Monday, July 21, 2014

International Opinion of China’s Rights Record Sours, Poll

Chinese President Xi Jinping (left) and US President Barak Obama at the Sunnyland Summit in June 2013. Image credit: AP

An annual poll published this week by the Pew Research Center’s Global Attitudes Project (PDF) includes for the first time year-on-year data on how sample populations in 34 countries view the Chinese government’s human rights record. When asked whether “the government of China respect[s] the personal rights of its people,” a majority or plurality of populations in 18 of the countries said “no.” In 21 countries, the percentage of negative responses increased over the last year.

Views of China’s human rights record are worst in Europe and the Americas. A staggering 91 percent of German respondents said the Chinese government does not respect the personal freedoms of its people. In every Latin American country, with the exception of El Salvador, where views stayed the same, perceptions have soured. In South Africa, opinions of China’s human rights record have also worsened.

In contrast, perceptions of the Chinese government’s human rights record have held up well in the Middle East and Asia, with the notable exceptions of South Korea, Japan, and the Philippines.

In the United States the percentage of people saying that the Chinese government does not respect the personal rights of the Chinese people rose seven percentage points to 78 percent. This shift may be contributing to a decline in China’s overall popularity. The Pew poll indicates that the percentage of Americans who hold a “favorable” view of China is at 35 percent, the lowest percentage since the poll was first taken in 2005. Meanwhile, “unfavorable” views are at an all-time high of 55 percent.

Among Republicans unfavorable views jump to 65 percent of respondents—a data point that may be significant if the GOP regains control of the Senate in November. Among Democrats and Independents, unfavorable views accounted for 53 and 51 percent of respondents, respectively.

Based on the poll data, this decline in popularity does not appear to be related to the economy, but may be related to other issues including China’s growing bellicosity. In 2014, Americans were less likely to see China’s economic strength as a threat. Forty-nine percent of Americans said that China’s growing economy was a “good thing” for the United States, compared with 37 percent who felt that way when the poll was last conducted in 2011. Similarly, the percentage of Americans who called China’s growing economy a “bad thing” fell to 42 percent in 2014 from 53 percent in 2011.

Source: Pew Research Center, 2005-2014. Chart compiled by Dui Hua.

In terms of military threats, two-thirds of American respondents expressed concern that China’s territorial disputes with its neighbors could lead to military conflict, and nearly 20 percent of Americans named China as their country’s greatest threat, second only to Russia. One year after the Sunnylands Summit between presidents Xi Jinping and Barack Obama, only 28 percent of Americans have confidence in Xi’s ability to “do the right thing in world affairs,” versus 58 percent who have little or no confidence in the Chinese president.

The latest Pew survey was conducted among 48,643 individuals in 44 countries from March 17 to June 5, 2014. Only 34 countries were polled in both 2013 and 2014 on whether the Chinese government respects the personal rights of its people. The survey of 1,002 American adults was conducted from April 11 to May 10, 2014. It has a margin of error of 3.5 percent.

Wednesday, July 2, 2014

Is Detention Center Law Enough to Prevent Police Abuse?

A cell inside Zhejiang Zhoushan Detention Center, July 2013. Image credit: eastday.com

Wrongful convictions and other miscarriages of justice have been the subject of intense scrutiny in China over the past several years. When details emerge of, for example, a person who has been mistakenly convicted of a crime he did not commit or detainees mysteriously dying inside detention facilities, these cases can easily become sensational news. They can also become opportunities for members of the public to vent anger over arbitrary and abusive actions taken by law enforcement authorities who are under strong pressure to fight crime effectively and efficiently in the name of preserving stability.

More often than not, individual cases are symptomatic of institutional flaws and weaknesses in the Chinese criminal justice system. Awareness of these flaws, if left unaddressed, threatens to undermine public confidence in China’s legal system, which in turn reflects badly on China’s political leaders. This, then, creates an opportunity to push harder for reforms to the legal system and, in some cases, overcome resistance from certain sectors who have a vested interest in maintaining the status quo.

When it comes to the problem of torture and abuse in China’s pre-trial detention centers, there has been no shortage of expert opinion about how reform ought to proceed. Previous attempts to regulate these facilities by replacing outdated administrative regulations with national legislation have been stymied, however, despite support from the highest levels in China’s government. Although there is widespread consensus about the desirability of placing pre-trial detention centers under the management of judicial administration authorities (who already manage most of China’s other custodial facilities) and of breaking the current tendency of the police to use pre-trial detention as an instrument of solving crime, such an institutional rearrangement would have practical implications for the “balance of power” inside the criminal justice system. Moreover, by constraining the ability of police investigators to “dig for additional crimes” among detainees, detention center reform could have a significant impact on the perceived effectiveness of China’s law enforcement authorities.

These and other issues were recently explored in an article published in China Youth Daily. The article notes that the Ministry of Public Security has taken the lead in drafting new legislation to regulate pre-trial detention centers. This suggests that long-awaited reforms to the system may be imminent. Experts surveyed on the subject express optimism about the prospects for specific reforms to be integrated into the new legislation, but there is also an undercurrent of disappointment. More far-reaching proposals appear to be off the table, and for the time being at least, China’s police seem poised to retain control over pre-trial detention.

Among the experts interviewed by China Youth Daily was Cheng Lei, deputy director of the Center for Criminal Procedure and Reform at Renmin University of China. Professor Cheng partnered with Dui Hua to conduct research at Chinese women’s prisons and detention centers last year as part of our women in prison symposium. During his interviews, incarcerated women complained most about insufficient family contact. In practice, family visits are prohibited for people in pre-trial detention.

*
Can a Detention Center Law End “Death by Blind Man’s Bluff”

Xu Xiaotong
China Youth Daily, May 14, 2014

“Coercion of confessions through torture, jailhouse bullies, detention beyond legal time limits, and digging for additional crimes” are four major abuses of the current detention center management system. The 2012 revisions to the Criminal Procedure Law established provisions that prohibit coercion of confessions through torture and forcing self-incrimination and require exclusion of illegally obtained evidence and full audio-visual recording of interrogations. But these are all missing from the Detention Center Regulations. A Detention Center Law being drafted by the Ministry of Public Security will remedy this, possibly ending incidents like “death by blind man’s bluff” and “death by drinking water” that have aroused such public doubt.

