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潘庆云英文版:少年刑事案件被告人语言权利的充分保护  

2016-08-19 15:40:21|  分类: 法律语言 |  标签: |举报 |字号 订阅

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Language Rights Comprehensive Protection of the Juvenile Criminal Defendants in the Context of Rule-by-Law

Pan Qingyun
East China University of Political Science and Law, Shanghai, China
Email:pqy1579@163.com

[Abstract] Rule-by-law in comprehensive efforts has been set up as the basic state policy in China since the Fourth Plenary Session of the Eighteenth CPC Central Committee, which made one giant leap from the proposals of “Improving” and “Strengthening” the judicial safeguard system of the human rights successively in the Third Plenary Session in November, 2013 and the Fourth Plenary Session in October, 2014. Under those premise and context, how to safeguard the language rights for the disadvantaged groups is what the paper projects to expound. Based on field work at some juvenile courts in China, this paper evaluates the measures already undertaken by the juvenile courts to protect language rights of the defendants and then points out the problems in their practice and finally proposes suggestions and solutions to them.

[Key Words] rule by law, the juvenile courts, the defendant, language rightsprotection

Introduction

There are fifty-six ethnic nationalities in China where exist a variety of dialects and languages with different customs and traditions. Among them, there is a big population of the minors and other vulnerable groups including the ethnic minorities, the elderly, the deaf and the mute, the illiterate and the semi-literate and so on. Those disadvantaged groups have the same litigation and other rights as others under law and constitution. But in practice those rights are always being exercised by language rights. Obviously, they had, have and will have more difficulties in exercising their own language rights than others. So here comes the question: how to protect the language rights of the disadvantaged?

In view of the third paragraph of article 33 of the constitution in our country stipulating clearly “the state respects and safeguards human rights”, the proposals of “Improving” and “Strengthening” the judicial safeguard system of the human rights are presented successively in the Third and the Fourth Plenary Session of the Eighteenth CPC Central Committee. Besides, the people working in the field of law like judges, procurators and lawyers are becoming more professional and more competent in legal languages after more graduates from law schools are recruited into their line and a series of criteria are introduced to measure legal cadres’ occupational capabilities including their legal language proficiency level. Under such circumstances, how to protect the language rights of the disadvantaged groups urgently needs to be solved, and we believe it can, in the context of rule of law.

We are going to begin our exploration on the issue of how to protect the language rights of the juvenile criminal defendants, not only because they are numerous but also because they are immature mentally and physically, and then extend to probe into the language rights protection of the female, the elderly, the deaf and the mute and other disadvantaged groups in our follow-up studies.

Literary Review

The language rights protection of the juvenile defands is a new study first carried out in China by the writers of the paper, although the relevant topic has been discussed in west academic field mainly by Mark Brennan and John Gibbons.

Following Labov in his studying social linguistics, Mark Brennan (p. 195) describes with language analysis the reasons why the kids find themselves unable to understand the legal language in and out of courtsand draws from various tests on the kids a conclusion that the kids have no idea of what is argued with the forensic language. Children are under unfavorable conditions when cross-examined in criminal courts.

John Gibbons (2003) furtherly points out at least four elemants that can explain why the communication fails to go smooth between the lawyer one side and the kids the other side. To be specifi, they are the way of questioning, interpersonal power and stress, the complexity of language including terminology and unnecessarily complicated wording, the lawyer usually asking for the detailed information of time and place that the kids can seldom reply accurately. John Gibbons thereby recommends several solutions like “information”, “mediation” and “modifying legal procedures” to brige the gap between the two sides.

Research Method

The writers investigated the juvenile courtrooms in a lower court and a higher court in a big city in China on the mechanism of the court hierarchical system and obtained a large number of trial data signed confidentiality agreement only for academic research purpose. The juvenile courtrooms are set up with special procedure system and opens with conditions to the juvernile defendants. The data especially about questioning and cross-examing the juvenile defendants and their reponses are analysed to uncover the status quo of the language rights protection for them compared with those of the adult defendants. 

