Tuesday, June 23, 2015

China: Women Prisoner Numbers Rise 10 Times Faster than Men

Women exercise in the yard at Henan Women's Prison. Image credit: sina.com
The number of women in prison in China surpassed 100,000 in 2013, continuing a decade-long trend of population growth for women prisoners far exceeding that of men. Between 2003 and 2014, the number of women incarcerated in Chinese prisons soared 46 percent, 10 times faster than growth for the population of incarcerated men. By comparison, the number of women in US prisons grew 15 percent over the period, about one and a half times faster than the growth rate for men. As of mid-2014, 103,766 women were serving sentences in Chinese prisons.

If current trends continue, China will imprison more women than the United States, often cited as the world’s largest jailer, within five years. Over the past decade, the number of incarcerated women has increased an average of 3 percent per year in Chinese prisons, compared with 1 percent growth in American prisons. Accounting for more than 100,000 prisoners in each country, women make up 6.3 percent and 7 percent of total prisoner populations in China and the United States, respectively.

Number of Women in Prison in China and United States, 2003-2021*

Sources: Dui Hua; China Statistical Yearbook; Asian and Pacific Conference of Corrections Administrators (APCCA); Carson, E. Ann and Mulako-Wangota, Joseph. Bureau of Justice Statistics. Generated using the Corrections Statistical Analysis Tool (CSAT) - Prisoners at www.bjs.gov. (03-Jun-15).

Notes: Chinese prisoner data is as of the beginning of the year except for 2013 and 2014 data, which is mid-year. To allow for comparison, US prisoner data for each year is year-end data for the previous year. *Data from 2015-2021 is projected using historical data.

Women in Prison in China and United States, 2003-2014
Year China United States
Number % of Prison Population Number % of Prison Population
2003 71,286 4.6 95,137 6.7
2004 75,870 4.9 98,332 6.8
2005 77,279 5.0 101,972 7.0
2006 77,771 5.0 104,797 7.0
2007 78,334 5.0 109,257 7.1
2008 80,951 5.1 111,544 7.1
2009 85,167 5.2 112,136 7.1
2010 90,322 5.5 111,071 7.0
2011 93,051 5.6 110,478 7.0
2012 95,770 5.8 109,037 6.9
2013 100,584 5.9 106,279 6.9
2014 103,766 6.3 109,020 7.0
Sources: Dui Hua; China Statistical Yearbook; APCCA; Carson, E. Ann and Mulako-Wangota, Joseph. Bureau of Justice Statistics. Generated using the Corrections Statistical Analysis Tool (CSAT) - Prisoners at www.bjs.gov. (03-Jun-15).

The number of women in prison refers to the number of women reported to be serving custodial sentences in Chinese and American prisons. It does not include the number of women and girls held in Immigration and Customs Enforcement facilities, pre-trial detention, or juvenile facilities in the United States, or in detention centers, custody and education camps, legal education centers, mandatory drug treatment, or juvenile detention facilities in China. If all these data were included, the number of women and girls incarcerated in China would likely already exceed that of the United States.

Root Causes and Political Activism

Decisions to put women behind bars are made by prosecutors and courts, but women’s choices that lead to conflict with the law are often rooted in gender-based violence and poverty. A 2009 survey conducted by the All-China Women’s Federation indicates that domestic violence plays a role in more than half of crimes committed by Chinese women and that domestic violence causes 80 percent of the violent crimes they commit.

Demonstrating the importance of economic factors, drug- and property-related crimes were the most common offenses committed by women surveyed in five Chinese prisons and detention centers by researchers from Renmin University of China Law School in the summer of 2013. The researchers noted that the “vast majority” of women involved in drug crime, which includes possession, trafficking, and sheltering others to use drugs, is illiterate and relies on drug trafficking as its primary source of income. Property crime, which includes theft, fraud, illegal fundraising, and extortion, was most prevalent among low-wage earners in developed cities in eastern China.

Crackdowns on civil and political rights also contribute to an uptick in the number of women in prison. Women account for at least a quarter of people in custody who are listed in Dui Hua’s Political Prisoner Database. About 37 percent of prisoners of conscience involved in religious activities (including Falun Gong) are women, as are about 20 percent of petitioners.

China's Women Prisoners by Selected Crime Type

Source: Dui Hua; Cheng Lei, et al., “Research Report on the Treatment of Women Detainees in China.” Note: Percentages do not add up to 100, since researchers do not account for all crime types but focus instead on these five categories. There is also significant overlap between "non-violent" crime and all other listed crime types.


Perhaps not surprisingly, overcrowding is already a serious problem in women’s prisons in the United States and China. China has built six women’s prisons since 2003. Two of these were built after 2007, during the period when China experienced the most dramatic growth in its population of women prisoners. If China distributed women inmates evenly between its 36 women’s prisons, each would house 2,882 inmates, a figure 14 percent higher than for men incarcerated at China’s 614 men’s prisons. Some Chinese women’s prisons far exceed this average. Guangdong Women’s Prison, for example, opened in 2003 with a capacity of about 5,000 prisoners. That said, building prisons neither reduces the social and financial costs of incarceration nor addresses the root causes women’s conflict with the law.

Doing Women Justice: The Bangkok Rules

The large and growing population of women in prison in China, the United States, and worldwide makes attention to and implementation of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) all the more urgent. These rules provide a framework for improving conditions for women in prison by taking into account the fact that women in conflict with the law are more likely to have histories of abuse and different healthcare needs and child-rearing duties than men.

The Bangkok Rules also provide guidance on increasing the use of non-custodial measures to keep women out of prison in the first place. Since most women do not commit violent crimes or commit them in response to gender-based violence that was perpetrated against them, imprisonment is often disproportionate and unnecessary. It also carries with it the risk of further gender-based harassment and abuse.

Tuesday, June 9, 2015

Despite Legal Reform, SPC Still Blocks Lawyer-Client Access

Defense lawyer Zhang Kai holds a sign outside Zhejiang's Pingyang County Detention Center requesting that he be able to meet with his client in October 2014. Image credit: Weibo

Improving criminal defense lawyers’ access to clients was hailed as one of the highlights of the revised Criminal Procedure Law (CPL) that came into force in 2013. Incorporating provisions of the 2007 Lawyers Law that had yet to be universally respected, the new CPL requires detention centers to arrange for access within 48 hours of request by a lawyer upon presentation of his or her license to practice, the certificate of his or her law firm, and power-of-attorney documentation. The only exceptions are cases involving state security, terrorism, or “particularly serious” bribery, for which police investigators can require that a lawyer seek their approval before a meeting can be arranged.

Although these new provisions have not been implemented perfectly, defense lawyers generally acknowledge that access to suspects has improved in most routine criminal cases. But what recourse is there when these provisions are not strictly enforced?


On July 15, 2014, long-time petitioners Zhang Xiaoyu and husband Xu Youchen were formally “reprimanded” (xunjie) by Beijing police for disturbing public order. Two days later, officials from their hometown of Jiaozuo, Henan, accompanied them back home. Upon arrival, Zhang and Xu reportedly resisted attempts to hand them over to local police officers. Xu allegedly attacked a police officer with a small knife, causing a fatal wound. Xu and Zhang were then placed under criminal detention on suspicion of intentional homicide.

Lawyers for the couple attempted over a period of several days to meet with the detainees, but their multiple requests were refused by the Jiaozuo Detention Center. Finally, on July 25, lawyers got their first opportunity to meet with Zhang and Xu, who each spoke of being beaten by police. The lawyers took photographs of the couple’s bruised and swollen faces and uploaded these to the Internet.

The next day, detention center officials refused to provide the lawyers with any additional access to Xu and Zhang, saying that the lawyers had violated the rules by releasing photos of the detainees. The officials informed the lawyers that a complaint had been filed with judicial administration authorities in Shandong and that the detention center would not agree to any more visits, pending a decision on sanctions.

Over subsequent weeks, lawyers for the couple complained repeatedly to local and provincial authorities and attempted to get the official lawyers’ association to intervene on their behalf. When none of these efforts were successful, two of the lawyers—Liu Jinbin and Liu Shuqing—decided to sue the detention center in court.

Administrative Action or Judicial Process

Citizens or other parties who wish to challenge the legality of official government actions can do so under the Administrative Litigation Law (ALL). The challenge must involve a concrete administrative action directed against specific individuals or entities, rather than decisions with general applicability. The ALL also explicitly excludes certain areas from challenge, including national defense and foreign affairs, administrative rules and regulations, administrative decisions of an internal nature, and administrative acts that are deemed by the law to be within a particular state organ’s final authority.

