Wednesday, April 9, 2014

Hong Kong Residents Adrift in Mainland Prisons?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 25, 2014

RTL End Pushes Kids into Prison, Procurator Calls for Reform

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

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

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

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

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Inappropriate to Move Youth to Prison from Custody & Rehabilitation

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

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

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

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

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

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

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

Monday, March 3, 2014

To End Arbitrary Detention, Bring Officials to Justice

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

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

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

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

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

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

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How Could Eliminating Reprimand Centers for Abnormal Petitioning Be Enough?

Liu Xiandong, Daily Sunshine
18 February 2014

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

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

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

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

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

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

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

Monday, February 10, 2014

Xinjiang Obscures State Security Stats, Trials Likely Up 10%

Police patrol around the clock to prevent crimes in Kashgar, XUAR, June 30, 2013. Photo credit: news.sina.com

Dui Hua estimates that the number of endangering state security (ESS) trials in the Xinjiang Uyghur Autonomous Region (XUAR) rose 10 percent to nearly 300 trials in 2013. The estimate is based on information reported in the annual work report of the XUAR High People’s Court. In marked contrast with the transparency with which it treated ESS trial numbers in reports issued since 2008, this year’s report does not provide the exact number of ESS trials concluded.

The high court states that 21,061 criminal trials of first and second instance were concluded in 2013, and that ESS cases accounted for 1.67 percent of concluded criminal trials of first instance.

First-instance trials accounted for about 84 percent of all criminal trials concluded in XUAR in each year between 2010 and 2012. Assuming a constant ratio in 2013, XUAR concluded 17,712 first-instance criminal cases, of which 296 (1.67 percent) were ESS trials.

The Tibetan Autonomous Region (TAR) joined XUAR as the only provinces or autonomous regions to quantify ESS trials in their annual court reports. The TAR High People’s Court reported that 20 ESS cases were tried in the region in 2013. Dui Hua believes that, as in previous years, XUAR continued to account for the majority of ESS trials nationwide.

Criminal and ESS Trials in XUAR, 2010-2013
Year Concluded Criminal Cases Concluded ESS Cases
  First instance First & second instance % First instance First
instance
First & second instance % First instance
2010 16752 19785 84.67 314 376 83.51
2011 17097 20772 82.31 366 414 88.41
2012 18708 21952 85.22 270 * 314 85.96 §
2013 17712 † 21061 84.10 § 296 ‡ - -
Source: Dui Hua, Xinjiang High Court Annual Work Reports, Xinjiang Yearbook
* Dui Hua calculation: first and second instance ESS trials times estimated percentage of first instance ESS trials.
§ Dui Hua calculation: average of percentages in previous years.
† Dui Hua calculation: first and second instance criminal trials times estimated percentage of first instance criminal trials.
‡ Dui Hua calculation: 1.67% (officially reported ratio) of estimated first instance criminal trials.

Public information about individual defendants remained extremely limited. Dui Hua’s Political Prisoner Database has the names of three Uyghurs tried for ESS crimes in XUAR in 2013. Nurmamat Ibrahim (努尔麦麦提.伊布拉音) was one of the 95 defendants tried in 21 ESS cases by the Ili Intermediate People’s Court. Enwer Obul (艾尼瓦尔.乌布力) was among 10 defendants tried for inciting splittism by the Xinjiang Production and Construction Corps 3rd Agricultural Division Intermediate People’s Court in March 2013. Information is not available on the evidence against them or the outcomes of their trials.

Kerem Mehmet (克热木.买买提) was sentenced for inciting splittism to 10 years’ imprisonment by the Bayinguoleng Monggol [Bayingolin] Autonomous Prefecture Intermediate People’s Court on March 26, 2013. Allegations against him included disseminating information about ethnic separatism, terrorism, and religious extremism through an online discussion group. He was also found guilty of possessing illegal books and mobile storage devices containing reactionary propaganda.

The geographic spread of ESS trials is not even throughout the region. Kashgar alone tries more than 60 percent of Xinjiang’s ESS cases. The intermediate court in Kezilesu Kirghiz [Kizilsu] Autonomous Prefecture tried 18 ESS cases involving 29 individuals in 2013, while in the first 10 months of 2013, Hami Prefecture Intermediate People’s Court concluded just one case of inciting splittism.

Although often conflated, ESS crimes do not include terrorism; instead, they often involve speech and association. None of the five defendants who participated in the Bachu incident on April 23, 2013, nor none of the four defendants who took part in the Shanshan Riots on June 26, 2013, were convicted of ESS crimes.

The vast majority of ESS defendants appear to be Uyghurs passing through Kashgar, but their identities, acts, and fates remain unknown.

Wednesday, January 22, 2014

Criminal Detention as Punishment in Post-RTL Era

Abuse of criminal detention in duration and scope made headlines when it befell (clockwise from top left) Xue Manzi, Wang Gongquan, Wang Peng, and Wu Hongfei. Photo credits: CCTV, Southern People, China.com, and Xinhua

One of the big uncertainties facing China’s legal system at present is how matters formerly handled with reeducation through labor (RTL) will be dealt with once RTL has been abolished. Police and local authorities have grown accustomed to the quick and flexible manner in which threats to public order and social stability could be neutralized with extended incarceration without formal judicial process. While some fear that police will cope by simply taking advantage of other kinds of extra-legal measures, such as “custody and education” and “legal education classes,” there are also good reasons to worry about the abuse of measures that are, strictly speaking, legal.

One such measure that has recently been put under the spotlight is “criminal detention” (xingshi juliu). As reporter Ye Zhusheng explained recently in the magazine South Reviews, the routine practice of locking up criminal suspects for up to 30 days before seeking approval for arrest is quite far removed from the “emergency measure” originally envisioned in China’s Criminal Procedure Law. Though the letter of the law sets limits on both the duration and conditions under which the measure may be employed, both have been expanded broadly in practice thanks to a lack of rigorous institutional oversight or significant consequences for improper application.

Criminal detention has been used on dissidents and activists such as Wang Gongquan, a billionaire who is a founder of the New Citizens Movement alongside Xu Zhiyong. It was announced today that Wang, who has been under criminal detention since September 13, 2013, has signed a confession and been released on bail. His admission could have implications for Xu who had his final defense hearing in court yesterday.

