Thursday, September 4, 2014

MPS: China Has 116 Custody and Education Centers Nationwide

Detainees participate in work training at a custody and education center in Nantong, Jiangsu Province. Image credit: Nandu.com 

As several recent posts have pointed out, the formal abolition of reeducation through labor (RTL) at the end of last year has prompted new scrutiny of other arbitrary forms of detention routinely used in China. Getting the most attention in recent months is the system known as “custody and education,” used to punish both prostitutes and their clients with up to two years of detention without any formal judicial process.

A recent article from the Guangzhou newspaper Southern Metropolis Daily showed how critics of custody and education have successfully used requests for “open government information” to get details about the measure and its use in China. This summer, Beijing lawyer Zhao Yunheng received a reply to his request to the Ministry of Public Security (MPS) for information about custody and education. The reply included an acknowledgment that there are currently 116 custody and education facilities nationwide.

Though Zhao did not get all of the detailed information he requested, the MPS response does reveal a number of interesting things. First, it is clear that, with only 116 facilities nationwide, there are many parts of China where custody and education is not being enforced at all. Thus, in addition to the arbitrary nature of the procedures used to send individuals to custody and education, there is also a serious problem of geographical inconsistency of enforcement—meaning that individuals accused of the same illegal behavior might receive very different degrees of punishment, for example up to 15 days of administrative detention in places where there are no custody and education facilities but a minimum of six months in custody and education in places where there are.

Distribution of custody and education centers by province based on provincial public security department data obtained by Southern Metropolis Daily. Image credit: Nandu.com 

Second, there are some puzzling discrepancies between the data reported on the national level and information collected locally. The MPS report of 116 custody and education centers contrasts with an earlier figure of 90 facilities derived by Southern Metropolis Daily through open government information requests and reporting at the provincial level. Because the MPS did not provide details, such as the names of each facility or their relative distribution throughout the country, it is difficult to know how to reconcile the two different figures.

Even though he did not get all of the information he requested, Zhao Yunheng expresses general satisfaction with the way the MPS handled his response and remains optimistic that custody and education will undergo substantial reform in the near future. The fact that the issue continues to receive periodic coverage in the national media suggests that changes to the system may indeed be on the reform agenda. Continued pressure from the media and civil society—including demands that the government reveal more details about the various ways it locks up its citizens—will undoubtedly help to further this process along.

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MPS Replies to Open Government Information Request,
Now 116 Custody and Education Centers Nationwide

Wang Xing, Southern Metropolis Daily
August 1, 2014

In a recent reply to an open government information request, the Ministry of Public Security (MPS) for the first time made public the number of custody and education facilities nationwide—116. The MPS also stated that China has not yet abolished custody and education and that public security units continue to enforce this measure.

“I never imagined that the MPS Open Government Information Office would take such a conscientious attitude,” said lawyer Zhao Yunheng, who applied to have the information made public. “They acted fully in accordance with procedures, and even telephoned me to explain when they needed to extend the time limit.”

Custody and Education Still Being Enforced

In its July 22 reply entitled “MPS Open Government Information Response,” the MPS Open Government Information Office responded separately to each of Zhao Yunheng’s three questions.

On the question of which provinces, municipalities, and autonomous regions were still enforcing custody and education and which had effectively abolished or ceased enforcing the measure, the MPS reply stated: In 1991, the National People’s Congress (NPC) Standing Committee passed its Decision Concerning the Strict Prohibition of Prostitution and Visiting Prostitutes.” Article 4(2) of that decision states: “Public security organs, in cooperation with other relevant agencies, may subject those who engage in prostitution or visit prostitutes to between six months and two years of compulsory legal and moral education and productive labor so that they may change their bad habits. Detailed measures are to be enacted by the State Council.” In 1993, the State Council promulgated and put into effect the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes. These measures specify that prostitutes and those who visit prostitutes are subject to custody and education and provide detailed provisions concerning the decision-making body, term of custody, testing and treatment for sexually transmitted disease, inmate education and management, and procedures for release and remedy. The reply added: “Currently, the state has not abolished custody and education and public security authorities continue to enforce the measure. We have no information about abolition of custody and education by local authorities.”

