Wednesday, July 20, 2016

China Scores Low Marks on Human Rights in 14 Democracies


A recent Pew survey finds that China's favorability rating among Americans is at its lowest level since Pew began polling attitudes towards China in 2005. Photo Source: telegraph.co.uk

According to a June report from the Pew Research Center, more than 60 percent of respondents in 14 democratic countries across North America, Europe, and Asia believe that the Chinese government does not respect the personal freedoms of its people. In France, Germany, and Sweden, as many as nine out of ten people surveyed hold this view. The report comes on the heels of a Joint Statement criticizing China’s human rights record, signed by several of the countries surveyed in the poll, that was released at the meeting of the Human Rights Council in Geneva in March.

General attitudes towards China were also starkly negative—in the United States, where 80 percent of people polled think that the Chinese government does not respect the personal freedoms of its people, only 37 percent of those surveyed have a favorable opinion of China. This figure represents the lowest favorability rating since Pew began polling attitudes towards China in 2005.

Unfavorable Five-Year Trend

Negative feelings towards China have risen sharply since 2011, the year before Xi Jinping took over as chairman of China’s Communist Party. The figure below shows that in five major global powers—US, UK, France, Germany, and Japan—survey respondents with unfavorable views of China have increased since 2011.Since Xi has come to power, China’s relations with neighboring countries have likewise deteriorated—Vietnam, Philippines, Malaysia, and Indonesia, for example, have all drawn closer to the US.

Percentage of Respondents with Unfavorable View of China, 2011 and 2016, by Country


Source: Pew Research Center Reports, 2011 and 2016.

These results cast doubt upon Xi’s approach to international affairs, evidenced most recently by China’s decision to refrain from any participation in the South China Sea arbitration case brought against it by the Philippines at the Permanent Court of Arbitration in The Hague. Not only did the PCA reject China’s “nine-dash line” claim to rights over the South China Sea, "the ruling was unanimously in favor of the Philippines on every issue. The result is widely seen as a blow to China’s prestige, and to Xi’s leadership skills as well.

On specific issues, Pew respondents also tended to hold negative opinions of the Chinese economy. Of the ten European countries surveyed, all but one (France), now see the United States as the world’s leading economic power. In 2015, those surveyed in France, Germany, Spain, and the United Kingdom held the opinion that China was the world’s leading economic power. Competing with China-related economic fears, increasing numbers of Americans are “most concerned” with China’s growing military might. (Economic concerns outweigh military concerns, however, though the percentage of those who are most concerned by China’s economic might is dropping.)

The Pew results were not entirely grim for China, however. A majority of people in Australia have a favorable view of China. According to a poll conducted by the Lowy Institute that was released in June, Australians now view China as their best friend in Asia, and 43 percent feel that Australia’s relationship with China is the country’s most important relationship, tied with the percentage who hold that the relationship with the United States is the country's most important relationship. Nevertheless, 86 percent of Australians surveyed in the Lowy poll stated that “China’s human rights record” exerted a negative influence on their views of the country.

Finally, in a finding that might have implications in the American presidential campaign, there is a wide disparity in American views about China based on respondents’ political affiliation and age. Republicans tend to have more negative feelings towards the country than Democrats, and young people tend to view China more favorably than older people.

Wednesday, July 13, 2016

Could China’s New Oversight Rules Have Avoided Arbitrary Detention of American Citizen?


The United Nations Palais des Nations. On June 29, the UN Working Group on Arbitrary Detention recommended the release of American Sandy Phan-Gillis, who has been detained for over a year without having charges brought against her in court. Photo: www.unog.ch

Dui Hua recently found a copy of Supreme People’s Procuratorate (SPP) regulations that govern oversight of “designated-location residential surveillance” (DLRS), a form of incommunicado detention that the Chinese government frequently uses in sensitive cases involving endangering state security, terrorism, and corruption (known as “three type offenses"). Dui Hua has translated the regulations into English below (Chinese source text available here).