At a seminar held at the Institute of Law of the Chinese Academy of Social Sciences in April 2014, Director General Zhao Chunguang from the Department of Prison Administration at the Ministry of Public Security (MPS) revealed that the ministry is in the process of drafting a Detention Center Law (DCL).

Following that, scholars under the MPS said that the formulation of the DCL is focused on incorporating detention centers’ years of reform experience and bringing them into line with the new Criminal Procedure Law (CPL) in order to better serve the entire criminal justice system.

Consensus on Detention Center Legislation

The current Detention Center Regulations were issued 24 years ago in 1990. Since then, China’s CPL has undergone two major revisions in 1996 and 2012.

These antiquated regulations are no longer in sync with the CPL.

Fan Chongyi, honorary director of the Criminal Procedure Research Center at China University of Political Science and Law, gives an example: “Now we call them ‘criminal suspects.’ At that time, they were called ‘criminals.’”

The 2012 CPL revisions established mechanisms to prohibit coercion of confessions through torture. Among these are provisions that prohibit forcing self-incrimination, exclude illegally obtained evidence, and stipulate full audio-visual recording of interrogations. But these are all missing from the Detention Center Regulations.

Fan Chongyi believes that, whether in terms of terminology or content, the Detention Center Regulations have already fallen behind the needs of the current era. He also says that another principal feature [of the legislation] will be to sum-up and regularize the reform experiences of the past several years.

In 2009, Li Qiaoming was beaten to death by a jailhouse bully while detained at the Puning Detention Center in Yunnan Province. The detention center claimed that Li had died while playing blind man’s bluff with other detainees. Following this, there were a series of unnatural deaths in detention centers, leading public opinion to focus attention on detention centers.

Under scrutiny from all sectors, the MPS began carrying out reforms to the detention center system. Cheng Lei, deputy director of the Center for Criminal Procedure and Reform at Renmin University of China, told China Youth Daily that to date the MPS has already issued around 200–300 normative documents related to detention centers, with no shortage of highlights.

At the end of 2013, the Henan High People’s Court instituted a reform of its trial process whereby defendants are not required to wear “prisoner uniforms” when appearing in court. Cheng Lei notes that, many years ago, internal MPS rules concerning detention centers had stated that detainees could choose their own clothing when appearing in court. But these rules did not carry the force of law; therefore, it was necessary to upgrade them into law and routinize this practice.

In October 2013, the 12th National People’s Congress (NPC) Standing Committee announced its legislative agenda for the coming five years, and the DCL was among the 68 pieces of draft legislation listed therein.

Actually, the MPS began researching how to revise the Detention Center Regulations as early as 2000. In December 2008, the second Central Plan for Legal System Reform clearly called for “perfecting legislation related to detention centers and improving the mechanisms for procuratorial monitoring of detention centers.” These then became legal-system reform tasks assigned to the MPS to take the lead in implementing with assistance from the State Council Legislative Affairs Office and other bodies.

In 2011, the revision plans for the Detention Center Regulations were basically ready, but in the end, they were never passed.

Fan Chongyi told China Youth Daily that the revisions were not passed because of a recommendation from the Legislation Committee of the NPC Standing Committee. The Legislation Committee considered that, according to the provisions of the Legislation Law, coercive measures and procedural institutions concerning restriction of individual freedom can only be enacted through legislation and this legislative authority cannot be delegated to the State Council.

For this reason, revision of the Detention Center Regulations was temporarily put on hold.

Cheng Lei also believes that it would be inappropriate for legislation concerning detention centers to continue to take the form of administrative regulations. He contends that only administrative organs can be bound by State Council regulations, whereas detention centers must also interact with judicial organs like the procuratorates and courts.

Fan Chongyi told China Youth Daily that the MPS began drafting work on a DCL a year ago and has now completed a preliminary draft. Cheng Lei believes that there is basic consensus about the content of the detention center legislation but that its progress will depend on whether the State Council Legislative Affairs Office, which is taking the lead, has enough legislative resources to see it through.

Debate over “Combining Investigation and Detention”

On the subject of detention center legislation, what one hears most from criminal justice experts and lawyers are calls for detention centers to be stripped away from the public security bureaus.

According to the current Detention Center Regulations, detention centers are units of governments at the county level and above that are managed by public security organs. Under this kind of system, detention centers serve the interests of handling cases. They have turned into combined investigation-custody units—that is, they serve the purpose of case investigation.

Professor Meng Zhaoyang of the People’s Public Security University of China has written that, in several seminars discussing the Detention Center Regulations in 2010, scholars all maintained that “coercion of confessions through torture, jailhouse bullies, detention beyond legal time limits, and digging for additional crimes” were four major abuses of the current detention center management system, the causal root of which was the investigation-custody combination.

According to Fan Chongyi, one of the goals of the current legislation is to transform thinking from the notion that detention centers should serve the interests of case investigation to [the notion that they should serve] an impartial position in service of the criminal process. “If you don’t take proper custody and beat everyone to death, how can the criminal process proceed?” he asks. “When it becomes common practice to coerce confessions and beat people during interrogation, how can you safeguard the criminal process?”

The newest recommendations come from the Zhejiang High People’s Court. According to a report in Qianjiang Evening News, Qi Qi, president of the Zhejiang High People’s Court, summed up the characteristics and lessons of wrongful convictions as part of the work report delivered to the second plenary session of the 12th Zhejiang Provincial People’s Congress in January 2014. During his report, Qi also recommended the “separation of investigation and custody.”

But there are some practical obstacles to transferring management of detention centers to the judicial administration authorities. Most detention centers are located at the county level, explains Fan Chongyi. If detention centers are transferred too suddenly, the county-level judicial administration authorities “might not have the personnel, budget capacity, or material resources to keep up.”