Because the juvenile cases are all tried in chamber not publicly in our country and the criminal recordings of the minor defendants are sealed up for safekeeping in accordance with China’s Criminal Procedural Law, the data we have copied are the static court records not the original live recording and therefore screened in the process of tranformation. Rather than the micro dynamic linguistic analysis, the paper is carrying out a pragmatic investigation.

The Context of the Lanuage Rights Protection of the Juvenile Defendants

China has a huge population of young people. According to statistics issued by China’s National Bureau of Statistics on February 22, 2013, China has a population of 0.4 billion aged 18 and below, of 0.22 billion aged 14 and below, of 0.33 billion aged 4 to 18, and of 0.18 billion aged 14 to 18(National Bureau of Statistics of the People’s Republic of China). The number of juvenile defendants is so big that about 1.5 million have been judged in juvenile courts in the past 30 years. Since the birth of juvenile court in 1984 to this day, thousands of millions of children have found themselves involved into cases handled by juvenile courts in terms of their custody and life, health and education and other personal rights.

China’s juvenile courts have developed and progressed a lot since 1984 from collegiate bench to adjudication division, from a court merely handling juvenile criminal cases to that one handling juvenile comprehensive cases including criminal, civil and administrative lawsuits. Till now, China has 2300 juvenile courts, 1246 collegiate benches, 405 juvenile criminal courts and 598 comprehensive divisions.

The young people under the age of 18 are immature in mind, knowledge, language and cognitive competence. They have the right not to appear in a court when they are involved into such lawsuits as custody and education, life and health, traffic accidents and other civil or administrative cases in which their rights can be claimed by their guardians or statutory agents rather than their selves, which can thus reduce to a minimum the possible loss brought by their incapability of legal language. But according to the criminal law in China, the minors aged from 14 to 18 are compulsory to show up in a court only if they are involved into criminal lawsuit. In the past, such claims without an exception should be brought to ordinary court for trial. Juvenile courts have been set up in many parts of China since 1984 to try criminal cases of which the minors aged 14 to 18 are accused. Juvenile Criminal Proceeding as a special amendment is written into China’s Criminal Procedure Law in 2012. Up to now, juvenile courts have developed from a court only handling criminal trials to that one handling comprehensive trials for the under aged including criminal, civil or administrative cases. The juvenile defendants have to confront the power and authorities from courts together with other worries and challenges from mind, knowledge and language capability shared by all the minors. 

In judicial activities, language is the key tool to balance justice and efficiency and to maintain equity and fairness. But language inequality prevails among court trials and other procedures in a lawsuit, which is partly due to the absolute authorities of courts as John Gibbons considers the courtroom as “a place where power is unequally distributed, being overwhelming in the hands of the legal professionals.” (2003, p. 201) The lawyers usually control the topics when facing parties related to the case, while judges and procurators have a bigger voice in controlling topics and questions than lawyers. Obviously, the parties are in an inferior language position under the pressure from the above-mentioned multi-control.

Child witness wins special attention among the disadvantaged group of numerous people. This paper discusses the language inferiority of the juvenile criminal defendants (meanwhile as witnesses) aged 14 to 18 whose cognition is growing but not to a sound and reasonable level of grown-ups and expression is yet incompetent to state facts. The minors aged 14 to 18 in China are used to lying on their parents and grandparents for everything including communicating with others, partly due to the arguable one-child policy. The first task in a court interaction is to solve a legal dispute, so homelike environment is hardly provided for the juvenile defendants to express themselves so much freely as at home because of strict and serious legal procedures although their weakness can be observed in the eye of grown-up. Besides, they are suspected of committing a crime and confined with such coercive measures as being detained and arrested which surely intensify their fears and helplessness and worsen their language inferiority. 

Therefore, here come the following questions that need exploring and expounding. What inferior positions are they in before legal language? What measures have been taken by China’s courts to maintain not only fair play but justice by law? What other problems are there concerning their legal language inferiority? and how to solve them?