Under the law, administrative actions are generally distinguished from actions related to judicial process. In theory, disputes that private parties may have with public authorities in the course of the judicial process should be dealt with as part of the judicial process itself. For example, unlawful coercion of confessions by investigators can be addressed through a request to have a court rule on exclusion of that confession from evidence. In China, however, many aspects of judicial authority are invested in the procuratorate, rather than the court. For example, procuratorates make decisions about whether suspects may be held under formal arrest pending trial and are generally responsible for ensuring that various parts of the criminal process are lawful.

China’s public security organs carry out a variety of functions, some of which fall under the category of administrative acts and some of which can be classified as being part of the judicial process. Punishments for public order offenses (such as short-term jailings, property confiscation, or fines) are unquestionably administrative actions and are, therefore, subject to challenge under the ALL. On the other hand, imposition of coercive measures and actions related to criminal investigation are considered to be actions related to the judicial process that are excluded from the purview of the ALL.

Legal Argument

In the nearly identical lawsuits that plaintiffs Liu Jinbin and Liu Shuqing brought before the Shanyang District People’s Court in November 2014, the main issue of dispute was whether arrangement of meetings between lawyer and detainee by a detention center should be considered an administrative action or part of the judicial process. The opportunity to argue this point at trial was itself a rarity, as courts throughout the country had basically refused to hear such cases for almost 15 years.

That hadn’t always been the case. In 1999, a Hunan lawyer named Liao Jianhua successfully sued the Loudi Public Security Bureau for refusing to allow him to meet with a detained suspect. According to Professor Chen Ruihua, there were a few other cases around that time where courts similarly granted relief to lawyers. But that effectively ended in March 2000, when the Supreme People’s Court issued an interpretation of the ALL that explicitly excluded from the purview of administrative litigation all “actions that the Criminal Procedure Law specifically empowers (shouquan) public security, state security [and other] organs to carry out.” With this provision, the SPC eliminated the courts as an avenue for lawyers to challenge decisions over access to detainees, which helped contribute to making the securing of such access one of the “three difficulties” often complained about by Chinese lawyers.

The lawyers argued that the Criminal Procedure Law only empowers the police to detain people and carry out investigations. Although the Detention Center Regulations issued by the State Council in 1990 gave responsibility over management of detention centers to public security organs and stated their purpose as “guarantee[ing] the smooth progress of the criminal process,” that role as custodian over detainees was merely a managerial function indirectly part of the criminal process. Under the law, the process of arranging meetings between lawyers and detainees was, at least in the case at hand, supposed to be a relatively simple matter of ensuring that the lawyer’s paperwork was in order and did not leave any room for discretion. Despite being set out in the CPL, this amounted to a routine approval process indistinguishable in form from other administrative actions and should, therefore, be subject to challenge under the ALL.

The court of first instance rejected this argument, finding that decisions over lawyers’ access were acts “empowered” by the CPL and, therefore, outside the purview of the ALL. In an appeal to the Jiaozuo Intermediate People’s Court in February 2015, Liu Jinbin argued that the district court’s conclusion was based on a flawed understanding of the word “empowered” (shouquan). He argued that arranging lawyers’ access to detainees was a responsibility, rather than a right, and could not therefore be the object of the word “empower.” Public security organs were only empowered by the CPL to detain and investigate suspects; if anything, it was lawyers who were empowered by the law with the right to access detainees.

The Jiaozuo Intermediate People’s Court essentially ignored this argument by noting that laws endow state organs with both powers and responsibilities. Arranging access between lawyers and detainees was a “clearly stipulated responsibility” under the CPL, it found, and if a lawyer believed that the exercise of his or her rights in this regard were being “hindered” (zu’ai), then the proper channel for seeking remedy was through complaint to the procuratorate. Since the matter was outside the scope of the ALL, the matter was dismissed.

SPC Interpretation Remains Supreme

Given that guaranteeing suspects’ access to legal assistance from the point of initial detention is an essential part of safeguarding their human rights and preventing torture and other miscarriages of justice, any violations of lawyers’ rights in the criminal process ought to be met with swift and strong consequences in order to ensure compliance. In the current legal environment, however, a lawyer’s only option is to seek intervention by the procuratorate. Notwithstanding that the Supreme People’s Procuratorate recently issued a set of regulations aimed at protecting the rights of lawyers, what happens if the procuratorate refuses or is slow to intervene? Or what if a procuratorate order goes unheeded?

These scenarios suggest that some form of judicial remedy could be helpful in vindicating lawyers’ rights to meet with detainees. There are, however, few signs that the door to administrative litigation will open anytime soon. A revised version of the ALL took effect on May 1, and even though legislators still have not explicitly excluded acts connected to the criminal process from the scope of administrative litigation, officials at the SPC have made clear that the relevant provision of its previous interpretation remains binding.

One possible solution would be pending legislation regarding detention center management. Were management of detention centers to be shifted toward the judicial administration authorities that also manage China’s prisons, it would potentially result in a much clearer separation between the administrative management of detainees and the investigative powers associated with the criminal justice process itself. However, even though there has been a great deal of support among legal experts for making such institutional reform part of a proposed Detention Center Law, current indications are that public security authorities will retain power over detention facilities for the time being. This means that, barring change to the SPC interpretation, the boundaries between criminal investigation and detainee management will remain blurred.

Tuesday, May 19, 2015

Quest for Retrial: Court Holds Novel Hearing on Nie Shubin Case

Nie Shubin. Image credit: Internet photo

For a decade, the name Nie Shubin has been synonymous with the problem of wrongful conviction in China. A court in Hebei executed Nie in 1995 for the rape and murder of a woman in a suburban cornfield. Ten years later, Wang Shujin, a man arrested in connection with three other rape-murders during the same period, confessed to the crime, referencing a number of specific details about the crime scene that were not publicly known. His confession attracted national attention, leading many to assume that Wang was the “true culprit” in the case and, consequently, that Nie's conviction was an injustice that must be remedied.

With 2015 well underway, the Chinese criminal justice system has yet to confirm either of those assumptions. Nie's family has been trying for years to get his conviction overturned, but they were stymied in their efforts by, among other things, their inability to obtain a copy of the original court verdict (until it mysteriously arrived by courier after two years of petitioning). Meanwhile, after a protracted and closely watched trial, in September 2013 the Hebei High People's Court upheld a lower court’s decision to sentence Wang Shujin to death for all of his confessed crimes except the offense that led to Nie’s execution.

The court cited insufficient evidence to corroborate Wang's confession, and many legal scholars praised the court for upholding the presumption of innocence. But the court's failure to convict Wang left Nie's guilt in limbo and forced observers to consider what the outcome of Nie Shubin's trial might have been had he been granted a similar presumption of innocence.

Now, two decades after Nie Shubin's life was ended with a bullet to the head, that opportunity might finally come to pass. Last December, the Supreme People's Court announced that it was assigning the Shandong High People's Court to review whether Nie's case should be reopened and a new trial held.

Normally, this would have led to an internal review of case files and written submissions from all parties to the case.

Instead, judicial authorities in Shandong took the completely unexpected step of announcing late last month that it would hold a kind of preliminary hearing. The procedure would allow both sides to present their positions in front of a five-person judicial panel responsible for the case and a 15-person panel selected to give their opinions on whether to reopen it.

As there is presently no law or regulation providing for such hearings, the Shandong court was entering uncharted terrain. According to Judge Zhu Yunsan, who presided over the judicial panel, a hearing would help the court to accentuate openness, fairness, and impartiality, as well as give both the petitioners and the public a sense that the case was being handled in a just manner. A hearing would also enable the court to increase the level of transparency surrounding the case and involve a degree of public participation in a highly controlled manner. All of this was a way of acknowledging that the considerable public attention surrounding the case demanded more than a routine review process.

It was made clear, however, that the hearing would not be about reassessing Nie Shubin's guilt or innocence. Instead, the matter under consideration would be simply to determine whether there were sufficient grounds to initiate retrial proceedings. This would mean meeting the standards set out in Article 242 of the Criminal Procedure Law, which include the existence of new evidence disproving facts confirmed in the original judgment that could affect conviction or sentencing, or the presence of procedural violations that could have had implications for the fairness of the trial.

It is unlikely that the Shandong High People's Court would initiate this hearing process without approval from the Supreme People's Court. Given that there seems to be a trend towards the use of hearings and other forms of expanded participation in recent criminal procedure reform, it even seems possible that preliminary hearings of this type might become a normal part of the process of reopening decided cases. (A similar hearings procedure has also been used as part of the process of determining whether to reopen civil trial proceedings.) If such hearings are to become more routine, judicial authorities may be hoping that the high profile of Nie Shubin’s case can help justify this particular reform, even in the absence of any provisional normative guidelines.

