Wednesday, December 21, 2016

Bullying Ignites Calls to Lower Age of Criminal Responsibility in China


Juvenile Prison Library. Image credit: Xin Hua Sichuan.

In recent months, we have seen weekly, sometimes daily, media coverage of violent bullying amongst children in Chinese schools. Prompted by such reports, the Ministry of Education, Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and five other central party and government bodies issued a guiding opinion last month on the prevention of school bullying and violence among primary and secondary school students.

With disturbing and viral videos of such incidents circulating throughout Chinese social media and lurid media reports of deadly assaults and other crimes committed by children, there is a growing sense of moral panic about the rise in juvenile crime and the inadequacy of existing laws and institutions to handle the problem.

Public sentiment on the issue of juvenile crime spiked last August, following a pair of news reports that attracted widespread attention. In one, a 13-year-old Guangxi boy was sentenced to three years of “custody and education” after brutally killing three young children with rocks and a knife. In another, a 13-year-old boy from Sichuan was released into the custody of his father after using gasoline to set a young teacher on fire in order to steal her iPhone.

Stories like these have garnered vocal support for lowering the age of criminal responsibility, currently set at 14 years old, for violent and other serious crimes. One online poll showed 85 percent of respondents agreeing that the age limit should be lowered. Some lawyers and other commentators have taken up the issue, calling for immediate legislative reform.

Commentators cite societal and cultural factors—such as decreased parental supervision and excessive exposure to violent video games and movies—as the major contributing factors to the apparent rise in juvenile crime. As such they see stricter legal sanctions as the only way to control the rise and criticize recent reform trends towards non-custodial measures and diversion from punishment as only further contributing to juvenile delinquency.

Despite popular pressure, there are signs of official support for reforms from Chinese legal experts who are skeptical about adopting a more punitive juvenile justice regime. Last month, People’s Daily, the official Communist Party’s newspaper, published an essay by Beijing Normal University Law School Professor Song Yinghui warning that lowering the age of criminal responsibility ran counter to the evidence-based, “scientific” approach that has guided the development of juvenile justice in China in recent years. Song advocates for treating the root social causes of juvenile delinquency, rather than turning to a more punitive system that seemingly promises quick fixes and the “instant gratification” of seeing more children tried as adults.

The gradual pace of juvenile justice reform and the nature of sensational and viral media coverage on juvenile crime will all but guarantee that the debate over lowering the age of criminal responsibility will continue for some time to come.

Looking Rationally at the Age of Criminal Responsibility in China

Song Yinghui

People’s Daily, November 16, 2016

In recent years, there has been report after report involving incidents of school violence and socially harmful, terrible acts carried out by young juveniles. Some advocate lowering the age of criminal responsibility, but this proposal lacks empirical data and scientific basis. Such a suggestion could potentially make things worse, rather than better. We should take an objective and rational approach to the problem of juvenile criminal behavior and should not have scientific and professional judgements influenced by extreme individual cases or public opinion.

Chinese legal provisions on the age of criminal responsibility are in line with global trends of criminal law and correspond with circumstances in our country. At the present time, a majority of countries set the age of criminal responsibility at 14 years old or above. Although some countries set a lower age limit, these countries all have separate legal provisions and judicial processes for juvenile crime. In the vast majority of cases in these countries, minors who have committed harmful acts are handled through non-criminal or non-punitive interventions; only a small number of juveniles are convicted and punished using the adult criminal procedure.

Ever since China’s first modern criminal code, the Great Qing New Criminal Law of 1911, we have gradually adopted a dual standard for the age of criminal responsibility at 14 years [Ed.: for certain serious offenses] and 16 years [Ed.: for all other offenses]. This assessment has taken a number of factors into consideration, including China’s historical and cultural traditions, geographical and climatic conditions, criminal justice policies, child development, amount of time spent in school, and social experience. This standard has endured the test of time and is in line with the physical and mental characteristics of juveniles and the patterns regarding the occurrence and development of crime.

The argument in favor of lowering the age of criminal responsibility lacks support from empirical data and risks becoming victim to the fallacious idea that as humans become more civilized the age of criminal responsibility ought to be lowered.

To this point in time, I have seen no systematic set of statistics or research on harmful behavior by minors under the age of 14, and there is no uniform system for reporting acts of school violence. Therefore, we shouldn’t simply make sweeping generalizations from extreme, terrible incidents exposed by the media and conclude that that the number of criminal acts by minors under the age of 14 is rising dramatically. If we were to use these reports as the empirical basis for amending the universal legal standard and thereby lowering the age of criminal responsibility, it would violate the spirit of scientific and cautious legislation.

Today’s juveniles are maturing more quickly than their age-peers of 30 years ago, but the social environment in which they are living has also undergone tremendous change. There has been no shortening of the growth period in which they learn, practice, and engage in trial and error, and their mental states are not maturing any earlier. In fact, when young juveniles commit harmful acts, it demonstrates that they do not yet possess the ability to discern situations or control themselves. Otherwise, as civilization progressively advances the age of criminal responsibility would get lower and lower.

Lowering the age of criminal responsibility does nothing to resolve the problems that lead young juveniles to commit harmful acts. A great deal of empirical evidence and research shows that the root of illegal acts by juveniles are problems with families or guardians, education, and social governance. For example, most of the detainees in juvenile detention centers come from broken homes, or are "left behind" children with precarious living situations, marked by idleness, homelessness, and upbringings surrounded by the negative influences of entertainment venues like Internet cafés, bars, or karaoke parlors.

Simply punishing juveniles is not only ineffective at preventing juvenile crime; it actually is a way of avoiding problems and shifting responsibility. Sentencing juveniles to prison not only leads to cross-infection from others; it also does nothing to help repair social relations. Once extremely malleable juveniles are labeled as criminals, it is easy for them to develop a mentality of hatred and even become antisocial and prone to re-offend. Research in psychology, sociology, psychiatry, and behavioral science all shows that juvenile psychology is highly susceptible and volatile. If provided appropriate education and intervention, the vast majority of problematic juvenile behavior or psychological deviations can be corrected.

