If a foreign national is detained in China in connection with a criminal investigation, one of the first questions the family usually asks is: who can appoint a Chinese criminal defense lawyer on the suspect's behalf?
This question matters because, once a suspect is detained, family members generally cannot visit the suspect at the detention center during the investigation stage. A defense lawyer plays a critical role: the lawyer can meet with the detained suspect, understand the case, provide legal advice, and protect the suspect's procedural rights. However, not everyone can simply appoint a lawyer on behalf of a detained suspect. This article explains who may appoint a criminal defense lawyer under Chinese law and what "close relatives" means in Chinese criminal procedure.
Can the Suspect Appoint a Lawyer?
Yes. Under China's Criminal Procedure Law, a criminal suspect has the right to retain a defense lawyer. The right to defense arises at an early stage of the criminal proceedings, so a suspect does not need to wait until the case reaches trial before appointing a lawyer.
If the suspect is already detained, however, arranging the appointment personally may be difficult. In such circumstances, the suspect's guardian or close relatives may be able to appoint a lawyer on the suspect's behalf, subject to the applicable legal requirements.
Can a Family Member Appoint a Lawyer?
Yes — but only certain family members qualify. Chinese criminal procedure law uses a specific legal definition of "close relatives." Under Article 108 of the Criminal Procedure Law, close relatives include:
- Spouse
- Parents
- Children
- Siblings
This definition is important because being a relative in the ordinary sense does not necessarily mean that the person qualifies as a "close relative" for the purpose of appointing criminal defense counsel. For example, in the case of a detained foreign national:
- Wife or husband → Yes
- Father or mother → Yes
- Son or daughter → Yes
- Brother or sister → Yes
- Cousin → Generally no
- Uncle or aunt → Generally no
- Grandparent → Generally no
- Parent-in-law → Generally no
- Friend → No
Therefore, if a cousin or friend contacts a Chinese lawyer and wants to sign the Power of Attorney, the lawyer may not be able to accept the appointment directly on that basis.
Why Does the Family Relationship Matter?
The relationship matters because the person appointing the lawyer must have the legal authority to do so. For example, if a foreign national is detained in Guangzhou and his brother is living in the United States, the brother may potentially appoint a Chinese defense lawyer on his behalf. However, the lawyer and the relevant authorities may require documents proving that the person is actually the suspect's brother.
This is why proof of relationship is an important part of the appointment process. Depending on the country and the relationship, the relevant evidence may include:
- Birth certificates;
- Marriage certificates;
- Family registration documents;
- Government-issued family relationship certificates; or
- Other official documents establishing the relationship.
Foreign-language documents may also need to be translated into Chinese.
Can Friends or Business Partners Appoint the Lawyer?
Generally, no. This is one of the most common misunderstandings in foreign criminal cases. A friend, colleague, employer, business partner, or other person who has a close personal or business relationship with the suspect does not automatically have the legal authority to appoint a defense lawyer on the suspect's behalf.
For example: "The suspect's business partner has known him for 20 years and wants to hire a lawyer." That does not necessarily mean the business partner qualifies to appoint the lawyer. In such circumstances, the lawyer may need to explore alternative ways of completing the appointment, depending on the circumstances of the case.
Can a Foreign Embassy or Consulate Appoint a Lawyer?
Foreign nationals detained in China may contact their embassy or consulate for consular assistance. An embassy or consulate may, depending on its own procedures and the circumstances of the case, assist with or facilitate the process of obtaining legal representation. For example, a consulate may be able to provide information concerning local lawyers or issue relevant documentation concerning the detainee's identity or family relationship.
However, consular assistance does not replace the role of a Chinese criminal defense lawyer. The lawyer is responsible for providing legal advice and defense services under Chinese law. The precise role that an embassy or consulate can play should therefore be confirmed with the relevant diplomatic mission and the defense lawyer.
Why Is It Important to Appoint a Lawyer Quickly?
When a foreign national is criminally detained in China, time is important. During the investigation stage, the suspect may be held in a detention center, and family members generally cannot visit the suspect. A defense lawyer can meet with the suspect and, subject to the applicable legal procedures, provide assistance concerning matters such as:
- Understanding the alleged offense;
- Explaining the suspect's legal rights;
- Understanding the circumstances of the investigation;
- Providing legal advice;
- Communicating with the authorities where appropriate; and
- Applying for release or other appropriate procedural measures where legally available.
In certain circumstances, the initial criminal detention period may be extended, potentially up to 37 days before a decision concerning arrest is made. The exact time limits depend on the circumstances and procedural status of the case. Therefore, families should not wait until the case reaches court before seeking legal assistance.
What Should the Family Do If the Suspect Has Already Been Detained?
If you have learned that a foreign national has been detained in China, we recommend taking the following steps as soon as possible:
- Step 1 — Contact a Chinese criminal defense lawyer. Provide the lawyer with all information currently available concerning the detention.
- Step 2 — Confirm where the suspect is being detained. The lawyer may need to determine the detention center, the investigating police authority, the suspected offense, and the current procedural status of the case.
- Step 3 — Identify who can legally appoint the lawyer. Determine whether the suspect can appoint the lawyer directly or whether a spouse, parent, child, or sibling will need to make the appointment.
- Step 4 — Prepare proof of the relationship. If a family member is appointing the lawyer, prepare official documents establishing the family relationship.
- Step 5 — Confirm the detention center's document requirements. This is particularly important for foreign nationals because requirements concerning notarization, Apostille, legalization, and Chinese translations may vary in practice.
Key Takeaways
For a foreign national detained in China:
- The suspect can appoint a defense lawyer.
- A spouse, parent, child, or sibling may generally appoint a lawyer on behalf of the suspect, subject to the applicable procedures.
- Friends, business partners, cousins, and other relatives do not automatically have the same authority.
- The family relationship may need to be officially documented.
- Foreign embassies and consulates may provide consular assistance, but their role should not be confused with that of a Chinese criminal defense lawyer.
- Most importantly, do not delay contacting a lawyer simply because the family has not yet collected every required document. A lawyer can advise the family on the required documents and coordinate the appointment process as early as possible.
Conclusion
For foreign nationals facing criminal proceedings in China, understanding who can appoint a lawyer is the first step. If the suspect is already detained, the family should contact a Chinese criminal defense lawyer promptly, identify an eligible person to make the appointment, and begin preparing the necessary identification and relationship documents.
The next question is usually: what documents does the family need to appoint the lawyer, and do those documents need to be notarized, Apostilled or legalized? These issues are discussed in our next article.
Primary legislation: Criminal Procedure Law, Article 108 (definition of "close relatives")
Related: Documents Required to Appoint a Lawyer → | Power of Attorney → | Hiring a Lawyer from Overseas →
Disclaimer: This article provides general information about Chinese criminal procedure and does not constitute legal advice. The applicable procedures may vary depending on the circumstances of the case and the relevant authorities.