The Hearing

Evidence is presented to a 15-person panel during the hearing.
Image Credit: Shandong People's High Court

The hearing commenced at 1:30 p.m. on April 28 and was finally brought to a close shortly before midnight. The proceedings differed from a regular trial in that evidence presented was not subject to cross-examination and there was no debate between contending sides. In fact, the two sides made completely separate appearances. The judges and panel heard first from lawyers Li Shuting and Chen Guangwu, representing Nie's family. That was followed by a presentation from personnel representing the Hebei Public Security Department, Hebei People's Procuratorate, and Hebei High People's Court—all three of which had been responsible for handling Nie's case.

The role of the 15-person panel was to listen to the presentations, at the end of which they were permitted to ask questions and seek clarifications. The panel was made up of five academic experts, four delegates to China's legislative bodies, four “grassroots” representatives (including two representing women's organizations), and two members of the court's group of appointed external “supervision personnel.” All participants were required to be at least 45 years old and demonstrate “good character.” In the interest of objectivity, panel members must not have expressed any opinions on Nie's case in the past.

At the end of the hearing, panelists were asked to convey their opinions on anonymous forms that they placed into a sealed box. These opinions, together with the case files and the presentations made by the other participants in the hearing, would then form the basis for the court to make a decision, on a later date, about whether to initiate a retrial.

Citing concerns for the victim's privacy, the Shandong High People's Court did not open the hearing to the public, but rather provided live updates on the hearing through its microblog.

During the hearing, Nie Shubin's lawyers presented evidence of a number of substantive and procedural problems with the original trial. Among the most sensational of their allegations was the suggestion that Hebei judicial authorities may have falsified the date of Nie's execution. Court documents all claim that Nie was among a group of people executed by gunshot on April 27, 1995. However, Nie's lawyers pointed to a petition in the case file bearing Nie's signature that was dated May 13, 1995. Lawyers also raised questiones about photos taken to document the execution that appeared to show Nie and others wearing heavy winter clothing and snow on the ground—despite a recorded temperature of nearly 26˚C (79˚F) on April 27. These allegations were rebutted by a representative from the Hebei provincial court, who claimed that Nie had written the wrong date in his petition. He also denied that the photos showed anyone wearing winter clothing and claimed that the “snow” in the photos was actually sand from the dry riverbed where the executions were carried out.

Questions about the exact date of Nie Shubin's execution may seem like they have little to do with whether he received a fair trial. But Nie's lawyers pointed to a pattern of sloppy record-keeping, including many instances in which court officials apparently forged Nie Shubin's signature on legal documents. Court officials acknowledged these procedural irregularities during the hearing, explaining the forgeries by noting that defendants had sometimes used pens to assault court officials, injure themselves, or destroy documents. To prevent this, court officials would sign the documents on behalf of the defendant, who would then confirm the process by applying his fingerprint. Though this practice did not follow the letter of the law, court officials insisted that these procedural irregularities did not rise to the level of error that would justify a retrial.

Another major point of controversy was whether Nie Shubin's confession of guilt had been extracted through torture. Lawyers noted that Nie's first documented statement to police was not given until the fifth day after he was taken into custody. Prior to that point, Nie had been held under dubiously lawful “residential surveillance” at the local police station. Lawyers raised questions about what may have transpired during this four-day period and presented a statement from a Hebei prison inmate surnamed Ji who had been held in the same detention center as Nie and claimed that Nie had told him he had been tortured.

The Hebei prosecutor attending the hearing reported that the authorities had already investigated the torture claim in 2005 and were able to find no evidence. Moreover, he noted that detention center records showed that Ji and Nie were not housed in the same cell and could not have had the close contact and opportunity for communication claimed by Ji. Furthermore, they questioned Ji's reliability by noting that he had been imprisoned several times for fraud.

Doubts about Nie's confession are extremely significant, because, aside from that confession, there is no other evidence linking Nie directly to the crime. All the other evidence in the case serves to corroborate statements made in the confession, so if that confession can be called into doubt, the prosecution's case would weaken substantially. Moreover, the presence of Wang Shujin's later confession puts the questionable circumstances surrounding Nie's confession in a new light and may be considered the “new evidence” necessary to secure a new trial.

Wang Shujin stands trial in 2013. Image Credit: CCTV

Even if the possibility of a coerced confession and Wang Shujin’s confession were both set aside, there would still remain at least one key argument for retrying Nie’s case. Because the police medical examiner did not even try to recover traces of sperm from the victim’s body, the only evidence used to convict Nie on the charge of rape was his confession—a clear violation of the Criminal Procedure Law. Several legal experts—including Professor Hong Daode of China University of Political Science and Law, who was one of the panel members in the Shandong hearing—have pointed to this fact as an irrefutable basis for re-opening the case.

Official media coverage of the hearing has been largely supportive of the Shandong high court's “innovative” efforts to increase transparency in this contentious and controversial case, and legal scholars have generally expressed praise. That said, the ad-hoc nature of the hearing procedure has concerned some observers. Some wonder whether it was fair to have the Hebei authorities present their case to the panel last, rather than allowing lawyers for Nie's family to have the final word. Professor He Jiahong of Renmin University was among those who called on the court to make the panelists opinions—though not their identities—public, so that the public might see how the court's later ruling made use of this new body's input.

Now that so much of the evidence in the case has been subjected to such intense and public scrutiny, it seems almost inevitable that the Shandong court will agree to a retrial. But what then? If a new trial proceeds based on the present evidence and a new presumption of Nie's innocence, then it is quite possible that the court will be unable to convict him for the crimes for which he has already been put to death. That wouldn't necessarily be the same thing as finding him innocent, however. Despite confessions by two separate “culprits,” it's possible that this case ends with neither Nie Shubin nor Wang Shujin being found guilty. Though that outcome may not satisfy those in China who have come to assume Nie's innocence and Wang's guilt, it may be the kind of result necessary if the Chinese criminal justice system is to make real progress toward preventing miscarriages of justice in the future.

Wednesday, May 6, 2015

How Chinese Institutions Manufacture Conviction and Quash Acquittal

Vindication comes slowly, if at all, for innocent individuals courts fail to acquit. Image credit: Sina

One of the prominent features of Xi Jinping’s administration has been the attention paid to the problem of wrongful convictions. Since 2012, Chinese legal authorities have overturned a series of high-profile convictions, and taken steps to strengthen measures to exclude confessions extracted through torture and other illegal evidence and establish a system to hold judges and law-enforcement officials responsible for wrongdoing or negligence. But the obvious question is whether these measures will be effective in reducing the number of wrongful convictions.

Chen Ruihua has his doubts. Professor Chen, a leading expert on criminal procedure at Peking University Law School, sat down for a remarkably frank and detailed interview on the topic with Phoenix Weekly (translated below). In his analysis, the problem of wrongful convictions cannot be fixed without addressing the imbalance of power among China’s legal institutions—particularly, by placing more limits on the power of police and procuratorates, and clearing the way for courts to play their role as a “last defense” against miscarriages of justice. Hinted at in the interview is something that Professor Chen certainly understands only too well: that any institutional restructuring of the kind he describes would entail political reform that has, to date, been a non-starter in China.

Chen and other legal scholars have been looking at these problems for many years, and one can sense a certain frustration at how little their input has mattered thus far. Nonetheless, Chen ends on an optimistic note. He suggests that the Chinese public is not only beginning to embrace ideas about procedural protections and the need for institutional checks on state power, but might also be less swayed by competing appeals to stability and fighting crime. Even if he is right about this, however, given China’s very limited democracy, it remains to be seen how any shift in public views about criminal justice might translate into the kind of institutional change for which Chen and other legal scholars advocate.

Why Don’t Courts Dare to Acquit?

Duan Wen, Phoenix Weekly
April 1, 2015

Phoenix Weekly (hereafter, “PW”): In recent years, the Supreme People’s Court (SPC) and other relevant organs have issued a series of many judicial interpretations and other regulations aimed at preventing injustices caused by wrongful convictions. Why have these had so little effect in practice?

Chen Ruihua (hereafter, “CRH”): First, let me ask you a question. Have you ever noticed how, after some wrongful convictions have been overturned, officials from the courts involved will mention the court’s “positive contributions” while summing up the case? The idea is that, though the court may have been “following orders” in its original handling of the case, it ultimately “spared” the defendant’s life and made it possible for him to live long enough to see his name cleared. Don’t you feel this is ridiculous?