When we maximize the interests of children, we are also maximizing the interests of society. Only by enabling juveniles who have committed socially harmful acts to return to society do we truly protect society.

The most urgent task is to establish a system of early intervention separate from the adult system that distinguishes between minor and serious harmful behaviors; to use educational preventative measures, targeted to address the problems facing juveniles; and to change the current situation where we “lock them up and forget them.” At the same time, we should immediately improve the legal system and establish measures that strengthen family monitoring. We need to strengthen responsibility of schools and educators and improve mechanisms to prevent and manage school violence. We should better regulate harmful social environments that have a negative influence on the education and daily life of juveniles. And we must increase government assistance and support for juveniles and their families who live in extreme poverty.

In other words, we must solve the problem at its root. This is the only true path to responding to and preventing illegal criminal acts by juveniles.

(Song Yinghui is Director of the Juvenile Justice Expert Committee of the Criminal Procedure Law Research Association, China Law Society)

Tuesday, December 13, 2016

China Tightens Clemency Rules for Political Prisoners


Supreme People's Court of China, Beijing. Image credit: ChinaNews.com

On November 14th the Supreme People’s Court (SPC) published China’s most recent interpretation of the Criminal Law’s articles on sentence reduction and parole. The regulations, which take effect on January 1, 2017, will tighten rules for granting reduced sentences and parole to prisoners serving time for endangering state security (ESS) and other serious crimes including corruption. [1] They reflect a 2014 guiding opinion (指导意见) from the Communist Party’s Political and Legal Commission that mandated tougher rules for “three types” of crimes including bribery, financial fraud and organized crime—and they are considerably more detailed than the Court’s previous interpretation on sentence reduction and parole, issued in 2012.

For decades, the SPC has issued regulations calling for “strict handling” of clemency for prisoners serving sentences for counterrevolution and (after 1997) ESS, a category of crimes that includes subversion, inciting subversion, splittism, and inciting splittism. However, until these latest regulations were issued, the court hadn’t defined “strict handling”, leaving it up to the provinces to decide what measures to apply to ESS prisoners in each jurisdiction. [2]

Under the new regulations, “ordinary prisoners” sentenced to life in prison must wait two years before the sentence is commuted to a fixed term sentence of no less than 19 years. Thereafter, each ensuing sentence reduction can occur at a minimum interval of two years, and the length of the reduction is based on the prisoner’s behavior and whether the prisoner performs “meritorious service.” [3]

The new regulations mandate that ESS prisoners like Ilham Tohti and Wang Bingzhang (王炳章) and other prisoners serving life sentences for serious crimes must wait a minimum of three years, rather than two, before the sentence is commuted to a term of no less than 20 years (as opposed to 19 for ordinary inmates). While each ensuing sentence reduction can occur at a minimum of a two-year interval, reductions for ESS prisoners cannot exceed one year. In the best-case scenario, if Ilham Tohti’s life sentence were commuted to a 20-year fixed term sentence in January 2017, it would be 2030 before his sentence would expire, and that would be only if all regulatory requirements for subsequent sentence reductions had been satisfied.

Similarly, prisoners serving fixed term sentences of more than ten years under the new regulations are treated differently according to whether the crime is an ordinary crime or falls under one of the categories of serious crime (which includes ESS) as specified in the SPC regulations. Thus, an ordinary prisoner serving a 12-year sentence for robbery must wait a minimum of two years before being eligible for his or her first sentence reduction, and thereafter must wait at least eighteen months before being considered for subsequent reductions. The length of the reductions is largely at the discretion of the prison authorities, but cannot exceed two years.

By contrast, while a prisoner serving a 12-year sentence for subversion, an ESS crime, must wait at least two years before the first sentence reduction (which is the same for ordinary prisoners) thereafter, he or she must wait more than eighteen months before being considered for a sentence reduction, and the sentence reduction cannot exceed one year.

Three points are worth bearing in mind:

  1. The new regulations apply to everyone currently serving prison terms; in other words, existing sentences are not “grandfathered.” Dui Hua has documented many cases of prisoners serving long sentences for counterrevolution and endangering state security who have received generous sentence reductions that released them from prison many years before the expiration of their original sentences. (Hong Kong journalist Xi Yang , for example, served less than four years of a 12-year sentence for trafficking in state secrets.) The new regulations apply to prisoners whether their sentences were handed down before January 1, 2017 or after. Prior rules and practices will no longer apply.

  2. Provincial prison authorities will be able to impose stricter restrictions than those in the SPC regulations, but they may not impose laxer restrictions.

  3. Medical parole is not covered by the new regulations. Prisoners with serious illnesses can be released at any time with the approval of prison authorities and, for prominent political prisoners, approval by the Ministry of Justice in Beijing. (ESS prisoners who perform meritorious service can be granted clemency, but Dui Hua is not aware of a single example of an ESS prisoner getting a sentence reduction or parole in this manner.) Accordingly, as it has been for many years, medical parole remains the best hope for political prisoners seeking early release from prison.


