Thursday, June 9, 2016

Can Recognizing Poverty Reduce Executions in China?


Photo credit: sn.ifeng.com

Dui Hua has obtained 525 reviews of death penalty decisions by China’s Supreme People’s Court (SPC) between 2013 and 2015. Of the 525 SPC reviews in the Dui Hua sample, only two percent were reversed--a figure considerably lower than that provided by SPC officials in 2014, when it was estimated that the SPC reversal rate was near 10 percent.

In carrying out its reviews, the SPC may consider several mitigating factors, including the defendant’s remorse, good behavior, and role in the crime, as well as the severity of the crime. Poverty is another mitigating factor that, while sometimes ignored, has the potential to decrease the number of executions China carries out each year. A collection of drug-related death penalty cases the SPC overturned between 1997 and 2015 demonstrates the court’s willingness to take economic factors into account.

In 2007, Li Budu (李补都), a native of Sichuan Province, was sentenced to death for transporting over 1,000 g of heroin—20 times the 50 g threshold making drug transport a capital crime. After Li’s loss on appeal, the SPC ultimately found that, while Li should be severely punished due to the quantity of drugs involved in his case, the poverty level of Li’s family and other mitigating factors were sufficient to reverse the sentence.

In advocating leniency in Li’s case, the SPC noted that the people sentenced for transporting drugs—as opposed to smuggling, trafficking, or manufacturing them—are usually “farmers, people living in border regions [which have higher rates of poverty], or people experiencing unemployment, whose motives are to solve economic difficulties.”

Recognizing poverty in death penalty decisions is just and equitable because it takes into account the circumstances affecting individuals’ choices to engage in criminal activity. It is also economical: as an infographic from Chinese news portal NetEase makes clear, the cost of the death penalty is rising. These costs include travel reimbursements for SPC judges’ traveling from Beijing to local jurisdictions to interview defendants, defense attorney fees, equipment necessary to shift from firing squad to lethal injection as the preferred method of execution, and state compensation in the event of wrongful execution.

Costs are likely to add up during the period before a capital case ever reaches the SPC for final review. It now it takes an average of six months for a death sentence to reach the SPC after pronouncement by an Intermediate People’s Court and review by a High People’s Court.

China has committed to gradually reducing use of the death penalty, but downward trends have stalled in recent years. Dui Hua estimates that China executed about 2,400 people per year in 2013, 2014, and 2015, after marking annual declines in the previous three years and a precipitous drop from 6,500 executions per year in 2007—the year the SPC regained final authority to review death sentences.



Tuesday, May 31, 2016

Waiting for Relief: Obstacles to Righting Wrongful Convictions in China


Chen Man (center) served 21 years in prison for a crime he did not commit. Photo credit: SCMP

Increased attention to wrongful convictions in recent years has caused Chinese judicial authorities to retry more criminal cases and exonerate greater numbers of long-serving prisoners. What these trends mask, however, are the formidable obstacles of getting a criminal case reopened in China.

Whether one looks at the case of Chen Man—released earlier this year after serving 21 years for a murder he didn’t commit—or the posthumous exoneration of Huugjilt in 2014—18 years after his execution—it is clear that it takes many years of petitioning just to get authorities to consider reopening a case. After a petition is accepted, it can still take years to decide whether it meets the criteria for retrial, as demonstrated by the ongoing effort to secure posthumous exoneration for Nie Shubin.

Critics point out that the protracted and arbitrary manner in which these post-conviction appeals are handled is almost as damaging to the credibility of the judicial system as wrongful convictions themselves. Late last month, a group of lawyers and legal experts met in Beijing to discuss ways to address this problem, indicating that reform may be on the horizon.

Conditions for Relief

China’s criminal procedure gives both defense and prosecution the right to appeal the verdict of a trial heard in the first instance. If either side exercises this right, the court one level above holds a second-instance proceeding. The outcome of this proceeding is considered final (unless it results in a decision to send the case back for retrial). Defendants who lose their appeals at this stage are required to begin serving their sentences, with the exception of those sentenced to death, who go through another stage of review by the Supreme People’s Court.