It is under similar circumstances that the measure known as “residential surveillance” (jianshi juzhu) has been able to evolve into a measure encompassing two almost completely different types of measures—one lenient and non-custodial and the other arguably the most severe and restrictive measure possible under China’s Criminal Procedure Law. In both cases, the tendency has been to use compulsory measures instrumentally to further investigators’ goals of obtaining confessions, and this instrumental orientation has enabled the use of compulsory measures as leverage in non-criminal disputes or even as a form of punishment itself.

Ye’s article ends on an optimistic note, however, suggesting that police discretion to abuse such measures without consequence is slowly being reformed. For one thing, the abolition of RTL is seen as a clear signal of Chinese society’s demand that police operate under rule of law. This will involve continued oversight of all types—institutional oversight by the procuratorate, external pressure by the media and public opinion, and the checks associated with more robust approval procedures and channels for appeal. In this respect, the ability of lawyers to intervene earlier in criminal cases—something granted on paper by the revised Criminal Procedure Law that took effect a year ago—has the potential to play an important role in reducing police use of detention and ensuring that when detention is used, it is used properly.

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Criminal Detention in the “Post-RTL Era”

Ye Zhusheng, South Reviews
December 8, 2013

In the “post-RTL era,” public security units will be increasingly expected to combat unlawful and criminal activity under rule of law. Criminal detention, standing at the front lines of the criminal procedure, will bear the brunt of these expectations.

At the end of June of this year, the Hunan Politico-Legal Committee and all of the provincial legal authorities jointly issued Several Rules Concerning All-Province Politico-Legal Organs Serving Enterprises and Optimizing the Development Environment, calling on local [authorities] to “use discretion in detaining.” For legal representatives or senior management of enterprises suspected of criminal activities, non-custodial compulsory measures are to be employed as often as possible except when it is truly necessary to do otherwise. For those already under criminal detention or arrest, when it is necessary for the enterprise’s production or operations and the facts of the case have already basically been investigated, they may, in light of the circumstances, be transferred to non-custodial compulsory measures in accordance with the law.

Criminal detention is the most commonly employed custodial measure used by public security organs against criminal suspects. In news reports, the phrase “case was uncovered” is typically accompanied by word that a criminal suspect has been placed under criminal detention.

The reform program of the Third Plenum of the 18th Party Central Committee calls for construction of a rule-of-law business environment, improved operating mechanisms for judicial powers, and perfection of the system of human rights and legal protections. Abolition of re-education through labor (RTL) is a major step in this reform direction. In the “post-RTL era,” public security units will be increasingly expected to combat unlawful and criminal activity under rule of law. Criminal detention, standing at the front lines of the criminal procedure, will bear the brunt of these expectations.

Broad Standards

Just what sort of procedure is criminal detention? Though “criminal detention” is already a hot topic, ordinary members of the public don’t necessarily have a clear understanding of it and even possess many misunderstandings.

According to the law, public security organs may “initially detain an active criminal or major suspect” under one of seven conditions, such as when he or she is “preparing to commit a crime, is in the process of committing a crime, or is discovered immediately after committing a crime,” or “if there is likelihood of his or her destroying or falsifying evidence or coordinating confessions [with other suspects].”

A procurator in the criminal investigation supervision office of a procuratorate in a Guangdong county told South Reviews that a considerable portion of the criminal suspects placed under criminal detention do not understand the measure: “They have no idea what criminal detention is, so even those who have been improperly detained have no understanding of how to protect their own rights and interests.”

According to the prevailing interpretation among legal scholars, criminal detention ought to be applied in emergency situations and is not a compulsory measure for routine use. According to a report by Fei Zhiguo and Hu Junce, two procurators from the Xiacheng District Procuratorate in Hangzhou who analyzed problems in the use of criminal detention, “in actual implementation many local investigators are under the mistaken impression that, as long as a criminal case is involved, they may place criminal suspects under criminal detention no matter whether it is necessary or whether they meet the criteria.”

Li Xiujiao, a criminal defense lawyer who previously worked for many years as a procurator, told South Reviews that, despite the existence of threshold standards in theory, in practice these standards are extremely flexible. Basically, so long as the police believe that a crime may be demonstrated [to have taken place], they may use criminal detention. Inside public security bureaus, criminal detention is typically approved by the legal affairs office. A police officer in the legal affairs office of a public security bureau in a district of Guangzhou told South Reviews that the standards for approval are quite broad and only a minority of criminal detentions fail to be approved.

This situation can be demonstrated empirically. South Reviews obtained a copy of a report prepared by a procuratorate in a coastal city that had conducted a special monitoring of the use of criminal detention by units under its jurisdiction. According to the report, from 2009 to the first half of 2011, public security units in that area apprehended 11,393 criminal suspects. Of these, 8,551 were placed under criminal detention, or 75.1 percent. According to Zhang Chao, a researcher at the Henan Police and Rule of Law Research Center who collected statistics from 10 public security bureaus in 2010, nearly 90 percent of criminal suspects had been placed under criminal detention.

Obviously, the over-application of criminal detention is rarely ever called into question. Besides the gaps in public understanding, there are legislative roots as well. The seven circumstances set out under the law are extremely broad and difficult to narrow down in practice, so it is extraordinarily easy for them to be distorted.

Scholars who have investigated the historical development of the statutory conditions for criminal detention have found that two situations in which the now-abolished practice of “shelter and investigation” was once used—“refusal to tell his or her true name and address and his or her identity is unknown” and “strong suspicion of committing crimes from one place to another, repeatedly, or in a gang"—became “grafted” onto the criminal detention system. Fei Zhiguo and Hu Junce report that, in practice, these standards are often given expansive interpretation by police, who, for example, “consider those from other areas suspected of committing crimes while in a place to work, study, or visit friends and family as cases of ‘committing crimes from one place to another.’”

Another reason contributing to the over-broad interpretation of the standards for criminal detention is the lack of oversight mechanisms over the police process for approving detentions. In theory, the procuratorate oversees the criminal process, including criminal detention, but the law provides for no specific way or manner for oversight of criminal detention. The county-level procurator from the criminal investigation oversight office quoted above told South Reviews that, aside from cases involving confessions extracted through torture, there is “basically no oversight” by the procuratorate over criminal detention. In Li Xiujiao’s view, even though the procuratorate oversees case-filing by police, the focus of that work is on cases “not filed that should be filed” with “much less attention paid” to determining whether criminal detention has been used in cases “filed that ought not have been filed.”

