By making specific proposals for improving the provisions of the 2003 Criminal Procedure Code, the author hopes the criminal justice will apply a “soft mechanism” to women held in custody, accused and brought to trial, thus protecting their rights in a special manner in the spirit of the Constitution and relevant treaties.

Citizens’ rights in general and women’s rights in particular enjoy a particularly important position in the Constitution and laws. Article 26 of the 2013 Constitution stresses:

“Male and female citizens have equal rights in all fields. The State, society and family shall create the conditions for women to develop comprehensively and to advance their role in society. Gender discrimination is prohibited.”

We can see that women’s rights provided in the Constitution and laws have two key attributes: equality and priority. Equality guaranteed by law aims to ensure equal rights and non-discriminatory treatment of men and women before law. Meanwhile, priority is meant to protect women for their particular physiological characteristics and functions, including motherhood.

The 2003 Criminal Procedure Code (Code) has provisions protecting citizens’ rights in general and women’s rights in particular. It stipulates that all criminal procedure activities of procedure-conducting agencies and persons and procedure participants must be conducted in accordance with the Code. Procedure-conducting persons must respect and protect lawful rights and interests of procedure participants, and may apply procedural measures only in necessary cases in a lawful manner while constantly checking the legality and necessity of applied measures. In criminal justice, all citizens are equal before law, regardless of nationality, gender, belief, religion and social status, and anyone committing a crime must be handled in accordance with law (Articles 3, 4 and 5 of the Code). These general principles also guarantee lawful rights and interests of women who participate in legal procedures. However, an important content of equal rights between men and women is that priority must be given to women “in case men and women have the same conditions and criteria” (Point e, Clause 1, Article 19 of the 2006 Law on Gender Equality). The Code also contains provisions that manifest the spirit of giving priority to women, especially those who are pregnant or nursing under-36-month children. However, such provisions remain few and thus unable to fully protect rights of women when they are arrested, investigated, prosecuted and tried. As the draft revised version of the Code is now open for public comment (the latest version dated March 23, 2015), this is a good opportunity for amending current provisions to better guarantee rights of women in criminal justice, especially those who are held in custody, accused or brought to trial.

Rights of women held in custody

Persons held in custody include those arrested in urgent cases, offenders caught red-handed, persons arrested under pursuit warrants or confessing or self-surrendering offenders, against whom custody decisions have been issued (Article 48 of the Code). Though the Code does not distinguish rights and obligations of women held in custody from those of other persons held in custody, it establishes the principle that all citizens are equal before law regardless of their nationality and gender (Article 5). However, as far as the principle of humanity of criminal justice is concerned, it is necessary to have separate provisions on the maximum duration of holding in custody mothers, especially pregnant women and mothers of young children, instead of the current duration of nine days applicable to all people. For its purpose of serving the verification of personal identification of persons held in custody and collection of documents and articles to be used in subsequent criminal proceedings, custody restricts these persons’ right to freedom of body and isolates them from social life. For women, especially pregnant women and women nursing under-36-month children, nine-day custody would make it difficult for them to take care of their children (especially newborns) or badly affect their health (especially pregnant women) due to harsh conditions in custody facilities. Therefore, after arresting a woman and putting her into custody, procedure-conducting agencies should quickly check her personal identification as well as health conditions in order to determine whether or not she is pregnant or nursing a young child. In this regard, we agree with the provision of Article 92 of the draft revised version of the Code that right after a decision on taking a woman in custody is issued, it is necessary to quickly check her health conditions and personal identification so as to make sure that no pregnant woman or woman nursing an under-36-month child is held in custody for more than three days.

Rights of the female accused

The accused is a person against whom criminal proceedings have been initiated (Article 49 of the Code). A decision on initiation of criminal proceedings against an accused serves as the basis for procedure-conducting agencies to apply deterrent measures (holding in custody, travel ban, etc.) and conduct investigating and prosecuting activities. The current Code provides only rights and obligations of the accused in general without requiring a particular treatment of the female accused and, therefore, does not give any priority to them, especially pregnant women and mothers of young children.

A person is called the accused during the period from the time of issuance of a decision on institution of a criminal case against such person to the time of issuance of a decision to bring the case to trial (the stages of investigation, prosecution and preparation for first-instance trial). In these procedural stages, if the accused is a woman, attention should be paid to the following:

Regarding the application of deterrent measures, among such deterrent measures as arrest, custody, temporary detention, travel ban, guaranty or bail, temporary detention is the most severe coercive measure. Any female accused may be subject to temporary detention. However, the current criminal procedure law makes special provisions aimed to create conditions for women not only to exercise and perform their procedural rights and obligations but also fulfill their social roles as wives and mothers. Accordingly, pregnant women and women nursing under-36-month children may not be detained, regardless of whether crimes which they are accused of are punishable for more or less than two years’ imprisonment. Only those who abscond and are later arrested under pursuit warrants; relapse into committing the crime and intentionally obstruct the investigation, prosecution or trial though having been subject to other deterrent measures; have no fixed places of residence; or commit a crime infringing upon national security (Clause 2, Article 88 of the Code), can be held in custody. These provisions of the Code convey the principles of humanity and respect for human rights in general and women’s rights in particular and protection of children’s rights.

