. See Cui Xiaosu/崔小粟, “Huang Shuxian was Appointed to be Responsible of the Office of Internationally Chasing Fugitives and Recovering Assets/黄树贤任中央反腐败协调小组国际追逃追赃工作办公室负责人,” CPC News, 11 October 2014 <http://renshi.people.com.cn/n/2014/1011/c139617-25809764.html> accessed 5 May 2021.
  39. See Peng Xinlin/彭新林, “Taking ‘Hunt Down Foxes’ and ‘Take Out Tigers and Swat Flies’ Together to Create a Closed Loop during Anti-Corruption Campaign/‘猎狐’与‘打虎拍蝇’并举打造反腐败斗争闭环,” Procuratorial Daily, 31 March 2020, at 8.
  40. See “The ‘Skynet’ Project is Launched for Internationally Pursuing Fugitives and Recovering Assets/国际追逃追赃启动‘天网’行动,” Xinhua Net, 27 March 2015, <http://www.xinhuanet.com//politics/2015-03/27/c_1114778437.htm> accessed 28 May 2021.
  41. See “Ministry of Public Security Deploys a Special Combat ‘Operation Fox Hunt 2015’/公安部部署“猎狐2015”专项行动,” CPC News, 31 March 2015 < http://fanfu.people.com.cn/n/2015/0331/c64371-26779423.html > accessed 31 April 2021.
  42. See Zhang Yan et al., “Hundreds of Fugitives Return to Face Trial,” China Daily, 25 January 2019, <http://www.chinadaily.com.cn/global/2019-01/25/content_37431487.htm > accessed 30 April 2021.
  43. See Chai Yaxin/柴雅欣, “Carry out the Skynet Campaign to Further Specific Cases/开展天网行动 推进个案攻坚,” CCDI, 7 August 2020 <http://www.ccdi.gov.cn/special/ztzz/ztzzjxs_ztzz/202008/t20200807_223405.html > accessed 30 April 2021.
  44. This part only discusses the facts that the TIA system was finally adopted, and the reasons for the adoption will be discussed in the following section.
  45. “不管腐败分子逃到哪里,都要缉拿归案、绳之以法。” See Xi Jinping, “Report at the 19th National Congress of the Chinese Communist Party/在中国共产党第十九次全国代表大会上的报告,” People’s Daily, 19 October 2017 at 1-4.
  46. See, for example, Deng Siqing/邓思清, “A Research on the Criminal Trial-in-Absentia System/刑事缺席审判制度研究,” 3 Law Science/法学 92 (2007).
  47. See, for example, He Ping/何萍, “Criminal Jurisdiction over Foreign Enterprise Crimes Concerning China, and on the Construction of a Criminal Trial-in-Absentia System/外国公司涉华犯罪的刑事管辖——兼谈刑事缺席审判制度的构建,” 3 Law Science/法学 153 (2015).
  48. See, for example, Peng Xinlin/彭新林, “On the Construction of a Trial-in-Absentia System against Corruption Crimes/腐败犯罪缺席审判制度之构建,” 12 Law Science/法学 58 (2016).
  49. See, for example, Qian Wenjia/钱文杰, “The Default Trial of Criminal Justice in China: Observation and think of special confiscation procedure/我国刑事司法中的缺席审判——基于形式诉讼特别没收程序的观察与思考,” 36(4) Hebei Law Science/河北法学 141 (2018).
  50. See Zhang Jun/张军, “Working Report of the Supreme People’s Procuratorate/最高人民检察院工作报告,” SPP, 8 March 2015, <https://www.spp.gov.cn/spp/gzbg/202103/t20210315_512731.shtml> accessed 8 April 2021.
  51. See “Regulations on the Jurisdiction of the National Supervisory Commission (For Trial Use)/国家监察委员会管辖规定(试行),” Guo Jian Fa [2018] No. 1/国监发〔2018〕1号, 16 April 2018, Art. 12.
  52. These are basic descriptions of these 8 types of crimes, and there are detailed rules stipulating the threshold of these crimes.
  53. The crimes of accepting bribes have different forms, such as accepting bribes as a unit and accepting bribes based on influence over state officials. For clarity of this article, they are merged to one crime type, and the same considerations apply to other crimes.
  54. This is a catch-all provision and is yet not clearly defined. See “Interpretation of the Supervision Law: Art. 15 of Section 3 Supervisory Scope and Jurisdiction/《中华人民共和国监察法》释义:第三章监察范围和管辖第十五条”, CCDI, 9 April 2018, <https://www.ccdi.gov.cn/djfg/fgsy/201804/t20180409_169519.html> accessed 6 May 2021.
