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Safeguarding foreigners’ rights

Updated: Oct 23,2014 9:37 AM     China Daily

Officers from a border check station's legal aid service department talk to sailors on board an Italian vessel about China's entry and exit laws. The Bayuquan border check station is the first of its kind in Liaoning province to establish the legal aid service in order to ease conflicts.[Photo/Xinhua]

‘If the Chinese lawyer hadn’t actively defended me, I would have been executed rather than receiving a lenient sentence, considering the amount of drugs seized and the serious harm (they could have done),” said Theodoros Kourtidis with tears in his eyes, after his conviction for transporting heroin in Yunnan province.

Speaking at a detention center in the Yunnan city of Lincang, the remorseful 50-year-old Australian said: “I didn’t expect the Chinese government to assign a lawyer to provide free legal services, or that the judicial organs would pay attention to the protection of my legal rights.”

Kourtidis was convicted in Lincang City Intermediate People’s Court in July and sentenced to life imprisonment. However, the case dates back to January, when he drove a rented car from Guangzhou, capital of Guangdong province, to Lincang, where he purchased a large quantity of heroin, according to the Yunnan Provincial Legal Aid Authority.

As he started out on his return journey to Guangzhou, Kourtidis was detained by police as he passed through a security checkpoint. The police discovered 2,775 grams of heroin tied around his waist.

In March, the Lincang Legal Aid Department appointed Zhang Zhengyi, an experienced lawyer, to provide legal aid to Kourtidis.

“He didn’t understand the laws and legal procedures in China, and in the beginning he didn’t trust me at all, and even resisted me,” Zhang said.

Kourtidis said that because of the language barrier and differences in legal procedures, he felt desperate and helpless after being detained by the Chinese police.

“I was even worried that the police would torture me, and the lawyer would collude with them to force me to confess. But I was totally wrong. The female lawyer was very nice and patient, and informed me about my legal rights when she met with me in the detention center,” he said.

Zhang visited the local prosecutors’ department and court several times to review the case files, and also actively exchanged views with the prosecutors and judges, according to Kourtidis.

In July, the court “adopted some of the lawyer’s defense opinions and gave me a lenient sentence, rather than the death penalty”, he said. “I hope good behavior in prison will give me a chance to begin a new life with my only daughter and my elderly father in Australia,” he added.

Rising numbers

Kourtidis was just one of the 1,000 foreign offenders, mostly related to criminal cases, who received free legal aid services in China last year, an increase of 20 percent compared with 2012.

Since amendments to the Criminal Procedural Law took effect in early 2013, China has widened the scope of free legal services available to convicted foreigners, including those sentenced to death or life imprisonment, and for those in financial difficulty. Previously, only prisoners who had been sentenced to death were eligible to receive free legal aid.

At present, there are 68,318 legal aid departments at the provincial, city, township and village levels, and about 200,000 lawyers across China are obliged to provide free legal aid to foreign criminals.

“If they don’t have a defense lawyer, we will ask the local legal aid department to appoint an experienced lawyer to defend them and fully protect their human and legal rights in China,” Sang Ning, deputy director of the Legal Aid Center at the Ministry of Justice, said.

Sharp rise in demand

“In recent years, a large number of foreigners have come to China for travel, study or business, and it’s inevitable that a number of criminal cases involving foreign parties will occur occasionally,” Sang said.

According to the Ministry of Public Security, more than 60 million foreign nationals arrived and exited China in 2013. The number has doubled during the past decade. Meanwhile, the number of foreigners staying in the country for more than six months, including those who have obtained “green cards”, is about 680,000, up from about 20,000 in 1980.

According to Sang, many foreign nationals that have entered the country illegally to work or visit are involved in criminal activities.

The problem is particularly acute in the coastal and border areas, such as the provinces of Guangdong and Yunnan, where some foreign nationals have been engaged in drug smuggling or human trafficking, which has contributed to a sharp increase in demand for legal aid services for people from overseas, he said.

According to Wang Jinlian, a senior officer at the ministry’s legal aid center, most of the cases the center handles involve violent crimes, including drug smuggling and trafficking, murder, rape, human trafficking, and robbery.

“The offenders mostly come from Africa, the Middle East, Southeast Asia, and some European countries,” she said.