Detention as Punishment

Besides the extremely high rate of criminal detention, detention in excess of statutory time limits is also a common problem. According to the law, under ordinary circumstances the period of criminal detention should last from one to three days. If the case is extremely complex, that can be extended to one week, and in special circumstances defined by statute the period may be extended up to 30 days. Extension approval is handled within the public security organ. In Zhang Chao’s view, there are two types of extended detention. The first is when the period of detention is extended arbitrarily without meeting statutory criteria; the other is criminal detention beyond the maximum time limit allowed by law. In the 10 public security bureaus for which he collected statistics, as many as 44.47 percent of detainees were detained beyond the time limit, with the longest time a suspect was detained reaching three years and 155 days.

In countries with developed rule of law, police can generally only detain criminal suspects for one or two days before a court needs to formally approve arrest. Usually, a complex approval process is required before the detention period may be extended. For example, in the United Kingdom, the Home Secretary’s personal approval is necessary before extending detention to five days.

According to the procurator quoted earlier, there are two main circumstances in which the period of criminal detention gets extended beyond its limits. The first is when police repeatedly impose new criminal detention measures on the same person every time a new piece of evidence or new detail is discovered. The second probably involves detention in a location different from the place of initial apprehension, because it is currently unclear when the criminal detention period begins under those circumstances. Police might have a criminal suspect apprehended in a different location “hosted” in that location’s detention center for a long period, and there is often a lot of debate over whether that time should be counted toward the criminal detention time limit. The procurator revealed a case involving a criminal suspect apprehended in a different location who was “forgotten about” by the police officer handling the case and was only released after half a year had passed.

The police officer in the legal affairs office quoted above told South Reviews that, other than individuals who commit solo crimes, the majority of those under criminal detention have their time limits extended, with a considerable number of those detained for the full 30 days. In the past, this sort of thing was particularly common. According to an investigation by the Nanchong procuratorate into use of criminal detention by public security organs there, between 2001 and 2003, three-quarters of all persons arrested had been detained for the full 30 days prior to arrest. The procurator quoted above told South Reviews that, in practice, the percentage of cases meeting the standard for extending the period of criminal detention is not really that high.

According to the law, “for major suspects involved in crimes committed from one place to another, repeatedly, or in a gang, the time limit for submitting a request for examination and approval of arrest may be extended to 30 days with approval of the responsible person from a public security organ at the county level or above.” But according to the research by Fei Zhiguo and Hu Junce, this standard is also easy to interpret loosely. According to the observation of these two procurators, police can in practice use non-statutory reasons such as “the need to investigate and verify other suspected cases,” “complex case circumstances,” or “the need to travel to other places to obtain evidence” in order to extend the period of criminal detention.

Why is it so common to expand both the scope and duration of criminal detention? There are many interpretations. Li Xiujiao told South Reviews that, in the past, confession was the main form of investigation in the public security system. Currently, that idea of investigation has not completely changed: “Locking someone up is the best way to get them to confess. Police often wait for a confession before going out to collect other evidence to support it.”

In terms of getting a confession before arrest, there is also the measure known as criminal summons, but the maximum duration for that is 24 hours. In the view of legal scholars, the original intent of criminal detention was to prevent the effects of a crime from spreading and to avoid obstruction of the investigation. But for all sorts of reasons, the emergency measure of criminal detention has come to replace criminal summons and has, contrary to the original intent, become the routine investigative measure used in practice.

In Li Xiujiao’s view, suspects under criminal detention are held in the detention center, where the special environment imposes a serious kind of mental pressure on them. According to his understanding, people are packed more tightly together and the facilities and conditions are worse in detention centers than in prisons. After being held in a detention center for a while, one of Li’s clients began to display serious mental problems. The endless stream of incidents like the “death by ‘blind man’s bluff’” and “death by showering” confirm this point. Under these circumstances, in Li Xiujiao’s view, many criminal suspects would rather “confess” early and be convicted sooner so that they might serve their sentence in a prison “where the conditions are better.”

It is precisely because of the detention center’s “special effectiveness” that release on guarantee pending further investigation and residential surveillance—functionally similar to criminal detention but involving lower degrees of restriction on personal liberty—are used infrequently by police.

Within the [criminal procedure] system, criminal detention is not a punishment but only an emergency measure used in the course of investigation. But because it can be easily extended to 30 days, even longer than the administrative detention measure used for public-order punishment (which generally is limited to 15 days), criminal detention also has the potential to be abused as a purely punitive measure. Paradoxically, even though the period of criminal detention is twice as long as that for administrative detention, the approval process and standards for the former are much simpler than those for the latter. Additionally, a person wrongly placed under criminal detention may pursue remedies through administrative reconsideration or litigation, but interviewees from different agencies all told South Reviews that it is very difficult for persons under criminal detention to get a remedy. According to Fei Zhiguo and Hu Junce, “some investigators, not wanting the trouble [of getting approval for an administrative punishment], use the compulsory measure of criminal detention instead of administrative punishment in cases where there is no need for criminal detention.”

Researchers have discovered that police also use criminal detention as a tool and employ it to intervene in civil disputes: “In some cases involving minor injuries or traffic accidents, investigators use criminal detention against the party at fault to encourage quick civil mediation or payment of compensation to the victim. When a mediated settlement has been reached or compensation has been paid, they revoke [the detention decision] on grounds of ‘no criminal liability should be pursued.’”

Li Xiujiao told South Reviews that he once had a client who ran a business who got in a dispute over an unpaid debt. He was placed under criminal detention for “contract fraud” and, upon release, police only paid state compensation of slightly more than 100 yuan per day. In fact, this was a case of someone using criminal detention to interfere in ordinary economic interactions.

Perhaps it is precisely because of the indiscriminate use of criminal detention that Hunan issued the regulations mentioned above emphasizing the need to “use discretion in detaining.” In fact, similar documents have been issued in Guangdong, Jiangxi, and other locations.

Reform

One consequence of the expanded use of criminal detention is that a large number of criminal detention cases do not meet the standards for arrest approval, so they have to be “digested” inside the public security organ. According to the special report on criminal detention issued by the procuratorate in that coastal city that was cited above, nearly half of the individuals placed under criminal detention in that city never made it to the arrest approval process, meaning that these cases clearly did not constitute crimes or meet the conditions for prosecution. But this does not mean that the remaining half smoothly passed through the procuratorate for arrest approval. According to the statistics collected in 2010 by Zhang Chao, of the cases sent by the 10 public security bureaus to the procuratorate for review, not even 40 percent were ultimately approved for arrest.