1. For sentences up to ten-years, serious crimes include graft; undermining financial order and committing security fraud; organizing, leading, participating in, harboring, or colluding with organized crime; endangering state security; terrorism; serious drug-related crimes; recidivism; refusing to fulfill financial judgment. For sentences of ten-years or more, serious crimes include the above, and murder, rape, robbery, kidnapping, arson, causing an explosion, releasing harmful materials, and organizing violent crimes.   Return to Article

2. In the absence of a national standard as to what "strict handling" means, local authorities have been given broad discretion of interpretation and implementation. In December 2003, the Shanghai High People’s Court issued provisional rules stipulating that a sentence reduction for an ESS prisoner is normally up to one year shorter than that for other prisoners who satisfied the same conditions. The rules also stated that there must be an additional delay of one year before sentence reduction when a prisoner was eligible for “a normal commutation to a 20-year fixed-term sentence." In 2009, the Yunnan Prison Management Bureau announced that sentence reductions for ESS prisoners would be three to six months shorter than those for other inmates under satisfying the same conditions. Restrictions on parole for ESS prisoners are also in force in other provinces and municipalities. In January 2005, Beijing issued a decision that required instructions from higher organs before parole can be granted to ESS prisoners. In the same year, Shandong issued a similar provisional notice that stated “criminals who endanger state security… are normally not to be granted parole.”    Return to Article

3. The regulations define meritorious service as 1. Preventing others from committing crimes; 2. Reporting and exposing criminal activities inside or outside prison, or providing important clues for solving a case, which are later verified as being true; 3. Assisting the judicial organs in arresting other criminal suspects; 4. Making outstanding achievements in technological innovation in production and scientific research; 5. Actively resisting natural disasters or preventing major accidents; 6. Making major contributions to the state or society.   Return to Article

Wednesday, November 30, 2016

Is Life Without Parole a Signal of China's Will to Reduce Executions?


High ranking officials Bai Enpei (left) and Wei Pengyuan (right) sentenced to life without parole for extreme corruption charges. Image credit: Comm News and Caixin.

Former high-ranking officials Bai Enpei and Wei Pengyuan have become the first individuals in China sentenced to life in prison without the possibility of a sentence reduction or parole (“life without parole,” or LWOP). The sentences for Bai and Wei were made possible by last year’s amendments to the PRC Criminal Law, which included a new provision that authorizes judges to issue LWOP along with suspended death sentences in extremely serious corruption cases.

Before these cases, it had become common in China for high-ranking officials to receive sentence commutations after their suspended death sentences, effectively allowing for release on parole several years later. The judgments for Bai and Wei, however, state explicitly that after a two-year reprieve from their death sentences, they must begin serving LWOP sentences.

On October 9, 2016, the Anyang City Intermediate People’s Court in Henan province found that Bai abused his posts and illegally amassed more than RMB 247 million yuan (approximately USD $37 million) in assets. (Bai had previously served as Party Secretary in Yunnan and Qinghai provinces and was most recently a Vice Chair of the National People’s Congress Environment and Resources Protection Committee.) A week later, the Baoding City Intermediate Court in Hebei province similarly found that Wei kept more than RMB 200 million yuan (approximately USD $30 million) at his home, corroborating suspicions that Wei received bribes to approve coal projects.

Bribery charges in excess of RMB 3 million yuan trigger a maximum penalty of death, but other defendants accused of receiving millions more in bribes have still received sentences that leave open the possibility of future release (e.g., Zhou Yongkang and Liu Zhijun). Bai and Wei have thus become the first “tigers” ensnared in Xi Jinping’s anti-corruption campaign to receive sentences mandating that they die behind bars.

Observers Question Legality of New Life Without Parole Sentences

Since the sentences of Bai and Wei were reported, some informed observers have questioned whether the courts properly applied the law, with attorney and microblogger Chen Youxi emerging on social media as a leading critic. When the Criminal Law was amended last year, Dui Hua noted that Article 383—which covers official corruption—authorizes courts to simultaneously pronounce sentences of LWOP and death with two-year reprieve during initial judgment (as opposed to courts issuing LWOP decisions after completion of the two-year period of reprieve). Consistent with Article 383, the courts in the cases of Bai and Wei both pronounced the LWOP sentences at the time of judgment.

Attorney Chen acknowledges that Article 383 authorizes courts to pronounce LWOP sentences, but finds that the Criminal Law only allows the court to amend a suspended death sentence after the defendant successfully completes the period of reprieve. Legally speaking, completing the death penalty suspension is not a foregone conclusion—for instance, the defendant must admit guilt and no new crimes can be discovered during the period of reprieve.

Chen claims that issuing LWOP as a condition of a suspended death sentence assumes that the defendant will successfully complete the reprieve period. According to Chen, a broader analysis of the legislative and regulatory framework of the Criminal Law indicates that the courts’ actions and Article 383 violate the legal logic relevant to suspended sentences.

Is Life Without Parole a Step Towards Abolishing the Death Penalty for Corrupt Officials and the General Public Alike?

Despite Attorney Chen’s objections, the sentences given to Bai and Wei are likely to be upheld, as they come in the context of China’s broader effort to combat corruption and to place serious limits on the death penalty. Since 2011, 22 non-violent crimes have been removed from the list of capital offences. Beijing Normal University Criminal Law Institute Professor Yuan Bin believes that capital punishment is a source of tension between the legal system and Chinese society: on the one hand, corruption is primarily a non-violent offense that does not directly threaten lives, and so the death penalty seems disproportionate; on the other, there is strong public support for harsh punishment of corrupt officials, which suggests that efforts to abolish the death penalty for offenses such as bribery would meet stiff public resistance.

Further complicating matters, despite public support for harsh punishment, the current trend in sentencing is against executing corrupt officials. Though three high-ranking officials were executed in 2011 for taking bribes, since 2012, when Xi Jinping came to power and launched his anti-corruption crackdown, no high-ranking officials charged with accepting bribes have been executed.

The June 2013 sentencing of Liu Zhijun is seen by many as a turning point towards leniency for corrupt officials. Though he was found guilty of taking bribes totaling more than RMB 64 million yuan (more than USD $10 million), instead of immediate execution he received a suspended death sentence. According to Southern Weekend’s count, among high-ranking officials criminally charged since the 18th Party Congress, six have received life in prison with no imposed restrictions on the possibility of parole (including Zhou Yongkong and Ling Jihua) and 21 have received fixed prison terms.