If they are to prevent wrongful convictions, courts must be able to say “No!” and dare to announce acquittals. But are courts in mainland China able to do this? Look at the number of people acquitted by mainland courts in recent years, what is the acquittal rate? About a decade ago, courts at all levels throughout the country handled hundreds of thousands of criminal cases each year and acquitted a few thousand people. In the past few years, there have been more than a million criminal cases a year, but do you know how many people were acquitted? Fewer than 900! At this rate, will mainland China still have acquittals 20 years from now? I call this a “soul-stirring number.”

What do these cold numbers show? From basic-level courts all the way up to the SPC, mainland courts have grown increasingly timid about acquitting people. But the question is: has the quality of criminal cases increased? Are criminal suspects really are all guilty? On the contrary, what so many miscarriages of justice demonstrate is that outcomes are basically pre-determined once cases are prosecuted.

From this point of view, we can say that mainland courts have lost the basic ability to remedy mistakes made by institutions of state power. This is simply unforgiveable. Every country in the world has police who extract confessions through torture or prosecutors who abuse their power, but so long as the courts can stick to principles and maintain a bottom line, it’s still possible for them to prevent miscarriages of justice. Courts should be the last line of defense in preserving justice in society, but in China they’ve already basically completely abandoned that role.

PW: In 1996, China’s Criminal Procedure Law was amended to include a presumption of innocence and emphasize a prohibition on the use of torture. And after the occurrence of so many miscarriages of justice, such as the Zhao Zuohai case in Henan, the SPC, Supreme People’s Procuratorate (SPP), and Ministry of Public Security jointly issued regulations under the guidance of the Central Politico-Legal Commission to exclude “illegal evidence.” Wouldn’t the courts now have more grounds to “dare to say no” over these past few years?

CRH: In practice, excluding “illegal evidence” is not such an effective way to deal with the problem of wrongful convictions. Let me give you an example. In 2012, the SPC and SPP had organized an inspection study of a criminal trial at a Beijing court. During the trial, the prosecution presented eight separate confessions, two of which were excluded at trial. This won the court a lot of praise from all who attended. But what about the other six confessions? In practice, you only need one confession to convict. So how far can excluding illegal evidence get you toward the goal of preventing wrongful convictions?

I’ve always felt that there’s something quixotic about the hope that excluding illegal evidence will prevent torture and, thereby, solve the problem of wrongful convictions. The legal history of other countries demonstrates that no country can solve the problem of torture through exclusion of illegal evidence because the rate of successful exclusion is so low. In a country like the United States, fewer than 10 percent of requests to exclude illegal evidence are granted.

PW: Then what do you think is necessary to resolve the problem?

CRH: You need to attack the problem at its source. When Yu the Great tamed the floods in ancient times, he didn’t wait until there was a problem and respond reactively with targeted quick-fixes. Issuing a few regulations in the moment has no real impact other than as a means of soothing popular anger and responding to public opinion.

In actual cases, there are three central reasons why courts don’t dare to acquit defendants on the basis of the law and the facts. First, they lack independence. Second, they lack authority. And third, they stand wholly on the side of the prosecution and the police and are biased in favor of punishing crime, thereby abandoning their basic ability to conduct a fair trial.

Let’s look at the issue of independence first. We know that fixing the problem of independent adjudication is something that’s on the legal reform agenda in China. One main focus of legal reform is guaranteeing that courts are able to exercise their judicial powers independently in accordance with the law. There is consensus on this at both the central and local levels, as well as throughout society. But can it truly be achieved in practice? In many major cases, especially homicide cases, the local party committee and government take an interest from the very beginning and there is also a great deal of public attention. It’s easy for courts to make accommodations to local party or government officials, to members of the local public or public opinion, or to the feelings of the victim’s family members. So, even if the court discovers a miscarriage of justice, it doesn’t dare acquit because it can’t withstand the consequences of all that pressure.

Then there’s the problem of authority. Mainland courts have absolutely no authority relative to public security or the procuratorates. The powerful public security organs have a much higher political status. Even though these days many local police chiefs might not necessarily head the politico-legal committee, they definitely continue to hold high positions as deputies of that committee. The procuratorates also enjoy a high status. The constitution gives them supervisory powers over the legal system and the courts, and procuratorates can even investigate and bring cases against courts at the same administrative level. In isolated cases, the procuratorate has even hauled in a judge when a court has issued an acquittal. In this system, courts that issue acquittals risk offending both public security and the procuratorate—do they really dare? So, no one has the courage to remedy a miscarriage of justice when they encounter one.

Finally, courts totally stand on the side of fighting crime. In practice, many judges in Chinese criminal tribunals are more inclined to fight crime than prosecutors are, lacking even basic fairness. This is a consequence of practice and tradition over many years, during which time the courts turned into a third stage on the crime-fighting assembly line. Judges have become the third person in the crime-fighting relay race, receiving the baton handed off to them from police and then the prosecutors.

PW: All of these problems have already been discussed a lot in the past. Why is it so hard to change?

CRH: First, fixing these problems requires institutional change. For example, in the Chinese criminal process judges read the entire case file before the trial even begins. That’s a huge problem, because once judges read all the files that investigators and prosecutors have submitted they’re bound to be influenced by their first impressions and believe “the defendant is guilty.” The result is that the subsequent trial becomes totally formalistic, and the investigation and debate phases of the trial become useless.

Moreover, Chinese judges are required to conclude trials within a short amount of time. Unless the case is especially important or complex, the majority of trials are concluded in half a day. Can defense lawyers present an adequate defense if you only have half a day to finish the trial? When it’s all a matter of pre-judgments derived from reading the case file and witnesses and experts who don’t appear in court, then of course the trial will be one-sided. No one can match the power of the prosecution, which is immune from effective challenge. And the defense is extremely weak, unable to get any attention from the judges. The whole trial becomes a matter of going through the motions.

Even given prejudicial case files and formalistic trials, the examples of previous miscarriages of justice show us that it’s still possible to discover problems like insufficient evidence that could mean the defendant should be found not guilty. But the system used to evaluate performance within the courts makes it nearly impossible for judges to issue acquittals. Any judge who wants to acquit must first report to the head of the criminal tribunal and the court’s vice president responsible for criminal cases. The case will be brought before the court’s adjudication committee, and all eyes in the court will look skeptically at the judge, wondering whether any money has changed hands. When the police and prosecution disagree with the decision to acquit, the judge has to go to try to explain things to them and make a report to the politico-legal committee. Isn’t it much, much simpler to convict? The presiding judge can make his or her own decision and no one will question it. Put it this way: Judges who convict have smooth sailing in front of them, without any obstacles or professional risk. But judges who acquit will face multiple difficulties within the system. When you look at the problem in terms of human nature, is a judge more likely to convict or acquit?

Then there’s the utilitarian problem of risk transfer. We can see from many wrongful convictions that higher-level courts are unwilling to take responsibility and transfer most of the risk to lower courts. They may clearly recognize that a case has problems, but instead of directly issuing an acquittal they return the case to the lower court for retrial. But many times the lower court can’t bear the risk, either. Faced with pressure from the politico-legal committee, the police, the procuratorate, and the potential for the victim to petition, the court will ultimately produce this distinctly Chinese phenomenon—the “verdict with room to maneuver.”

Here, the basic pattern is that the higher court doesn’t dare commit to independent adjudication and transfers the risk to the lower court. On the one hand, it hopes that the lower court won’t convict too easily and hand down heavy sentences. On the other hand, it also doesn’t want the lower court to issue acquittals. The result is this very strange legal phenomenon, where, even though the lack of evidence makes it possible to acquit, the defendant is convicted but given a more lenient sentence that leaves a bit of room to maneuver. I once wrote an article pointing out that this was the root of many wrongful convictions in China. The central problem is that Chinese courts don’t dare to remain true to the spirit of independent adjudication.

All of these problems require solutions at the institutional level.

But on the other hand, judges need to find their own reasons to change. I teach part-time at the National Judges College. I often give this example when I lecture to judges. One year, after a wrongful conviction was discovered, there was a great deal of pressure from public opinion and everyone who handled the case back in the day was investigated, with some even being placed under “shuanggui” [i.e., a form of investigative custody used against Communist Party members accused of serious disciplinary violations such as corruption or dereliction of duty—Trans.]. One of the people who originally handled the case went to a cemetery, where he bit the tip of his finger and wrote in blood: “I’ve been wronged.” Then, he killed himself. As I tell this story, I tell the judges that upholding judicial fairness and correcting miscarriages of justice are both closely related to every judge’s interests. I say, “If you can’t manage it, you won’t be able to protect yourselves.” At that point, the room is absolutely silent. No one is whispering to each other; everyone is listening very attentively. The Fourth Plenum document mentions a system for pursuing retroactive responsibility and a system of lifetime responsibility. This will have a huge impact on judicial officials and their future destinies.