  55. “Supervision Law of the People’s Republic of China/中华人民共和国监察法,” 20 March 2018, Art. 45.
  56. See Chen Ruihua/陈瑞华, “The Relationship between Subjective and Objective Factors in Criminal Standards of Proof/刑事证明标准中主客观要素的关系,” 3 China Legal Science/中国法学 177 (2014).
  57. See “Provisions on the Procedures of Public Security Bureaus on Handling Criminal Cases/公安机关办理刑事案件程序规定,” PRC MPS Decree No. 159/中华人民共和国公安部令第159号, revised 20 July 2020, Art. 70.
  58. Generally speaking, a supervision case is usually dealt by a local (district or county) supervisory commission, but the jurisdictions can be changed given specific conditions, such as when the superior supervisory commission deems it necessary considering the importance and complexity of the case. See Supervision Law Arts. 16 and 17, and Supervision Measure Draft Arts. 45-53.
  59. As discussed in the following sections, the former methods taken by China to pursue corrupt fugitives are mostly those among states, indicating that chasing fugitives are treated by China as a state-level matter.
  60. For ordinary corruption crimes, the case will be handled by prosecutors from a related division. However, considering there are no detailed rules regarding the TIA system on the prosecution side, it is unclear whether a TIA case will be handled by a specific prosecutor or not.
  61. There is a reporting requirement as to trial-in-absentia proceedings against cases concerning national security and terrorism, but there are no such requirements as to the TIA proceedings against corrupt fugitives. Considering the topic of this article is unrelated to the two kinds of cases involving report requirements, this article states that the TIA system discussed in this article does not concern reporting requirements in the prosecution phase.
  62. See Zhou Changjun/周长军, “The Applicable Conditions of Trial by Default for Defendants Fleeing the Country in Legal Dogmatics Angle/外逃人员缺席审判适用条件的法教义学分析,” 40(8) China Law Magazine/法学杂志 1 (2019).
  63. See Prosecution Rules of Procedure Arts. 505-511, and Criminal Procedure Law Arts. 291-297.
  64. See Zhao Bingzhi/赵秉志 and Zhang Lei/张磊, “Scientific Positioning and Implementation of Xi Jinping’s Anti-Corruption Thoughts/习近平反腐败追逃追赃思想的科学定位与贯彻执行,” 58(2) Journal of Henan University (Social Science)/河南大学学报(社会科学版) 37 (2018).
  65. See Peng Xinlin/彭新林, “On the Construction of a Trial-in-Absentia System against Corruption Crimes/腐败犯罪缺席审判制度之构建,” 12 Law Science/法学 58 (2016).
  66. See “Working Rules of the Procuratorial Committees of the People’s Procuratorates/人民检察院检察委员会工作规则,” Gao Jian Fa Shi Zi [2020] No. 3/高检发释字〔2020〕3号, 31 July 2020 Art. 4.
  67. The category is not decided by the authority but by this article for convenience.
  68. For an advocate’s rights in ordinary cases, please see Criminal Procedure Law Arts. 33-49.
  69. See Criminal Procedure Law Art. 16.
  70. See The Case of the S.S. “Lotus” (French v Turkey) [1927] PCIJ Ser A No 10, p.18-19.
  71. See Peng Xinlin/彭新林, “The Challenges and Countermeasures of China’s Anti-Corruption Fugitive Repatriation and Illegal Income Recovery/我国反腐败国际追逃追赃面临的挑战与对策,” 39(9) Jiangxi Social Science/江西社会科学 151 (2019).
  72. The reason why China introduced the TIA system was vaguely stated as to strengthen pursuing corrupt fugitives. See Shen Chunyao/沈春耀, “Explanation Concerning the Revision Draft for the Criminal Procedure Law of the People’s Republic of China/关于《中华人民共和国刑事诉讼法(修正草案)》的说明,” NPC, 26 October 2018 <http://www.npc.gov.cn/zgrdw/npc/xinwen/2018-10/26/content_2064462.htm> accessed 20 June 2021.
  73. See Li Yongzhong/李永忠, “Open up the ‘Second Battlefield’ of Anti-Corruption Overseas/开辟海外反腐的‘第二战场’,” People’s Daily, 24 April 2015, at 5.
  74. See “Announcement of the National Supervisory Commission, the Supreme People’s Court, and the Supreme People’s Procuratorate and Other Departments on the Urging Duty-Related Criminals Who Have Escaped Overseas to Surrender Themselves/国家监察委员会、最高人民法院、最高人民检察院、公安部、外交部关于敦促职务犯罪案件境外在逃人员投案自首的公告,” 23 August 2018.