Available Protecting Measures

1. At the legislative level, the Juvenile Criminal Procedure has been enacted as an amendment to Criminal Procedural Law.

1.1 The system of juvenile delinquency (SJD for short) observes the policy “educating, reforming and redeeming”. 
1.2 The SJD observes the principle “education first and punishment second”.
1.3 The SJD is in the light of the goal “fully protect for minors the litigation rights of the parties and the legitimate rights and interests of other relevant”.

2. Organizational Guarantee

Up to May 28, 2014, more than 2300 juvenile courts have been set up with over 7400 judges and over 2700 court clerks. (http://www.court.gov.cn/)

3. Specific Methods

3.1 Psychological Intervention Mechanism 
Psychological counseling rooms have been built together with other means of psychological intervention mechanism in the juvenile courts where the paper writers have visited and surveyed, which consist of 1) mental guidance before a session and interview after a hearing; 2) other imperative psychological consult; 3) community investigation before a session and revisiting the defendant after a hearing judges are compulsory to do to improve their overall competence; 4) making full use of social network like QQ and Wechat where the suspect can have a free talk with judges before he/she loses liberty.

3.2 Court of the Round Table (CRT for short)
CRT is set up in the juvenile courts to try criminal cases in which either penalty is presumably sentenced no more than three years or three defendants or below are involved. CRT is built to create a relatively relaxing environment for the parties in the light of the principle “education first and punishment second”.

3.3 The system of Appropriate Adult Participation (AAP for short)
The AAP in the criminal litigation system refers to the fact that state organs or public organizations responsible for the protection of minors shall be notified to select adults who meet certain conditions to be present at the time of interrogation and trial by the public security organs, procuratorial organs and courts to exercise part of litigation rights as the legal agent and fulfill their duties of supervision, communication, service, education and so on when the legal representative of the criminal suspect or the accused cannot or should not be present.

3.4 The legal terminology involved in the litigation procedure in trial shall be explained in plain language.
Take the right to apply for withdrawal for example, the judge usually states after announcing the list of the judges, the court clerk and the prosecutors “the accused, the defender and the legal representative, according to the regulation of the Criminal Procedure Law of the People’s Republic of China, you have the right to apply for withdrawal of the judge, the court clerk and the public prosecutors. Do you apply for their withdrawal? In other words, if the accused, the defender and the legal representative think the judicial officers and the court clerk have an interest in the case or to be otherwise related to it, they can reason to request a transfer to avoid any unfavorable outcome against the defendant as a result of unfair trials” (Bao XX and others accused of committing array crime, August 15, 2014)

Problems of the Juvenile Defendant’s Language Rights Protection

1. Unconscious of Language Rights
As the development of the legal system, the litigants gradually have the right to know, to state and to debate and defend, but still not present is a sound institutional guarantee. In this case, the judges and the prosecutors have not realized the language rights of the parties and their protection. The juvenile defendants are lack of language rights consciousness due to immature mind and other various reasons.

2. The defendants seldom defend themselves innocent or minor offense except the guilty confession in court, which is concluded from the trial records the writers have read. 
The following is an example that the accused and their defenders haven't fully exercised their language rights. 

Judge: The court investigation is over and now starts the debate stage. The public prosecutor first presents prosecuting opinions.
Prosecutor: (omitted)
Judge: The accused can defend himself.
Defendant: Nothing to say. 
Judge: The legal representative can defend for the accused.
Legal Representative:Nothing to say. 
Judge: The defender can defend for the accused.
Defender: No objections against the criminal facts and charges in the indictment. The following are comments on sentencing “...Ma XX is a first offender and a casual offender, induced by others. He is under the age of 18 when he committed crime. He cleaned breast of everything when appearing before the court. The defendant is pleaded with a better attitude to be sentenced to criminal detention.” 
Judge: Does the prosecutor need to reply? 
Prosecutor: Ma XX indeed played a minor role in committing the crime, which shall be considered into the court’s judgment. ... Ma XX is a first offender rather than a casual offender and confessed that he had been involved in such crime twice, which does not exist because of insufficient evidence.
Judge: Does the defender have any new defense opinions?
Defender: No more.