The SPP adopted the regulations on October 13, 2015 with the apparent intention of curtailing abuse of DLRS. During public comment periods leading up to the 2013 revisions to the Criminal Procedure Law (CPL) that established DLRS powers, many commentators heavily criticized DLRS for effectively legalizing the secret, incommunicado detentions that had existed for years in China due to ambiguities and blank spots in the law. In November 2011, the United Nations Working Group on Enforced or Involuntary Disappearances had also objected to the proposed CPL revisions, arguing that they would amount to the legalization of enforced disappearances.

Oversight Regulations Aim to Limit Arbitrary Detention Through On-Site Inspections

Given the importance of DLRS oversight, it is tempting to speculate whether these rules, had they been in place just a few months earlier, might have helped mitigate if not avert the arbitrary detention of American citizen Phan (Sandy) Phan-Gillis—the only American currently in a Chinese detention facility on state secrets charges. On June 29, the UN Working Group on Arbitrary Detention (WGAD) published an Opinion holding that Phan-Gillis’ detention is “arbitrary”, with US State Department officials urging China to consider the WGAD’s recommendation to release Phan-Gillis. Indicating the heightened US-China tensions resulting from the case, Chinese Foreign Ministry spokesman Hong Lei issued a swift reply, referring to the WGAD findings as “irresponsible” and calling for greater respect of China’s “judicial sovereignty”.

Phan-Gillis (pictured left) was initially taken into custody by agents of the Guangxi Zhuang Autonomous Region’s state security bureau on suspicion of espionage on March 19, 2015. She was placed under DLRS until September 2015, when the six-month time limit on this coercive measure expired, and was then transferred to a detention center in Nanning and placed in solitary confinement. In March 2016, Newsweek reported on the one-year anniversary of her detention.

Phan-Gillis has not received access to effective assistance of legal counsel and continues to be held in detention in Nanning, having never had charges brought against her in court. Had the SPP’s new oversight regulations been in place when Phan-Gillis was initially detained, procurators would have possessed clear authority under Article 19 to carry out on-site inspection of Phan-Gillis’ DLRS conditions and to conduct return inspection visits once per week.

Other provisions of the oversight regulations raise the question whether procurators might also have been able to request her release or to otherwise curtail police powers. Article 20 of the regulations, for example, provides local procurators with authority to issue “rectification opinions” on procedural irregularities, several of which apply to the Phan-Gillis case: state security officials failed to notify Phan-Gillis’ family of her placement in a DLRS facility; probably failed to place her in a facility that meets the statutory requirements for DLRS (no one, including the American consular officials who conducted monthly visits, were allowed to visit Phan-Gillis in the detention facility where she is actually housed); and failed to allow her reasonable visits and correspondence with legal counsel and family as provided for under the relevant sections of the CPL, which grant discretion for the detaining authority to allow family and lawyer visits even in so-called “three type offenses.”

Unfortunately, even these minimal oversight mechanisms were not in place at the time of Phan-Gillis’ DLRS confinement. The new rules came into force weeks after the end of her transfer to a detention facility. As it stands, the abuses of discretion that marked the first case of legalized disappearance after passage of CPL revisions in 2013 are eerily similar to those apparent in ongoing cases like Phan-Gillis’. It remains to be seen whether the oversight rules translated below will yield discernible changes in future police application of DLRS procedures.


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Regulations on Oversight of Residential Surveillance in a Designated Location by People’s Procuratorates

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Adopted at the 41st meeting of the 12th Procuratorial Committee of the Supreme People’s Procuratorate on October 13, 2015

Chapter 1: General Principles

Article 1: In order to strengthen and standardize how people’s procuratorates carry out oversight regarding imposition and implementation of designated-location residential surveillance (DLRS), these regulations are hereby enacted in accordance with the relevant provisions of the Criminal Procedure Law of the People’s Republic of China (CPL) and in consideration of the realities of procuratorial work.

Article 2: When DLRS is used against criminal suspects or defendants by public security organs, people’s procuratorates, or people’s courts, people’s procuratorates shall carry out oversight in accordance with law as to the legality of imposition and implementation of DLRS.