According to an investigation by Southern Metropolis Daily (see the previous report in Weekly In-Depth Report, July 2 [Translator’s note: This report is no longer available on their website, but is available here.]), of the 31 provincial-level areas nationwide (excluding Hong Kong, Macau, and Taiwan), 26 have at least one custody and education center. Anhui, Jiangxi, Ningxia, Qinghai, and Tibet do not currently have custody and education centers. Of these, Ningxia, Qinghai, Tibet, and Jiangxi have never had custody and education centers, so abolition is not an issue there. Anhui once had 17 custody and education centers, but around 2005 they were ordered to close because the “conditions for custody no longer existed.” Even though there is no longer custody and education there, no one has ever said anything about formally “abolishing the custody and education system.”

No Mention of Specific Designations or Distribution

With respect to the number of custody and education centers nationwide, as well as their designations and locations, the MPS reply states: Article 4 of the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes stipulates that: “Based on the need for custody and education work, public security organs at the level of the province, autonomous region, municipality or autonomous prefecture, or city district shall submit plans for the establishment of custody and education centers to the people’s government at the same level for approval.” According to figures from the MPS Detention Facility Administration Bureau, there are 116 custody and education centers nationwide.

There are more than 330 cities or autonomous prefectures at the prefectural level in China. With 116 custody and education centers, that means that there is one center for every two prefectural cities on average.

Between April and May of this year, public security departments in 19 provinces nationwide responded to requests for open government information, revealing a total of 55 custody and education centers. Southern Metropolis Daily reporters then visited the 12 other provincial-level public security departments, all of which apart from Guizhou provided figures on the number of local custody and education centers. Calculating from the 19 provincial replies to requests for open government information and the information provided during visits to 11 other provinces (excepting Guizhou), one gets a total of 90 custody and education centers.

According to Zhao Yunheng’s analysis, perhaps the custody and education centers in some areas have already stopped operating in practice, but because they have not been formally abolished, this leads to the discrepancy in the data.

The MPS reply did not provide the specific designations or distribution of the 116 custody and education centers. Based on previous investigations, the centers are distributed extremely unevenly. In some provinces, nearly every city has one, while in others the centers have been set up in only a few cities. Yesterday, Zhao Yunheng submitted another open government information request for additional information.

Applicant: MPS Attitude Conscientious

Zhao Yunheng, the person who made this application for open government information, is the director of the criminal defense division at the Dacheng Law Firm. In early June, he, Duan Wanjin, and other criminal defense lawyers at the Dacheng Law Firm met to discuss the problem of custody and education, out of which came the request for open government information. “A few days later, I got a call from the MPS Open Government Information Office,” said Zhao. “They said our request wasn’t formatted correctly and suggested that I go to the MPS website to download the correct form and reapply.” By default, the applicant on the standard open government information request form is a citizen or legal entity, so when Zhao Yunheng resubmitted the application it was in his capacity as an individual citizen.

Zhao’s application requested information about the implementation of custody and education in each province; the names, numbers, and distribution of custody and education centers nationwide; and the number of people being held in custody and education. Zhao Yunheng believes that many delegates to the NPC and Chinese People’s Political Consultative Conference, legal experts, lawyers, and others have already made a great effort and carried out a valuable investigation into the issue of custody and education. He and his colleagues wanted to approach the problem from the angle of open government information in hopes that they could provide a better basis for debate if they received more information.

According to the regulations on open government information, the department receiving the request should furnish a reply within 15 working days. As the deadline was about to approach, Zhao Yunheng received a call from the MPS Open Government Information Office. “They said this information concerned a large number of bureaus and that they themselves did not have the information,” Zhao recalled. “They said they would have to coordinate with these agencies to collect statistics, so they hoped to extend the 15-day deadline. This was fully in keeping with the regulations, and I felt this was perfectly ordinary.” On July 23, a registered letter was delivered to the Dacheng Law Firm. It was dated July 22—a reply delivered within the statutory deadline.

