Why were corrupt officials tried in absentia for more than 20 years? The "law on paper" is activated

Why did corrupt officials flee abroad for more than 20 years be tried in absentia?

Declassified the first case on the mainland to apply criminal default trial procedures to try a fugitive defendant's embezzlement case

□ Zhao Hongqi, a reporter of this newspaper

"Defendant Cheng Sanchang was sentenced to 12 years' imprisonment for embezzlement and fined 500,000 yuan, and the proceeds of Cheng Sanchang's embezzlement crimes were recovered and returned in accordance with law." On January 17, 2022, the Intermediate People's Court of Zhengzhou City, Henan Province, publicly pronounced a verdict on the embezzlement case of Cheng Sanchang, former secretary of the Luohe Municipal Party Committee and former chairman of Yugang (Group) Co., Ltd., a member of the "100 Red Notices" personnel.

This case is the first embezzlement case of a fugitive defendant in the mainland to apply the criminal default trial procedure, and it has also become a landmark case of pursuing stolen goods and building the rule of law since the 19th National Congress of the Communist Party of China.

Failure to return the stolen goods in cases is heavily punished

Cheng Sanchang, male, born in July 1941, served as secretary of the Luohe Municipal Party Committee and chairman of the Yugang Company before fleeing, and fled abroad in February 2001. In February 2002, Interpol issued a red notice to him. In April 2015, the Central Fugitive Pursuit Office listed Cheng Sanchang as one of the "100 Red Notice Personnel." After the reform of the state supervision system, the case was handled by the Zhengzhou Municipal Supervision Commission.

In August 2020, the Zhengzhou Municipal Supervision Commission transferred Cheng Sanchang's case to the procuratorate for review and prosecution. After that, the Zhengzhou Municipal People's Procuratorate filed a public prosecution with the Zhengzhou Intermediate People's Court, requesting the application of the trial procedure in absentia and pursuing Cheng Sanchang for criminal responsibility for embezzlement. The procuratorial organs alleged that Cheng Sanchang took advantage of his position to illegally appropriate public funds equivalent to more than 3,088,800 yuan.

The "Rule of Law Daily" reporter noted that during the "two sessions" of the national people's congress in 2021, Zhang Jun, chief procurator of the Supreme People's Procuratorate, said in his report on the work of the Supreme People's Procuratorate that the procuratorial organs made good use of the statutory special procedures to vigorously promote the pursuit of fugitives and recover stolen goods. For the first time, trial in absentia was applied to prosecute Cheng Sanchang, a corruption suspect who had absconded abroad for 19 years.

"Cheng Sanchang was outside the country, and the court served the summons and a copy of the indictment on Cheng Sanchang himself in accordance with the law. At the opening of the trial, his close relatives entrusted two defenders to appear in court on his behalf. During the course of trial, the court fully protected the procedural rights of the absentee defendant Cheng Sanchang in accordance with law. The reporter learned in the interview that after confirming that Cheng Sanchang himself gave up the choice to appear in court on his own, the court confirmed that his close relatives, including his wife, daughter and brother, voluntarily gave up their right to be present, and the defender entrusted by his close relatives attended the court on behalf of him to participate in the litigation, which not only guaranteed Cheng Sanchang's right to defend, protected his close relatives' right to participate in the litigation, but also guaranteed other rights he enjoyed in criminal proceedings in accordance with the law, including the right to appeal and the right to file a new trial.

On December 9, 2021, on the occasion of International Anti-Corruption Day, cheng Sanchang, a defendant in the Zhengzhou Intermediate People's Court who had been on the run for 20 years in accordance with the law, publicly tried in absentia. During the trial, the prosecution and defense respectively presented relevant evidence, cross-examined evidence, and fully expressed their opinions under the auspices of the court, and Cheng Sanchang's close relatives entrusted a defender to read out the final opinion on his behalf.

On January 17, 2022, the Zhengzhou Intermediate People's Court publicly pronounced judgment on Cheng Sanchang's case.

After trial, it was ascertained that in December 2000, defendant Cheng Sanchang took advantage of his position as chairman of yugang company to instruct financial personnel to transfer public funds to their chequing accounts under his name and their personal accounts in New Zealand on three occasions on the pretext of setting up a branch in New Zealand, illegally possessing more than 3,088,800 yuan of public funds equivalent to Hong Kong dollars, New Zealand dollars and US dollars.

At trial, the court held that defendant Cheng Sanchang's conduct constituted the crime of embezzlement, and the amount was particularly huge and should be punished according to law. Cheng Sanchang, who has been hiding abroad for more than 20 years, refuses to accept trial and refuses to return the stolen money shall be given a heavier punishment.

Activate "Law on Paper"

"The application of the trial procedure in absentia to Cheng Sanchang's case is a breakthrough in criminal proceedings in the mainland, which has realized the activation of 'laws on paper' from the institutional level to the transformation of 'laws in action', and formed a real legal deterrent for fugitives." The case-handling personnel admitted that the Criminal Procedure Law, which was revised in 2018, has set up a special chapter on "trial procedures in absentia" in the "special procedures". The establishment of this procedure is an important piece of legislation to meet the needs of the international anti-corruption fugitive recovery work in the new era, and the trial of Cheng Sanchang in absentia is the first practice of this special procedure, which has solved the dilemma in international cooperation in the anti-corruption and fugitive recovery and recovery of stolen goods, and enriched the legal means for the international work of chasing and recovering stolen goods.

According to the case-handling personnel, trial in absentia refers to the court hearing and judging the case without the defendant appearing in court. In principle, criminal proceedings are subject to counter-trials, and only in exceptional circumstances are trials in absentia.