At least some lawyers and judges have suggested that the trend against executions in official corruption cases might lead to abolition of the death penalty altogether. A “highly experienced” judge commented on Chen Youxi’s microblog that eliminating capital punishment for official corruption might provide a model for total abolishment of the death penalty. The judge noted that if the death penalty was phased out, China would join more than 100 nations that have legally abolished the death penalty or have done so in practice. Most likely, even if China eliminated executions in practice, the death penalty would almost certainly remain on the books as a punishment option in extreme cases.

Often overshadowed by debates over the death penalty, life imprisonment without parole is also a controversial international topic. The UN General Assembly, for instance, since 2006 has regularly called for immediate abrogation of juvenile LWOP sentences in all countries. From 2006-2008, the US cast the lone dissenting vote to this resolution, but reversed its stance in 2009. The US Supreme Court then found in the 2012 case Miller v. Alabama that the Eighth Amendment of the US Constitution “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.”

In the aftermath of the Miller case, Dui Hua also noted LWOP for adult offenders runs counter to the spirit of international conventions, including those to which the US is a party. The International Covenant on Civil and Political Rights (ICCPR) states that the aim of prison systems “shall be [prisoner] reformation and social rehabilitation”—a futile goal if an eventual re-entry to society is not within reach. Nonetheless, LWOP sentences are common in the US for violent crimes like homicide, and according to the Sentencing Project, there are more than 49,000 people in American prisons serving sentences of life without the possibility of parole (as of 2012). By comparison, lifetime prison sentences are not an option in many countries across Latin America, Europe, and Asia.

In China, the goal of deterring corruption appears to outweigh the controversy over imposing LWOP for non-violent crimes. Professor Ruan Qilin of the China Politics and Law University Criminal Justice Institute suggests that LWOP sentences are appropriate given China’s fight against corruption and the rarity of executions for officials convicted of corruption. Instead of executing corrupt officials, LWOP preserves a deterrence function, while at the same time, citizens fed up with corruption are “comforted and placated” (抚慰和鼓舞). Professor Ruan claims that LWOP has a greater deterrent effect than sentencing practices in other countries, specifically questioning those in Spain, where even violent terrorists are regularly released early despite initial prison sentences hundreds of years long.

Phasing out the Death Penalty: Welcome to the Life Without Parole Era?

It remains to be seen whether the sentencing treatment of Bai and Wei is a harbinger of change. Will the Chinese government note public reaction to the use of LWOP in corruption cases and adjust accordingly? Even if the public is generally amenable to LWOP for corrupt officials, societal tensions will still arise in response to wrongful executions of ordinary citizens (e.g., the recent investigation into officials involved in the wrongful conviction of 18-year-old Huugjilt in 1996). The knowledge that, in cases of corruption, high-ranking political officials are largely exempt from capital punishment (and therefore from the possibility of wrongful execution), while ordinary citizens have no such protection, will likely not sit well with the general public. Should these circumstances swing public opinion against general use of the death penalty, future amendments to the Criminal Law might include LWOP as a possible replacement in an array of criminal offenses.

Tuesday, November 8, 2016

The Case of Feng Zhiming: A Question of Accountability


Li Sanren and Shang Aiyun, parents of Huugjilt, who was wrongly executed for rape and murder at age 18. Image credit: China Daily

On October 18, a court in Inner Mongolia sentenced the former deputy police chief of Hohhot, Feng Zhiming, to 18 years in prison. Feng’s conviction on charges of corruption, taking bribes, having large amounts of property that cannot be accounted for, and illegal possession of firearms and ammunition made national headlines, in part because of his connection to one of China’s most infamous cases of wrongful conviction and execution of an innocent person— the case of Huugjilt.

Huugjilt was executed in 1996 for the rape and murder of a woman whose body he had reported finding in a public toilet. The case against the 18-year-old Huugjilt moved swiftly through the criminal justice system, taking just over two months from the time of his arrest to his execution. Law-enforcement authorities considered it an open-and-shut case, based mainly on the strength of the defendant’s confession, allegedly made while he was in custody. The key players responsible for steering Huugjilt’s case through the system went on to receive promotions and commendations. But in 2005, a serial murderer confessed to the crime. When authorities reviewed the case they determined that Huugjilt had been wrongly convicted.

In the years that followed, judicial authorities were repeatedly ordered to reopen the case. But it was not until November 2014 that the Inner Mongolia Autonomous Region High People’s Court held a new trial and posthumously exonerated Huugjilt of all charges.

Days after the court’s decision, it was announced that Feng Zhiming, the police official who had led the original criminal investigation in 1996, had been placed under arrest by the local procuratorate and was being investigated for dereliction of duty, coercing confessions through torture, and taking bribes.

To many Chinese, Huugjilt’s wrongful conviction and Feng Zhiming’s arrest were clearly connected. At the time of the arrest many hailed it as evidence of a new commitment to fighting wrongful convictions by demanding individual accountability from law-enforcement. However, Feng Zhiming’s conviction—despite the heavy prison sentence—left many disappointed when no mention was made of the Huugjilt case or Feng’s role in it. An online survey of more than 1,000 people conducted by the Beijing News found that nearly three quarters of respondents thought that Feng should have been held criminally responsible for his role in the Huugjilt case and 57 percent considered the verdict’s failure to mention the case “unreasonable.”

It took 18 years to finally exonerate Huugjilt of the crime for which he was wrongly executed, so there’s a certain symbolic balance in a prison sentence of 18 years for the man widely believed to have been responsible for the miscarriage of justice. However, absent an official statement from judicial authorities connecting Feng’s many criminal misdeeds with Huugjilt’s specific case, the question of accountability and positive change in the legal system remains.