Article 3: Oversight of decisions to impose DLRS shall be the responsibility of the investigation-oversight and prosecutorial units of people’s procuratorates; responsibility for oversight of implementation of DLRS shall reside with the criminal enforcement inspectorate units of people’s procuratorates.

Article 4: Designated locations shall possess the conditions for ordinary daily life and rest and shall be separate from places of interrogation; they shall be equipped with surveillance equipment to facilitate monitoring and management; and they shall possess security measures to ensure the security of case handling.

Chapter 2: Oversight of Decisions to Impose Designated-Location Residential Surveillance

Article 5: When a public security organ decides to impose DLRS on a criminal suspect who has no fixed residence, the investigation-oversight unit of the people’s procuratorate at the same administrative level [as the public security organ] shall conduct oversight to determine whether that decision has been made lawfully.

When a public security organ at a higher administrative level has approved a decision to place an individual suspected of endangering state security or terrorist activity under DLRS, the investigation-oversight unit of the people’s procuratorate at the same administrative level as the public security organ that issued approval shall conduct oversight as to whether that decision has been made lawfully.

Article 6: When a people’s procuratorate decides to place a criminal suspect who has no fixed residence under DLRS, the investigation-oversight unit of the people’s procuratorate immediately above shall conduct oversight as to whether that decision has been made lawfully.

When a people’s procuratorate at a higher administrative level has approved a decision to place an individual suspected of serious corruption under DLRS, the investigation-oversight unit of the people’s procuratorate that gave that approval shall conduct oversight as to whether that decision has been made lawfully.

Article 7: When any of the following conditions apply, the people’s procuratorate shall initiate oversight into whether a decision to impose DLRS is lawful:

(i) A criminal suspect or his/her legal representatives, close relatives, or defense counsel believe that the decision to impose DLRS is in violation of the law and file a complaint, report, or petition with the people’s procuratorate;

(ii) When, in the course of its involvement in investigation, review of arrest or indictment requests, review of criminal enforcement, or filing review, the people’s procuratorate discovers that the investigating organ (unit) may have issued a decision to impose DLRS in violation of the law;

(iii) A people’s supervisor believes that a decision to impose DLRS is in violation of the law and files an oversight opinion with the people’s procuratorate;

(iv) Other circumstances requiring initiation of oversight.

Article 8: When initiating oversight of a decision by a people’s procuratorate to place a criminal suspect who has no fixed residence under DLRS, the investigating unit shall furnish the investigation-oversight unit of the people’s procuratorate at the administrative level immediately superior with copies of the case-filing decision, the decision to impose DLRS, and main pieces of evidence within three days.

When initiating oversight of a decision to place an individual suspected of serious corruption under DLRS, the investigation unit of the people’s procuratorate that approved the decision shall furnish the aforementioned documents to its own investigation-oversight unit within three days.

When the people’s procuratorate initiates oversight into a decision to impose DLRS by a public security organ, it may request that the public security organ provide the aforementioned documents.

Article 9: Oversight into decisions to impose DLRS may be carried out in one of the following ways:

(i) Review of the relevant case documents;

(ii) Listening to the investigating organ (unit) present its reasons and factual basis for issuing the decision to impose DLRS;

(iii) Listening to the opinions of the criminal suspect or his/her legal representatives, close relatives, or defense counsel;

(iv) Other ways.

Article 10: In reviewing the legality of a decision to impose DLRS, the people’s procuratorate shall check to see whether the decision satisfies the conditions set out in Articles 72 and 69(3) of the CPL, and further review whether the decision meets the following conditions:

(i) The criminal suspect has no fixed residence in the city or county where the case-handling organ is located;

(ii) The public security organ or people’s procuratorate at the administrative level immediately superior has approved the decision to impose DLRS on an individual suspected of endangering state security, terrorist activity, or serious corruption for whom implementation of residential surveillance in his/her own residence would impede the investigation.

Article 11: The investigation-oversight unit of the people’s procuratorate should issue a decision within seven days of initiating oversight into whether a decision to impose DLRS was lawful.