"Therefore, both the procuratorate and the judiciary are very cautious." During the interview, the reporter learned that although the Cheng Sanchang case did not require the approval of the Supreme People's Procuratorate, it was only after the Guidance of the Supreme Procuratorate that the trial procedure in absentia was initiated, reflecting the procuratorial organs' rigorous and truth-seeking, prudent prosecution thinking, and serious attitude in the quality control of case prosecution.

According to reports, after the reform of the state supervision system, the supervision organs have become the sponsoring organs for cases of pursuing fugitives and recovering stolen goods for crimes abusing public office. The Regulations for the Implementation of the Supervision Law stipulate: "Where the department undertaking the Supervision Organ finds that the facts of the crime of the person under investigation abroad have been ascertained, the evidence is credible and sufficient, and criminal responsibility should be pursued in accordance with law, it shall be transferred for trial in accordance with law." The Supervision Organs shall, after collective deliberation, issue an "Indictment Opinion", and transfer it to the people's procuratorate for review and prosecution, along with case file materials, evidence, and so forth. ”

"The Cheng Sanchang case became the first case of criminal default trial, and the relevant departments have conducted in-depth research and demonstration. The application of the trial in absentia system has strict restrictions on both the scope of application of the crime and the application procedure, and the corruption crime carried out by Cheng Sanchang in this case fully meets the conditions for applying the trial in absentia procedure and meets the requirements of the principle of rule of law. According to the law, the local supervision organs must first report to the State Supervision Commission for approval if they intend to apply the trial in absentia procedure, because the procedural requirements and evidence standards for the trial in absentia are very strict.

The case-handling personnel said that in cases where the trial procedure in absentia is applied, the fugitive recovery work must have been fully carried out, but the defendant really cannot come to the case for subjective and objective reasons, and the evidence in the possession can exclude the case of pursuing and recovering stolen goods with reasonable doubt. Before the trial begins, the adjudication organ must also serve the defendant with a summons and a copy of the indictment in strict accordance with the provisions of the Criminal Procedure Law.

"Once the case was adjudicated, it meant that Cheng Sanchang was no longer a 'criminal suspect', but a criminal convicted and sentenced by the people's court according to law." This shows that corrupt elements cannot escape the punishment of the law wherever they flee. The case-handling staff said.

Unity of substance and procedural justice

"As a defendant, Cheng Sanchang actually knew that he was being charged, which is also the braking point and the basis for the protection of rights in the trial procedure in absentia. The court fully protected Cheng Sanchang's right to know through the effective service of legal documents such as copies of the indictment, the summons for the opening of the court, and the legal consequences of not appearing in court as required. The case-handling personnel said that although Cheng Sanchang voluntarily gave up attending the trial, none of the court investigations, court arguments and final opinions were absent.

The court comprehensively displayed the identity of Cheng Sanchang himself, the evidence that he had worked in the Yugang Company, and the relevant evidence of his violation of the regulations on overseas investment in state-owned assets, and showed the comprehensive evidence such as the flow of funds and his refusal to return to the case, especially the subjective intention of Cheng Sanchang to embezzle public funds, and objectively carried out all the objective facts and evidence of embezzlement of public funds.

"The trial emphasizes facts over evidence, and realizes the unity of substantive justice and procedural justice." The case-handling personnel said that the court strictly followed legal procedures and strictly abided by the principles of criminal law and evidence adjudication; after conscientiously listening to the defender's opinions on the facts and evidence of the allegations, after the court debated and cross-examined the evidence, on the premise that the facts were clear and the evidence was credible and sufficient, and on the basis of the principle of unifying subjectivity and objectivity, it was determined that Cheng Sanchang's illegal possession of public funds constituted the crime of embezzlement.

In terms of sentencing in accordance with law, the court comprehensively considered the facts of the crime in this case, the nature and circumstances of the crime, and the degree of harm to society, as well as the fact that the criminal nature of Cheng Sanchang's embezzlement crime, and the amount of embezzled public funds were particularly huge, especially the fact that he fled abroad after committing the crime, returned to abroad after being persuaded by his close relatives many times, failed to return the stolen money, refused to accept the trial of the case after receiving the indictment and summons, and made the above-mentioned judgment in accordance with the law in accordance with the principle of combining the old with the light.

Wang Xiumei, a professor at the Academy of Criminal and Legal Sciences of Beijing Normal University, believes that although Cheng Sanchang was tried in absentia after more than 20 years of hiding, the application of the trial in absentia procedure was swift and timely, fair and beneficial compared to letting him go unpunished. The significance of this case is mainly reflected in the following three aspects:

The application of trial in absentia procedures is helpful for the Supervision Organs to promptly collect and fix evidence, avoiding situations such as the long time they fled, the blurred memory of witnesses, and the loss of physical evidence.

Through the forfeiture of the trial in absentia, the property transferred by the criminals is effectively locked and recovered. Through the determination of criminal acts in absentia, clarify the attributes and ownership of the property involved in the case, so that the mainland can carry out extraterritorial property return lawsuits in accordance with the provisions of the United Nations Convention against Corruption, so that the confiscation without conviction and trial in absentia provided for in the Mainland Criminal Procedure Law will form a closed loop in practice, so as to achieve the greatest results in the pursuit of stolen goods.

Through trial in absentia, clearly identifying the facts of Cheng Sanchang's crime of embezzlement and determining his identity as a criminal can prompt the country that still houses Cheng Sanchang to further track the flow of funds transferred to that country by him, trace evidence of corruption and money laundering, hold him accountable for relevant illegal and criminal acts such as money laundering and immigration fraud, take the initiative to cooperate with the mainland in criminal justice, and take effective measures to transfer or repatriate Cheng Sanchang.

Source: Rule of Law Daily