Considering these two sets of data together, this means that a relatively small proportion of criminal suspects placed under criminal investigation by police are ultimately approved for arrest. According to statistics obtained by South Reviews showing the percentage of those arrested but not prosecuted by procuratorates in the districts of Shenzhen during the first three quarters of this year, the rate of non-prosecution after arrest in each district in Shenzhen varied between 1 and 10 percent. Considering that, after a case is sent to the court for trial, there remains the possibility that the court will ultimately acquit, the proportion of cases involving criminal detention that do not result in conviction is even higher.

In the view of Li Xiujiao, even though public security bureaus have accountability systems to deal with improperly handled cases, police set a relatively high standard for finding that a case has been handled improperly, generally only involving cases involving “human error or serious mistakes.” Moreover, the law places only loose limits on criminal detention. According to Article 15 of the State Compensation Law, a person wrongly detained can be compensated for “wrongful detention of a person without incriminating facts or proof substantiating a strong suspicion of the commission of a crime.” The standard for state compensation is generally calculated according to the average salary in a given location; in practice, even such minor compensation can often be easily circumvented. According to the report from the coastal procuratorate cited above, not quite 15 percent of those for whom the police chose not to pursue arrest were released directly; the rest were shifted to other measures such as administrative detention, guaranteed release pending investigation, or even RTL.

Looking at all of the data, police currently still have a relatively great degree of freedom and room for discretion when it comes to criminal detention, but there are signs of reform. This reporter learned from procuratorates in different locations that some procuratorates have begun exercising more oversight in practice. For example, beginning in 2004 Nanchong, Sichuan Province, launched a “Special Procuratorial Oversight of Public Security Criminal Detention.” According to statistics, in 2001 the number of criminal detentions and arrests approved in Nanchong was 3,726 cases and 1,802 cases, respectively—a difference of nearly one half. In 2006, the numbers were 2,207 and 1,571, respectively, representing a significant decrease in the gap between the two.

Looking at it from a professional perspective, Li Xiujiao sees signs of progress. In his analysis, after the new Criminal Procedure Law passed, the role of lawyers was enhanced during the detention phase, enabling them to represent suspects in petitions and allegations regarding all of the potential problems related to criminal detention and to submit defense opinions at the time the procuratorate approves arrest. Li Xiujiao told South Reviews that currently many lawyers are still not accustomed to engaging in active defense during the detention period, but he has already handled cases in which successful defense during the detention phase led to release. He therefore believes that active defense by lawyers during the detention phase will help to improve the state of criminal detention.

Friday, January 17, 2014

Partisan Divide Threatens US-China Relations

The US House of Representatives. Photo credit: whitehouse.gov.

The botched rollout of the Affordable Care Act, popularly known as Obamacare, has had a serious impact on President Obama’s popularity and ability to push policy initiatives through Congress. As Obama’s popularity has tumbled to the lowest point of his presidency, the fortunes of Republicans in Congress have risen. Recent polls reveal that Republicans have a slight edge over Democrats in the generic congressional ballot, a poll in which Americans are asked which candidate they favor in the midterm elections scheduled for November.

If Republicans take control of both houses of Congress, the implications for US-China relations could be serious. In a poll conducted by the Pew Research Center/Council on Foreign Relations from October 30 to November 6, 2013, only 13 percent of Republicans approved of the way President Obama was handling China, versus 68 percent who disapproved. Democrats approved of his China policy by a margin of 51 to 35 percent.

In the poll published in December, 23 percent of Republicans surveyed said they had a favorable view of China, while 67 percent said they had an unfavorable view. This compares to 36 percent of Democrats who offered a favorable view and 53 percent who offered an unfavorable view.

Opinion of China (percentage)
Party Favorable Unfavorable
Republican 23 67
Tea Party 16 77
Democrat 36 53
Independent 37 52
ALL 33 55
Opinion of Obama’s Handling of China
Party Approve Disapprove
Republican 13 68
Tea Party 7 82
Democrat 51 35
Independent 25 56
ALL 30 52
Source: Pew Research Center in Association with the Council on Foreign Relations, poll of 2,003 Americans conducted October 30 to November 6, 2013.

Among Republicans who identify as Tea Party supporters, opinions of China and Obama’s China policy are especially negative. Only 16 percent hold a favorable view of the country, and just seven percent approve of the way the president is handling China.

The poll reveals a sharp drop in China’s popularity among both parties, but the drop among Republicans is especially severe. Since Pew last surveyed opinions in September 2012, the percent of Republicans who said they had a favorable view of China dropped 12 percentage points, while those who said they had an unfavorable view rose 16 percentage points.

Obama’s unpopularity is calling into question his ability to get congressional approval of important foreign policy initiatives. There is strong bipartisan support for passage of a new Iran sanctions bill, legislation President Obama has threatened to veto. At last count, 59 senators, including the chairman of the Senate Foreign Relations Committee Robert Menendez (D-New Jersey), had issued statements endorsing the legislation, eight votes short of the number needed to overturn a presidential veto.

Republicans need a net gain of six seats to wrest control of the Senate from the Democrats. Assuming Republicans hold onto the House of Representatives, big changes would come to Washington if both chambers were controlled by Republicans. Policy initiatives as they affect US-China relations would be in the crosshairs. Hearings would be held, resolutions put forward.

The center of Congressional criticism of China’s human rights policy is the Congressional-Executive Commission on China. The current chair is Senator Sherrod Brown (D-Ohio). If the Republicans maintain control of the House, the chair will likely be taken by Congressman Chris Smith (R-New Jersey). With the retirement of Congressman Frank Wolf (R-Virginia), Smith will arguably become China’s biggest critic in the House, ready to attack China on a wide range of issues including family planning abuses, treatment of religious and ethnic minorities, and alleged persecution of dissidents.

The two most important committees in the Senate that deal with China are the Armed Services Committee and the Foreign Relations Committee. If the current minority leaders of the committees become chairmen, the Armed Services Committee would be chaired by Senator James Inhofe (R-Oklahoma) and the Senate Foreign Relations Committee would be chaired by Senator Bob Corker (R-Tennessee). Corker is seen as a moderate on China (he opposed imposing sanctions over Beijing’s alleged currency manipulation), but Inhofe is a hawk, most recently introducing a resolution attacking China over its aggressive moves in the South China Sea, sure to be an issue during the coming term.