Furthermore, Cheng Lei points out that it would be easy to fix many of the problems facing detention centers under public security management. The institutional bottlenecks that inhibit development of detention centers do not all originate in the public security organs; rather, they come from other institutions. “For example,” he says, “[they are the result of the] finance, housing, civil affairs, and health [institutions]. Detention centers are spaces in which people live. It’s necessary to deal with many different aspects, and this depends on the public security organs’ ability to coordinate with each of these institutions.”

Beginning in 2009, the MPS undertook a series of reforms to strengthen the neutral position of detention centers. Fan Chongyi believes that, after five years of reform, they have gradually begun to take on an internal functional neutrality. For example, the MPS requires that responsibility for management of detention and investigation at the county and prefectural levels be divided between two separate deputy public security heads. In this way, there develops a kind of mutual constraint at the leadership level.

A scholar who has participated in several discussions on the problems facing detention centers told China Youth Daily that the biggest obstacle preventing the neutrality of detention centers is “digging for additional crimes.” This refers to the additional questioning and investigation of offenders being held in detention centers or prisons in an effort to uncover new facts or leads related to crime. Objectively speaking, many cases are solved through digging for additional crimes.

According to statistics published in the 2008 China Law Yearbook, more than 600,000 leads related to additional crimes were dug up in public security detention facilities nationwide, from which more than 300,000 criminal cases were solved—12.6 percent of all cases solved by public security organs nationwide that year. For this reason, detention centers have been criticized as the “second front” for public security investigation.

On this subject, Cheng Lei has suggested the possibility of reforming detention center management following the proposal in recent legal system reforms to unify the management of local courts and procuratorates under the provincial level. In other words, provincial-level public security departments would manage all detention centers, enabling them to break free from management by county- and prefecture-level public security units. “This is because the pressure to solve cases comes mainly from the local level,” Cheng says. “In this way, there would be a lot less pressure on the heads of local detention centers.”

Another of his recommendations would be to set up a custodial enforcement authority that would be responsible for managing prisons, detention centers, drug treatment centers, and other custodial enforcement units.

On this point, however, scholars involved in the process told China Youth Daily that the draft being proposed by the MPS would not make major changes to the institutional structure of detention centers.

Opening up the Closed Doors

Apart from an overall change in the way of thinking, detention center legislation is also being directed toward the protection of rights and openness and transparency.

Cheng Lei’s Center for Criminal Procedure and Reform at Renmin University of China is working with the MPS Department of Prison Administration to carry out pilot reform projects in detention centers throughout China. Two such projects concern systems for carrying out inspections of detainees and handing detainee complaints. In the former project, ordinary people are selected to serve as specially invited inspectors authorized to enter detention centers at any time to meet with detainees and carry out spot inspections. In the latter project, individuals from all sectors of society are invited to form a complaints committee to handle major and difficult complaints raised by detainees.

Cheng says that the results from these projects over the past two or three years have been good and have helped make detention centers more open and transparent.

Another area [awaiting reform] is the problem of pre-trial visitation [by family members]. In China, once criminal suspects are taken into custody the earliest they see their family members is at trial. Cheng Lei notes that, actually, the law has no provision prohibiting [earlier] visits. “The detention centers’ own rules state that you must first seek approval from the unit handling the case, but the unit handling the case definitely won’t permit visits in order to facilitate its own investigation.” Because the legal provisions are not clear on this, Cheng believes, there are deviations in enforcement that lead to detainees being deprived of their lawful rights. This is a problem, he contends, that the current round of legislation should try to overcome.

Another area of reform is the strict execution of offsite transfers. According to Cheng Lei, coercion of confessions through torture usually takes place prior to arrival at the detention center or during temporary transfers outside the detention facility. Now, these temporary releases must first get the signed approval of the principal person in charge at the local public security bureau, and [the law] requires that detainees be returned the same day and prohibits them from being held overnight. Moreover, [detainees] must be given physical examinations before they leave and upon return to the facility.

Even though the results of these reforms have been positive, there remain concerns. Can the good intentions of the MPS be implemented in the more than 2,700 detention centers throughout the country? Cheng Lei is not optimistic: “No matter how good central policies might be, public security bureaus are under pressure when they need to solve major or important cases. When they ask a detention center to assist in the investigation, what can the head of the local detention center do?”

Tuesday, June 10, 2014

Detained Actor Spotlights Custody and Education, Censors Intervene

Huang Haibo. Photo credit: sohu.com

On May 15, police in Beijing detained well-known Chinese actor Huang Haibo for soliciting a prostitute. He and the prostitute were each subjected to 15 days of administrative detention, after which police decided to send them both to custody and education—a custodial measure targeting sex workers and their clients—for an additional six months. Reversing an earlier decision, Huang's Weibo account announced on June 8 that he will not appeal. On June 9, he terminated the contract with his lawyer Mo Shaoping.

The Chinese public has largely responded with sympathy for Huang and a sense that his punishment is excessive. Since the abolition of reeducation through labor (RTL) in 2013, the Chinese public seems to have become less tolerant for measures that enable police to detain individuals for extended periods without proper legal basis or due process. This has led some to push for abolition of “quasi-RTL” measures like custody and education.

In fact, there were signs of a healthy public debate over custody and education even before Huang’s case helped put the measure in the spotlight. In early May, more than 100 individuals signed a petition calling on the National People’s Congress (NPC) Standing Committee to abolish custody and education. After Huang’s arrest, on June 7, a group of legal experts, scholars, and lawyers met in Beijing leading to another proposal recommending formal abolition of the custody and education system.

Like the debate over RTL in 2012, many of the controversies surrounding custody and education have received widespread attention from the Chinese media. One article, however, appears to have crossed an invisible line. On June 4, an article entitled “What is the Legal Basis for Custody and Education?” was published on the front page of Procuratorate Daily, the official newspaper of the Supreme People’s Procuratorate, one of China’s main law-enforcement bodies. According to a report received by the China Digital Times website, media outlets were later instructed not to republish this article and immediately delete it from their online sites. On the website of Procuratorate Daily, the article is visible on an image of the front page of the June 4 edition, but links have been broken to both that article (available via web cache) and a more legible image of the front page.