Last February when authorities in Inner Mongolia announced the results of their investigation into 27 individuals being held in connection with Huugjilt’s wrongful conviction, Feng Zhiming was unique in that his case was being “handled separately” in the criminal justice system. But in the The Beijing Times of October 19, 2016, columnist Binglin observes that the earliest charges brought against Feng Zhiming dated from 2000—four years after Huugjilt’s execution—meaning that the question of his role in the case was never actually put before the court. Binglin asks:

Does Feng Zhiming’s responsibility for this miscarriage of justice fall within the scope of criminal liability? Even if his responsibility is limited to the realm of administrative sanction or party discipline, the fact that he’s been held criminally responsible for other acts shouldn’t mean abandoning the pursuit of a clear explanation of personal accountability and punishment for his role in the miscarriage of justice.

On the same day, in Shanghai’s Oriental Morning Post, columnist Shen Bin points out that Feng Zhiming’s corruption has been documented “to two decimal points,” meaning that the investigation was conducted quite thoroughly. He asks: “Has the statute of limitations expired or has so much time passed since the Huugjilt case that it’s become too difficult to pin down the relevant evidence? I hope there will be an authoritative answer.”

Ultimately, these discussions highlight the importance of transparency and accountability. While the arrest and sentencing of Feng Zhiming provides some consolation, without the specific accountability that a judicial judgment could bring, justice has yet to run its full course. And without a reasonable explanation for why Feng’s role in the Huugjilt case has so far gone unpunished, many will conclude that there has been some sort of cover-up.

Tuesday, October 11, 2016

China: New Rules on Electronic Data Collection Take Effect


New rules raise concern over whether China’s criminal justice system can adequately protect the right to privacy while exercising the power to collect and make use of electronic evidence. Image credit: Sina.com.cn

On October 1, a new set of rules took effect in China that raised alarms when first introduced last month. Casual observers worried that the “Provisions Concerning the Collection, Extraction, Review, and Judgment of Electronic Data in the Handling of Criminal Cases” (“Provisions”) (translation), issued jointly by the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security, would mean that from now on, every word you say in a Weibo post or WeChat circle could be used against you in court.

In fact, the Provisions don’t appear to give legal authorities greater powers or put PRC netizens and mobile users at substantially increased risk of criminal prosecution for their online activity. Rather, the new rules clarify the types of electronic data that can be collected in prosecuting criminal cases and establish protocols for handling the data.

That said, the public’s sense of insecurity can be readily understood in the context of a criminal justice system in which investigators routinely act arbitrarily and without effective checks on their power. Given the amount of content and metadata stored in computers, electronic devices, and network systems, the real question is whether China’s criminal justice system can adequately protect an individual’s legitimate right to privacy while exercising the power to collect and make use of electronic evidence.

***

In the course of a criminal investigation, Article 52 of the Criminal Procedure Law (CPL) in China gives courts, procuratorates, and public security organs the power to collect and obtain evidence from relevant organizations and individuals who, in turn, are obligated by law to be truthful and to provide the required information.

To obtain evidence from someone, investigators need only seek internal approval and do not need external authorization in the form of a warrant or something similar. Verification of evidence and review of whether it was obtained and handled lawfully is supposed to take place at trial, and any evidence deemed to have been collected or obtained unlawfully is supposed to be excluded.

When the CPL was amended in 2012, the section on evidence was updated to include electronic data among the kinds of evidence that can be used as the basis of a criminal conviction. Considering how much of contemporary life takes place online, including criminal activity, it’s reasonable to give law enforcement some power to collect electronic evidence in criminal investigations. And, given that data can be easily altered or deleted, there are particular concerns regarding timely seizure of the evidence and preservation of its integrity. Recognizing this, the new measures aim to provide clear standards for collecting and storing electronic data, protocols for preserving the integrity of the data, requirements regarding the chain of custody as electronic evidence moves through the criminal procedure, and guidelines for verifying and validating evidence.

***

Perhaps the main reason Chinese netizens have been so alarmed by the Provisions is the broad, open-ended scope of digital content that is now potentially subject to collection and to being used as evidence in criminal cases. Included are:

  • Information on web pages, blogs, microblogs, chat groups, and network cloud storage
  • Correspondence in the form of text messages, email, instant messages, and chat groups
  • Other data such as account registration, user authentication data, electronic transaction records, and login records

With potential access to so much data from computers and networks, authorities will inevitably encounter personal data of a private nature that has no connection to the criminal investigation at hand. According to legal commentator Bing Lin at the Beijing Times

If collection of evidence is not subject to regulation, and attention is not paid to protecting citizens’ privacy, it will be very easy for an individual’s personal information to be leaked. Therefore, the granting of power to law enforcement agencies to collect electronic data as evidence also implicitly carries the imperative to regulate the way this power is carried out in order to achieve a balance between fighting crime and protecting citizens’ privacy.

According to Bing Lin: “We cannot one-sidedly focus on the role electronic evidence can have in fighting crime while ignoring the need to regulate the way that law-enforcement personnel collect this evidence.” Though Legal Daily commentator Liu Xun starts from the premise that public interest outweighs the individual’s right to privacy, he too acknowledges "When it comes to collecting and obtaining electronic data, judicial authority should define concrete measures in order to effectively prevent investigators from disclosing personal or private information and to reinforce implementation of the discipline for maintaining secrecy."

One of the arguments used to reassure the public is that law enforcement authorities have these powers to collect and obtain electronic evidence only in the context of criminal investigations. However, the editorialists at Southern Metropolis Daily point out that this argument actually offers little comfort:

What’s truly worth noticing is the impulsive and arbitrary manner in which criminal prosecutions are carried out in some parts of China, without effective limits or oversight. Sometimes it’s too easy to file a criminal case for investigation (for example, in past arrests of individuals for so-called “online defamation of county leaders”). Sometimes the exact opposite is the case...The reality behind the contradiction is the arbitrary way that criminal cases are filed for investigation. What prompts public concern about the new rules covering data collection from Weibo and WeChat friend circles is the lack of effective oversight of the criminal case-filing process and the absence of strong procedural checks on the way specific cases are handled (particularly where judicial authorities accept evidence that they know was unlawfully obtained).