The only Republican senator sitting on both the Armed Services Committee and the Foreign Relations Committee is Senator John McCain (R-Arizona). He has a record of being outspoken on China. In August 2013 he flatly declared that the Senkaku Islands were Japanese territory, prompting a speedy riposte from Beijing. In March, McCain sat on a panel with Chinese Vice Minister Zhang Zhijun in Munich. He warned the vice minister that the Arab Spring was coming to China, and he highlighted Tibetan self-immolations in his critique of the country’s human rights record. Tea Party favorites Senator Rand Paul (R-Kentucky) and Senator Marco Rubio (R-Florida) sit on the Armed Service Committee, and Senator Ted Cruz (R-Texas) sits on the Senate Foreign Relations Committee.

Thursday, December 19, 2013

Community Correction Expands as RTL Contracts

People sentenced to community correction take a test on community correction implementation measures in Guangyuan, Sichuan, August 8, 2013. Photo credit: Guangyuan Justice Bureau

When details of the Chinese Communist Party Central Committee’s latest reform resolution were made public last month, the spotlight focused on the long-awaited announcement that the system of administrative detention known as reeducation through labor (RTL) would finally be abolished. A less noticed clause of the same item in the resolution, which was issued following the Third Plenum of the 18th Congress of the Central Committee, was an imperative to “enhance the community correction system.”

The juxtaposition of these two items led many observers both inside and outside China to conclude that a system of community correction would at least partially replace RTL—a supposition stoked by the lack of any clear signal regarding what, if anything, might replace the soon-to-be defunct system. Deputy Justice Minister Zhao Dacheng told reporters on November 29 that community correction was not, in fact, being proposed as a replacement. However, if part of the reform process involves expanding the scope of the Criminal Law to absorb some of the illegal behavior formerly handled by RTL, this will likely mean an expansion in use of community correction.

While relatively little is known about this newer system—first introduced to China through pilot projects in select locations in 2003—the number of people affected by it is growing fast. The number of people in community correction in China has more than tripled from about 400,000 in May 2012 to 1.4 million in 2013 (the latest figure appeared in China’s national report to its 2013 Universal Periodic Review).

Community correction is an important part of the “lenience” side of the current penal policy known as “combining lenience with severity” (kuan-yan xiangji). Currently, the system is applied to people sentenced to parole, suspended sentences, or “control” (guanzhi) in accordance with provisions introduced into the Criminal Law in 2010, as well as to people granted approval to temporarily serve custodial sentences outside a facility in accordance with the Criminal Procedure Law. The system is also seen as an important part of dealing with juvenile offenders without resorting to incarceration.

Before the implementation of the community correction system, parolees or those serving suspended sentences were subject to supervision by their local police station. Now, judicial administrative departments supervise the community correction system that relies in part on “social organizations,” contractors, and volunteers. Targets remain in the community but must report on their activities; get approval to travel or receive visitors; attend study sessions related to public morality, current affairs, and legal knowledge; and perform social service. Notably, while local community correction authorities are required to ensure that those under their supervision complete minimum monthly quotas of study and community service, the implementation measures do not set any maximum limits for either requirement.

People sentenced to deprivation of political rights (DPR) are also subjected to community corrections, not in accord with either of the aforementioned laws, but as a result of implementation measures (translated below) that took effect in March 2012. Citizens serving DPR—a supplemental sentence which is invariably applied to persons convicted of “endangering state security” crimes—cannot write articles or give interviews, cannot vote, cannot stand for office, and cannot hold a position in a state-owned company.

The Ministry of Justice is currently in the process of drafting a proposed Community Correction Law that would presumably incorporate and elaborate on the provisions of these national implementation measures as well as the many local implementation rules that have been put into place to govern this developing institution. Community correction will be an area to watch as China’s system for maintaining social order and stability continues to evolve.

*
Notice of the Supreme People’s Court, Supreme People’s Procuratorate,
Ministry of Public Security, and Ministry of Justice Regarding Issue of
Implementation Measures for Community Correction

To: The High People’s Courts, People’s Procuratorates, Public Security Departments (Bureaus), and Justice Departments (Bureaus) of each province, autonomous region, and directly administered municipality, the Production and Construction Corps Branch Court of the Xinjiang Uyghur Autonomous Region, and the People’s Procuratorate, Public Security Bureau, Justice Bureau, and Prison Administration Bureau of the Xinjiang Production and Construction Corps:

In order to further standardize community correction work, strengthen and innovate in the management of special populations, according to the overall arrangements made by the Center with respect to deepening reform of the legal system and mechanisms of legal work, and on the basis of deeper research and demonstration and broad solicitation of opinions, the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice have jointly enacted these Implementation Measures for Community Correction. We hereby issue and distribute [these measures] and request their earnest and thorough implementation. Please report promptly to the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, or Ministry of Justice, respectively, regarding implementation or if you encounter any problems.

Supreme People’s Court
Supreme People’s Procuratorate
Ministry of Public Security
Ministry of Justice
January 10, 2012

Article 1: To standardize the implementation of community correction in accordance with the law and allow those under community correction to reform themselves into law-abiding citizens, these measures are enacted based on the Criminal Law of the PRC, Criminal Procedure Law of the PRC, and other relevant laws and regulations and in light of the realities of community correction work.

Article 2: Judicial administration organs shall be responsible for guidance, management, organization, and implementation of community correction work.

People’s courts shall issue verdicts, rulings, or decisions in accordance with the law with respect to defendants or offenders who meet the conditions for use of community correction.

People’s procuratorates shall conduct legal oversight in accordance with the law with respect to all areas of implementation of community correction.

Public security organs shall handle individuals sent to community correction in a timely manner and in accordance with the law when they violate public order management regulations or re-offend.

Article 3: Community correction units of county-level judicial administration organs shall supervise, manage, educate, and assist individuals sent to community correction. Judicial affairs centers shall be responsible for the daily work of community correction.

Social workers and volunteers shall participate in community correction work under the organization and guidance of community correction units.

The relevant departments, village (neighborhood) committee, and the work unit or school of the person under community correction, as well as his or her family members, guardians, or guarantors, shall assist the community correction unit in carrying out community correction.

Article 4: In considering whether to send a defendant or offender to community correction, the people’s court, people’s procuratorate, public security organ, or prison shall investigate what impact doing so would have on the community where the individual resides; to do this, they may enlist the county-level judicial administration organ to conduct an investigation and assessment.