Need for Checks on Power of Public Security, Procuratorate

PW: A moment ago you said that China’s criminal process is like an assembly line. If you want to go back to the beginning, you probably can’t simply put your hope on courts as the last line of defense in preventing miscarriages of justice. Shouldn’t we look at earlier stages in the process?

CRH: Personally, I feel we haven’t done enough research or given enough serious thought to the procuratorate’s role in causing miscarriages of justice. According to China’s constitution, procuratorates are not just the organs of prosecution. They are also responsible for preventing unlawful case-handling through oversight of the legal system, including oversight of public security, courts, prisons, and so on.

It’s precisely the procuratorate’s powerful role in China’s legal system that causes courts not to dare to acquit in many instances. This, in other words, is a fundamental reason for miscarriages of justice. Procuratorates can investigate and pursue criminal responsibility against judges from courts at the same administrative level. Doesn’t this force all judges to live in fear and tread carefully, as if on thin ice?

At this point, perhaps some might say, “Well, they have nothing to fear if they keep their noses clean.” My response would be that, under China’s current system, doesn’t everyone have reason to fear being investigated? It’s not necessarily judges who issue acquittals that get detained. Pick a judge at random, and all of the court’s work will be affected negatively. Because of the pressure on the court president, it will prevent others from issuing acquittals.

Once, at a meeting at the SPP, I said without any reservation that the procuratorate’s strong oversight power to investigate courts at the same administrative level is a major reason why it’s so difficult to prevent wrongful convictions in China. I believe we ought to prohibit procuratorates from investigating courts at the same level and that any cases against judges should be brought by procuratorates at the provincial or even central level.

Besides the procuratorate’s legal status, Chinese law gives prosecutors too much power, which creates a serious imbalance between prosecution and defense.

For example, the law clearly states that after a first-instance verdict is issued, as long as the procuratorate appeals then there must be a court hearing during the trial of second instance. But if an appeal is filed only by the defendant, there’s no requirement of any trial hearing. If you won’t even hold a trial hearing, how can you correct a wrongful conviction? If a procuratorate believes there is an error in a verdict that has already taken effect and appeals, this meets the statutory conditions for retrying the case and the court is required to hold a retrial. But if a defendant or his attorney wants to petition to have a case retried, it’s extremely difficult. Petitioning and a prosecutorial appeal shouldn’t even be mentioned in the same breath, they’re so different.

Also, Chinese procuratorates have the power to approve arrests and prosecute. In cases where the procuratorate serves as investigator, these two powers get merged into one so that approving arrest becomes a mere prelude to conviction, a rehearsal for sentencing. In Western countries, the power to approve arrest almost always belongs to the courts. This is because this is a very serious power; once a person is arrested, people begin to think he’s guilty. This is a power that shouldn’t be in the hands of the police or the procuratorate. A system in which arrest and indictment are combined concentrates too much power. If the arrest was in error, the indictment will also be in error. And so on from there. In some wrongful convictions, the original responsibility rests with the procuratorate. The original arrest was a mistake, but in order to demonstrate that the arrest was correct, they must prosecute and put a great deal of pressure on the court. For so many years, legal scholars have been calling for the power to approve arrests to be transferred to the courts, but it’s never become reality.

With these examples, I’m trying to show that mainland Chinese procuratorates possess a very strong prosecutorial power. The law grants them limitless resources to prosecute crime, including almost monopolistic control over many procedural powers. But the law gives defendants and defense lawyers very weak rights. When there is a wrongful conviction, it’s extraordinarily difficult to initiate the remedial process.

PW: After the procuratorate, I guess the next topic should be public security, no?

CRH: Public security organs are responsible for more than 90 percent of criminal investigations, thus serving as the first gate through which the vast majority of criminal cases need to pass. But the system ensures that its investigative powers can be exercised with almost no restrictions. You could even say that, under some circumstances, they can exercise that power without any scruple whatsoever. There are few places in the world where public security organs have as much power as they do in China. Even though there have been some reforms in the past few years, the change is too slow.

Now, what sorts of problems exist in the investigations carried out by public security organs?

First of all, it has almost gotten to the point where suspects can be interrogated without any effective constraint. Often, wrongful convictions are connected to confessions extracted through torture, and torture usually is related to the way that suspects are interrogated. But under the current system:

  • There are no specific regulations governing when a suspect can be questioned. In practice, you often see questioning of suspects starting in the middle of the night or in the early morning hours. There are also no restrictions on the length of time suspects can be questioned. In practice, you often see non-stop questioning over a period of days, beyond a person’s physical limits. Currently, the Criminal Procedure Law only says that a person cannot be summoned for initial questioning for longer than 24 hours, but once a person has been placed under detention or arrested, there are no time restrictions on interrogation.
  • Interrogations take place without a lawyer present and the police control the recording of interrogations so that, in practice, interrogations aren’t controlled.
  • As soon as criminal suspects confess to a crime, they lose any opportunity to recant. In practice, as long as a suspect makes a single confession, it doesn’t matter how many times they might recant or refuse to acknowledge the confession subsequently, that confession will be considered to be admissible. Many wrongful convictions are like this. A confession is made during the investigation phase, but the defendant tries to recant at trial. The Du Peiwu case in Yunnan is the most classic example. He went so far as to present a bloody shirt in the courtroom to prove that he had given the confession under torture, but the court paid him no attention.

All of this shows the central importance of confessions in the Chinese criminal justice system. As long as a police investigator has a record of a confession, it can always be used as evidence for conviction.

Then there are problems associated with identification. The cases of Du Peiwu, She Xianglin, and Zhao Zuohai all followed a common pattern. Besides the extraction of confessions through torture, they had another startling similarity: serious problems with the identification procedure. Whether it was identification of the crime scene or identification of the victim’s body, the way the public security organs carried out the identification process seriously violated legal procedure. For example, the process was undertaken without the presence of a lawyer or an independent third party, so it was easy to make mistakes and an excellent opportunity for the public security organ to falsify evidence. In many countries with rule of law, the rules require that a lawyer be present for the identification process, otherwise the identification will be considered invalid. But the identification process in China is extremely closed and totally controlled by investigators.

Third, there are problems with the procedures surrounding expert assessments. In ancient China, in homicide cases it was required to conduct an autopsy right there in court in front of all concerned. Today, the expert assessment process in criminal cases is completely closed, with investigation and assessment both conducted inside the public security agencies. Even if an expert is hired from outside, he or she will still be connected to investigators in some way and subject to very little supervision. The assessment takes place outside the presence of other interested parties or lawyers to supervise and bear witness.

In this kind of system, unless you assume that all public security officers are angels, there is no way to prevent problems from occurring in the way cases are handled. The closed nature of the investigation system gives irresponsible individuals or those with ulterior motives viable opportunities to create miscarriages of justice.

Tragedies occur one after another, but no one has learned a single lesson from them. When the Criminal Procedure Law was being revised, academics proposed that lawyers should be present for interrogation, assessment, and identification. But the legislative body vetoed it immediately because the public security organs and procuratorate both opposed it.

Besides the problems associated with case investigation I’ve just mentioned, public security organs have another extremely serious tradition. Before a case has even had a chance to be decided at trial, first impressions become established facts, putting pressure on the subsequent prosecutorial review and trial phases of the process. The specific manifestations of this are as follows:

  • After the case has been investigated, when it has just been transferred to prosecutors, even before the court has rendered its final verdict the investigating unit can hold an award ceremony and bestow honors on those who “contributed meritorious service to solving the case.” This both demonizes the criminal suspect and broadcasts the first impressions of the so-called facts of the crime to the general public. The media reports on the ceremony, which is attended by leading party and government officials. This has an impact and puts pressure on later phases of the criminal process. It’s something very difficult to fix through law, as it has become a standard part of criminal justice practice.
  • Then there’s the problem of how to dispose of assets alleged to be connected to the case. The Wu Ying case in Zhejiang was a classic example. Even while the case was still at the investigative stage and well before the court’s verdict had been finalized, the assets alleged to be involved in the case had already been auctioned off. If the court were later to find the defendant not guilty, how would the asset problem have been dealt with? Isn’t this something that runs counter to the entire legal system? There’s a problem of vested interests at hand.
  • Then there’s another situation in certain homicide cases involving civil servants or officials where the deceased is named a “revolutionary martyr” during the investigation stage. This carries very serious implications, because if the defendant has killed a “revolutionary martyr,” shouldn’t he be expected to be punished most severely?
  • Another way that first impressions gathered during the investigation stage become established facts is through the press releases circulated when a case is considered solved, which creates an impression on public opinion. These days, many places prohibit lawyers involved in a criminal case from casually revealing their defense arguments to the media, otherwise they risk criticism for violating professional ethics or might even face formal punishment. But there’s absolutely no restriction on public security organs and procuratorates issuing press releases when they finish investigating a case. For example, Nian Bin was eventually acquitted in Fujian, but when you look back at the publicity the public security organ gave the case back in the day you see how thoroughly the press reports demonized Nian Bin. Not only does this put pressure on the courts, but it also incites victims’ [relatives], causing them to become firm believers that the defendant is a vicious murderer. This, in turn, can create huge obstacles to redressing a wrongful conviction.

