I previously represented a case where, when I took over, the person had already been approved for arrest by the prosecutor's office. However, after several days of back-and-forth with the local public security prosecutor's office, the person was released on bail.
But later, two days before the prosecutor's office decided to transfer the case to court, my client was again detained in the detention center.
I once sadly asked the prosecutor: 'Does this case constitute a crime? Do you have jurisdiction? There has always been a great deal of controversy, and even after two re-investigations, no additional evidence has been provided. We believe this case can completely be handled without prosecution.'
Yet the prosecutor said with a blank expression: 'Hmm, but there’s nothing we can do; we just have to prosecute once we’ve made an arrest.'
So, in a criminal case, does the prosecutor have to prosecute the person who has been previously arrested?
But actually, this question, from a deeper perspective, is another question:
Is combined arrest and prosecution really reasonable?
How many wrongful cases have been caused by combined arrest and prosecution?
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Author of this article: Lawyer Shao Shiwei
Before answering the above questions, we first need to understand two concepts: combined arrest and prosecution, and separation of arrest and prosecution.
Combined arrest and prosecution refers to the same prosecutor handling both the review of arrest and the prosecution in criminal cases. In contrast, separation of arrest and prosecution means that a case is handled by two different prosecutors during the arrest review phase and the prosecution review phase.
Regarding the system of combined arrest and prosecution versus separation of arrest and prosecution, there has generally been the following development process:
In the late 1970s, after the reconstruction of the prosecutor's office, due to manpower shortages and a large volume of cases, the review of arrests and prosecutions was handled by the same department or prosecutor to improve efficiency, but no systematic theory was formed.
In the 1980s, the prosecutor's office began separating the review of arrests and prosecutions, assigning different departments to handle them, aimed at enhancing internal supervision and ensuring the fairness of case handling.
Starting in the 1990s, in order to solve the problem of 'too many cases and too few people,' grassroots prosecutors resumed combined arrest and prosecution to improve efficiency and integrate resources. The Supreme People's Procuratorate recognized and promoted this experience.
In 1999, the Supreme People's Procuratorate divided the Criminal Prosecution Department into the Arrest Review Department and the Prosecution Review Department, marking the formal establishment of the separation mechanism at the institutional level. Many prosecutor's offices across the country also set up separate departments for reviewing arrests and prosecutions.
In 2019, the internal institutional reform of the prosecutor's office was implemented, fully promoting the integrated case handling mechanism, improving review methods and case handling mechanisms, and strengthening the connection between arrest and prosecution.
Recently, I heard news that separation of arrest and prosecution has already begun pilot programs in some areas, such as Hubei.
From the developments above, it can be seen that the systems of combined arrest and prosecution and separation of arrest and prosecution have always been in a state of flux.
So what impact does the currently widely implemented system of combined arrest and prosecution have on the parties involved in criminal cases? This needs to be discussed in terms of the strengths and weaknesses of these two systems.
The prosecutor's office implements combined arrest and prosecution mainly considering these points:
Improving litigation efficiency: Having the same prosecutor responsible for both arrest and prosecution eliminates the need to repeatedly familiarize themselves with the case, saving time and energy, thus improving case handling efficiency;
Improving the utilization efficiency of judicial resources: It can resolve the contradiction of having too many cases and too few people, avoiding an imbalance in workload among different departments of the prosecutor's office;
Strengthening prosecutor accountability: It is believed that having the same prosecutor responsible for both arrest and prosecution, with unified powers and responsibilities, can encourage prosecutors to handle cases more cautiously and improve case quality;
Implementing the separation of arrest and prosecution has the following advantages and disadvantages:
Strengthening internal supervision: When different prosecutors are responsible for arrest and prosecution, they can check and balance each other, avoiding abuse of power and ensuring fair handling of cases;
Protecting the rights of criminal suspects: Different prosecutors review cases from different angles, reducing preconceived biases and better safeguarding the legal rights of criminal suspects, thereby enhancing judicial credibility;
Inefficient case handling: A case being split into several segments at the prosecutor's stage, with different prosecutors responsible for different parts, lacks a comprehensive understanding of the whole case, which may lead to discrepancies in the qualitative and quantitative understanding of the same case, affecting handling efficiency;
Therefore, it can be seen that compared to the separation of arrest and prosecution, the implementation of combined arrest and prosecution can improve efficiency for the prosecutor's office. However, can combined arrest and prosecution really encourage prosecutors to handle cases more cautiously? Criminal defense lawyers still have a say on this issue.
As is well known, the police ask the prosecutor's office to decide whether to approve an arrest, and the prosecutor has only a short 7 days to make a decision. During these 7 days, in addition to reviewing whether to approve a certain case for arrest, the prosecutor may have cases to prosecute, cases to go to court, as well as various meetings of different sizes within the system. Thus, the time left for the prosecutor to review the case carefully and interview the suspect to make a final decision is limited.
So, under conditions of tight time and heavy tasks, is it possible for a prosecutor to mistakenly handle a case and arrest someone who should not have been arrested? Of course, it's possible!
Under the system of combined arrest and prosecution, the prosecutor responsible for the arrest is the same person who prosecutes the case in court. So if a prosecutor discovers that they made a wrongful arrest, where the person may not have committed a crime, or if there is significant controversy over the nature of the crime, or if the case is minor and could have been dismissed, how do you think the prosecutor will handle it?
Systems cannot constrain the human heart.
There are indeed a very small number of prosecutors who are responsible and willing to take charge. So even if a client is arrested, there are still cases where they ultimately receive a non-prosecution result, which I have also represented.
However, for most cases, as mentioned at the beginning of this article (using the criminal cases I have encountered as a sample), most prosecutors find it difficult to face their own mistakes; once they have made an arrest, they feel compelled to prosecute! They must prosecute in court, accusing the person of committing a crime.
And for the parties involved, once the case reaches court, how can they fight for acquittal? According to the 2024 Supreme People's Procuratorate's (White Paper on Criminal Prosecution Work), the number of acquittals, where individuals are not held criminally responsible, is 418 people, accounting for 0.03%. Moreover, the overall acquittals rate is decreasing year by year. The combined total of cases not prosecuted and cases judged not guilty after arrest accounts for 0.27% of the total.
This is also why Lawyer Shao often tells clients and their families to pay attention to the golden 37 days of criminal cases and to treat every criminal case process with caution, because once the development direction of a case deviates, it will continue to push forward mercilessly, and the litigation process cannot be reversed.
Recently, as some regions have begun pilot programs for the separation of arrest and prosecution, I have seen related heated discussions in some posts:
From the perspective of defense attorneys, I believe that whether it is combined arrest and prosecution or separation of arrest and prosecution, the system itself is not at fault; the problems arise from those who implement the system.
Perhaps the separation of arrest and prosecution is not a perfect solution, but if it solely emphasizes work efficiency, it will inevitably lead to more wrongful convictions.
For some case handlers, criminal cases are just a matter of their reputation, but for any individual involved, it is their whole life.