Noting that the Provisions raise issues that have “broad impact on citizens’ lives,” the Southern Metropolis Daily hints that when decisions about electronic data collection depend solely on judicial interpretations and administrative regulations, there is no avenue for public input. Ensuring that rule-making “adheres to the relevant provisions of Legislation Law” and “makes public input a mandatory part of the process” will “help dispel misconceptions and prevent surprise attacks.”

Wednesday, September 14, 2016

China: SPC Issues New Regulations on the Release of Court Judgments Online


Written judgments from criminal and civil cases in a Yunnan court. New regulations now state that digital copies of such judgments must be released online within a week of a court’s decision. Photo credit: ynfy.gov.cn

[Updated: as of September 30, 2016, Dui Hua has obtained 117 judgments YTD.]

In a bid to increase judicial transparency, including the adjudication of sensitive political cases, China’s Supreme People’s Court (SPC) recently released new regulations that unambiguously assign to courts throughout the country the responsibility for publicly releasing judgments (see translation of the regulations below). The SPC released similar regulations in 2013 and 2010, but the new regulations require courts to release more information, and with greater detail.

Article 1 of the regulations states that “People’s courts should promptly release court judgments online.” The new regulations provide a stronger mechanism for making courts comply with this provision—if the court decides not to release a judgment to the public, it must make public the reasons for not releasing it (Article 6). Courts also have a new deadline for releasing judgments under the new regulations— “Legally effective court judgments should be posted online within seven working days of taking effect” (Article 7).

The Discretion to Keep Secrets

The new regulations provide more detailed guidance to courts when they determine that judgments should not be posted online. Article 4 states that judgments are not to be released if they (1) involve state secrets, (2) involve underage suspects, (3) are resolved by arbitration, (4) concern divorce, or (5) involve custody of underage children. The regulations give unfettered discretion to keep judgments secret if the court determines that a judgment is “unsuitable for online posting.” The meaning of “unsuitable” is not clarified in the regulations.

The language of these regulations provides leeway to courts to restrict the release of court judgments in cases other than prosecutions of state secrets crimes under Article 111 of the PRC Criminal Law. Court cases that are not ostensibly political might be subject to restrictions on posting online, including but not limited to civil cases involving trade secrets (which might also be classified as state secrets), administrative cases of citizens against the government, financial fraud, and disturbing market order. The police or procuratorates, rather than courts, might possess practical authority to decide when certain cases sufficiently “involve” state secrets such that they are withheld from the public.

Regulations Having the Intended Effect?

Although the courts possess authority to block public release of judgments if they “involve” state secrets or are otherwise “unsuitable” for online posting, courts have been much more forthcoming with judgments since the previous set of regulations were issued in 2013. During the three-year period those regulations were in effect, the number of judgments involving endangering state security (ESS) cases that Dui Hua obtained from official websites increased each year: in 2014, 27 judgments were obtained, in 2015, 80 judgments, and, so far in 2016, 117 judgments [updated]. ESS crimes, which include subversion, inciting subversion, splittism, inciting splittism, espionage, and state secrets violations, are the most political in China’s Criminal Law. The decision to publicly release ESS judgments serves as a useful touchstone for assessing judicial transparency.

Considering that the number of ESS trials has declined during the same three-year period, the increase in judgments posted online is all the more surprising. Dui Hua has estimated that Chinese courts concluded more than 500 ESS trials of the first instance in 2015, compared with more than 1,000 ESS trials in 2014 and 893 in 2013. The drop is attributed to judicial authorities trying cases that used to be considered ESS cases as cases of terrorism and disturbing social order.

Restrictions on Redaction

In addition to stipulating which judgments can be released, the new regulations provide some guidance on the content that must be provided in court judgments. Article 8 of the regulations states that courts should redact the names of crime victims, juveniles, and parties to certain types of family cases. Article 10 states that courts should redact certain types of information, primarily personal, private information. The rules also give courts broad authority to redact other information that they deem “inappropriate” for public release.

The regulations’ drafters likely attempted to avoid issues surrounding the redacting of criminal defendants’ and prisoners’ names. In a change from the 2013 version, the new regulations no longer require the redacting of names of people who are not repeat offenders or who have been sentenced to three years in prison or less. Juvenile defendants should have their names redacted in online judgments owing to Article 8’s restriction on publishing juveniles’ names in general. Other than these changes, however, courts receive little guidance on how and when to publish the names of criminal defendants. Although redacting a defendant’s name can mitigate social stigma associated with a conviction, publicly releasing a defendant’s name can also help family and supporters advocate for greater judicial transparency and clemency.

New Opportunities for Tracking Court Transparency

On paper, the new regulations appear to be an improvement over the 2013 version, as they identify courts as the specific institution responsible for releasing judgments and require courts to publicly give reasons for refusing to release judgments. Judging by the increased number of ESS cases released to the public since the previous regulations took effect in 2013, regulations governing the release of judgments also appear to increase court transparency, which hopefully encourages public identification of suspects in most cases—including those involving ESS. Over the next months and years, Dui Hua plans to step up its monitoring of court websites to determine the extent to which courts are exercising their responsibility to release judgments online.

*

Regulations of the Supreme People’s Court of China Regarding the Release of Court Judgments Online

*

The Supreme People’s Court of China
Legal Interpretation No. 19 [2016]

August 29, 2016

The “Regulations of the Supreme People’s Court of China Regarding the Release of Court Judgments Online” was passed on July 25, 2016 at the Meeting No. 1689 of the SPC Adjudication Committee, and will become effective on October 1, 2016.

These regulations are formulated to implement and carry out the principle of public adjudication, standardize the people’s courts’ online judgment-releasing work, promote judicial fairness, raise the level of judicial credibility, bring together the practical experience of people’s courts, and they are in accordance with relevant regulations including the PRC Criminal Procedure Law, the PRC Civil Procedure Law, and the PRC Administrative Litigation Law.