It is not clear why this particular article was singled out for censorship. One possibility might be its concluding emphasis on the need for more effective ways for Chinese citizens to challenge the constitutionality or legality of measures or legislation. Although popular discontent over measures like “custody and repatriation” or RTL eventually led officials to abolish these detention measures, the initiative for action has very much remained in the hands of Chinese authorities. Establishing a routine mechanism for constitutional review—like the one suggested in this article—is liable to shift some of that initiative to society, and to give citizens a channel through which to assert the supremacy of constitutional principles and rule of law. China’s current leaders have expressed a certain degree of hostility to a system of constitutional checks and balances, and this article may have tested the limits of that attitude.

*
What is the Legal Basis for “Custody and Education”?

Xiao Rong
Procuratorate Daily, June 4, 2014

Experts believe that custody and education is unlawful and unjustified and that those sent for custody and education can protect their rights in accordance with the law

Recently, the decision to send actor Huang Haibo to custody and education has put the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes [hereafter, “Custody and Education Measures”] in public view. It has also raised many questions: Is custody and education lawful and justified? Does sending a prostitute or client of prostitutes to custody and education after [they serve] administrative detention violate the prohibition against “double jeopardy”? How should a review mechanism be initiated for “evil laws” that violate the constitution and Legislation Law? On June 3, Procuratorate Daily interviewed legal scholars regarding these questions.

Back on September 4, 1993, the State Council issued the Custody and Education Measures in response to the NPC Standing Committee’s 1991 Decision on the Strict Prohibition of Prostitution. According to these measures, which the State Council revised in 2010, “Prostitutes and the clients of prostitutes, in addition to the penalties provided for under Article 66 of the Public Order Management Penalty Law of the People’s Republic of China, in those cases in which RTL is not yet necessary, may be placed under custody and education by the public security organ.” Custody and education, which can last from six months to two years, primarily involves collective legal and moral education, arrangement of productive labor, and testing and treatment for sexually transmitted diseases for prostitutes and the clients of prostitutes.

“Custody and education is a compulsory measure restricting personal liberty that falls between general administrative penalties and RTL. However, the Administrative Compulsion Law does not have any provision for this kind of compulsory measure,” says Qi Dongwen, assistant professor at Chongqing University of Posts and Telecommunications Law School. Qi believes that the custody and education system is unlawful, both in terms of its legislative status and content.

According to China’s constitution, the personal freedom of citizens is inviolable. According to Article 8 of the Legislation Law, enacted in 2000, compulsory measures and penalties that deprive citizens of their political rights or restrict their personal freedom may only be enacted by law. Jiang Ming’an, director of the Center for Constitution and Administrative Law Studies at Peking University, told Procuratorate Daily that the provisions of the Decision on the Strict Prohibition of Prostitution involving restriction of personal freedom are in conflict with the aforementioned provision of the Legislation Law because that decision is not an act of law. Moreover, Article 9 of the Legislation Law states: “If laws have not been enacted regarding the matters specified in Article 8 of this law, the NPC or its Standing Committee has the power to make a decision to authorize the State Council to formulate administrative regulations first for some of those matters, based on actual needs, excluding criminal offenses and their punishment, compulsory measures and penalties involving deprivation of citizens’ political rights or restriction of the freedom of their persons, and the judicial system.” Therefore, the Custody and Education Measures are also in conflict with the Legislation Law. Qi Dongwen adds: “Custody and education also conflicts with the 2005 Public Order Management Penalty Law, which provides for detention or fines for prostitutes and their clients and makes no mention of custody and education.”

In the view of Fu Dalin, assistant professor at the Xi’an Institute of Political Studies [a unit of the People’s Liberation Army], custody and education is a coercive measure that took shape as part of China’s social management process that specifically targets prostitutes and their customers. In light of its own particular background, it has a certain degree of justification. However, since the enactment of the Legislation Law and Administrative Compulsion Law, the illegal and contradictory nature of this system has become increasingly apparent, and there is no further need for it to exist.

Does it violate the prohibition against “double jeopardy” to send prostitutes and their clients to custody and education after placing them under administrative detention? Fu Dalin told Procuratorate Daily that if you look simply at legal statute, custody and education following administrative detention does not count as “double jeopardy” because custody and education is not an administrative penalty. But looking from the perspective of law enforcement, administrative compulsion involves placing temporary restrictions on a citizen’s personal freedom in accordance with the law or taking temporary control of property belonging to a citizen, legal person, or other organization in accordance with the law, all for the purpose of preventing unlawful behavior, avoiding harm from occurring, and controlling the spread of danger. In prostitution cases, administrative detention or fines should be sufficient, and there is no need to impose additional custody and education.

Given that custody and education lacks clear lawfulness or justification, can Huang Haibo and others sent to custody and education protect their rights [through legal channels]? Fu Dalin says they can: “No matter whether it is an administrative coercive measure or an administrative penalty, if the person concerned believes the measure is unlawful he or she may file administrative litigation in accordance with the law in order to protect his or her own lawful rights and interests.”

Qi Dongwen says: “The Sun Zhigang incident led to the abolition of the custody and repatriation system. Complaints by petitioning mother Tang Hui led to the abolition of RTL. I believe that Huang Haibo’s case is a good chance to initiate the constitutional review mechanism and call an immediate halt to the custody and education system.” Fu Dalin recommends that there ought to be a regular channel within the state’s institutional arrangement for resolving difficult questions of constitutional review. “The review process established in the current Legislation Law only involves the ‘Part One’ issues of raising requests or recommendations for review,” says Fu. “There needs to be additional content added for the more crucial stage of ‘Part Two.’ Review of the Legislation Law is in the works, and I hope that it will establish an appropriate mechanism for constitutional review and oversight.”