After appeals are exhausted and a verdict becomes final, the only way a case can be reopened is by initiating the process known under the Criminal Procedure Law (CPL) as “adjudication supervision.” The law gives convicted persons, as well as their legal representatives and close family members, the right to petition either the court or the procuratorate to seek retrial. The law specifies five conditions under which the court ought to provide relief:

  1. New evidence demonstrates errors in the factual basis of the original decision that could have an impact on conviction or sentencing;
  2. Evidence used to convict or sentence was unreliable, insufficient, or should have been excluded, or contradictions exist between major pieces of evidence used to determine the facts;
  3. The law was applied erroneously;
  4. Procedure was violated in a way that affects the fairness of the adjudication; or
  5. Judicial personnel were corrupt, showed favoritism, or perverted the law.

The adjudication supervision process also empowers higher courts to order lower courts to reopen cases and permits higher level procuratorates to file post-conviction appeals if they “discover” errors in cases that have already been decided. In practice, this means that individuals (or their advocates) have an incentive to employ a variety of means—such as petitioning through the “letters and visits” (xinfang) system or attempting to get media attention—to make higher level judicial officials aware of their cases. The effort necessary to garner enough attention to initiate a post-conviction appeal is one major reason why the process tends to take so long.

Lack of Incentives and Clarity

Experts point to a number of other factors that contribute to the arbitrary and slow nature of this process. First is the simple fact that getting a case reopened relies to a considerable degree on getting judicial authorities to acknowledge the possibility that they made a mistake. Human nature makes this difficult enough, but recent personal accountability measures imposing “lifetime responsibility” for errors in the judicial process may make police and judicial authorities more resistant. This is why lawyer Mao Lixin, who has handled a number of wrongful conviction cases, thinks that such measures need to be calibrated to incentivize individuals and institutions to admit and remedy past mistakes.

Another factor contributing to the difficulty of initiating the post-conviction relief process is the absence of clear procedures. Though the CPL sets out the criteria under which cases should be reopened and procedures for how new trials should be carried out, there are no procedures for the initiation or review of petitions for post-conviction relief. There is also a lack of clear, formal differentiation in the evidentiary standards used to review petitions for post-conviction relief and those used to overturn convictions. In practice, many courts will only provide new trials in cases where evidence for exoneration is overwhelming—such as when a supposed murder victim turns out to be alive or another person credibly confesses to the crime. Because of the way the current system is designed, courts that decide to retry a case often become the focus of public attention and scrutiny. This creates an expectation for courts to reverse their verdicts that undermines the impartiality of adjudication.

Calls for Law, Transparency, Oversight

The way to resolve these problems, legal experts argue, is to formalize the process of post-conviction appeals and define each stage more clearly under the CPL. They point to recent docketing reforms that have simplified individuals’ ability to file lawsuits of all types and suggest that courts also be required to accept petitions for post-conviction relief as long as they meet basic criteria. As for the review process, Renmin University Law School Professor Chen Weidong argues that a formal procedure needs to be introduced that would increase transparency and give petitioners a more meaningful opportunity to participate and air their positions.

Chen Guangzhong, one of China’s leading procedural law experts, has even proposed setting up an independent body to review petitions for post-conviction relief that would be made up of people’s congress delegates and members of the public. This, he argues, would help overcome the challenges arising from asking courts to find fault with themselves. Though it is hard to imagine such a body playing a direct role in what others are hoping will become a more formal judicial process, some have suggested that a non-judicial body could at least serve to exercise a welcome degree of independent oversight.

Fear of Retaliation

Formalizing a judicial process for post-conviction relief could help to greatly reduce the amount of time and effort spent trying to remedy wrongful convictions, but it may not lead to more exonerations. Individuals convicted of endangering state security and other political crimes will likely continue to find it nearly impossible to have their cases retried, even if reforms reduce court discretion over docketing decisions and make review proceedings more transparent.