(Ma XX and others accused of drug trafficking, 2014)

In the criminal law, the concepts of “first offender” and “casual offender” are similar but not identical. The latter refers to a suspected criminal by chance, while the former, corresponding to habitual criminal, without any criminal record, is accused of the alleged crime for the first time but possibly suspected of that crime more than once. The prosecutor charged, “Ma XX is a first offender rather than a casual offender and confessed that he had been involved in such crime twice which does not exist because of insufficient evidence.” According to the criminal procedure principle “relying on evidence and not readily believing oral confession”, any fact, except all that needs no proof as prescribed by law, shall not be considered valid before being verified with evidence. In the case, the defendant language disadvantage is obvious in the face of the charge when he and his defender answered the judge’s questioning just with “nothing” as his defending opinion but no further pleading.

The first paragraph of Article 193 of China’s Criminal Procedural Law writes that “all the facts and evidences related to conviction and sentencing shall be investigated and debated in court trial”. Besides, the second paragraph writes that “with the permission of the presiding judge, the public prosecutor, the parties, the defenders and agents ad litem can comment and debate on the evidences and the facts of the case with each other”. The first paragraph provides the court with the right to investigate the facts and the evidences and the both parties of prosecution and defense with the right to debate on them. The second paragraph provides both sides with the specific ways to debate. After carefully reading the court records, the paper believes that there is a long way to go for the defendants and their defenders to comment and debate on the charged facts in juvenile courts with the prosecuting side. 

3. The Defendant Arguing Absent in the Final Statement Stage
The third paragraph of Article 193 of China’s Criminal Procedural Law writes that “after the presiding judge has declared conclusion of the debate, the defendant shall have the right to present a final statement” which is the final and the best opportunity of self-defense for the accused in criminal cases in the ending stage of trial. The final statement can impress the collegiate panel and influence the result of its vote. As such, the Supreme People's Court Interpretation of "the Criminal Procedure Law of the People's Republic of China” writes in its article 235 emphasizes the implementation of the right, which reads “after the presiding judge has declared conclusion of the court debate, the collegial panel shall guarantee the right of the defendant fully exercising the final statement”. However, no record of defendant exercising the final statement right in juvenile courts has been found in the trial records that the paper writers have read.

4. The Filtering and Processing of the Trial Records Mask the Defendant Language Disadvantage. 
It isn’t a surprise to note that in the trial records the juvenile accused answered without any hitch or hesitation the questions raised by the judicial officers. The following is an example.

Judge: The accused Ye XX, Bao XX, Wang XX and Liu XX, do you receive the indictment copy made by the People's Procuratorate of XX District of XX City? And when did you receive it?
Defendant 1: Yes, I got it. On August 25, 2014.
Defendant 2: Yes, I got it. On August 25, 2014.
Defendant 3: Yes, I got it. On August 25, 2014.
Defendant 4: Yes, I got it. On August 25, 2014.
Defendant 5: Yes, I got it. On August 25, 2014.

(Ye XX and others accused of committing affray crime, September 22, 2014)

Judge: The defendant, do you have any objections against the criminal facts and the list of evidences charged in the indictment? 
Defendant: No objections.
Judge: Do you plead the guilt?
Defendant: Yes.

(Ma XX and others accused of drug trafficking, September 25, 2014)

In the above trial record, the defendants’ puzzlement together with his hesitation, incoherency and model particles is wiped out completely, which shows that the defendants are still in inferior language position to which is paid little attention so far.

Measures and Suggestions to Fully Protect Juvenile Defendants Language Rights

1. Uncovering the Inferior Positions the Teenagers and Other Disadvantaged Group before the Legal Language

As mentioned above, obviously the vulnerable group especially the young children are in an inferior position before the legal language. More prominent is the language disadvantage the juvenile criminal defendants meet in charges of the prosecutorial organs and trials of courts under intense mental pressure. To this, we should have an objective and full understanding. We should be aware of the language rights, understand the importance of language rights and gain an insight into the language disadvantage of juvenile defendants, which presumes the protection of juvenile defendant language rights.