In this regard, we disagree with the provisions of the draft revised version of the Code which permits the application of the deterrent measure of detention to pregnant women and women nursing under-36-month children when there are grounds to believe that they relapse into committing the crime or seriously obstruct the investigation, prosecution or trial; and the detention of these women when they are accused of crimes which are punishable for more than two years’ imprisonment. We propose to retain the aforesaid current provisions of the Code.

Some investigating activities against the female accused should be conducted in a special manner, showing respect for them and protecting their rights. Particularly, in body search “The search of a person must be conducted by a person of the same sex and to the witness of a person also of the same sex.” (Article 142 of the Code) and when the measure of examination of traces on human bodies is applied, “examination of the body of a person shall be conducted by a person of the same sex and witnessed by a person also of the same sex. In case of necessity, medical doctors may participate in body examination. It is forbidden to infringe upon the honor, dignity or health of examined persons.” (Article 152 of the Code). In other words, when conducting investigating activities, investigative agencies must abide by the Code’s provisions on protection of life, health, honor, dignity and property of citizens, including women. However, these provisions neither clearly define the responsibility of investigators to protect privacy of the accused in investigation nor permit only investigators to be present in the room when body search or examination of traces on human bodies is conducted. The absence of specific provisions in this regard may make body search or examination of traces on human bodies conducted on women harmful to their honor and dignity. So, we agree with Articles 184 and 193 of the draft revised version, plus some minor supplements, as follows:

“Article 184. Body search
1. To start a body search, the search warrant shall be read out by the warrant executor and handed to the to be-searched person for reading; the to be-searched person and other persons present shall be informed of their rights and obligations.
The person conducting the search shall request the to be-searched person to give out objects and documents related to the case; if the to be-searched person disobeys, he/she shall be searched.
2. The search of a person shall be conducted by a person of the same sex and to the witness of a person also of the same sex. The investigator conducting the search shall ensure that, except persons with the searching competence, only persons permitted by the investigator stay in the room when body search in conducted. 
3. In an urgent case, body search may be conducted without a search warrant in case the arrestee, or when there are grounds to confirm that the person present at the searched place, hides on his/her body weapons, evidence, documents and articles related to the case.”
“Article 193. Examination of traces on human bodies
1. When necessary, investigators shall examine the bodies of persons arrested or held in custody, the accused, victims and witnesses in order to detect traces of an offense or other traces significant to the case. In case of necessity, investigative agencies may request forensic examination.
2. Examination of the body of a person shall be conducted by a person of the same sex and witnessed by a person also of the same sex. In case of necessity, medical doctors may participate in the body examination. The investigator shall ensure that, except persons with examining competence, only persons permitted by the investigator stay in the room when body examination in conducted. It is forbidden to infringe upon the honor, dignity or health of examined persons.”

Rights of female defendants

A defendant is a person whom the court has decided to bring for trial (Article 50 of the Code). Both the current Code and its draft revised version provide rights and obligations of defendants in general, ensuring equality and non-discriminatory treatment of female defendants. When an accused woman is brought to trial, her rights remain basically the same. However, in the stage of trial of a female defendant, attention should be paid to the following:

Firstly, the Penal Code provides that pregnancy of a female offender must be regarded as a circumstance extenuating her penal liability (Article 46 of the Penal Code revised in 2009) and that death penalty must not be pronounced against a women who is pregnant or nursing an under-36-month child at the time she commits a crime or is tried (Article 35 of the Penal Code revised in 2009). Therefore, right in the preparation for first-instance trial, judges and assessors, when examining the case file, should pay special attention to such circumstance so as not to apply the measure of detention against the accused woman who is pregnant or nursing an under-36-month child. They must also make questions at the hearing as to whether or not the female defendant is pregnant or nursing a young child. In the course of studying the case file, if coming across any document showing that the defendant is pregnant or nursing a young child, they should return the case file to the procuracy for additional investigation and verification (Article 179 of the Code). At a court hearing involving a female defendant, the trial panel should question whether this defendant is pregnant or nursing an under-36-month child and regard her pregnancy or nursing (if any) as an extenuating circumstance. If the highest penalty prescribed for her crime is death, the trial panel should also carefully examine the case file and ask questions in order to verify whether she is pregnant or nursing an under-36-month child, thus avoiding handing down the death penalty to such woman.