Article 1: People’s courts should promptly release court judgments online according to law, in a comprehensive manner, and in a standardized fashion.

Article 2: The China Judgments Online website is the nationwide, centralized platform for releasing court judgments. People’s courts at all levels install links to China Judgments Online on their court political affairs websites and judicial transparency platforms.

Article 3: The following types of court judgments should be released online:

  1. Criminal, civil, and administrative judgments;
  2. Criminal, civil, and administrative enforcement judgments;
  3. Payment orders;
  4. Criminal, civil, administrative, and enforcement notices rejecting petitions for review;
  5. State compensation decisions;
  6. Decisions for compulsory medical treatment or decisions rejecting applications for compulsory medical treatment;
  7. Decisions to enforce or amend criminal penalties;
  8. Decisions to detain or to issue fines for obstructionist litigation activities and enforcement behavior; decisions for early release from detention; and decisions on applications for reconsideration that have been filed against orders for detentions and fines;
  9. Administrative mediation decisions and civil public interest litigation mediation decisions;
  10. Other court judgments in which there is a discontinuation or completion of the litigation process, there is an influence on a party’s material rights and benefits, or there is a major influence on a party’s procedural rights.

Article 4: People’s court judgments displaying one of the following types of characteristics should not be released online:

  1. Cases involved with state secrets;
  2. Juvenile crime cases;
  3. Cases resolved through mediation procedures or verifying the people’s mediatory agreements’ effectiveness, but not including those to protect state interests, the public interest, and other legal interests that need to be made public;
  4. Cases involved with divorce litigation or those involving the fostering or guardianship of minors;
  5. Other circumstances which cause people’s courts to believe internet release is not suitable.

Article 5: People’s Courts should, in their notices accepting cases and responses, inform the parties of the scope of release of judgments online and publicly inform people’s courts, via government affairs websites, electronic touchscreens, litigation guides, and other methods, of the relevant regulations for issuing court judgments online.

Article 6: Court judgments that are not released online should release the case number, the adjudicating court, the date of judgment, and the reasons for not releasing the judgment, except when releasing the above-described information could reveal state secrets.

Article 7: Legally effective court judgments should be posted online within seven working days of taking effect. First-instance judgments and judgments which have been appealed, or regarding which a procuratorial protest has been brought according to law, should be released online within seven working days of the second-instance court’s adjudication taking effect.

Article 8: People’s courts, when they release court judgments online, should redact the names of the following types of persons:

  1. Parties to marriage, family, and inheritance dispute cases, and their legal representatives;
  2. Crime victims and their legal representatives, collateral civil litigation plaintiffs and their legal representatives, witnesses, and expert witnesses;
  3. Juveniles and their legal representatives.

Article 9: According to Article 8 of these regulations, the redacting of names in the following circumstances should be handled accordingly:

  1. When the surname is kept, replace the given name with “X”;
  2. Regarding the names of ethnic minorities, keep the first character and replace the rest of the name with “X”;
  3. Regarding foreigners and stateless people, keep the Chinese transliteration for the first character, with the rest of the name replaced by “X”; regarding the English names of foreigners and stateless people, keep the first English letter and eliminate the rest of the name.

For repeat names resulting from redacting, use Arabic numerals after the names to distinguish them.

Article 10: When people’s courts release court judgments online, they should redact the following kinds of information:

  1. Family addresses, contact information, identification numbers, bank account numbers, health situations, vehicle license plate numbers, movable or immovable property certificate serial numbers, etc., of natural persons;
  2. Information regarding bank accounts, vehicle license plates, moveable or immovable property certificate serial numbers, etc., of legal persons and other organizations;
  3. Information involving corporate secrets;
  4. Private personal information regarding ongoing disputes involving family affairs, individual rights, etc.;
  5. Information that involves technological investigation measures;
  6. Other information that a people’s court believes is not appropriate to make public.

According to part (a.) of this Article, if redacted information influences the proper understanding of a court judgment, use the letter “X” as a partial replacement.

Article 11: People’s courts judgments that are released online should contain the following types of information regarding parties, legal representatives, entrusted agents, and defenders:

  1. Other than the handling of redaction under Article 8 of these regulations, if parties and other legal representatives are natural persons, keep the name, date of birth, sex, district and/or the county of residence; regarding parties and their legal representatives, if they are legal persons or other organizations, keep the name, residential address, organization code, and legal representative or primary responsible persons’ name and occupation;
  2. If entrusted agents and defenders are lawyers or grassroots legal service workers, then maintain the name, the professional registration number, and law firm or grassroots legal service institution name; for entrusted agents and defenders that are other types of personnel, keep the name, date of birth, sex, county or district of residence, and relationship to the party.

Article 12: If the judge handling the case believes that a court judgment involves circumstances pursuant to Article 4(e) of these regulations rendering inappropriate the release of the judgment online, then the judge should issue such opinion and the grounds for it in writing, and responsible staff from the relevant department, after conducting investigation, report to the managing court’s vice president for approval.

Article 13: The PRC Supreme People’s Court supervises and guides the whole country’s courts in work on releasing court judgments online. High-level and intermediate-level people’s courts supervise and guide district-level people’s courts in their work on releasing court judgments online.

Adjudication management offices of people’s courts at every level, or other institutions undertaking the function of adjudication management, have responsibility for the work of releasing their court’s judgments online and carry out the following duties:

  1. Organizing and guiding the release of court judgments online;
  2. Supervising and inspecting the work of releasing court judgments online;
  3. Coordinating and handling complaints and opinions from the public and society regarding court judgments;
  4. Coordinating technology departments to provide technological support and safeguarding;
  5. Other relevant management work.

Article 14: Courts at every level should rely upon information technology to take court judgments and publicly enter them into the procedures for adjudication management, reducing the amount of work in publicizing court judgments, while realizing promptness, comprehensiveness, and streamlining in releasing court judgments.