In fact, many who are currently serving prison sentences choose not to exercise their right to petition for post-conviction relief because they fear retaliation or negative impacts on their eligibility for sentence reduction or parole. When journalist Gao Yingpu was serving his three-year sentence in connection with critical comments made online about former Chongqing Party Secretary Bo Xilai, his wife reportedly declined to pursue post-conviction appeal for fear that he might be penalized for “refusing to admit guilt.” She changed her mind after Bo Xilai was removed from power. She filed a petition with the Chongqing High People’s Court in January 2013, shortly before Gao was given a sentence reduction and released from prison. As far as anyone knows, that petition—like so many others throughout China—is stuck in bureaucratic limbo.

Wednesday, April 6, 2016

China State Security Trials Fell 50 Percent in 2015, Official Data Suggest


Pu Zhiqiang (pictured above) was arrested for "inciting splittism", but convicted of "inciting ethnic hatred" and "picking quarrels and provoking trouble". Source: CCTV, DW-TV

Chinese courts concluded 50 percent fewer endangering state security (ESS) trials in 2015, according to Dui Hua’s analysis of data released in the annual work report of China’s Supreme People’s Court (SPC). Dui Hua believes the decline represents an increase in the use of non-ESS charges to prosecute political and religious activism.

Dui Hua estimates that Chinese courts concluded more than 500 ESS trials of the first instance in 2015, compared with more than 1,000 ESS trials in 2014. Delivered to the National People’s Congress by SPC President Zhou Qiang on March 13, 2016, the annual work report includes ESS and endangering national defense (END) crimes in a category of “Other” trials. The category comprised 0.06 percent of first-instance criminal trials in 2015, compared with 0.13 percent in 2014. Based on an accounting of all of the crime categories in China’s Criminal Law and historical data on END trials, Dui Hua believes that the “Other” category is primarily populated by ESS cases—according to China Law Yearbook, only 243 END trials were concluded in 2014.

ESS crimes, which include subversion, inciting subversion, splittism, espionage, and state secrets violations, carry a mandatory supplemental sentence of deprivation of political rights (DPR). This sentence precludes individuals from writing articles, giving interviews, voting, standing for office, and working in a state-owned company.

The Xinjiang Uyghur Autonomous Region typically accounts for the largest percentage of ESS trials of any Chinese region. According to the annual work report of the Xinjiang High People's Court, courts in the autonomous region heard approximately 100 ESS trials in 2015, down from about 300 trials per year in 2014 and 2013. The same work report reveals that trials for the categories of crimes that cover "cults" and "terrorism" surged 35.5 percent and 25 percent respectively in 2015. Dui Hua believes that many of the trials for cult and terrorism crimes had previously been handled as ESS trials.

As previously reported by Dui Hua, ESS indictments by procuratorates in 2014 rose to a record level since the criminal category was introduced in 1997: 1,411 people were indicted in 663 cases. In light of the sharp drop in ESS trials in 2015, Dui Hua expects that ESS indictments also fell by a significant margin last year. The numbers are expected to be released later this year when the 2016 China Law Yearbook is published.

ESS “and Other” Trials

Pu Zhiqiang’s recent conviction is a prominent example of the uncertainty with which the justice system categorizes political activities as endangering state security. Police initially charged Pu with the ESS crime of “inciting splittism” for criticizing the Chinese Communist Party (CCP) on his microblog. However, his conviction at trial was ultimately for the non-ESS crimes of “inciting ethnic hatred” and “picking quarrels and provoking trouble.” Although Pu was given a suspended sentence, he is not a free man—he continues to serve a sentence through compulsory measures and will be subject to various regulations, the violation of which could result in his future detention.

Dui Hua’s Political Prisoner Database (PPDB) records the names of 19 people tried for ESS crimes in 2015. Mettursun Eziz was sentenced in May to four years in prison and three years deprivation of political rights (DPR) for inciting splittism. The Henan Nanyang Intermediate People’s Court found that he used voice-messaging apps like WeChat to download a large number of “extreme religious materials” produced by the East Turkestan Islamic Party (ETIP). Mettursun Eziz is scheduled for release on April 2, 2018.