A judicial administration organ enlisted [to carry out an investigation and assessment] shall, according to the request of the initiating organ, thoroughly investigate the residential circumstances of the defendant or offender, his or her family or social relations, consistent behavior, the consequences and impact of his or her criminal behavior, the views of the village (neighborhood) committee in his or her place of residence, the views of the victims, and the things he or she has been prohibited from doing and put together an assessment opinion to be delivered to the initiating organ in a timely manner.

Article 5: When community correction is used for a criminal offender, the people’s court, public security organ, and prison shall verify his or her place of residence and, at the time of sentencing or prior to his or her departure from the place of detention, notify him or her in writing regarding the deadline for reporting to the county-level judicial administration organ in his or her place of residence and the consequences of reporting late; the county-level judicial administration organ in his or her place of residence should also be notified. Within three working days of the verdict or ruling taking effect, copies of the verdict, ruling, or decision, enforcement notice, certificate of parole or other [relevant] legal documents shall be delivered [to the local judicial administration organ] and copies sent to the county-level people’s procuratorate and public security organ in his or her place of residence. A receipt shall be sent by the judicial administration bureau within three working days of receiving the legal documents.

Article 6: A person under community correction shall report to the county-level judicial administration organ in his or her place of residence within 10 days of a people’s court verdict or ruling becoming effective or leaving the place of detention. The county-level judicial administration organ shall promptly carry out intake registration procedures and notify him or her to report to a specified judicial affairs center to undertake community correction. If it is discovered that a person sent to community correction fails to report at the appointed time, the county-level judicial administration organ shall immediately organize a search and notify the deciding authority.

Individuals under community correction while temporarily serving their sentences non-custodially, shall be delivered to their place of residence by the responsible prison or detention center and handed over to the county-level judicial administration organ in accordance with procedures. When the offender’s place of imprisonment and place of residence are not in the same province, autonomous region, or municipality, and it is necessary for him or her to temporarily serve his or her sentence non-custodially under community correction, the prison administration bureau or detention administration unit at the provincial level in the place of imprisonment shall notify the prison administration bureau or detention administration unit at the same level in the place of residence [so that it may] appoint a prison or detention center to receive the offender’s case file and take responsibility for handling the intake and release procedures for the offender. When a people’s court decides on a sentence involving temporary non-custodial enforcement, it shall notify the county-level judicial administration organ in the individual’s place of residence to dispatch personnel to handle transfer paperwork with the court.

Article 7: After the judicial affairs center takes in a person for community correction, it shall promptly read aloud the main parts of the verdict, ruling, decision, enforcement notice, or other relevant legal documents; the time limits for community correction; the rules that the person under community correction shall obey; the things he or she has been prohibited from doing and the legal consequences for violating the rules; the rights that a person under community correction has and the rights that have been restricted in accordance with the law; and the composition of the corrections team and its responsibilities.

These announcements shall be led by an employee of the judicial affairs center in the presence of members of the corrections team and other relevant personnel and in accordance with regulations and procedures.

Article 8: The judicial affairs center shall confirm a special corrections team for the person under community correction. The corrections team shall be headed by an employee of the judicial affairs center and composed of other persons listed in Articles 3(2) and 3(3) of these measures. When the person under community correction is female, the corrections team shall have female members.

The judicial affairs center shall establish a corrections responsibility agreement with the corrections team, setting out the responsibilities and duties of each team member according to his or her work-unit and background and ensuring that each corrections measure is carried out.

Article 9: The judicial affairs center shall devise a corrections plan for each individual under community correction and, on the basis of a comprehensive evaluation of the type of offense the person under community correction was convicted of, the circumstances of his or her crime, his or her display of remorse, personality traits, and daily life environment, establish targeted measures for monitoring, education, and assistance. The corrections plan shall be adjusted in a timely manner based on its effectiveness.

Article 10: The county-level judicial administration organ shall establish a community-corrections enforcement file for each person under community correction, including the legal documents applying community correction and other legal documents related to the enforcement of community corrections, such as those related to intake, monitoring approval, punishment, remand to custodial enforcement, and lifting of community correction.

The judicial affairs center shall establish archives related to community correction work, including records of the community correction work carried out by the judicial affairs center and corrections team and relevant documents related to the community correction undergone by individuals sent to community correction. It shall also maintain copies of the community correction enforcement files.

Article 11: Persons under community correction shall report to the judicial affairs center at the appointed time; obey disciplinary rules and laws; submit to monitoring and control; and participate in education, study, community service, and social activities. When there are changes in residence or work, major unforeseen events in the family, or encounters with persons with harmful influence on his or her correction, the person under community correction shall report this at once.

Persons in community correction while under medical parole shall provide a health report to the judicial affairs center once per month. Every three months, he or she shall present the results of a medical checkup to the judicial affairs center.

Article 12: When a person under community correction has a legitimate need to enter an area or location subject to an “entry-by-permission-only” prohibition order of a people’s court, he or she shall enter only after approval from the county-level judicial administration organ and notice shall be given to the people’s procuratorate.

Article 13: Persons under community correction may not leave the city, county, or banner of their residence.

When a person under community correction has a legitimate need to leave the city, county, or banner of his or her residence in order to seek medical treatment, or because of family emergency or other reason, he or she shall seek approval from the judicial affairs center if the absence is for seven days or less. For absences exceeding seven days, approval shall be sought from the county-level judicial administration organ after getting a signed opinion from the judicial affairs center. Upon returning to his or her place of residence, he or she shall immediately report to the judicial affairs center. Persons under community correction may not leave the city, county, or banner of their residence for more than one month.

Article 14: A person under community correction may not move his or her residence to another county, city, district, or banner.

When a person under community correction has a legitimate need to move his or her residence, he or she shall make written application one month in advance for approval of the county-level judicial administration organ after getting a signed opinion from the judicial affairs center. The county-level judicial administration organ shall make its decision after seeking input from the county-level judicial administration organ in the new place of residence.

For those with approval to move their place of residence, the county-level judicial administration organ shall transfer all legal documents and corrections files to the county-level judicial administration organ in the new place of residence within three working days of issuing a decision. Copies of the relevant legal documents shall be sent to the people’s procuratorates and public security organs in both the current and new places of residence. The person under community correction shall report to the county-level judicial administration organ in the new place of residence within seven days of receiving the decision.