Tuesday, May 6, 2014

During Death Penalty Review, No Right to Legal Aid

China University of Political Science and Law conference on lawyer participation in death penalty review, July 2014. Photo credit: CUPL

The 2012 revisions to China’s Criminal Procedure Law (CPL) introduced a number of important provisions aimed at expanding the role of defense lawyers in the criminal process. One of the highlights included a provision requiring that suspects have access to legal aid defenders during the pre-trial investigation stage as well as at trial.

The CPL revision also introduced a requirement that defense lawyers be able to submit opinions to the Supreme People’s Court (SPC) during the process of final review of death sentences. But what if a defendant still cannot afford to hire a lawyer at this stage of the process? Unfortunately, neither the CPL nor the related implementation regulations provide for the appointment of legal aid defenders during the death penalty review stage.

This could change if Liu Renwen has his way. Professor Liu, a legal scholar at the China Academy of Social Sciences, recently issued a public call for the SPC to change its rules and require the appointment of legal aid defenders to death row prisoners. In a piece published last month in Legal Daily, Professor Liu notes that, without a lawyer to intercede on behalf of a defendant facing the death penalty, the more rigorous review process introduced in the recent CPL provisions becomes nothing but empty words.

It remains to be seen whether the SPC (and Ministry of Justice, which is responsible for the legal aid system) will establish new rules based on Professor Liu’s recommendation. Given SPC President Zhou Qiang’s repeated expressions of concern about the importance of preventing wrongful convictions and other miscarriages of justice, extending further protections to those whose lives hang in the balance might be a good place to start.

*
Defendants Facing Death Penalty Review Should Have Right to Legal Aid

Liu Renwen
Legal Daily, 26 March 2014

I recommend that the SPC draw upon the aforementioned Article 42 of the “Interpretation on Application of the Criminal Procedure Law of the PRC” and issue a “Notice on Providing Legal Aid to Defendants Facing Death Penalty Review,” stating: “When the SPC reviews a death penalty case and the defendant has not appointed a defender, [the court] shall notify the legal aid agency to assign an attorney as his defender.”

Article 34, paragraph 3, of the 2012 revised Criminal Procedure Law states: “If a criminal suspect or defendant may be sentenced to life imprisonment or death, and such person has not appointed a defender, the people’s court, people’s procuratorate, or public security authority shall notify the legal aid agency to assign an attorney as his defender.” On this basis, criminal suspects and defendants who face the death penalty and have not appointed an attorney all received a right to legal aid at the stages of public security [investigation], procuratorate [review], and first- and second-instance court trial. But currently at the stage of the Supreme People’s Court (SPC) death sentence review, if a defendant who has been sentenced to death has not appointed a lawyer because of economic hardship or other reasons, the SPC will not assign him an attorney to provide legal aid. I believe that, in order to ensure the quality of each case under death penalty review, this practice ought to be changed and we ought to grant defendants under death penalty review with the right to legal aid as soon as possible.

Even though a case under death penalty review has already resulted in a death sentence after first-instance trial and also following either second-instance trial or review by the [provincial-level] high court, the conclusion has still not yet been confirmed because the procedure has not yet run its full course. The final result comes only after the SPC makes a decision either to ratify or reject the death sentence. In other words, before the results of the SPC review are handed down, the defendant still faces the prospect of life or death; therefore, he still “may be sentenced to death.”

Some might say that Article 34(3) only applies to those who “may be sentenced to death,” whereas death penalty review cases are “cases where the death sentence has already been imposed” and, therefore, not subject to the provision of Article 34(3), regarding compulsory appointment of a defender. This view takes an exceedingly narrow reading of Article 34(3). In fact, when it comes to death penalty cases, the SPC review is also a kind of “sentence,” because only death penalty verdicts or decisions that are ratified by the SPC can become legally effective.

It should be pointed out that Article 42 of the SPC “Interpretation on Application of the Criminal Procedure Law of the PRC” clearly states: “When a high people’s court reviews a death penalty case and the defendant has not appointed a defender, [the court] shall notify the legal aid agency to assign a lawyer as his defender.” According to the provisions of the CPL, currently high people’s courts review two types of death penalty cases. First, when an intermediate people’s court has handed down a death sentence (with immediate execution) in a trial of first instance and the defendant does not appeal, the higher people’s court shall conduct a review and report the results to the SPC. The other type is cases of death sentences with two-year suspension. From this, one can pose the question: Why does the legal aid provision in Article 34 apply when the high people’s court conducts a death penalty review but not when the same review is carried out by the SPC? Legal aid is provided in cases involving suspended death sentences under review (by a high people’s court), so why is legal aid not provided in cases involving the death penalty with immediate execution under review (by the SPC)? This makes no sense logically, and in reality makes it difficult for the SPC to consider both sides of the case during death penalty review.

Death penalty cases are a matter of a person’s life and death, and the utmost caution ought to be exercised at every stage. One of the principal reasons why the SPC took back the authority to review death sentences was in order to make death penalty cases ironclad and prevent wrongful convictions. It is precisely for this reason that Article 240 of the new CPL states: “When the SPC reviews a death penalty case ... if the defense attorney requests, it shall listen to the opinion of the defense attorney.” If, because of economic hardship or other reasons, a defendant facing death penalty review has not hired a lawyer and the court does not appoint a defender for him, then “listen to the opinion of the defense attorney” are mere empty words. Without a doubt, this does not help to ensure the quality of death penalty cases.

To summarize, I recommend that the SPC draw upon the aforementioned Article 42 of the “Interpretation on Application of the Criminal Procedure Law of the PRC” and issue a “Notice on Providing Legal Aid to Defendants Facing Death Penalty Review,” stating: “When the SPC reviews a death penalty case and the defendant has not appointed a defender, [the court] shall notify the legal aid agency to assign an attorney as his defender.” At the same time, the SPC also ought to consult with the Ministry of Justice and have the ministry’s Department of Legal Aid Work take responsibility for implementing legal aid for death penalty review cases. In other words, when the SPC discovers that a defendant in a death penalty review case has not hired a lawyer, it should immediately notify the MOJ Department of Legal Aid Work to have it assign a legal aid lawyer to take on the death penalty review case. Of course, detailed provisions should also be put in place concerning the professional duties of legal aid lawyers (for example, regarding meeting with death row prisoners and submitting legal opinions), the manner of involvement in death penalty review (it would be preferable to be able to communicate in person with judges and procurators involved in the review), and remunerations.