Zhao Yunheng said that in his many telephone interactions with them, the MPS Open Government Information Office took a very conscientious attitude, and he was personally satisfied with their attitude and the response they provided: “I believe the MPS took a positive attitude. I am relatively optimistic that custody and education will be reformed in the near future.”

Tuesday, August 26, 2014

Justice for Some, Notoriety for Others: Public Law Enforcement in China

Ten thousand people watched this public sentencing and arrest gathering in Xinjiang's Tekesi [Tekes] County, Yili [Ili] Kazakh Autonomous Prefecture on June 16, 2014. Image credit: Tekesi County People's Court 

Part of doing justice in the criminal process is protecting the dignity of people in custody, presuming their innocence, and providing them with the conditions necessary for fair trial. China’s decisions to prohibit public executions, in 1979, and ban “perp walks” for sex workers, in 2010, seemed to acknowledge at least some of these principles, but ongoing public arrests and sentencing and televised confessions indicate that dignity and fairness are not afforded equally to all Chinese citizens.

Public arrests and sentencing are often held in large outdoor public spaces like plazas and stadiums and feature the accused bound and flanked by police—at times with placards around their necks—in front of crowds of spectators that can number in the thousands. According to Phoenix Weekly, at least 196 “public displays of law enforcement” (i.e., public arrests and sentencing) were reported on by Chinese news media between 2008 and May 2011. More than 90 percent of the gatherings were in smaller cities, i.e., county-level cities and municipally administered districts. The report says that the gatherings aim to “frighten criminals, educate people, and maintain social stability.”

Historically, public arrest and sentencing rallies were widely used in and outside China to crush political opponents and consolidate the power of royal families. In the first three decades of the People’s Republic of China, mass rallies served to educate the public about the errors of class enemies, including Kuomintang members and landlords.

Legal experts have spoken out against modern-day public arrests and sentencing, branding them “campaign-style justice” that emphasizes swift and severe punishment. In July 2010, Renmin University of China Law Professor Guo Weidong told Legal Daily that gatherings like these violate the presumption of innocence that requires the court to prove the guilt of a criminal defendant. Several legal experts joined the call for a legislative ban of these public rallies after more than 20,000 spectators witnessed the arrest of about 70 criminal suspects who were paraded in a public plaza in Qidong County, Hunan Province, on April 12, 2011. The rally was held amid a local “strike hard” campaign that began earlier that year.

Xinjiang and Tibet

Critics have been less vocal, however, about public arrest gatherings in Xinjiang. There public rallies are often publicized as stern efforts to combat and educate the public about the “three evil forces” of “separatism, religious extremism, and terrorism,” giving them a veneer of legitimacy amid the global “war on terror.” China News Website has called such gatherings “a concrete action to crack down on violent terrorist crimes and to rejuvenate positive energy in society.”

In May, 7,000 people witnessed the detention, arrest, and sentencing of more than 100 Uyghurs charged with inciting splittism, terrorism, and murder in a stadium in Yili [Ili] Kazakh Autonomous Prefecture. Pictures of the event were widely circulated in official news media.

That said, public rallies in Xinjiang occur even without allegations of extremism. As recently as June 16, 2014, 15 suspects shackled on blue trucks were condemned in front of 10,000 people in Tekesi [Tekes] County, Yili. They were charged with cult offenses, disrupting official business, and rape.

In contrast with Xinjiang, Tibet has received little media attention for public arrests and sentencing. The most recent instance of such an event being reported in official media was on March 9, 2012, in Jiulong [Gyezur] County. No information was made public on the allegations against the suspects and defendants but a crowd of more than 5,000 spectators, including cadres and students, watched as 24 people were detained, arrested, and tried.

In December 2011, Tibetan writer Woeser posted six photos of Tibetan monks captured by armed police during a stability maintenance campaign in Ganzi [Kardze] and Aba [Ngaba] prefectures. The images of people bound and bedecked with placards—some in open trucks beds—were reminiscent of those subjected to public arrests and sentencing but no narrative came with the photos. Some of the placards displayed criminal charges such as splittism and gathering a crowd to attack an organ of the state. Woeser speculated that the photos were taken sometime between March 2008 and 2011.