In perhaps the most widely reported ESS trial of 2015, prominent journalist Gao Yu (高瑜) was sentenced to seven years in prison for leaking state secrets in April. Observers have attributed the charges to the leaking of “Document Number 9,” an internal CCP manifesto that rails against democracy, civil society, and universal values like human rights. In November, the Beijing High People’s Court reduced Gao’s sentence to a five-year term and allowed the 71-year-old to serve the remainder of her term outside prison.

In December, the Nanyang Intermediate People’s Court sentenced prominent religious figure Li Baocheng (李保成) to four years in prison for inciting subversion and fraud. Henan’s Dahe Daily accused the 77-year-old of extortion for charging “baptism fees.” Li was also found guilty of discussing plans to establish a new political party to challenge the CCP.

2015 First Instance Trials for ESS Cases in the Dui Hua PPDB
Name Sex Crime 1st instance Trial Date 1st Instance Verdict
Du X
杜某
M Inciting subversion 12/15/2015 10 Months, 1 Yr DPR
Gao Yu
高瑜
F Illegally procuring/trafficking in state secrets/intelligence for foreign entities 04/17/2015 7 Yrs, 1 Yr DPR
Han X
韩某
M Illegally procuring/trafficking in state secrets/intelligence for foreign entities 01/29/2015 8 Yrs, 4 Yrs DPR
Li Baocheng
李保成
M Inciting subversion 12/15/2015 4 Yrs, 2 Yrs DPR
Li X
李某
M Inciting subversion 12/15/2015 1 Yr, 1 Yr DPR
Liang Qinhui
梁勤辉
M Inciting subversion 11/13/2015 Unknown
Liu Chao
刘超
M Inciting subversion 01/27/2015 1 Yr (DPR Unknown)
Liu Jiacai
刘家财
M Inciting subversion 05/08/2015 5 Yrs, 3 Yrs DPR
Mettursun Eziz
麦提图尔荪·艾则孜
M Inciting splittism 03/17/2015 4 Yrs, 3 Yrs DPR
Paziniye
排孜妮耶
F Inciting splittism 12/21/2015 5 Yrs, 2 Yrs DPR
Qamber Amber
卡姆巴尔·阿穆巴尔
M Inciting splittism 03/21/2015 9 Yrs (DPR unknown)
Wang Mo
王默
M Inciting subversion 11/19/2015 Unkown
Xie Fengxia
谢丰夏
M Inciting subversion 11/19/2015 Unknown
Yang Mingyu
杨明玉
M Inciting subversion 09/23/2015 3 Yrs, 4 Yrs DPR
Yang X
杨某
M Inciting subversion 12/15/2015 1.5 Yrs, 1 Yr DPR
Yang X
杨某
M Inciting subversion 12/15/2015 10 Months, 1 Yr DPR
Zhang Rongping 张荣平 M Inciting subversion 11/13/2015 Unknown
Zhang X
张某
M Illegally procuring/trafficking in state secrets/intelligence for foreign entities 02/12/2015 6 Yrs, 1 Yr DPR
Zhao X
赵某
M Illegally procuring/trafficking in state secrets/intelligence for foreign entities 01/2015 7 Yrs, 2 Yrs DPR

Tuesday, March 22, 2016

China’s Acquittal Rate Rose in 2015, But Remains Low


People who were acquitted in 2015 (from left): July 21, 2015, Zeng Aiyun of Hunan (ynet.com); August 11, 2015, Yang Ming of Guizhou; December 21, 2015 (news.ifeng.com), Xian Renfeng of Yunnan (jinhua.cn).

The most important events on China's political calendar -- the annual sessions of the National People's Congress (NPC) and the Chinese People's Consultative Congress (CPPCC) -- concluded in Beijing on March 16, 2016.