Wednesday, April 9, 2014

Hong Kong Residents Adrift in Mainland Prisons?

 
Yang Kuang at Shenzhen No. 1 Detention Center. Photo credit: Sui Muqing

Hong Kong resident and activist Yang Kuang (杨匡, pictured right) is on trial in Shenzhen for illegal border crossing. He was detained on December 31, 2013, while attempting to return to Hong Kong after visiting his wife in her native Henan Province. Yang’s immigration documents were revoked in March 2013 in retaliation for his attempts to visit Liu Xia (刘霞), the wife of imprisoned Nobel laureate Liu Xiaobo (刘晓波), who is under house arrest in Beijing. Yang is reportedly suffering from severe headaches and has been unable to receive treatment outside Shenzhen No. 1 Detention Center, where he is being held.

Following the recent death in custody of civil society advocate Cao Shunli (曹顺利), the situations of people like Yang Kuang—people who are detained by mainland Chinese authorities and have histories of political activism and indicators of ill health—must be monitored and their rights protected. Which actors and strategies are involved in these interventions depend in no small part on the citizenship and residency status of the detained.

Unlike foreign governments who are able to visit their foreign nationals, the government of the Hong Kong Special Administrative Region (HKSAR) does not have an agreement with mainland China to access Hong Kong residents who are arrested or detained on the mainland. As Hong Kong is a part of China, it cannot have a consular agreement with China. The HKSAR government has been negotiating a prisoner transfer agreement with its mainland counterparts, but little progress seems to have been made.

At present, the HKSAR government can only assist detained Hong Kong residents by inquiring about and providing advisory services to them upon request by the detained person or their relatives or friends. The numbers of people requesting assistance and of resulting releases, however, have declined in recent years, according to a 2011 report by Voice of America. The report states that in 2008 the HKSAR government received 46 requests for assistance and was able to obtain the release of 12 Hong Kong residents in mainland custody. In 2009 and 2010, those numbers reportedly fell to 35 requests and 11 releases and 27 requests and two releases, respectively. A local rights activist quoted in the report likened the HKSAR government to a “postal worker,” able to deliver messages but not curb prolonged detentions or facilitate family visits.

In 2011, Xinhua reported that there were 1,250 Hong Kong residents serving sentences on the mainland. Eight hundred of them were in Guangdong Province. When Dui Hua Executive Director John Kamm visited Dongguan Prison in November 2002 he was shown a cell block for Hong Kong residents. The warden told Kamm that there were 400 prisoners from Hong Kong and Macau in Dongguan Prison at that time.

In 2014, Dui Hua estimates that there are approximately 2,000 Hong Kong residents in mainland prisons and detention centers. (Hong Kong people can also be held in forms of extra-legal detention such as custody and education.) Dui Hua’s Political Prisoner Database includes information on seven Hong Kong residents currently in mainland prisons and detention centers, including at least two people charged with endangering state security.

The proper means of intervening on behalf of detained persons is often unclear. The United States and other countries have, however, seen success through the use of consular visits. In the US case, these visits helped improve the situation of American geologist Xue Feng (薛峰), who received a 10-month sentence reduction in 2012. Unfortunately, US businessman Vincent Wu (胡炜升) has been denied consular visits since the mainland does not recognize his US citizenship. Currently standing trial in Guangzhou, Wu entered China using his Hong Kong ID.

In terms of statements and lobbying, the HKSAR government has been less outspoken than the British government during Hong Kong’s colonial period. British officials called for the release of Luo Haixing (罗海星) after Luo was sentenced to five years in prison for his part in “Operation Yellowbird” in March 1991. (The aim of the operation was to help pro-democracy activists escape from mainland China to Hong Kong in 1989.) Luo, who passed away in 2010, was granted medical parole six months after his conviction.

British officials also lobbied Beijing to release Ming Pao journalist Xi Yang (席杨), who was sentenced to 12 years in prison for “leaking state secrets” in 1993. He was released on parole in 1997. In these and other cases, Dui Hua played an important role in convincing Beijing to grant clemency.

Working in conjunction with the US government and local and international advocacy groups, the HKSAR government helped secure the early release of well-known journalist Ching Cheong in 2008. Yet when Ching was sentenced on the mainland on August 31, 2006, the press statement made by Hong Kong Chief Executive Donald Tsang seemed to highlight the limited role the HKSAR government could play in prisoner interventions:

In rendering assistance to residents, the HKSAR Government must respect the “One Country, Two Systems” principle and does not interfere with the law enforcement and the judicial process on the Mainland, just as the Mainland authorities do not interfere with cases that fall within the jurisdiction of the HKSAR.

The line between interference and assistance can be easily blurred—especially when “interference” is aimed at individuals ensnared in a flawed criminal justice process. Just last month, Hong Kong’s Legislative Council was asking “how to assist in handling an incident of arbitrary detention outside Hong Kong.” At issue was the detention of 73-year-old Yao Wentian (姚文田), head of Hong Kong’s Morning Bell Press, in Shenzhen in October 2013. Yao is being investigated for alleged smuggling activities, but it is no secret that he has assisted in the publication of many books banned in mainland China and suffers from asthma and heart problems.

Should Hong Kong deem it important to gain access to residents imprisoned on the mainland, perhaps it could work towards implementing agreements with local governments, particularly Guangdong, whereby the departments concerned structure prisoner access between the two parties. Visits and more proactive interventions by Hong Kong officials as well as the publication of relevant statistics may be effective means for Hong Kong to assist its residents. Without proper assistance, Hong Kong residents detained on the mainland appear adrift: without the linguistic and cultural fluency of locals or the consular protections of foreign nationals.