Article 15: Persons under community correction shall participate in educational study activity related to public morality, legal knowledge, and current affairs in order to improve their legal understanding, moral character, and thinking about remorse and rehabilitation. Persons under community correction shall participate in no less than eight hours of educational study each month.

Article 16: Persons under community correction who are able to work shall participate in community service in order to re-establish social ties and cultivate a sense of social responsibility, the collective, and discipline. Persons under community correction shall participate in no less than eight hours of community service each month.

Article 17: Based on the psychological status and behavioral characteristics of each person under community correction, targeted measures shall be taken to carry out individualized educational and psychological counseling to correct his or her law-breaking or criminal mindset and enhance his or her ability to adapt to society.

Article 18: The judicial administration organ shall, according to the needs of the person under community correction, coordinate between the relevant departments and work units to undertake vocational training and employment guidance and assist in the arrangement of social security measures.

Article 19: The judicial affairs center shall, based on the actual circumstances of the life, work, and community of the individual under community correction, employ targeted measures such as on-the-spot inspection, correspondence and contact, or information verification in order to remain actively aware of the activities of the person under community correction. During key periods or times around major events, or under other special circumstances, the judicial affairs center shall immediately ascertain the relevant circumstances of persons under community correction and may, according to necessity, require persons under community correction to report to its office and provide explanations.

When a person under community correction evades supervision, the judicial affairs center shall immediately report to the county-level judicial administration organ to organize a search.

Article 20: Judicial affairs centers shall periodically visit the homes, work units, schools, and communities of individuals under community correction in order to investigate and check the thinking and actual behavior of individuals under community correction.

For individuals under community correction who are on medical parole, the judicial affairs center shall periodically make contact with the hospital providing treatment and promptly understand his or her physical condition and illness treatment and check-up and communicate this information back to the prison or detention center that issued the approval or decision [for medical parole].

Article 21: Judicial affairs centers shall promptly record details of how individuals under community correction accept oversight and control and participate in educational study and community service and periodically evaluate how well they are accepting correction. Individuals under community corrections shall be managed differently according to the results of their evaluations.

Article 22: When a person under community correction is found to have violated the regulations for oversight and control or a prohibition ordered by a people’s court, the judicial administration organ shall promptly send someone to investigate the situation, collect relevant evidence, and make a recommendation for handling the matter.

Article 23: When a person under community correction commits one of the following infractions, the county-level judicial administration organ shall give a warning and produce a written decision:

  1. Failure to report at the appointed time;
  2. Violation of the provisions regarding reporting, meeting with visitors, travel, or change of residence;
  3. Failure to participate in educational study or community service according to regulation despite repeated attempts at correction;
  4. Failure by individuals under community correction who are on medical parole to provide details of their illness or medical checkups without legitimate reason or engaging in social activities other than medical treatment despite repeated attempts at correction;
  5. Violation of a prohibition ordered by a people’s court, when the circumstances are minor;
  6. Other violations of regulations on oversight and control.

Article 24: When a person under community correction violates a regulation on oversight and control or a prohibition made by a people’s court and that violation ought to be punished with a public-order management penalty in accordance with the law, the county-level judicial administration organ shall promptly request the public security organ at the same level to issue the penalty. The public security organ shall notify the county-level judicial administration organ of its decision.

Article 25: When a person under community correction who is serving a suspended sentence or who has been granted parole commits one of the following infractions, the county-level judicial administration organ in his or her place of residence shall issue a written recommendation to revoke the suspension or parole to the people’s court that made the original ruling and attach relevant supporting documents. The people’s court shall issue a ruling in accordance with the law within a month of receiving [the recommendation]:

  1. Violation of a prohibition ordered by a people’s court, when the circumstances are serious;
  2. Failure to report at the appointed time or eluding control during the period of community correction for longer than one month;
  3. Failure to correct behavior after having been given a public order management penalty for a violation of regulations on oversight and control;
  4. Failure to correct behavior after having been given three warnings by the judicial administration organ;
  5. Other violations of the relevant laws, administrative regulations, or rules on oversight and control, where the circumstances are serious.

The judicial administration organ’s recommendation to revoke suspension or parole shall be sent together with the people’s court ruling to the people’s procuratorate and public security organ at the same level in the place of residence of the person under community correction.

Article 26: When a person under community correction who is temporarily serving outside of custody commits one of the following infractions, the county-level judicial administration organ in his or her place of residence shall send a written remand recommendation to the unit that approved or decided the non-custodial enforcement and attach relevant supporting documents. The approving or deciding unit shall issue its decision within 15 days of receiving [the recommendation]:

  1. Discovery that the individual does not meet the conditions for non-custodial enforcement;
  2. Unauthorized departure from the city, county, or banner that is the place of residence without prior permission from the judicial administration organ and refusal to correct after being warned or refusal to report whereabouts and evasion of supervision;
  3. Failure to correct behavior after having been given public order management penalty for a violation of regulations on oversight and control;
  4. Failure to correct behavior after having been given two warnings by the judicial administration organ;
  5. Failure to provide details of illness and checkup in accordance with the rules during the medical parole period and refusal to correct this behavior after being warned;
  6. When the circumstances justifying temporary non-custodial enforcement no longer exist and the sentence has not concluded;
  7. When the guarantor ceases to meet the conditions of a guarantor or has had his or her qualifications as a guarantor cancelled for failure to fulfill his or her duties and a new guarantor cannot be produced within the statutory time period;
  8. Other violations of the relevant laws, administrative regulations, or rules on oversight and control, where the circumstances are serious.

Copies of the judicial administration organ’s recommendation to remand for custodial enforcement shall be sent together with the decision from the deciding unit to the people’s procuratorate and public security organ at the same level in the place of residence of the person under community correction.

Article 27: When a people’s court rules to revoke a suspended sentence or parole or decides to remand to custody an offender who had temporarily been serving a non-custodial sentence, the county-level judicial administration organ in the individual’s place of residence shall, with the assistance of the public security organ, promptly deliver the offender to the prison or detention center.

When the prison administration organ decides to remand to custody an offender who had temporarily been serving a non-custodial sentence, the prison shall immediately go to the place of custody and return the offender to prison to serve his or her sentence.

When the public security organ decides to remand to custody an offender who had temporarily been serving a non-custodial sentence, the detention center in the offender’s place of residence shall take custody of the offender.