The heads of the Supreme People’s Procuratorate and Supreme People’s Court (SPC) presented their work reports to the NPC. These reports, and the subsequent resolutions to accept them, represent one of the main ways in which the NPC performs its constitutional duty to oversee China’s two nominally independent legal institutions.

The reports typically include statistical data, including figures on arrests, convictions, and acquittals. Although not presented in detail, these data can be used to track the performance and priorities of China’s legal system, like trends in “endangering state security” crimes.

Many NPC delegates seem to pay close attention to these figures as measures of effectiveness in fighting serious crime. If the numbers are not to their liking, some will vote against the reports as a symbolic way of voicing dissatisfaction. An interesting take-away from the SPC report is that the number of acquittals rose from 778 in 2014 (a rate of 0.066 percent for all cases adjudicated) to 1039 in 2015 (a rate of 0.084 percent).

In the weeks preceding the national “two meetings,” courts and procuratorates at lower administrative levels also present work reports to people’s congresses at the provincial, prefecture, and county levels.

Recently, reporters at online news journal The Paper observed the low number of acquittals reported by provincial courts in 2015 and asked legal experts how to reconcile these figures with increased attention to wrongful convictions. The experts pointed to many of the same explanations raised in an analysis of acquittals done by researchers at the Guangdong High People’s Court—performance measures based on conviction rates, “coordination” between law-enforcement institutions, and resolution of problematic cases through means other than acquittal. Some expressed optimism that China’s acquittal rates would start to approach more “normal” levels as a result of recent legal reforms aimed at strengthening the judicial process and reducing the pressure that comes from distortionary performance metrics.

Percentage of Adjudications Resulting in Acquittal, 2000-2015

Source: Supreme People's Court Annual Work Report, 2000-2015

Wang Lin, a frequent commentator on legal issues and professor at Hainan University Law School, took up this issue in a recent column in the Beijing Times. He, too, thinks that recent reforms are likely to reverse the long-term decline in China’s acquittal rates. The title of Wang’s piece poses a provocative question: “Are You Ready for a Rise in the Acquittal Rate?”

This question is significant. Chinese leaders are concerned about the negative impact that miscarriages of justice and wrongful convictions have on popular assessments of the criminal justice system. For decades, however, the stress has mainly been on the effectiveness and efficiency of that system in fighting crime and promoting stability and security. It comes down to a need to make choices, as Professor Chen Ruihua put it in an interview last year, between “the risk of being unable to fight crime [and] the social damage caused by wrongful convictions.”

Professor Chen expressed optimism that public rights consciousness was helping to shift the balance in the direction of the procedural justice that would help protect against wrongful conviction. Professor Wang, who has closely observed the influence of China’s mercurial public opinion on criminal justice, appears a bit more ambivalent. Both would no doubt agree that if either Chinese law enforcement bodies or the Chinese public—or both—isn’t “ready” to see more criminal defendants proclaimed innocent by the country’s courts, then efforts to reform the judicial system may have limited impact.

*
Are You Ready for a Rise in the Acquittal Rate?

Wang Lin
Beijing Times, February 23, 2016

As we enter this year’s “two meetings” period, provincial courts and procuratorates have been presenting their work reports around the country. A report in the media added up figures from 14 provincial-high-court work reports to reveal that these courts convicted 721,000 individuals and acquitted 543 individuals, for an average acquittal rate of 0.075 percent.

According to past work reports from the Supreme People’s Court, China’s acquittal rate has been gradually declining over the recent decade, reaching 0.066 percent in 2014. Of the extremely limited number of acquittals each year, more than 80 percent occur in cases in which individuals brought prosecutions directly to the court. In cases brought to court by public prosecutors, the acquittal rate has fallen from 0.296 percent in 2001 to 0.018 percent in 2010.