So, I often say that if checks are not placed on China’s investigative organs and their exercise of that power does not start to comply with rule of law, in practice it will become a great scourge, as difficult to tame as a runaway wild horse, uncontrolled by rule of law.

Now is Best Time to Control Miscarriages of Justice

PW: A moment ago, you said that the defense occupies a very weak position in criminal cases. How can the defense be made stronger? How can lawyers have more of an impact on the process?

CRH: Fundamentally, the failure of lawyers to make their impact felt is a reflection of the lower status accorded to defendants. After all, a lawyer’s power comes from the assignment granted to them by the defendant. So the central issue is how to raise the status of criminal suspects and defendants.

Of course, lawyers are not simply the same as their clients and have their own professional qualities. In the current system that’s been set up to redress wrongful convictions, the role of lawyers has truly not been given enough emphasis. We can see that in all of the official documents, which only make passing mention of the role of lawyers.

In a country with true rule of law, lawyers are the most active of all legal professionals. Whether they’ve been hired by a defendant or assigned to provide legal aid, they play the role of correcting errors within a case. In Western countries, they say: “A good defense lawyer is the best help a judge can have.” Lawyers are very good at helping to expose questions, holes, or conflicts in a case, and the exercise of their power acts as a check to ensure that the power of criminal investigators isn’t too great.

In the current mainland legal system, we still have the idea of “law enforcement cadres” where police, procuratorate, and courts are all part of a single system from which lawyers are excluded. As a result, it’s hard to have a sense of a common community of legal professionals. There have been a few changes recently, such as the emphasis on listening to lawyers’ opinions in death penalty review cases at the SPC. This is a welcome change, but things are changing too slowly.

PW: It’s sometimes difficult to give equal consideration to preventing wrongful convictions and fighting crime. This is particularly true given ordinary Chinese people’s traditional desire for stability and security. If we over-emphasize the rights of criminal suspects, won’t it be difficult for the public to accept?

CRH: This problem you just mentioned exists to some degree, especially when mainstream public opinion in China is so focused on anti-corruption and punishing corrupt officials. Ordinary people have a desire to see crime punished and swift resolution of cases by public security can earn popular support. Under these circumstances, if courts hand down acquittals for insufficient or flawed evidence, it will certainly anger the public, not to mention bringing protest from victims’ families. Under these circumstances, pressure from public opinion will be difficult for legal institutions to bear.

So we must weigh these two interests and determine which is greater, the risk of being unable to fight crime or the social damage caused by wrongful convictions?

Fighting crime is something that is in the interest of the entire society. But in recent years there has been growing suspicion toward state power. It’s a sign of social progress that the public no longer blindly submits to state power. Rights consciousness is rising within the public, and these days people are more worried about abuse of state power than they are about the risk of being unable to fight crime. People have increasingly come to understand that “fighting crime,” “maintaining public safety,” and “punishing corruption” are all, fundamentally, political discourse. Abuse of state power is the more frightening thing and something that ought to be seen as the people’s common enemy. This kind of public opinion is already beginning to form. I believe that this opinion environment presents China with a historic opportunity to bring the problem of wrongful convictions under control.

That is to say, public awareness and rights consciousness is a source of my optimism for the future.

Of course, in specific individual cases there need to be some technical changes. It’s not easy being a judge in mainland China. Under the current system, putting ourselves in their shoes, it’s very difficult to issue acquittals in cases where there is insufficient evidence. This is a reason why legal scholars have recommended that China introduce a jury system so that judges don’t have to bear the entire burden themselves in individual cases.

However, the time has to be right for introducing a jury system. Based on the history of how juries were introduced in other countries, it’s a reform that has been closely associated with political reform.

Tuesday, March 10, 2015

Xinjiang State Security Trials Flat, Criminal Trials Soar in 2014

Sentences are announced for 55 defendants, including some convicted of splittism, a state security crime, at a public sentencing rally in Xinjiang's Ili Prefecture on May 27, 2014. Image Credit: voachinese.com

Xinjiang’s high court recently reported that, as compared with 2013, the number of endangering state security (ESS) trials in Xinjiang was flat in 2014. A graph included in the court’s annual work report and Dui Hua estimates released last year indicate that about 300 ESS trials of first instance were concluded in Xinjiang in each year. ESS trials can be used as a proxy for the suppression of human rights activism since several of the crimes in the ESS category are constituted by certain kinds of speech and association.

A significant jump in the number of overall criminal trials indicates, however, that even without growth in ESS trials, authorities heightened the suppression of human rights activism and dissent in Xinjiang. The number of criminal trials concluded in the region soared more than 40 percent to 29,511 trials, including those of first and second instance. Kicked off in May 2014, Xi Jinping’s “anti-terrorism” campaign likely played a significant role in increased law enforcement.

Concluded First-instance Criminal Trials in Xinjiang by Crime Category, 2013 & 2014

Sources: Dui Hua; Xinjiang High People’s Court Annual Work Report, 2015

Concluded First-Instance ESS Trials in Xinjiang, 2010-2014

Note: Figures for 2012-2014 are estimates made by Dui Hua; all other data were reported by Xinjiang authorities.
Sources: Dui Hua; Xinjiang High People’s Court Annual Work Report, 2011-2015; Xinjiang Yearbook, 2011-2013

Three categories of crimes accounted for the bulk of the annual increase in criminal trials. Trials for obstructing social administrative order doubled to exceed 4,500. This category of crimes can be used to target unauthorized Islamic and Christian groups or "cults" and covers activities including the distribution of religious materials as well as assemblies and demonstrations.

Trials for infringing upon citizens' personal and democratic rights almost doubled nearly reaching 7,500. This category of crimes includes the offense of "inciting racial hatred and discrimination," which may be applied to people who disseminate information that "tarnishes" China's ethnic harmony by, for example, challenging government bans on beards, veils, and religious observance.

Naming Names

Dui Hua’s Political Prisoner Database includes the names of about a dozen people convicted of ESS crimes in Xinjiang in 2014. Ilham Tohti, a Uyghur scholar sentenced to life in prison for splittism, is the most well known. Seven of his students also went to trial for their involvement in the operation of Uyghur news site uighurbiz.net. All were convicted of splittism, and four were sentenced to 3-8 years' imprisonment. Luo Yuwei (罗玉伟), a member of the Yi ethnic group, received the shortest sentence of three years, according to prominent Chinese lawyer Liu Xiaoyuan. Luo joined Perhat Halmurat and Shohret Tursun in a televised confession, presumably under duress, last November. The other students convicted in the case are Abdukeyum Ablimit, Mutellip Imin, Akbar Imin, and Atikem Rozi, the only woman in the group.

In a lesser-known splittism case, Reyim Abuliz was sentenced to 15 years’ imprisonment in Ili Prefecture. She was involved in one of the 11 cases of Communist Party members and civil servants punished for violating political discipline. The teacher was accused of using China’s mobile instant messaging app WeChat to send “sensitive” pictures and audio materials to a number of individuals.

Last May, state news media reported that five Uyghurs, whose names were not fully revealed, were convicted of splittism and sentenced to 7-15 years' imprisonment in a public sentencing rally in Kashgar Prefecture. They were condemned in front of 300 cadres and students for disseminating information about hijrah and jihad through mobile and online networks and for "indoctrinating" young children in "extremism" in unauthorized religious classes.

Zhao Haitong (赵海通) was the only Han Chinese known to have been convicted of ESS in Xinjiang in 2014. He was convicted of inciting subversion, and possibly other crimes, and sentenced by the Urumqi Intermediate People’s Court to 14 years in prison. Zhao actively participated in a series of small-scale protests against Internet censorship and miscarriages of justice and called for officials to disclose their assets. A Guangzhou-based lawyer has claimed that Zhao’s case was related to Xinjiang’s “ethnic issues.”