Tuesday, March 25, 2014

RTL End Pushes Kids into Prison, Procurator Calls for Reform

Inside Shaanxi Province Juvenile Reformatory, December 2010. Photo credit: Liang Meng, Sunshine Daily

Last year’s decision to eliminate the decades-old measure of reeducation through labor (RTL) required a number of institutional adjustments. It has also left open a number of questions about other forms of detention and how to deal with the kinds of individuals previously held in RTL.

The disappearance of RTL has left one particular group in a kind of institutional limbo: juvenile delinquents who have been sent for “custody and rehabilitation” (shourong jiaoyang) by the government. Like RTL, custody and rehabilitation is a practice that has been around since the 1950s. Aimed at dealing with juveniles who cannot be held criminally responsible for offenses under the law, custody and rehabilitation has also been the subject of scrutiny because of its relatively vague standards and non-judicial decision process. Since 1996, youths sent for custody and rehabilitation were held in RTL facilities, but the closure of those sites has left local authorities to improvise solutions.

As a recent opinion piece in the Procuratorate Daily notes, some of these youths have been transferred to prison facilities. In the piece (translated below), an official at the Supreme People’s Procuratorate warns that housing juvenile delinquents in prisons is a violation of Chinese law, a violation of their human rights, and potentially counterproductive from the perspective of turning teens away from crime. Instead, it is argued, China should make use of other facilities—such as the correctional work-study schools that proponents argue have helped lower China’s juvenile recidivism rate—to take in youths sent for custody and rehabilitation.

*
Inappropriate to Move Youth to Prison from Custody & Rehabilitation

Chen Mengqi, Prison Procuracy Division, Supreme People’s Procuratorate
Procuratorate Daily, March 19, 2014

On December 28, 2013, the National People’s Congress Standing Committee passed a “Resolution on the Repeal of Regulations Related to Reeducation through Labor,” formally abolishing the RTL system. After the closure of RTL facilities, those persons who had been under RTL were released without having to serve the remainder of their terms. It has been a more difficult question, however, as to how to deal with the juveniles who had been sent to the RTL centers for custody and rehabilitation. Recently, some locations have been sending these youths to serve their custody and rehabilitation terms in juvenile reformatories (guanjiaosuo) or women’s prisons. I believe that this is inappropriate, as it is a violation of the relevant laws and regulations and infringes upon the lawful rights and interests of the juveniles who have been sent for custody and rehabilitation.

Sending youth to prisons for custody and rehabilitation is incompatible with the concept of respect and protection of human rights. According to Article 17 of the Criminal Law, juveniles under the age of 16 may not be subject to criminal penalties. Their parents or guardians should be instructed to discipline them or, when necessary, the government may subject them to custody and rehabilitation.

The subject of where juveniles should be held for custody and rehabilitation has gone through a process of historical development. In general, there has been a trend towards rule of law, mitigated punishment, and humane treatment, demonstrating the general policy toward juvenile [offenders] of education, reform, and rescue. China’s custody and rehabilitation system was created in the 1950s and was formally established with passage of the Criminal Law in 1979. In 1982, under the provisions of the Ministry of Public Security’s Notice on the Scope of Custody in Youth Reformatories, youth offenders serving criminal sentences and youths sent for custody and rehabilitation were both held for custody and rehabilitation in juvenile reformatories. After the Prison Law was promulgated in 1994, the Ministry of Justice issued a Notice on Transfer of Youths Sent for Government Custody and Rehabilitation to RTL Facilities for Custody and Rehabilitation in 1996 in order to implement the Prison Law correctly, and youths sent for custody and rehabilitation were transferred to RTL facilities. In 2013, the RTL system was eliminated, and some locations have transferred youths sent for custody and rehabilitation to prisons, violating the principle of respect and protection of human rights.

Transferring youths subject to custody and rehabilitation to prisons violates the Prison Law. According to Articles 2 and 16 of the Prison Law, prisons are state organs for the enforcement of criminal penalties and offenders who have been sentenced to fixed-term imprisonment, life imprisonment, or death sentences with two-year reprieve are to serve those penalties in prisons. Offenders to be imprisoned must have the “three documents and one form”: namely, copies of the procuratorate’s indictment, court verdict, and enforcement notice, along with the case-closure registration form. Otherwise, they may not be imprisoned. However, under the Criminal Law youths who have been sent for custody and rehabilitation are not subject to criminal penalty and do not bear criminal responsibility. They have a completely different status relative to criminal offenders. Transferring youths subject to custody and rehabilitation to prisons is a clear violation of the Prison Law and infringes on the lawful rights and interests of juveniles.

Sending youths subject to custody and rehabilitation to prisons does not benefit the education and protection of juveniles. All of the youths sent for custody and rehabilitation are juveniles under the age of 16. Some are even under the age of 14. These juveniles are undergoing physical growth, learning, and forming moral character. According to the provisions of the Juvenile Protection Law and the Law for Prevention of Juvenile Crime, the state shall protect the physical and mental health of juveniles, educate juveniles, and promote the moral, intellectual, and physical development of juveniles in order to protect their lawful rights and interests. Prisons are a place for the state to lock up and reform offenders serving criminal sentences. These offenders are vicious and pose a major threat to society. Locking up juveniles bearing no criminal responsibility in the same facility with offenders serving criminal penalties and having the same unit carry out management and education is not only unhelpful for the education, reform, and rescue of youths subject to custody and rehabilitation; it also has the potential to infect them with even worse vices or learn more criminal techniques.