Article 28: When a person under community corrections meets to statutory conditions for sentence reduction, the county-level judicial administration organ in his or her place of residence shall prepare a written recommendation for sentence reduction and attach related evidentiary documents and, after the prefectural judicial administration organ inspects and approves, submit the request for a ruling by the intermediate people’s court in the individual’s place of residence. The people’s court shall issue its ruling in accordance with the law within one month of receiving the request; when the case involves sentence reduction for a person serving a non-custodial sentence and the circumstances are complex or special, the deadline may be extended by one month. Copies of the judicial administration organ’s recommendation for sentence reduction and the people’s court ruling on sentence reduction shall be sent together to the people’s procuratorate and public security organ at the same administrative level for the place of residence of the person under community correction.

Article 29: Prior to the end of their community correction period, individuals under community correction shall produce a personal summary report and the judicial affairs center shall prepare a written evaluation based on his or her behavior during the period of community correction, assessment results, and community opinions, and make recommendations for placement, help, and education.

Article 30: At the end of an individual’s period of community correction, the judicial affairs center shall arrange to announce the lifting of community correction. The announcement shall be led by an employee of the judicial affairs center and carried out publicly and in accordance with statutory procedures.

The judicial affairs center shall, based on the different circumstances of each person under community correction, notify the relevant departments, village (neighborhood) committee, local public representatives, the individual’s work unit, members of his or her family or guardian or guarantor to attend the announcement proceedings.

The announcement proceedings shall include: a reading of the evaluation of the person under community correction; an announcement that the community correction period has concluded and community correction is being lifted in accordance with the law; for those sentenced to public surveillance, an announcement that the sentence has concluded and public surveillance is being lifted; for those sentenced to suspended sentences, an announcement that the period of suspension and probation is complete and the original sentence will no longer be enforced; for those who were released on parole, an announcement that the period of probation has concluded and the original sentence has been fully served.

The county-level judicial administration organ shall issue a certificate of completion of community correction to the person under community correction and notify the deciding organ in writing and send a copy to the county-level people’s procuratorate and public security organ.

When the sentence has concluded for a person under community correction serving a temporary non-custodial sentence, the prison or detention center shall carry out sentence-completion and release procedures in accordance with the law.

Article 31: Community correction shall terminate when a person under community correction dies, is remanded for custodial enforcement, or is sentenced to a custodial penalty.

When a person under community correction dies during the period of community correction, the county-level judicial administration organ shall promptly give written notice to the unit that approved or ordered [the community correction] and notify the county-level people’s procuratorate.

Article 32: For offenders who have been sentenced to deprivation of political rights as a stand-alone punishment, the judicial administration organ shall assist the public security organ in monitoring compliance with Article 54 of the Criminal Law and keeping abreast of relevant information promptly. Offenders who have been deprived of their political rights may voluntarily participate in psychological counseling, vocational training, and employment guidance activities organized by the judicial administration organ.

Article 33: When carrying out community correction for juveniles, the policy of education, reform, and rehabilitation shall be followed and correction enforced according to the following provisions:

  1. Community correction for juveniles shall be conducted separately from that for adults;
  2. To protect the identities of juveniles under community correction, decisions to impose correction shall not be announced publicly and their correction files shall be kept confidential;
  3. Correction teams for juveniles under community correction shall include members who are familiar with the special characteristics of adolescent development;
  4. Measures taken for monitoring and controlling juveniles shall be beneficial to their physical and mental health and take his or her age, psychological characteristics, and needs of physical and mental development into consideration;
  5. Provide ideological, legal, and moral education and psychological counseling in a manner that is easy for juveniles to accept;
  6. Coordinate with the relevant departments to provide juveniles under community correction with education and employment assistance;
  7. Urge the guardians of juveniles under community correction to carry out their guardianship responsibilities and assume their custodial and disciplinary duties;
  8. Employ other necessary measures that will help juveniles under community correction to mend their ways and re-enter normal social life.

The above provisions apply to individuals under community correction who were under 18 years old at the time of their criminal offense and were sentenced to penalties of five years’ imprisonment or less.

Article 34: When the period of community correction is finished, the judicial affairs center shall notify the person under community correction of the relevant regulations concerning placement, help, and education, liaise with the units responsible for placement, help, and education and transfer the relevant files.

Article 35: Judicial administration organs shall set up systems for regular meetings, circular notices, professional training, information reporting, statistics, records management, as well as systems for evaluating law-enforcement, open law-enforcement, and oversight and investigation in order to ensure that community corrections work is carried out in a standardized manner.

Judicial administration organs shall establish mechanisms for handling emergency situations. When individuals under community correction are found to have died unnatural deaths, engaged in criminal activity, or participated in mass incidents, [judicial administration organs] shall immediately coordinate efforts with public security organs and other relevant departments to handle the matter appropriately and promptly report all relevant details to their superior judicial administration organ and other relevant departments.

Judicial administration organs shall, together with public security organs, people’s procuratorates, and people’s courts, establish a platform for information exchange regarding individuals under community correction in order to promote sharing of data on developments in community correction work.

Article 36: Persons under community correction may not suffer any infringement of their personal safety, lawful property, rights to defense, appeal, complaint, and impeach, or any other rights that have not been subject to deprivation or restriction in accordance with the law. Persons under community correction shall suffer no discrimination with regard to education, employment, or enjoyment of social security benefits.

Judicial administration personnel shall conscientiously listen to and appropriately handle problems raised by persons under community correction in order to protect their lawful rights and interests in accordance with the law.

Article 37: When a people’s procuratorate discovers that community correction work violates the law or these measures, it may, based on different circumstances, issue verbal rectification opinion or issue a written notice to correct illegality or a procuratorial recommendation. The sending organ and the enforcement organ shall make corrections at once and give appropriate notice to the people’s procuratorate.

Article 38: In the course of community correction work, judicial administration personnel who engage in behavior that violates the law such as dereliction of duty, favoritism, or abuse of office shall be given the appropriate punishment in accordance with the law; when the behavior constitutes a criminal offense, criminal responsibility shall be pursued.

Article 39: People’s courts, people’s procuratorates, public security organs, and judicial administration organs at all levels shall earnestly strengthen their organizational leadership over community correction work, strengthen work mechanisms, clarify work structures, provide personnel, ensure funding, and ensure that community correction work is able to be undertaken smoothly

Article 40: These measures take effect from March 1, 2012. In case of any conflicts between these measures and provisions concerning community corrections previously issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, or Ministry of Justice, these measures shall take precedence.