TV Set Confessional

Public arrests and sentencing if concentrated in Xinjiang appear to exist throughout the country and in response to various anti-crime campaigns. Probably due to the nature of their transmission, televised confessions seem to be more commonly applied to celebrities and public figures who have infringed upon the economic and political interests of the party.

The most recent televised confessions were made by Jaycee Chan, son of Hong Kong action film star Jackie Chan, and Taiwanese actor Kai Ko. (Ko’s detention was reportedly publicized before his family was notified, breaking with a cross straits agreement requiring notification within 24 hours.) Both were detained on drug charges in Beijing on August 14. Their confessions were preceded in early August by that of Internet celebrity Guo Meimei, who has been charged with illegal gambling.

Confessions on TV: (top left, clockwise) Kai Ko, Guo Meimei, Peter Humphrey, and Gao Yu. Image credit: CCTV

Foreign nationals have also been compelled to make televised confessions. In August 2013, Briton Peter Humphrey apologized to the Chinese government on Chinese Central Television for illegally obtaining private information. Broadcast narration from the news segment describes China as a country ruled by law where police fight crime regardless of whether it is committed by Chinese nationals or foreigners. Humphrey’s firm conducted investigations for GlaxoSmithKline (GSK) in China; the global drug company is now facing corruption allegations.

Chinese journalists have also been targeted. Chen Yongzhou (陈永州) was detained in July 2013 on suspicion of damaging business reputation after writing several newspaper articles accusing a listed company of falsifying its sales. Chen’s detention initially triggered a strong backlash in official Chinese media with several critics calling for his immediate release. The tide turned after the Central Publicity Department intervened in the case, and in late October 2013, state television aired Chen’s confession as filmed from a detention center in Changsha, Hunan Province.

In the lead up to the 25th anniversary of the Tiananmen Protest, another journalist, Gao Yu (高瑜), became the subject of televised confession . Gao’s face was blurred as she pled guilty to “illegally procuring state secrets for foreign entities” on May 30, 2014, the day of her formal arrest. Gao was accused of circulating Document No. 9 to an overseas website. The apparently classified document lists “seven perils” threatening the Chinese Communist Party (CCP), including western constitutional democracy, media independence, and civic participation. Gao was previously sentenced to six years’ imprisonment for illegally procuring state secrets in November 1994 for criticizing the violent suppression of the 1989 pro-democracy protests.

Both forms of public shaming, televised confessions and public arrests and sentencing likely share the same goals: frightening criminals, educating people, and maintaining social stability. Absent from this list of aims is justice, procedural or substantive. Public law enforcement marginalizes lawyers and courtrooms and with them go dignity, presumptions of innocence, and the likelihood of a fair trial. With an emphasis on legal reform in the upcoming plenary session of the 18th CPC Central Committee in October, perhaps one area worth revisiting is the tendency for humiliation to masquerade as justice.

Thursday, August 7, 2014

Gao Zhisheng Begins Sentence of Deprivation of Political Rights

Gao Zhisheng was released from Xijiang's Shaya Prison on August 7, 2014. Image credit: rfa.org

Gao Zhisheng (高智晟), a defense lawyer known for taking on politically sensitive cases and for calling on the Chinese government to end its persecution of Falun Gong, completed his three-year prison sentence for inciting subversion today. He was released from Shaya Prison in western Xinjiang Uyghur Autonomous Region. Gao was accompanied by his brother and taken by police escort to his father-in-law’s house in Urumqi, Xinjiang’s capital and Gao’s place of household registration (hukou).

Gao now begins his supplemental sentence of one year of deprivation of political rights (DPR). China’s Criminal Law, promulgated in March 1997, stipulates that DPR sentences of 1‒5 years be applied to individuals convicted of inciting subversion (which falls under the category of endangering state security) and other serious crimes. According to Chapter 3, Section 7 of the Criminal Law, people serving DPR sentences lose their rights to freedom of speech, press, assembly, association, procession, and demonstration.