  75. The Chinese government did not make clear statements on the defects of these two approaches.
  76. See Wang Xiumei/王秀梅 and Zhu Beini/朱贝妮, “Extraterritorial Prosecution to Fugitives and Asset Recovery in Fighting against Corruption/反腐败追逃追赃域外追诉探讨,” 40(4) Law Science Magazine/法学杂志 57 (2019).
  77. See “Huang Yurong, No. 4 Suspect of the ‘100 Red Warrants’, Surrendered from the United States/‘百名红通’4号嫌犯黄玉荣 从美国回国投案自首,” CCDI, 5 December 2015 <https://www.ccdi.gov.cn/special/ztzz/ztzzjxs_ztzz/201512/t20151207_69737.html> accessed 23 May 2021.
  78. See Christopher et al. (eds.), The Costs and Funding of Civil Litigation: A Comparative Perspective (CH Beck Hart, 2010) 5.
  79. See “Nine Individuals Charged in Superseding Indictment with Conspiring to Act as Illegal Agents of the People’s Republic of China,” US DOJ, 22 July 2021 <https://www.justice.gov/opa/pr/nine-individuals-charged-superseding-indictment-conspiring-act-illegal-agents-people-s> accessed 24 July 2021.
  80. United Nations Convention against Corruption (adopted 31 October 2003, entered into force 14 December 2005) 2349 UNTS 41 (UNCAC).
  81. United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209 (UNTOC).
  82. See UNCAC art 33.
  83. See Cecily Rose et al. (eds), The United Nations Convention Against Corruption: A Commentary (Oxford University Press, 2019) 433.
  84. See Yuan Jiangping/袁江平 and Ou Fuyong/欧福永, “On the Basis of International Law for the Legal Mechanism of International Cooperation in the Pursuit of Fugitives and Recovery of Stolen Assets Outside China/论中国境外追逃追赃国际合作法律机制的国际法依据,” 27(4) Journal of Shanghai University of International Business and Economics/上海对外经贸大学学报 77 (2020).
  85. See David McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford University Press, 2007) 179-180.
  86. See Zhang Weiran/张蔚然, “China Has Reached 59 Extradition Treaties with Foreign Jurisdictions/中国已对外缔结59项引渡条约,” China News, 26 October 2020 <http://www.chinanews.com/gn/2020/10-26/9322780.shtml> accessed 28 May 2021.
  87. See Jiangnan Zhu, Out of China’s Reach: Globalized Corruption Fugitives, 86 The China Journal 90 (2021).
  88. See “Top Three Hiding Places for Chinese Corrupt Fugitives: Easy to be Naturalized and Escape/中国外逃贪官三大藏匿地:移民方便易脱身,” People.cn, 22 October 2014 <http://world.people.com.cn/n/2014/1022/c1002-25886733.html>accessed 1 June 2021.
  89. Ma Decai/马德才, “United Nations Convention against Corruption and Improvement of China’s Extradition Law/《联合国反腐败公约》与我国《引渡法》的完善,” 35(5) Jiangxi Social Science/江西社会科学 5 (2015).
  90. See The Case of the S.S. “Lotus” (French v Turkey) [1927] PCIJ Ser A No 10, p.18-19.
  91. Under the TIA system, the service of process may also require international cooperation, but considering this topic is beyond the merits of this article’s discussion, this article omits the service of process.
  92. See UNCAC art 57.
  93. Amal Clooney and Philippa Webb, The Right to a Fair Trial in International Law (Oxford University Press, 2021) 447-48.
  94. See Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 10.
  95. See International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 14.3(d)
  96. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 20 March 1952, entered into force 18 May 1954) 213 UNTS 221 art 6(3)(c).
  97. China signed but has not approved the ICCPR, making it not a party to the ICCPR. See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 14
  98. ICCPR art 14.3(d).
  99. For example, see Mbenge v Zaire Comm No 16/ 1977 (25 March 1983) para 14.2.
  100. See Caleb H. Wheeler, The Right to Be Present at Trial in International Law (Brill, 2019) 30.
  101. Poitrimol v France (1994) 18 EHRR 130, 23 November 1993, para 35.
  102. See Caleb H. Wheeler, The Right to Be Present at Trial in International Law (Brill, 2019) 105-106.
  103. See Sarah Joseph and Melissa Catan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3rd edn, 2013) 489-491.
  104. Mbenge v Zaire Comm No 16/ 1977 (25 March 1983) para 14.1.
  105. Mbenge v Zaire Comm No 16/ 1977 (25 March 1983) para 14.1.
  106. Maleki v Italy No 699/1996 (15 July 1999) para 9.5.
  107. See William A. Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press, 2015) 316.
  108. See Anne Peters, Corruption as a Violation of International Human Rights, 29(4) European Journal of International Law 1251 (2018).

 

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