Article 12: When, having carried out its review, the people’s procuratorate finds that the public security organ’s decision to impose DLRS does not meet the conditions set out by the law, it shall report those findings to the head of the procuratorate and, upon his or her approval, issue a rectification notice to the public security organ and recommend that the public security organ revoke its decision to impose DLRS.

When the procuratorate finds that a decision to impose DLRS issued by itself or the procuratorate at the next lower administrative level does not meet the conditions set out by the law, the investigation-oversight unit of the people’s procuratorate shall report to the head of the people’s procuratorate and, upon his or her decision, notify its own investigating unit or the people’s procuratorate at the next lower administrative level to revoke the decision to impose DLRS. When notifying the people’s procuratorate at the next lower administrative level to revoke the decision to impose DLRS, the procuratorate shall also circulate a notice to its own investigating unit.

Article 13: Upon receiving a rectification opinion from the people’s procuratorate at the immediately superior administrative level, the people’s procuratorate shall immediately carry out the recommendation and report on the steps taken to the investigation-oversight unit of the immediately superior people’s procuratorate.

If the people’s procuratorate believes that the rectification opinion from the immediately superior people’s procuratorate regarding its decision to impose DLRS is in error, it may request a new review by [that same superior] people’s procuratorate within three days of receiving the rectification opinion. The superior people’s procuratorate shall appoint a new procurator to review the case and issue a decision whether to amend its original opinion within five days.

Article 14: Oversight of decisions by the people’s procuratorate to impose DLRS during the indictment phase shall be carried out in accordance with these provisions by the investigation-oversight unit of the same people’s procuratorate.

Oversight of decisions by the people’s court to impose DLRS shall be carried out in accordance with these provisions by the prosecutorial unit of the people’s procuratorate at the same administrative level as the court.

Chapter 3: Oversight of Implementation of Designated-Location Residential Surveillance

Article 15: Oversight of implementation of DLRS is the responsibility of the criminal enforcement inspectorate unit of the people’s procuratorate at the same administrative level as the public security organ that implements the DLRS.

Article 16: Oversight by people’s procuratorates as to implementation of DLRS shall include the following:

(i) Whether legal paperwork, such as the DLRS decision or enforcement notice, is complete;

(ii) Whether the place, term, and personnel are in accordance with regulation;

(iii) Whether the lawful rights of the person under residential surveillance are being protected;

(iv) Whether there is any unlawful behavior, such as interrogation in the designated location, corporal punishment, or abuse of the person under residential surveillance;

(v) Other things that should be monitored in accordance with the law.

Article 17: When carrying out oversight into the implementation of DLRS, the people’s procuratorate may employ the following measures:

(i) Review of relevant legal documents; records of any meetings, correspondence, or outgoings by the person under residential surveillance; and physical examination records;

(ii) On-site inspection of whether the designated location meets the legal conditions;

(iii) Review of relevant surveillance video footage and, if necessary, physical examination of the person under residential surveillance;

(iv) Interviews with the person under residential surveillance, enforcement personnel, investigators, or other relevant personnel in order to ascertain and understand relevant circumstances.

Article 18: Within 24 hours of receiving a copy of a decision to impose DLRS from a public security organ or people’s court, the people’s procuratorate case management unit shall forward the decision to its criminal enforcement inspectorate unit.

When the investigation unit or prosecution unit of a people’s procuratorate issues a DLRS decision in the name of the procuratorate, it shall send a copy of the DLRS decision to its criminal enforcement inspectorate unit within 24 hours and notify it of the address of the designated location.

Article 19: Within 24 hours after receiving a copy of the DLRS decision, the criminal enforcement inspectorate unit of the people’s procuratorate shall appoint procurators to carry out on-site inspection and complete a record of oversight inspection. Monitoring of DLRS implementation should include return inspection visits by roving teams of no fewer than two procurators at least once per week. Inspection of the implementation of DLRS must not interfere with the ordinary work of criminal investigation.