Two years prior to the promulgation of the Criminal Law, the Ministry of Public Security issued the “Regulations for Monitoring and Management of Offenders Subject to Public Surveillance, Deprivation of Political Rights, Suspended Sentence, Parole, or Medical Parole by Public Security Organs.” The Dui Hua Foundation has translated these regulations in their entirety. Together with the relevant articles of the Criminal Law, these regulations provide the framework for how Gao Zhisheng will be monitored and managed over the next 12 months.

According to the regulations, public security authorities in Urumqi (Gao’s place of residence) will be responsible for monitoring and observing him during DPR. He must report periodically to police and receive their approval to travel outside Urumqi. The regulations prohibit Gao from giving interviews to journalists, and from “publishing or circulating, inside or outside China, any remarks, books, audio recordings, or other such items that damage the reputation or interests of the state or pose any other threat to society.”

Gao was detained on suspicion of inciting subversion on August 16, 2006, and sentenced on December 22, 2006, to three years in prison and one year deprivation of political rights by the Beijing No. 1 Intermediate People’s Court. The prison sentence was suspended for five years, but shortly before that period ended, the suspension was revoked by the court on December 16, 2011. Gao was then incarcerated in remote Shaya Prison. The four months and seven days he spent in detention prior to his first trial was credited to his three-year sentence.

Local public security bureaus have a high degree of discretion to establish measures targeting specific individuals during the enforcement of DPR. Given what is known about how Gao was treated during the period of his suspended sentence, portions of which were spent in Urumqi, and the current tense situation in Xinjiang arising from ethnic strife between Uyghurs and Han, it is likely that the Urumqi public security authorities will strictly implement the regulations, thereby effectively restricting Gao’s personal freedom and contact with the outside world.

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Ministry of Public Security of the People’s Republic of China

Order 23

These “Regulations for Monitoring and Management of Offenders Subject to Public Surveillance, Deprivation of Political Rights, Suspended Sentences, Parole, or Medical Parole by Public Security Organs” have been passed by the Ministerial Conference of the Ministry of Public Security and are hereby issued for implementation.

Minister of Public Security Tao Siju
February 21, 1995

Regulations for Monitoring and Management of Offenders Subject to Public Surveillance, Deprivation of Political Rights, Suspended Sentences, Parole, or Medical Parole by Public Security Organs

Section I. General Provisions

Article 1: In order to safeguard the smooth operation of the criminal process and the strict enforcement of criminal verdicts and rulings, as well as to strengthen monitoring and management of offenders subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole, these regulations are hereby enacted in accordance with the Criminal Law, Criminal Procedure Law, and the Regulations on Public Order Management Penalties.

Article 2: County (city) public security bureaus and urban public security bureau branches shall take responsibility for arranging and implementing the monitoring and management of offenders subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole.

Article 3: When public security organs carry out monitoring and management of offenders subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole, they must put in effect a monitoring and management responsibility system and carry out management in accordance with the law and in a civilized manner.

Article 4: After the public security organ receives a verdict, ruling, or decision from a people’s court ordering that an offender be subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole or receives a decision from the prison administration authority approving medical parole, the public security organ shall immediately form a monitoring and observation team, set up a monitoring and observation file, and formulate and implement specific measures for monitoring and observation.

Article 5: When an offender subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole relocates his or her residence with the permission of the public security organ, the public security organ originally responsible for enforcement shall provide the public security organ responsible for enforcement in the new location with an introduction to the offender’s situation and transfer all monitoring and observation files.

Article 6: Public security organs shall provide timely reports of their monitoring and management of offenders subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole to people’s procuratorates, people’s courts, and prison administration authorities.

Article 7: Monitoring and management of offenders subject to public surveillance, deprivation of political rights, suspended sentences, parole, or medical parole by the public security organs is subject to oversight by people’s procuratorates.

Section II. Monitoring and Management of Offenders Subject to Public Surveillance or Deprivation of Political Rights

Article 8: With respect to offenders who have been sentenced to public surveillance or deprivation of political rights, the county (city) public security bureau or urban public security bureau branch shall assign the public security police station in the offender’s place of residence to take specific responsibility for monitoring and observation. The urban residents committee or village committee in the offender’s place of residence or his or her former work unit shall assist in carrying out monitoring activity.

