(Zhenxiong, Yunnan Province – February 9, 2024) According to reports, the case of house church preacher Chang Hao, who was on suspicion of “picking quarrels and provoking trouble”, has been filed in court on November 7, 2023. But his defense lawyer Yuan Mao has not been able to duplicate the case materials so far. The direct reason is that the judge and the defense lawyer have different understanding of item one, article 53 of the “Interpretation by the Supreme People’s Court Regarding the Application of the Criminal Procedure Law of the People’s Republic of China”.
According to lawyer Yuan Mao, he submitted the documentation of procedures for retention and applied to duplicate the case materials at the Zhenxiong County People’s Court on November 16, 2023. Although the judge warmly received him, he only delivered the “indictment” to him. Citing an urgent matter requiring him to leave, the judge asked the lawyer to come back for document review another time. The judge assured the lawyer that they would uphold the lawyer’s right to practice law in accordance with the law. Trusting the judge, Lawyer Yuan agreed. In the following period, Lawyer Yuan was busy with court proceedings for other cases. On January 18, 2024, he went to Zhenxiong County People’s Court again for document review. Around 11 AM, while approaching the court, Lawyer Yuan called the judge in advance, informing them of the request for document review. However, the judge said they needed to report to his supervisor first and asked him to come in the afternoon. Perplexed, Lawyer Yuan wondered why reporting to supervisor was necessary for a lawyer’s routine document review. Despite his confusion, and out of understanding for the judge’s work, Lawyer Yuan agreed once again.
In the afternoon, Lawyer Yuan arrived at the court, and the judge greeted him with a warm attitude. After discussing the details of the case, Lawyer Yuan shifted the conversation to the main purpose of his visit – duplicating the case materials. The judge first expressed the intention to uphold the lawyer’s right to practice law in accordance with the law, but then suggested delaying duplicating case materials. This was because the investigative authorities believed that lawyers should not be allowed to duplicate materials related to this case. The judge stated that whether to allow the lawyer to duplicate case materials or not, there should be legal grounds, but at the moment, he was uncertain about the legal basis regarding this. The judge pointed out that while article 53 of the “Interpretation by the Supreme People’s Court Regarding the Application of the Criminal Procedure Law of the People’s Republic of China” stipulates that “defense lawyers may consult, extract, and duplicate case materials,” it also specifies that “records of discussion by the collegial panel and the judicial committee and other materials that cannot be made public in accordance with the law may not be consulted, extracted or duplicated.” The ambiguity lies in whether “other materials that cannot be made public in accordance with the law” include case materials. This is the aspect the judge is uncertain about. Therefore, he mentioned the need to complete internal procedures before making a decision. If ” other materials that cannot be made public” include case materials, then the materials for Chang Hao’s case may not be allowed to be duplicated by the defense lawyer. Lawyer Yuan engaged in a discussion with the judge on this issue.
Lawyer Yuan’s viewpoint is that in article 53, the terms “case materials” and ” records of discussion by the collegial panel and the judicial committee and other materials that cannot be made public in accordance with the law” are not in a relationship of inclusion but rather a relationship of parallel listing. He argues that the provision ” records of discussion by the collegial panel and the judicial committee and other materials that cannot be made public in accordance with the law may not be consulted, extracted or duplicated” should not restrict lawyers from duplicating case materials. Otherwise, there would be a contradiction between the preceding and following parts of this provision.
Reviewing and duplicating case materials are lawyer’s legal rights. According to article 40 of the “Criminal Procedure Law of the People’s Republic of China,” a defense lawyer may, from the day when the People’s Procuratorate examines a case for prosecution, consult, extract, and duplicate case materials. Article 53 of the “Interpretation by the Supreme People’s Court Regarding the Application of the Criminal Procedure Law of the People’s Republic of China” provides more detailed regulations on the rights of lawyers to review case materials: “defense lawyers may consult, extract and duplicate case materials.” It further states, “When defense lawyers consult, extract or duplicate case materials, People’s Courts shall provide convenience and guarantee necessary time.” Additionally, “manners of photocopying, photographing, scanning, electronic data, etc. may be adopted in duplicating case materials.” Furthermore, according to article 14 of the ” Provisions on Ensuring the Practice Rights of Lawyers in Accordance with Law”, “when a defense lawyer has put forward a request for access to files, the People’s Procuratorate and the People’s Court shall arrange for the defense lawyer to access the files on the spot, where it is not possible to arrange access on the spot, they shall provide an explanation to the defense lawyer and shall arrange that he or she shall be able to access the file within 3 working days. They must not limit the duration or number of times that the defense lawyer can access the files.” “Defense lawyers may copy case materials by methods such as photocopying, photographing, scanning or copying electronic data etc.” As the case of Chang Hao has entered the trial stage, defense lawyer unquestionably has the right to review, extract, and duplicate the case materials.
In reality, law enforcement agencies often restrict lawyers from duplicating case materials due to considerations of confidentiality. However, even in cases involving confidential information, this cannot be a reason to limit lawyers’ access to case files. According to Article 55 of the “Interpretation by the Supreme People’s Court Regarding the Application of the Criminal Procedure Law of the People’s Republic of China,” “When case file materials are consulted, excerpted, or copied, any state secret, trade secret, or personal privacy, if involved, shall be kept confidential; and the information and materials related to a case tried in camera, or the important information or evidentiary materials related to a case known in the process of handling the case, shall neither be divulged or disclosed in violation of provisions nor be used for purposes other than case handling. The people’s court may require any relevant person to issue a written undertaking.” This means that even in cases involving state secrets, trade secrets, or personal privacy, lawyers are allowed to duplicate case materials, with a strong emphasis on maintaining confidentiality. Safeguarding work secrets is a fundamental professional quality and a practice requirement for lawyers, and this should be adhered to even without explicit emphasis.
The judge did not completely deny Lawyer Yuan’s viewpoint and reiterated the commitment to upholding lawyers’ right to practice law in accordance with the law. However, before completing the internal process within the court, the judge decided not to allow the lawyer to duplicate the case materials.
While Lawyer Yuan acknowledged the judge’s open communication, he still disagreed with the judge’s viewpoint. He questioned, “Did the judge’s actions truly safeguard the lawyer’s right to practice law?”