Special Disclaimer: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or professional exchanges, please add contact: sswls66.
Previously, I handled a case where, at the time I took over, the client had already been approved for arrest by the Procuratorate. However, after several days of intense negotiations with the local public security organs and the Procuratorate, the client was released on bail pending trial.
Later, two days before the Procuratorate decided to transfer the case to the court, my client was detained again in the detention center.
I once asked the prosecutor with great distress: Whether this case constitutes a crime and whether you have jurisdiction have always been highly controversial. Moreover, despite two remands for supplementary investigation, no significant evidence was added. We believed that this case could fully warrant a decision of non-prosecution.
However, the prosecutor responded with an impassive expression:"Well, but there is no other way. Once an arrest is approved, we must prosecute. Sigh."
Therefore, in a criminal case,Must a prosecutor necessarily bring to court a client who has previously been approved for arrest?
In fact, from a deeper perspective, this question essentially raises another issue:
Is the integration of arrest approval and prosecution truly reasonable?
How many wrongful convictions has the integration of arrest approval and prosecution actually caused?
Before answering the above questions, we first need to understand two concepts:
The integration of arrest approval and prosecution, and the separation of arrest approval and prosecution.
The integration of arrest approval and prosecution refers to a system in criminal cases where the same handling prosecutor possesses both the authority to review arrests and to initiate prosecution. Correspondingly, the separation of arrest approval and prosecution means that a case is handled by two different prosecutors during the arrest review stage and the prosecution review stage, respectively.
Regarding the systems of integrated and separated arrest approval and prosecution, the general development history is as follows:
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In the late 1970s, after the reconstruction of procuratorial organs, due manpower shortages and a large volume of cases, the review of arrests and prosecutionswere handled by the same departmentor the same prosecutor to improve efficiency, although no systematic theory was formed.
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In the 1980s, the review of arrests and prosecutions by procuratorateswas separated, with different departments responsible, aiming to strengthen internal supervision and ensure fairness in case handling.
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Starting from the 1990s, grassroots procuratorates, in order to address the problem of "many cases but few personnel,"reverted to the integration of arrest approval and prosecutionto improve efficiency and integrate resources. The Supreme People's Procuratorate recognized and promoted this experience.
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In 1999, the Supreme People's Procuratorate divided the Criminal Procuratorial Department into the Arrest Review Department and the Prosecution Review Department, markingthe formal establishmentof the separation mechanism at the institutional level. Most procuratorates across the country also established separate departments for arrest review and prosecution review.
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In 2019, with the implementation of internal institutional reforms within procuratorial organs,the integrated mechanismfor handling cases involving both arrest and prosecution was comprehensively implemented, improving review methods and case-handling mechanisms, and strengthening the coordination between arrest and prosecution.
Recently, news has emerged thatthe separation of arrest approval and prosecutionhas begun to be piloted in certain regions, such as Hubei Province.
From the above development, it can be seen that the systems of integrated and separated arrest approval and prosecution have consistently undergone cycles of separation and integration.
So, regarding the currently widely implemented system of integrated arrest approval and prosecution in procuratorates nationwide,what impacts does it have on parties involved in criminal cases?This requires an analysis of the advantages and disadvantages of these two systems.
The procuratorate's implementation of integrated arrest approval and prosecution primarily considers the following points:
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Improving litigation efficiency: Having the same prosecutor responsible for both arrest approval and prosecution eliminates the need to repeatedly familiarize themselves with the case facts, saving time and effort, and improving case-handling efficiency;
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Improving the efficiency of judicial resource utilization: It can resolve the contradiction of "many cases but few personnel" and avoid imbalanced workloads among different departments within the procuratorate;
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Strengthening prosecutor accountability: It is believed that having the same prosecutor responsible for both arrest and prosecution unifies authority and responsibility, which can encourage prosecutors to handle cases more cautiously and improve case quality;
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Conversely, implementing the system of separated arrest approval and prosecution presents the following advantages and disadvantages:
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Strengthening internal supervision: Having different prosecutors responsible for arrest approval and prosecution allows for mutual checks and balances, preventing abuse of power and ensuring fair case handling;
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Protecting the rights of criminal suspects: Different prosecutors reviewing the case from different perspectives reduces the influence of preconceived notions, which is more conducive to safeguarding the legitimate rights and interests of criminal suspects and enhancing judicial credibility;
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Low case-handling efficiency: A case is fragmented into several stages within the procuratorial process, with different prosecutors responsible for different stages. This lack of comprehensive oversight of the entire case can easily lead to discrepancies in the qualitative and quantitative assessment of the same case, thereby affecting case-handling efficiency;
Therefore, it can be seen that, compared to the separation of arrest approval and prosecution, implementing their integration can improve operational efficiency for the procuratorate. However,Can the integration of arrest approval and prosecution truly encourage prosecutors to handle cases more cautiously?Regarding this question, criminal defense lawyers certainly have a voice.
As is well known, when public security organs request the procuratorate to decide on arrest approval, prosecutors have only seven short days to make a decision. During these seven days, besides reviewing whether to approve arrest for a particular case, prosecutors may also have cases to prosecute, court hearings to attend, and various meetings within the system. Therefore, the time available for prosecutors to thoroughly review case files and interrogate suspects to make a final decision is limited.
Under conditions of tight deadlines and heavy workloads, is it possible for prosecutorsto mishandle cases and arrest individuals who should not have been arrested?Certainly, it is possible!
Under the system of integrated arrest approval and prosecution, the prosecutor responsible for approving arrest and the prosecutor responsible for bringing the case to court are the same person. If, in a case,the prosecutor discovers that the arrest was mistaken and the individual may not constitute a crime,or ifthere is significant controversy over whether the conduct constitutes a crime,or if the case involvesminor circumstances that could warrant non-prosecution,how do you think the prosecutor would handle it?
Institutional constraints cannot govern human nature.
There are indeed a small number of prosecutors who are responsible and dare to take accountability. Therefore, I have also represented cases where, although the client was arrested, they ultimately received a decision of non-prosecution.
However, in most cases, similar to the situation mentioned at the beginning of this article (based solely on the sample of criminal cases I have encountered),most prosecutors find it difficult to confront their own mistakes. Once an arrest is made, they feel compelled to proceed with prosecution! They insist on bringing the case to court and accusing the individual of committing a crime.
For the individual involved, once the case reaches the court, seeking an acquittal becomes extremely difficult. According to the 2024 "White Paper on Criminal Procuratorial Work" issued by the Supreme People's Procuratorate, 418 individuals were acquitted or found not criminally liable, accounting for 0.03% of the total. Moreover, the overall acquittal rate has been decreasing year by year. The combined proportion of non-prosecution after arrest and acquittal after arrest accounts for only 0.27% of the total number of individuals.
This is why Attorney Shao often advises clients and their families to attach great importance to the "golden 37 days" in criminal cases and to treat every stage of the criminal procedure with caution. Once the direction of a case deviates, it will continue to be driven forward relentlessly, and the litigation process cannot be reversed.
Due to recent pilots of separated arrest approval and prosecution in certain regions, I have also observed heated discussions on related posts.
From the perspective of a defense attorney, I believe that neither the integration nor the separation of arrest approval and prosecution is inherently flawed. The problems arise not from the system itself, but from the individuals implementing it.
Perhaps the separation of arrest approval and prosecution is not a perfect solution either, but if efficiency is pursued at all costs, it will inevitably lead to more wrongful convictions.
For some case-handling personnel, criminal cases are merely a matter of professional reputation; but for any individual involved, they represent their entire life.
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