One can generally expect that when prosecutors bring a criminal case to court, there will be a conviction. Otherwise, why would they prosecute the case? A high conviction rate in publicly prosecuted cases ought to be the norm. If there’s not enough reliable evidence to prove that these convictions were decided unjustly, we shouldn’t criticize the fact that the acquittal rate is extremely low. “Presumption of innocence” is a fundamental principle of criminal justice. If a criminal justice system has a low acquittal rate, one shouldn’t automatically conclude that the rate of wrongful convictions is high.

Therefore, even though the acquittal rate in common-law jurisdictions is around 25 percent, around 5 percent in civil law countries, and 3.7 percent in Taiwan, one cannot conclude that our extremely low acquittal rate in publicly prosecuted cases must be a problem. There are reasons to doubt the accuracy of a low acquittal rate, however, since it’s only after a miscarriage of justice is reversed that one can say, legally speaking, that a past conviction was made in error.

For a long time, court work reports at various levels rarely touched upon wrongful convictions. Over the past two years, there’s been a lot of effort to reopen cases and overturn wrongful convictions. The public has made widespread note of these efforts, and some courts have begun including information about remedying such cases in their reports. As far as the public is concerned, “justice delayed is better than justice denied,” and when justice is overturned it’s thought of as a bit of luck for the exoneree amid his or her great misfortune. Praising courts for the courage to remedy their mistakes also carries important significance, as it stirs up other “highly suspected wrongful convictions” that have run into so many obstacles on the road to justice.

For those 14 provincial jurisdictions, last year’s acquittal rate represents a slight increase over the national rate for 2014. There is reason to expect evidence of an even higher increase when the SPC and SPP present their data during the March “two meetings.” This is because the Central Politico-Legal Commission gave clear orders at the beginning of 2015 that central and local law enforcement institutions were to carry out a comprehensive inventory of all performance indicators and eliminate unreasonable indicators such as the number of criminal detentions, arrest approval rate, indictment rate, conviction rate, or case clearance rate. If high conviction rates (in other words, low acquittal rates) were considered “hard” targets in the past and if these performance indicators could “forcibly” turn what ought to be acquittals into convictions, then once you’ve gotten rid of these irrational performance indicators a rise in the acquittal rate should follow as a matter of course.

Once the policy has been set at the top, you have to wait and see how it’s implemented at the local level. First, though, we should ask both law enforcement bodies and the general public this question: “Are you prepared for a rise in the acquittal rate?”

Thursday, February 25, 2016

American Views of China Remain Negative


Less than six months after Chinese president Xi Jinping’s state visit to the United States—a visit intended to improve American perceptions of China—the percentage of Americans who hold an unfavorable view of China rose in 2016, according to the Gallup Organization. For the ninth year in a row, at least half of Americans hold an unfavorable view of China; 52 percent held that view in early February 2016, versus 44 percent who held a favorable view. In 2015 the percentages were 50 and 44, respectively. Gallup conducted its annual survey on American attitudes towards foreign countries earlier this month.

The percentage of Americans who consider China to be America’s greatest enemy remained steady at 12 percent.

Americans who see China’s economic power as a critical or important threat to the United States rose marginally from 84 percent of those polled in 2015 to 86 percent in 2016, while the percentage who see China’s military power to be a critical or important threat was 87 percent—the same percentage recorded the last time the question was asked in 2014.

Since 2011, at least 50 percent of Americans have viewed China as the world’s leading economic power, but this year the percentage dropped to exactly 50 percent, while the percentage holding the view that the US is the leading economic power rose to 37 percent from 31 percent in 2015. Perhaps the most surprising result of the poll is the response of Americans to the question “Who will be the leading economic power in 20 years?” In 2012, the last time the question was posed, 46 percent responded China and 38 percent responded the US. In 2016, 44 percent believe the US will be the leading power in 2026; only 34 percent predict China will then be the leading power.