Xinjiang typically accounts for the majority of China’s ESS trials, however, official data has yet to be released showing whether the nation’s ESS trial numbers grew in 2014. That said, in 2013 ESS indictments showed strong annual growth with 32 percent more individuals indicted in 57 percent more cases.

Thursday, March 5, 2015

Article 293: Deeming Free Speech Disorder in Internet Space

Prior to his arrest for "creating a serious disturbance," Pu Zhiqiang (bottom right) joins others to discuss June Fourth at a private home in Beijing.

In September 2013, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) jointly issued a judicial interpretation addressing a number of issues related to criminal speech online. That interpretation held that use of information networks “to berate or intimidate others,” “to disseminate false information . . . that one has either invented or clearly knows to be fabricated,” and “to organize or incite others to disseminate [such information]” should be punished under Article 293 of the Criminal Law, “creating a serious disturbance.”

This marked a major elaboration of Article 293, which is also known by its literal translation, “picking quarrels and provoking trouble.” Prior to the interpretation, the offense had targeted a variety of behaviors deemed to be disruptions to social order, such as fighting, looting, throwing rocks or refuse at vehicles or buildings, or otherwise stirring up trouble in public spaces. Now, the interpretation seems to have expanded the definition of “public space” to include online space, treating it not only as a platform through which to incite others to disrupt social order but as a kind of public space itself that can be thrown into disorder by certain kinds of acts.

Since September 2013, a growing list of Chinese people have been detained or charged for speech-related incidents under the provisions of Article 293. Perhaps the most well-known is the crusading rights lawyer Pu Zhiqiang, whose initial detention for “creating a serious disturbance” appeared to be connected to a private meeting to discuss issues related to June Fourth. According to recent reports, however, it appears that the authorities may also be trying to prosecute Pu under Article 293 (in addition to even more serious speech-related charges, including “inciting subversion” and “inciting splittism”) for a series of items he posted on social media.

Prosecutors in Zhengzhou, Henan, also recently presented an indictment for “creating a serious disturbance” against Yu Shiwen, a former student leader during the 1989 democracy movement who was arrested last year in connection with a public memorial commemorating former leaders Zhao Ziyang and Hu Yaobang and those who died in the June Fourth crackdown. The authorities appear to have been unaware that the memorial had taken place until Yu and other participants posted photographs online and gave interviews to overseas media.

Critics have argued that the judicial interpretation by the SPC and SPP is improper because by significantly expanding the scope under which Article 293 can be applied, it has ventured into the jurisdiction of China’s legislature. Peking University’s Zhang Qianfan recently took up the argument from a position defending the freedom of expression. In a blog post that has been widely republished on numerous Chinese-language websites, the liberal constitutional law scholar warns that overemphasis on preventing disorder in virtual space risks undermining what is not only a fundamental human right but also an essential component of ensuring proper governance. He describes Article 293 as a “pocket crime”—an offense so vaguely defined that nearly anything can be stuffed into it—and warns that, unless the boundaries are tightened up, even more Chinese citizens are likely to fall victim to arbitrary and abusive uses of offenses like these.

Don’t Let “Creating a Serious Disturbance” Become a “Pocket Crime”

Zhang Qianfan
February 5, 2015

Over the past year, the offense of “creating a serious disturbance” (Article 293 of the Criminal Law) has been applied more and more often in cases involving speech by citizens. Legal scholars are widely concerned that this offense has already become a “pocket crime” whose borders can be extended at will. This not only violates the principles of “governing the country in accordance with the law” and “governing the country in accordance with the constitution” that were promoted at the Fourth Plenum of the Eighth Chinese Communist Party Conference; it will also inevitably lead to serious abuses of state power and an extreme restriction of citizens’ freedom of expression that is protected under Article 35 of China’s constitution.

In a certain respect, we can consider the state as a supremely powerful Hobbesian “Leviathan,” but this Leviathan does not have a will of its own. On the contrary, it is a product of human reason. We establish the state and invest it with such huge powers so that it may control the irrationality of private individuals and prevent their using violence to harm others. At its most basic, the function of the state is to use its monopoly of lawful violence to control the unlawful violence committed by private individuals. The criminal law is the main means by which the state carries out this basic function, and police are the specific force through which the criminal law is enforced. You could say that it is a limb of the Leviathan. For rational people, limbs must be controlled by the brain. If the brain loses control, then the limbs can move wildly on their own in a dangerous manner. The same is true with the state.

What is the “brain” of the state? The “brain” of the state is the public reason expressed through its laws. In a healthy state under ordinary conditions, law exists to serve the common interests of all people. But what exactly is the “common interest”? What sort of policies, laws, or institutions bring the greatest happiness to people? There can be no single answer to these questions, and since each person has freedom of thought and expression, no person can claim that he alone possesses the truth. So-called public reason is a social consensus that is formed in the course of free discussion, meaning that free expression is an institutional precondition for the production of public reason. Of course, total consensus is impossible, because no viewpoint can secure the agreement of every single person in society. We must be able to cast votes to determine the majority position at any time and use this as the basis for the laws that govern us. Only such laws can be considered “good laws” that express public reason. Public reason of this kind is bound to be flawed and can only attain perfection through practice. But it is inevitably far superior to any private individual reason—because humans are rationally self-interested, individual reason can only serve particular individuals. Only public reason formed in the context of free expression can serve the entire society.

We can only live in a reasonable state if we enforce good laws, implement the rule of law, and allow our public reason “brain” to control the limbs of the state. On the other hand, if the limbs take control of the brain and prevent the brain from thinking in a normal way—or if individual reason is allowed to replace public reason and the machinery of the state is used to suppress and “manage” speech—then the “arms control the brain” and the state cannot operate normally. Arms can only control arms. State violence can only be used to control violence by private individuals and not to govern speech.

Of course, if speech truly threatens to incite an immediate, obvious, and serious danger—for example, if a person spreads panic in a crowded place and causes a stampede—then that sort of speech should be liable for criminal responsibility. But so long as there is no such “clear and present danger” and there is still time to clarify the truth through additional discussion, free speech should be allowed to continue without state power intervening to impose silence.

As long as the state’s “brain” is still capable of ordinary thought, the “arms” must not be allowed to control the “head.” The reason is simple: arms can never be as good at thinking as the head. Likewise, police are no more capable than ordinary people of correct judgments about matters of right or wrong or expertise. When the arms control the head, coercive power is substituted for public reason.

If a criminal offense becomes a “pocket crime” that can be expanded or contracted at will such that it becomes a way of punishing citizens’ speech, then the “arms are controlling the head.” The fourth clause of the offense of “creating a serious disturbance” refers to “stirring up trouble in a public place that creates serious disorder in [that] public place.” Since the Supreme People’s Court and Supreme People’s Procuratorate have expanded the meaning of “public place” to include online space, this clause has often been applied in cases involving citizens’ speech. Looking purely at the text of the statute, there’s no big problem with this offense. Whether it’s speech or acts, if there truly is “serious disorder in a public place,” then the person(s) responsible should be held criminally liable. The problem is how to define “serious disorder in a public place” and, particularly, disorder as applied to the “public space” of the Internet. The Internet is a platform for free expression and it is normal for there to be different opinions expressed there. “Order” in this kind of space connotes a kind of place where one person has all the say. In the “public space” of the Internet, it’s practically impossible for there to be “serious disorder” in the sense of the criminal law. Does crude, acrimonious, and radical online speech that leads to widespread arguments or even abuse constitute “creating a serious disturbance”? Even if you believe in the idea that there is “verbal violence” online, you should not use physical violence to counter verbal violence.

Under ordinary circumstances, the criminal law should only apply to actual violence that takes place in the real world, not virtual “violence” that takes place in the online world—with the exception of online speech that can actually cause “serious disorder in a public place” in the real world. If online speech that does not satisfy this condition is treated as “creating a serious disturbance,” then it is another case of the arms controlling the head.

The analysis above does not simply apply to “creating a serious disturbance” and can be applied to all other “pocket crimes” as well. The unlimited expandability of “pocket crimes” not only restricts citizens’ right to free expression but also can easily lead to abuses of power by local authorities. In China, no matter whether it’s the constitution, laws, or central policies like the Fourth Plenum decision, all are used by central authorities to regulate the behavior of local authorities at all levels. But if the constitution is not implemented fully and laws become pocket crimes to be interpreted arbitrarily by local authorities, then not only is the law unable to serve any normative function but it can actually become a powerful weapon with which local authorities can abuse their power.