Article 20: When oversight of DLRS implementation by the people’s procuratorate uncovers one of the following, the people’s procuratorate shall issue a rectification opinion to the enforcement or investigating organ in accordance with the law:

(i) Failure of the enforcement organ to appoint enforcement personnel or failure to appoint enforcement personnel in a timely manner upon receipt of the DLRS decision and implementation notice;

(ii) Except when it is impossible to provide notice, failure to notify the family of the person under residential surveillance within 24 hours of implementing DLRS;

(iii) Implementation of residential surveillance in a detention center, administrative jail, prison, holding cell, case-handling area, or other location not meeting the statutory conditions for a designated location;

(iv) Arranging meetings or correspondence between defense lawyers and the person under residential surveillance in ways that violate regulations or illegally restricting the person under residential surveillance from meeting or corresponding with a defense lawyer;

(v) Failure by a new case-handing organ to issue a new DLRS decision in a timely manner when there is a change in the phase of the criminal process;

(vi) Failure of the enforcement organ to lift residential surveillance in a timely manner and notify the person under residential surveillance in a timely manner when the case-handling unit issues a decision to lift or change the DLRS conditions and notifies the enforcing organ of such;

(vii) Demands for payment by the person under residential surveillance or his or her family;

(viii) Other illegality.

When the criminal enforcement inspectorate unit of the people’s procuratorate discovers that the investigation or prosecutorial unit of its own procuratorate has violated one of the above conditions, it shall seek approval from the head of the procuratorate to issue a rectification opinion.

Article 21: When the criminal enforcement inspectorate unit of the people’s procuratorate finds irregularities in enforcement or security risks in the implementation of DLRS, it shall seek approval from the head of the procuratorate to issue a procuratorial recommendation to the enforcement organ or case-handling organ.

Article 22: When a rectification notice or procuratorial opinion has been issued, a copy shall be sent to the procuratorate at the administrative level immediately superior as well as to the unit immediately superior to the enforcement unit or case-handling unit.

Article 23: When a person under residential surveillance dies while under DLRS, the case shall be handled with reference to the Supreme People’s Procuratorate procuratorial procedures for death of a person in custody in a detention facility.

Article 24: When a people’s court or people’s procuratorate assigns judicial police officers to assist the public security organ with implementation of DLRS, the criminal enforcement inspectorate unit of the people’s procuratorate shall carry out oversight of those officers’ assistance with implementation.

Chapter 4: Additional Provisions

Article 25: The people’s procuratorate shall process and provide responses in a timely manner to complaints, reports, or petitions regarding imposition or implementation of DLRS from criminal suspects or their legal representatives, close relatives, or defense counsel.

Article 26: When the investigation-oversight or prosecutorial unit of the people’s procuratorate discovers the possibility of illegality in the implementation of DLRS, they shall report their findings in a timely manner to the criminal enforcement inspectorate unit. When the criminal enforcement inspectorate unit discovers the possibility of illegality in imposing a DLRS decision, it shall report its findings in a timely manner to the investigation-oversight or prosecutorial unit.

Article 27: If, in the course of its oversight of imposition or implementation of DLRS, the people’s procuratorate discovers violations of disciplinary rules or the law by case-handling personnel or enforcement personnel, it shall seek a decision from the head of the procuratorate to send the case in a timely manner to be handled by the appropriate unit; if the wrongdoing constitutes a criminal offense, it shall pursue criminal responsibility in accordance with the law.

Article 28: If there are violations of disciplinary rules or violations of the law by procuratorial personnel overseeing imposition or implementation of DLRS, responsibility shall be pursued in accordance with the relevant provisions; if the wrongdoing constitutes a criminal offense, responsibility shall be pursued in accordance with the law.

Article 29: Oversight of imposition or implementation of DLRS by the people’s procuratorate shall be handled as part of the unified system of duties of the people’s procuratorate. The case-management unit of the people’s procuratorate shall conduct periodic statistical analysis and quality assessment and report results in a timely manner to the relevant units.

Article 30: These measures take effect from the date of promulgation.




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.