Tuesday, February 23, 2016

Growing Number of Women in Prison in China


Women prisoners in China. Photo source: gucheng.com

China may soon surpass the United States in the number of women it puts behind bars. The Asian Pacific Conference of Correctional Administrators finds that by the middle of last year, China had more than 107,000 women in prison, up 3.2 percent from the previous year. By comparison, federal and state facilities in the US housed just over 110,000 women in prison at the beginning of 2015 (according to the US Bureau of Justice Statistics' analysis tool).

The number of women in Chinese prisons has now risen more than 50 percent since 2003. These figures exclude women held in detention centers or other facilities run by China’s public security bureaus (e.g., custody and education, mandatory drug rehabilitation, and legal education). If these facilities were included, the number of women China incarcerates would likely have already exceeded that of the United States.

Women now make up 6.5 percent of China’s general prison population, compared with 7.2 percent of total prisoners in the United States. Hong Kong and Macau—special administrative regions which are not included in China’s statistics—have the largest portions of incarcerated women in the world. As of mid-2014, the World Prison Brief noted that Hong Kong imprisoned the largest proportion of women (19.4 percent) within its total prison population than any other country with a population of at least 60,000. In the past year, however, Hong Kong was surpassed by Macau, whose prison population as of mid-2015 is comprised of 21 percent women.


Sources: Dui Hua, China Statistical Yearbook, APCCA

Promoting the Bangkok Rules

Worldwide, the number of women in prison has increased 50 percent since 2000, compared with 18 percent growth for men, according to the Institute for Criminal Policy Research. As more women enter the criminal justice system, the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules) become increasingly important as a framework for meeting the physical and psychological needs of women in penal systems built for men.

Aiming to improve legal outcomes for women in Chinese-speaking areas of the world, Dui Hua has just released a Chinese translation of an e-course on sections of the Bangkok Rules regarding non-custodial measures. Starting in 2016, Dui Hua began distributing the translation as a training guide for legal officials in China. The translation is based on Penal Reform International’s e-course “Women in Detention: Putting the UN Bangkok Rules into Practice,” already available in English, Arabic, and Russian.

Non-custodial measures help reduce the social and psychological repercussions of legal sanctions by keeping families together and reducing the risk of additional trauma for women who are survivors of gender-based violence.


Tuesday, February 9, 2016

China Issues Oversight Rules for “Non-residential” Residential Surveillance


The Supreme People's Procuratorate building in Beijing.

Not long after the draft of the amended Criminal Procedure Law (CPL) was released by China’s National People’s Congress (NPC) for public comment in August 2011, the United Nations Working Group on Enforced or Involuntary Disappearances expressed concern that the provisions relating to the coercive measure known as “designated-location residential surveillance” (zhiding jusuo jianshi juzhu) would legalize enforced disappearances. In late 2015, the United Nations Committee against Torture (CAT) went further and called on China to abolish the measure.

The Supreme People’s Procuratorate (SPP) subsequently issued trial rules for determining the necessity of detention and rules to govern oversight of “designated-location residential surveillance” (DLRS), which had leapt back into the headlines in 2015 as part of a police crackdown against Chinese rights lawyers that intensified in July.

A Coercive Measure

Custodial detention or arrest takes place in detention centers, ordinary residential surveillance in one’s residence. DLRS happens someplace else, perhaps in a hotel or guesthouse, where law enforcement agents hold criminal suspects or defendants for up to six months while they investigate alleged crimes or prepare a case for trial.

Authorities justify the lengthy six-month period by stating that residential surveillance is relatively lenient—not depriving people of their liberty, but merely restricting it. Nonetheless, individuals held under DLRS face an environment ripe with potential abuse and rights violations.

When law enforcement uses the practice against people charged with endangering state security (ESS), terrorist activity, or serious corruption, the outcome is hard to distinguish from enforced disappearance or incommunicado detention. In these types of cases, investigators may use the law to deny families the knowledge of where their loved ones are being held and to deny detainees’ access to a lawyer. Within 24 hours of carrying out DLRS, investigators are only required to provide families with notice of detention and of the alleged offense.