For example, in Henan a rights defender named Jia Lingmin provided free legal advice for many years to families who had been forcibly evicted from their homes. She was warmly welcomed by people all over for spreading legal information concerning land seizures and forced evictions. But because she was a thorn in the side of the local authorities, she was framed on charges of “creating a serious disturbance.” However, not only did Jia’s speech not cause any “serious disorder in a public place,” it played an extremely positive role by protecting the lawful rights and interests of evicted households, upholding social stability, and preventing predatory behavior by those with power. Such an abuse of power by local authorities seriously undermines the rule of law and shows flagrant contempt for central authority.

To prevent “creating a serious disturbance” from becoming a “pocket crime,” we must strictly define key legal criteria like “serious disorder in a public place.” The crime should only be constituted in cases where expression has truly caused serious disruption to the order of an actual public place. And in order to constitute “serious disorder,” the speech in question must cause harm that is clear and imminent. If “serious disorder” is simply determined by the subjective conjecture and imagination of those in charge of the case or based on fear of some unpredictable or uncertain outcome, it naturally cannot be considered “serious.”

A classic example is the case of Yu Shiwen and others from Henan who publicly mourned Zhao Ziyang. Zhao Ziyang was originally from Henan, and there is nothing out of the ordinary for people from Henan to mourn other people from Henan. There was no disorder on the scene, and the mourning took place without any interference. It was only when Yu Shiwen and others put a video of the mourning online that they were detained by Henan police. But there is no evidence to prove that these videos caused any disorder in a public place. When investigators make such accusations, they must provide the national public with a convincing explanation in order to prevent the impression that the machinery of state power is being operated by a few arms in order to control 1.4 billion heads.

Thursday, February 19, 2015

Court Flaunting of Nian Bin Acquittal Raises Questions of Lessons Learned

Nian Bin reunites with his sister, who built his legal defense team, and uncle after being released from prison in 2014. Image credit: You Jingyou, Weibo

Last August, the Fujian High People’s Court acquitted Nian Bin, a former grocery-store owner sentenced to death in 2008 for allegedly poisoning his neighbors in 2006. The incident led to the deaths of two children. Nian claimed that he confessed to the crime only under the duress of police torture. After more than six years of trial and appeal, Nian’s lawyers were able to prove that police had fabricated evidence against him and withheld other evidence that showed his innocence.

Nian’s case, which has long been in the public spotlight and a focus of anti-death-penalty activists in China, has been hailed as a landmark victory after a long and hard-fought struggle by Nian’s family and lawyers. Some credit for this victory must also go to legal reforms that have changed the environment in which death penalty cases are handled in China. The careful review of the death penalty by the Supreme People’s Court is one factor, as is the increased emphasis that has been placed on the exclusion of confessions extracted through torture or other illegal evidence.

The outcome of Nian Bin’s case may also reflect the attention that Chinese leaders have paid in recent years to the serious problem of wrongful convictions and other miscarriages of justice. Because addressing individual cases of injustice is increasingly both a legal and political problem for Chinese courts, it is not surprising that the Fujian High People’s Court chose to make mention of the “positive” impact of the successful resolution of the Nian Bin case in its annual work report to provincial people’s congress deputies. After all, under China’s political system, approval of state institutions’ work by legislative bodies is supposed to serve as an important affirmation of the correctness and legitimacy of that work.

But to commentator Zhu Changjun, writing in the February 2 edition of The Beijing News, the Fujian court’s attempt to take credit for overturning Nian Bin’s conviction inadequately addresses either the factors that contributed to Nian’s wrongful conviction in the first place or the provincial court’s failure to acquit Nian earlier despite identifying serious problems with the prosecution’s case.

Zhu’s concern highlights a general problem faced in trying to evaluate achievement in reform of China’s legal system and human-rights protections. On the one hand, there is a tendency to exaggerate the progressive impact of new policies or legislation before there is concrete evidence that institutions and practices have truly changed for the better. On the other hand, it can often be difficult to say how indicative positive outcomes in individual cases are of systemic change.

This is perhaps a particular problem when the progress in question is so closely linked to the undoing of past mistakes, rather than simply improving upon existing policies and practices. In these cases, as Zhu Changjun suggests, Chinese authorities might earn more credit for their efforts if they were to show with greater transparency how the lessons learned from past miscarriages of justice are being put to use in the reform process.

How Should the Impact of the Nian Bin Case be Recorded?

Zhu Changjun
The Beijing News, February 2, 2015

Overturning the verdict in the Nian Bin case merely reflects the ordinary operation of the judicial system’s mechanisms to correct errors. Correcting these errors is a basic responsibility of a reasonable judicial system. It’s really inappropriate for local high courts to one-sidedly prettify this sort of action in a work report.

According to recent reports citing a number of deputies to the Fujian Provincial People’s Congress, the Nian Bin case, which received a lot of attention in 2014, was mentioned in the work report of the Fujian High People’s Court. In that report, court president Ma Xinlan commented that the court’s “resolution of a number of cases in accordance with the law, including the case against Pingtan resident Nian Bin on charges of poisoning with a hazardous substance, caused a positive impact both legally and socially.”

Nian Bin’s case was a classic example of a miscarriage of justice and received national attention. As such, reversal of the verdict against Nian Bin is of course worth including in the annual work report of the local judicial authorities. But what is the most appropriate way of discussing it? Should it be a full accounting of the lessons learned from how this miscarriage of justice came to pass or simply a comment on the significance of how mistake were ultimately rectified? The answer should be self-evident. The way that judicial authorities have, at least at the current stage, chosen to focus on the “positive impact both legally and socially” of their “resolution of the case in accordance with the law,” deserves further scrutiny and discussion.

One can of course understand the Fujian High People’s Court’s mention of the positive social value of overturning Nian’s wrongful conviction. After all, Nian Bin’s case was finally overturned after eight years of 10 verdicts—four of those carrying a sentence of immediate execution, but this is not simply about restoring justice to a single individual. It allows people to hope for the rectification of even more wrongful convictions, a kind of judicial multiplier effect. To be sure, this has a positive social and legal impact. But it’s rather biased for an annual work report to only reveal and magnify the positive side and fail to reflect the complexity and real external impact of the case.

On multiple occasions, the Fujian high court sent the case back to the intermediate court for retrial on the grounds of “unclear facts and insufficient evidence.” This does actually show the high court’s cautious attitude in trying the case. But it’s also worth noting that on June 8, 2009, the Fuzhou Intermediate People’s Court once again sentenced Nian Bin to death for poisoning with a hazardous substance. Once again, Nian appealed the verdict. Only this time, on April 7, 2010, the Fujian high court issued its final ruling, rejecting the appeal and upholding the lower court’s verdict. The case was then sent to the Supreme People’s Court for review of the death sentence in accordance with the law. In other words, the Fujian high court upheld the death sentence against Nian Bin despite its previous findings of “unclear facts and insufficient evidence.” If it weren’t for the SPC decision to reject the death sentence, Nian Bin’s fate and the outcome of the case would most likely have been completely different.

Moreover, since the Fujian high court found multiple times that the case had “unclear facts and insufficient evidence,” why did it continue to send the case back for retrial time and again instead of directly acquitting Nian Bin? In this respect, even though neglect of supervision over the police investigation stage has enormous relevance to the way the case against Nian Bin developed, the Fujian high court’s role in “correcting errors” clearly shouldn’t be overstated.

It’s even more important to see that by only paying attention to the “social and legal impact” of the case, the Fujian high court takes the position of a cool and detached observer without fully considering the fate of Nian Bin, the victim.

No matter how you approach it, the lessons of the Nian Bin case are all very serious. Overturning the verdict in the case merely reflects the ordinary operation of the judicial system’s mechanisms to correct errors. And correction of the errors in this case was never a foregone conclusion and came only after such great difficulty. If it weren’t for the persistence of Nian Bin’s relatives and lawyers and the decision of the SPC not to approve the death sentence, the outcome would be utterly unimaginable. In summing up the case as a participant, the Fujian high court ought to place its primary emphasis on the lessons and errors that led to this wrongful conviction in the first place. It should offer a deep reflection on and take appropriate responsibility for negligence and flaws in trying the case. To talk so single-mindedly about “impact” and “turning negatives into positives” is not only flippant; it makes it difficult for people to have any faith that the court has learned any lessons about miscarriages of justice.

A miscarriage of justice is a miscarriage of justice, and correcting these errors is a basic responsibility of a reasonable judicial system. It’s really inappropriate to one-sidedly prettify this sort of action in a work report.