Article 9: Public security organs responsible for monitoring and observation of offenders subject to public surveillance or deprivation of political rights shall, according to the verdict of the people’s court, make an announcement to the offender and members of the public from his or her former work unit or place of residence, including the facts of the offender’s crime, the duration of his or her public surveillance or deprivation of political rights, and the rules that the offender must obey during the enforcement period.

Article 10: The public security organ shall announce to an offender sentenced to public surveillance that he or she must obey the following rules during the enforcement period:

(1) Obey state laws and regulations as well as any relevant provisions enacted by the Ministry of Public Security;
(2) Actively engage in productive labor or other work;
(3) Periodically report his or her activities and situation to the monitoring and observation team;
(4)Obtain permission from the public security organ before moving to a new residence or leaving his or her area of residence;
(5) Obey all specific measures for monitoring and management established by the public security organ.

Article 11: When an offender subject to public surveillance needs to leave his or her area of residence, he or she must receive approval from the public security organ and obtain an exit certificate. Upon arrival at and departure from his or her destination, the offender must report to the local public security police station, which shall make note of the arrival and departure times and the offender’s behavior on the exit certificate. Upon return to the enforcement locale, the offender must immediately report to the public security organ and hand over the certificate.

Article 12: The public security organ shall declare to an offender sentenced to deprivation of political rights that he or she must obey the following rules during the enforcement period:

(1) Obey state laws and regulations as well as any relevant provisions enacted by the Ministry of Public Security;
(2) He or she may not vote or stand for election;
(3) He or she may not organize or participate in any assembly, march, demonstration, or association;
(4) He or she may not give interviews or make speeches;
(5) He or she may not publish or circulate, inside or outside China, any remarks, books, audiovisual recordings, or other such items that damage the reputation or interests of the state or pose any other threat to society;
(6) He or she may not take up any position in the state civil service;
(7) He or she may not take up a leadership position in any enterprise, state institution, or mass organization;
(8) Obey all specific measures for monitoring and management established by the public security organ.

Article 13: Any offender subject to public surveillance or deprivation of political rights who violates these provisions shall, when the violation does not constitute a criminal offense, be subject to public-order management penalty by the public security organ in accordance with the law. When the violation constitutes a criminal offense, criminal liability shall be pursued in accordance with the law.

Article 14: At the conclusion of the period of public surveillance or deprivation of political rights, the public security organ shall notify the individual (serving the sentence) and make a public announcement of release from public surveillance or restoration of political rights.

When an offender dies during the period of public surveillance or deprivation of political rights, the public security organ shall immediately make a report to the sentencing people’s court or the prison that held former custody.

Upon release from public surveillance, a “Notice of Release from Public Surveillance” shall be issued. When deprivation of political rights has been imposed as a supplementary punishment, a simultaneous announcement of restoration of political rights shall be made.

Section III. Monitoring and Management of Offenders Granted Suspended Sentences or Parole

Article 15: With respect to offenders who have been granted suspended sentences or parole, during the probationary period of the suspension or parole the county (city) public security bureau or urban public security bureau branch shall assign the public security police station in the offender’s place of residence to carry out monitoring and observation. The urban residents committee or village committee in the offender’s place of residence or his or her former work unit shall assist in carrying out monitoring activity.

Article 16: Public security organs responsible for monitoring and observation of offenders granted suspended sentences or parole shall, according to the verdict or decision of the people’s court, make an announcement to and members of the public from the offender’s former work unit or place of residence, including the facts of the offender’s crime, the duration of his or her probationary period, and the rules that the offender must obey during the probationary period.

Article 17: The public security organ shall announce to an offender who has been granted a suspended sentence or parole that he or she must obey the following rules:

(1) Obey state laws and regulations as well as any relevant provisions enacted by the Ministry of Public Security;
(2) Periodically report his or her activities and situation to the enforcement organ;
(3) Obtain permission from the public security organ before moving to a new residence or leaving his or her area of residence;
(4) If the offender serving a suspended sentence or parole has been given the supplementary punishment of deprivation of political rights, he or she must obey the rules set out in Article 12 of these regulations;
(5) Obey all specific measures for monitoring and management established by the public security organ.