What a Difference Two Years Makes

Faced with public opposition to the practice, legislators granted oversight powers to the procuratorate, but it has taken nearly two years for the SPP to define its role. In the meantime, as predicted, DLRS has become a routine part of handling politically sensitive cases. Though its high costs of facilities and manpower are somewhat prohibitive, DLRS is unparalleled in its long duration, ability to isolate detainees, option to delay intervention by legal counsel, and general capacity to exert psychological (and, in some cases, physical) pressure on suspects.

Unfortunately, the new rules will do little to diminish these serious violations of due process. Procurators are concerned with whether DLRS is carried out lawfully, yet the most concerning aspects of the practice are themselves spelled out in the law.

Focus on Decisions, Implementation

The SPP has yet to publish their oversight regulations, but highly controlled media reporting sheds some light on their content. One thing is clear: the intention of the rules is bureaucratic oversight, not judicial oversight. Procurators will likely focus on examining paperwork, making the occasional inspection, and issuing instructions in case anything is out of the ordinary. People held under DLRS may initiate the oversight process by filing complaints independently or through their advocates. What appear to be missing are mechanisms for hearings to allow for the presentation of evidence or for appeals to challenge procuratorial decisions.

Monitoring by the procuratorate will focus on two areas: (1) whether the decision to impose DLRS was lawful and (2) whether DLRS has been lawfully implemented. The former chiefly concerns whether the case involves a person who either (a) lacks a fixed residence in the county or city where the criminal investigation is taking place, or (b) is suspected of ESS, terrorism-related offenses, or serious corruption. In case of (b), the law requires investigators to substantiate a claim that ordinary residential surveillance would impede their investigation and obtain approval for DLRS from their immediately superior law-enforcement unit.

The second area of focus involves ensuring that all paperwork is in order; necessary notices have been delivered; and the appropriate location, duration, and personnel are employed. Procurators would also ensure that detainees’ lawful rights are being protected, interrogations are held in separate locations, and no “physical punishment or abuse” is inflicted.

Adding Inspections

Oversight activities require procurators to make an on-scene inspection within 24 hours of receiving a copy of a decision to carry out DLRS. This inspection presumably enables inspectors to interview detainees and establish whether they have any allegations to make. It should also allow them to ascertain whether the designated location meets the lawful conditions for “ordinary living and rest” and to ensure that surveillance cameras and safety equipment are installed.

The rules also appear to require procurators to visit the location at least once a week for the duration of DLRS. Periodic inspections should offer minimal guarantees against physical torture or ill treatment. They are inadequate, however, in preventing mental suffering and the use of other cruel and degrading treatment.

Also troubling is the requirement that inspections be carried out in ways that do not interfere with investigations. This prioritizes the needs of investigators over the rights of detainees and may give investigators broad discretion to delay access to facilities.

Missing the Mark

This type of oversight, with its emphasis on ensuring adherence to applicable laws and regulations, will no doubt help to limit certain kinds of arbitrary and abusive behaviors. Other arbitrary practices and violations of due process will remain unaffected because they are legally sanctioned. For example, procurators are very unlikely to challenge investigators’ decisions to deny access to legal counsel to individuals charged with ESS or terrorism. The CPL empowers investigators to deny such access if they believe it might interfere with their investigation.

In their attention to the legality of decision and implementation, procurators may also fail to scrutinize the legitimacy of charges made against detainees. Investigators can use flimsy evidence to initiate ESS investigations—thereby justifying the use of DLRS and exclusion of legal counsel—only to modify the charges when requesting approval of formal arrest after expiry of the six-month time limit.

Ultimately, however well intentioned it might be, this kind of bureaucratic review cannot address the risks of DLRS. The measure grants law-enforcement investigators too much power over individuals, and the procuratorate lacks both power and incentive to challenge DLRS decisions, especially in the kinds of politically sensitive cases where abuse is most likely.

The best solution would be for China to abolish DLRS, or at the very least, to restore detainees’ rights to full access to legal counsel and to communicate with the outside world. Anything less, and China is sanctioning enforced disappearances.