Article 15: In court judgments released online, other than the handling of technology implementation according to the requirements of these regulations, there should be consistency with the original court judgments.

People’s courts that correct the written errors of court judgments should promptly release the corrected judgment online.

The judge handling the case is responsible for the consistency between the court judgment that is released online and the original judgment, as well as the standardization of the technological processing.

Article 16: Court judgments released online that are inconsistent with the original judgment or that exhibit inappropriate technological processing should be promptly removed and released again after they have been corrected.

For court judgments that have been released online, if inspection reveals circumstances listed in Article 4 of these regulations, they should promptly be removed and then handled according to Article 6.

Article 17: People’s courts information technology service centers are responsible for China Judgments Online’s functional maintenance and upgrading, providing convenience to all of society for the use according to law of this website’s public court judgments.

In the application of different case numbers for different adjudication procedures, China Judgments Online cross-references court judgments with each other.

Article 18: These regulations are effective starting October 1, 2016. The Supreme People’s Court previously issued interpretations and standardizing documents, and in case of inconsistency, these regulations will serve as the authoritative version.


Wednesday, August 24, 2016

Chinese Officials Struggle to Counter Juvenile Crime Without Relying on Harsh Punishment


A juvenile judge in Anhui speaks with young offenders. Photo Credit: Guoyang County Court

At a press conference in May, the Supreme People’s Procuratorate (SPP) announced that nearly 30 percent of juvenile arrests and over eight percent of juvenile indictments in China were not approved in 2015, compared with 18 percent and five percent in 2012 (see chart below). Between 2003-2015, 14.8% of 1.08 million individual juvenile arrests were rejected, as were 4.4% of the 1.13 million individual indictments.

Avoiding harsh measures against juveniles reflects a changing legal framework since a separate juvenile justice section was included in the amended Criminal Procedure Law (CPL), effective since 2013. In the years following the CPL amendments, Chinese courts have emphasized the importance of an independent and standardized juvenile justice system, with an “education first” approach that features practices like mentoring and criminal record sealing.

In addition to lower rates of arrest and indictment, non-custodial measures are a major part of this approach. In 2015, Chinese courts handed down non-custodial (fei jianjin xing) or punishment exemption (mianyu xingshi chufa) measures to 48 percent of juvenile defendants. These non-custodial figures compare to 41.75 percent of defendants in 2012, as reported by the Supreme People’s Court Research Office, and 35.56 percent of defendants in 2010, according to the official compendium China Juvenile Justice (Zhongguo shaonian sifa). SPP measures on juveniles claim that this approach is designed to embody an “educational, corrective, and protective” approach.

Prosecution of Juveniles in China, 2012-2015


Sources: SPP; Dui Hua

Rising Violence Among China’s Youth

The use of non-custodial juvenile justice measures is not without its obstacles. Although it appears that juvenile crime in China has fallen overall during the past 10 years, violent crime committed by juveniles has continued to rise, offenders are getting younger, and gangs are more prevalent. According to Wang Wei, Deputy Chief of the Shanxi Province People’s Procuratorate Juvenile Division, juvenile offenders younger than 15 are increasingly common. Many procurators and scholars, Wang Wei among them, also believe that family troubles, especially social problems of “left behind children” and migrant youth, contribute substantially to these new trends in juvenile crime. Data from China’s most recent (2010) census show that over 60 million children were left behind in their rural hometowns as their parents became migrant workers in more urban areas. These children represent just under two-fifths of China’s rural child population and over one-fifth of the total child population. A report sponsored by Beijing Normal University and UNICEF concluded that left behind children are over 70% more likely to offend than other children with similar characteristics.

In July and August of 2016, provinces including Hubei and Shanxi introduced legislation and other changes to the judicial system intended to protect this at-risk population, and provinces with similarly high populations of migrants and left-behind children may well follow suit. Although increased attention towards providing more social services and monitoring to these young offenders is commendable, the disproportionate conviction rates and other persistent inequities faced by migrants and their children could indicate difficulty finding long-term, sustainable solutions for the increasing proportion of juvenile crime that is young, violent, and gang-related.

Juvenile Offenders and Media Control

Included among the responses of Chinese authorities to these broader trends in juvenile crime and justice administration are new requirements that limit the scope of juvenile crime reporting. In mid-2015, the State Internet Information Office (SIIO) promulgated a “Notice on Further Strengthening Management of Online Reporting of Juvenile Crime and Bullying Incidents,” which had followed sensationalist online reporting on upticks in serious juvenile crime. The notice lists several requirements, including that “websites shall not place reporting of juvenile crimes […] on their homepages or news channel headlines and shall not suggest related content in blogs, microblogs, forums, postings, pop-ups, navigation bars, search engines, or other such positions." Non-compliant outlets face “formal censure meetings, warnings, fines and other disposition methods, including revocation of website news service credentials, [which] may be imposed, according to the law[.]”

Unsurprisingly, major news outlets such as Xinhua and Legal Daily seem to have largely complied with the notice, removing their customary, “related content” sidebars for reports on juvenile delinquency, and they have also deleted many suggested search terms related to juvenile offending from drop-down menus. When the notice was introduced a year ago, commentators noted that its intent was to stem public fears of a juvenile violence epidemic, emphasizing that the protection of children’s privacy and dignity is paramount; however, the rules might have a pernicious side effect--silencing productive discussion on juvenile crime and infringing the public’s right to know.

A year later, the unintended effects seem to have dominated. Judging from aggregate data, the notice has had no discernable effects on either media mentions or public interest in juvenile crime, whereas it has limited access to objective reporting on the topic. Given that procuratorial officials like Wang Wei have recognized juvenile crime as a social and a legal problem, the SIIO’s restrictions go too far in limiting the discussion of potential solutions to the complex difficulties facing youth in conflict with the law.