To resolve the problem of where to house youths sent for custody and rehabilitation after the abolition of RTL, I have the following recommendations. First, we should retain the youth correctional centers (jiaoyang guanlisuo). Currently, each province, autonomous region, and direct-administered municipality typically has a youth correctional center in which youths sent for custody and rehabilitation can be held. We can also borrow from the foreign system of youth correctional schools and reform our youth correctional centers so that they are dedicated to the education and correction of youths sent for custody and rehabilitation. Second, we should make more use of work-study schools (gongdu xuexiao). Work-study schools are schools for the education and rescue of middle-school students who have violated the law or committed minor criminal offenses. These schools provide specialized half-work, half-study education for juveniles between the ages of 12 and 17. Currently, there are 67 work-study schools in China. If we send youths sent for custody and rehabilitation to work-study schools in accordance with the nature of work-study schools and the special characteristics of juveniles, it would be beneficial to the education and protection of juveniles.

Monday, March 3, 2014

To End Arbitrary Detention, Bring Officials to Justice

Entrance to the reprimand center at the Luoyang City Police Station in Henan's provincial capital. Photo credit: dzjjw.gov.cn

The formal elimination of reeducation through labor (RTL) in the final days of 2013 was greeted with widespread approval among Chinese citizens. Following a series of high-profile cases involving controversial detentions of petitioners and critics of local officials, the public had grown skeptical of this decades-old system of administrative detention and intolerant of the stability-first mentality of the officials who made use of it.

Given that little has been said so far about what, if any, measures might be put forward to replace RTL, there is an understandable concern among many that local authorities will come up with their own solutions and proliferate practices that are even more problematic—when it comes to due legal process and protection of individual rights—than RTL.

This vigilance about preventing the emergence of new forms of arbitrary detention was behind the outrage that erupted recently after the Beijing News reported on a system of “reprimand centers” that had been set up in Henan Province to deal with petitioners perceived to be disruptive and troublesome. Individuals were reportedly held in these facilities for days or even months at the behest of local officials without any legal process. The practice began in 2008, when provincial authorities instructed the use of “education and reprimand” to deal with people who went to Beijing to petition.

Henan government officials responded swiftly to the exposure of the reprimand centers, ordering that they be shut down. But many are concerned that the matter will end there, without further investigation or assignment of responsibility for those involved in this system of extrajudicial detention. To this end, a group of 31 rights lawyers from around China recently submitted a request for “open government information” regarding the reprimand centers, though there has so far been no response.

In an opinion piece published in the Shenzhen Daily Sunshine, reporter and columnist Liu Xiandong explains that local authorities are liable to continue violating the rights of citizens unless there are more serious consequences for doing so. Reminding readers that abuse of power is another form of corruption, he writes that “rights and dignity are even more precious than taxpayer money or public funds”—suggesting that the high-profile anti-corruption campaign now underway should not ignore the more routine, non-economic abuses of power.

*
How Could Eliminating Reprimand Centers for Abnormal Petitioning Be Enough?

Liu Xiandong, Daily Sunshine
18 February 2014

Faced with public condemnation over the establishment of reprimand centers for abnormal petitioning throughout Henan, the Henan Politico-Legal Committee and Office of Letters and Visits replied that the use of reprimand centers was not in accord with laws and regulations and sent out an overnight notice announcing the immediate launch of a province-wide inspection and elimination campaign to abolish all reprimand centers for abnormal petitioning. Given that reprimand centers were set up, there must have been violations of the law or even crimes committed. Accountability and punishment ought to be placed on the agenda. Last Saturday, a Daily Sunshine editorial called on officials in Hunan to hold executive agencies accountable for unlawful acts in this affair, but the relevant departments have so far said nothing.

First, let’s discuss how the unauthorized establishment of “reprimand centers for abnormal petitioning” is unlawful. Even though the petitioning system is, in the view of Yu Jianrong and other scholars, a mechanism for rights remedy that acts as a supplement where rule of law is insufficient, in reality the existence of this system gives a shred of hope to people who have already lost hope in the ability of ordinary legal channels to uphold their rights as citizens. In particular, crossing administrative jurisdictions to petition has the potential to strike fear in the hearts of domineering local power-holders. For this reason, some insist on declaring the practice of reporting on problems to higher officials on the outside to be “abnormal petitioning” and try to use brute force to prevent it. Everyone knows the methods used in the past, such as setting up the interception mechanisms known as “black jails” or sending petitioners to psychiatric hospitals. The biggest “innovation” of “reprimand centers for abnormal petitioning” is their attempt to legalize and regularize the dedicated black jails and psychiatric hospitals for petitioners that were denounced in the past.

There is no denying that some petitioners fabricate facts, slander, and disrupt public order in the course of their petitioning. Existing laws and regulations may be used to respond to these sorts of acts. It’s only that when ordinary legal channels are used to regulate petitioners, it is possible that some things that the authorities would rather keep secret might get revealed once the matter goes before a court. This is something that some local governments cannot stand. So, they are compelled to employ methods that “do not accord with law and regulations”—in other words, to use illegal measures to deal with petitioners.

The internal operations of the reprimand centers for abnormal petitioning have not yet been revealed, so we aren’t clear about whether it involved intolerable mistreatment or humiliation. But locking up citizens without due process and depriving them of their fundamental liberty in order to reprimand them is already a gross abuse of power and a violation of rights. When expanding power gets out of control, it inevitably becomes a malignant force that not only violates the lawful rights of citizens but also seriously damages the foundations of a rule of law society.

If the matter of setting up reprimand centers for abnormal petitioning were resolved merely by abolishing them, it would mean leaving open the question of whether unlawful acts by those with power can be effectively reckoned with. If there is nearly zero cost for violating the law, can the public expect that they won’t do something even worse next time? Can they be expected to lead everyone in the construction of a rule of law society? Can one have the extravagant hope that their rule will be fair and just?

These days there is a consensus among officials and the public about the need to fight corruption, but our understanding of corruption cannot be limited to economic acts like embezzlement or accepting bribes. We also need to pay attention to corrupt exercise of power. Power is not the same as money, but when power exceeds the boundaries set by law, it becomes a kind of rights violation and a form of corruption. What is ultimately damaged is the rights and dignity of the public. These rights and dignity are even more precious than taxpayer money or public funds and must be protected from violation and plunder.

It is based on these reasons that construction of a rule of law society must attach importance to restricting public power and must remedy and punish each unlawful act by the authorities.