According to the amended law, in addition to criminal offenses, foreign nationals involved in civil cases will now be eligible for free legal services if they lack funds or if their home country has signed a judicial agreement with China.

Offering free legal assistance to foreign offenders “reflects Chinese judicial impartiality and transparency”, Hong Daode, a law professor at the China University of Political Science and Law in Beijing, said.

“In this way, foreigners will better understand Chinese laws and the relevant legal procedures, so they will consciously abide by Chinese laws and regulations when traveling or staying in the country,” he said.

A Myanmar worker (right) receives compensation from his Chinese employer for injury during construction work in Ruili, Yunnan province, thanks to the local legal aid department's help.[Photo/Xinhua]

Major challenges

According to the Ministry of Justice, lawyers are faced with a number of challenges when providing free legal assistance to offenders from overseas.

“We face difficulties in communicating with the foreign recipients because of language barriers and cultural differences,” said Zhang Kaiyou, an experienced lawyer from the Legal Aid Center of Dehong autonomous prefecture in Yunnan, who has defended more than 30 foreign nationals in the last nine years.

“Many foreigners don’t trust Chinese laws, and are resistant to the lawyers at the beginning,” he said, adding that some of the accused are concerned that the judicial officers will prosecute them unfairly.

In addition, China’s legal system and judicial procedures are totally different from those overseas, and many foreign suspects hope lawyers will defend them on a plea of “not guilty” rather than plead for “lenient punishment”, Li Fang, a lawyer with the Beijing Yingke Law Firm, said.

Therefore, if Chinese lawyers want to offer better legal services to foreign clients, the key is to “improve language skills, gain more practical experience, and be more patient”, Zhang said.

According to Wang, the ministry’s legal aid center has established a database of 20,000 qualified volunteer lawyers who can provide free legal service for foreign clients, and about one-third of them can communicate with their clients in English.

For non-English-speaking clients, legal aid centers in many large cities, such as Guangzhou, Shanghai and Nanjing, capital of Jiangsu province, have signed agreements with local translation companies, and the costs are covered by the local governments, she said.

“This is an effective way of communicating with foreign suspects, and a timely way to inform them about their rights and other points of interest,” she added.

Using new media platforms

According to Sang, in addition to improving the talent pool of lawyers, the ministry will make a priority of deploying a larger number of legal personnel to China’s border areas to provide free legal aid. Many will be employed in areas such as Yunnan and the Guangxi Zhuang autonomous region, where a large number of foreign nationals are involved in cross-border crimes, including drug smuggling and trafficking, or human trafficking.

Moreover, the ministry will use new media platforms to release information about legal aid services and typical cases, and publicize the contact details of qualified lawyers.

“It’s essential for the government to increase financial support for legal aid, and to take effective measures to improve the quality of services,” Li Wei, a lawyer from the Beijing Lawyers’ Association, said.

She suggested that local legal aid departments should “set up a supervision mechanism to follow case developments and assess the quality of the services provided by lawyers. That will enable us to provide the best services possible”.

SUSPECTS GET AID IN CENTERS

A senior official at the Ministry of Justice said legal aid departments have set up offices in local detention centers to provide free services to criminal suspects, including foreign nationals.

Since June, most national detention centers have employed lawyers who offer free consultations and court representation, Luo Junhua, a senior officer at the Legal Aid Center of the Ministry of Justice, said.

“Deploying lawyers in detention centers will greatly reduce suspects’ concerns about legal issues. The lawyers will also supervise the investigating officers to ensure that confessions are not made under duress,” she said.

Zhu Rui, an official at the Yunnan Province Legal Aid Bureau, said that in the past a lack of legal knowledge meant that some suspected criminals failed to understand the nature of the crimes of which they were accused, which had led to extreme anxiety and even suicide attempts.

Many foreign nationals didn’t understand China’s legal system, and once detained were unable to contact their families, leaving them feeling helpless.

“They were desperate to find a lawyer to consult about Chinese laws, and to represent them in court,” he said. However, under the new measures, lawyers appointed by the local legal aid departments will visit detention centers regularly to provide free services.

In Yunnan’s Kunming, for example, the city’s legal aid department will send two lawyers who specialize in criminal cases to every local detention center three days a week to offer legal consultations and help suspects find a lawyer to represent them in court, Zhu said.

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