2. How to protect the Language Rights of Young Children and Other Vulnerable Group from the Legislative level.

The CPC Central Committee's Decision on major issues in relation to comprehensively promoting the rule of law in accordance with law is enacted on October 23, 2014, which contains the fourth part “ensure fair justice and improve judicial credibility” that includes the fifth part “strengthening judicial protection of human rights” in which is expounded how to strengthen for the parties and other participants in the proceedings the right to know, to state, to debate and defend and to appeal. The Language Rights Protection of Young Children and Other Vulnerable Group shall be written into the legal system of judicial guarantee of human rights and rule-by-law and be implemented by legislative, judicial and administrative measures, which is an indispensable part of how to comprehensively promote the rule-by-law strategy.

3. Help the Defendant Improve Language Capabilities

Language capabilities consist of (1) common and (2) legal language competence.

As for the first part, help the defendant improve language capabilities through such social network as Wechat and QQ during the period of the psychological intervention and guidance before a session and of legal counseling. 

As for the second part, the judges, prosecutors, defenders, legal representative and appropriate adults of the accused in the trial shall help the juvenile defendants and the minor witnesses understand the legal terminology, legal concepts and the trial procedure and so on.

4. How to protect the Language Rights of Young Children and Other Vulnerable Group from the Judicial Level.

Protecting the language rights of the juvenile defendants shall be part of judges’ professional studies and trial researches and part of standard to evaluate the performance of the judges and the courts. 

We suggest that the legal language protection should be listed into the investigation of the Judicial Reform Office of the People’s Supreme Court and should be written into the Fifth Five-year Reform Program of the People’s Court (2019-2023) when everything is ready that defines the specific requirement of how to protect the language right of the young children and other vulnerable group and the criteria and methods of how to evaluate the performance of the judges and the courts.

The judge's language ability plays a very import role in protecting the minor defendants’ language rights. Alfred Denning, a great law reformer of the UK after WWII and once the president of the UK Court of Appeal, once said with deep feeling that “you have to develop your language ability in order to achieve a success in your career related to legal profession” (2015, p. 2). The judge’s language ability training and improving play a key role in order to keep pace with the evolution of juvenile trials.

Conclusion

John Gibbons (2003) introduced a new task of the language disadvantage into forensic linguistics. The writers initate the language rights protection of the vunerable groups in the context of rule-by-law in China. Through studying the juvenile criminal defendant trials, the paper acknowledges their language rights in the legal circumstances have already been guaranteed to a certain extent in terms of their litigious rights and human dignity from the legislative and judicial levels. But unconcious of “the language rights”, we never overemphasize such protections to them. The investigation of language rights protection of the juvenile criminal defendants still remains a small step for us. We believe a big leap across China and even the whole world will be made by people of law and other social life to better protect the language rights and other human rights not only for the disadvantaged group but also for the whole mankind.

References

1. Alfred Denning (2015), The Discipline of Law, translated by Yang Beikui and others, Law Press China.
2. John Gibbons (2003), Forensic Linguistics: An Introduction to Language in the Justice System, Blackwell Publishing.
3. Mark Brenna (1994), “Cross-examining children in criminial courts: Child welfare under attack”, John Gibbons (ed.) Language and Law, 199-226, London: Longman.
4. http://data.stats.gov.cn/easyquery.htm?cn=C01&zb=A0301&sj=2013 (National Bureau of Statistics of the People’s Republic of China), Retrieved June 28, 2015.
5. http://www.court.gov.cn (The Supreme People’s Court of the People’s Republic of China), Retrieved June 28, 2015.

(Translated by Xue Chaofeng)

谢谢潘庆云教授惠寄大作。此文是2015第12届IAFL国际法律语言学大会论文英文版。
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