Article 18: For offenders granted suspended sentences or parole, the public security organ shall periodically request reports on the offender’s behavior and situation from his or her former work unit or from the urban residents committee or village committee in his or her place of residence, and the public security unit shall also establish an observation file.

Article 19: When an offender granted parole violates these provisions during the probationary period, if the violation does not constitute a new criminal offense requiring remand to prison, the public security organ shall recommend to the people’s court that the parole be revoked. When the people’s court rules to revoke parole, the public security organ shall immediately return the offender to prison to serve his or her sentence.

Article 20: Any offender granted a suspended sentence or parole who violates these provisions shall, when the violation does not constitute a criminal offense, be subject to public-order management penalty by the public security organ in accordance with the law. When the violation constitutes a criminal offense, the public security organ shall report to the people’s court requesting revocation of the suspended sentence or parole and pursue criminal liability in accordance with the law.

Article 21: At the end of the probationary period of a suspended sentence, if the offender granted a suspended sentence has not committed any new crime during the probationary period, the original penalty shall not be enforced and the public security organ shall declare [the end of the sentence] to the individual and make a report to the sentencing people’s court.

At the end of the probationary period for parole, if the offender granted parole has not committed any new crime during the probationary period, his or her sentence shall be considered complete and the public security organ shall declare [the end of the sentence] to the individual and make a report to the people’s court that granted parole and the offender’s former prison.

When an offender dies while serving a suspended sentence or parole, the public security organ shall immediately make a report to the sentencing people’s court and the [offender’s] former prison.

Section IV. Monitoring and Management of Offenders Released on Medical Parole

Article 22: With respect to offenders who have been released on medical parole, the county (city) public security bureau or urban public security bureau branch shall assign the public security police station in the offender’s place of residence or place of medical treatment to take responsibility for monitoring. The urban residents committee or village committee or the offender’s former work unit shall assist in carrying out monitoring activity. When necessary, the public security organ may assign personnel to keep close watch.

Article 23: The public security organ shall make a declaration to the offender released on medical parole and members of the public from his or her former work unit or place of residence, including the facts of the offender’s crime, the reason for release on medical parole, and the rules that the offender must obey while under medical parole.

Article 24: The public security organ shall declare to an offender who has been released on medical parole that he or she must obey the following rules during the parole period:

(1) Obey state laws and regulations as well as any relevant provisions enacted by the Ministry of Public Security;
(2) Receive medical treatment at the assigned hospital;
(3) When, due to the special needs of medical treatment or care, it is necessary to change hospitals or leave the area of residence, approval must first be obtained from the public security organ;
(4) Any social activities other than medical treatment must receive approval from the public security organ;
(5) Obey all specific measures for monitoring and management established by the public security organ.

Article 25: When the public security organ discovers that any one of the following circumstances applies to an offender who has been released on medical parole, it shall report to the former prison of custody and immediately remand the offender to custody:

(1) Release on medical parole was obtained through fraud;
(2) Recovery from or basic improvement of the medical condition through treatment such that the offender may be returned to custody;
(3) Use of self-injury, self-maiming, fraud, or other means to intentionally prolong the medical parole period;
(4) Failure to receive medical treatment after release on medical parole;
(5) Repeated violation of monitoring and management rules, despite warnings.

Article 26: Any offender released on medical parole who violates these provisions shall, when the violation does not constitute a criminal offense, be subject to public-order management penalty by the public security organ in accordance with the law. When the violation constitutes a criminal offense, criminal liability shall be pursued in accordance with the law.

Article 27: When an offender released on medical parole reaches the end of his or her sentence, the public security organ shall immediately make a report to the prison where his or her sentence was originally served in order to carry out release procedures.

When an offender dies while released on medical parole, the public security organ shall immediately report to the prison that formerly held custody.

Section V. Additional Provisions

Article 28: These regulations shall take effect from the date of issue.

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.

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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.

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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.

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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.