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.

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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.

Wednesday, December 4, 2013

Most Americans Disapprove of Obama's China Policy, Poll

Vice President Joe Biden (right) with China's then Vice President Xi Jinping at the International Studies Learning Center in Los Angeles, February 17, 2012. Photo credit: Xinhua

As Vice President Joe Biden arrives in Beijing for talks with China’s leaders over a number of nettlesome issues, a just-released poll shows that Americans disapprove of the Obama administration’s China policy by a wide margin.

Only 30 percent of Americans approve of the way President Obama is dealing with China, compared with 52 percent who disapprove, according to a poll of 2,003 Americans conducted from October 30 to November 6, 2013, by the Pew Research Center in association with the Council on Foreign Relations. Obama’s handling of relations with Russia, Iran, and even Afghanistan, as well as his approach to issues like terrorism and climate change, all received higher approval ratings. The president’s handling of the situation in Syria—seen among Americans as Obama’s greatest foreign policy failure—won the same 30 percent approval rating as his China policy.

The results reveal a sharp 24-point shift in public opinion in the space of half a year. Immediately following the Sunnylands Summit between President Obama and Chinese President Xi Jinping on June 10, 2013, a Pew poll showed that a narrow plurality of Americans approved of the way relations with China were being handled (39 percent versus 37 percent who disapproved).

The most recent poll, released on December 3, was taken before China’s unilateral declaration of an air defense identification zone in late November, a move viewed as provocative by the United States and allied governments.

Views of China itself were also largely negative. Nearly a quarter of Americans now have a “very unfavorable” opinion of China, the highest ever reading for this metric, which has been recorded for the past nine years. Thirty-three percent of Americans now have a favorable view of China versus 55 percent who have an unfavorable view—the widest gap since at least 2005. (In 2011, 51 percent of Americans had a favorable view of China.) A mere 23 percent of Republicans, who now control the House of Representatives and who are poised to make gains in the 2014 midterm elections, have a favorable view of China.

China and Iran tied for first place as the country that “represents the greatest danger to the United States.” Both were so named by 16 percent of Americans polled. Just over half of Americans continue to see China’s emergence as a world power as a major threat, while about a fifth consider China an “adversary.”

“The sharp deterioration in approval for the Obama administration’s policy towards China and the largely negative views Americans have toward that country underline the importance of the vice president’s visit to Beijing,” said Dui Hua Executive Director John Kamm. “Leaders of both countries need to stop mouthing platitudes about how good the relationship is and start effectively addressing the fundamental problems causing such deep disquiet among the American people—an increasingly assertive Chinese military, widespread reports of human rights violations, and a yawning trade gap seen by many as a principal cause of America’s high unemployment rate.”

Tuesday, November 26, 2013

China’s State Security Arrests Up 19% in 2012

Twelve men accused of ESS are publicly sentenced in Yili (Ili) Kazakh Autonomous Prefecture, Xinjiang, September 18, 2008. Photo credit: iyaxin.com

China arrested 1,105 people for “endangering state security” (ESS) crimes in 2012, up 19 percent from 2011, according to official statistics released in China Law Yearbook 2013. The number of people indicted rose 8 percent to 1,049.

ESS trials involved more people per case allowing for a decline in ESS trials amid increases in arrests and indictments. The number of first-instance ESS cases received by Chinese courts across the country fell 13.58 percent year-on-year to 369 in 2012, the yearbook said. An average of 2.7 people were indicted per ESS case—compared with a person-per-case ratio of 1.5 for all types of indictments (including ESS) in 2012 and of 2.6 for ESS indictments in 2011 (Table 1).

Dui Hua estimates that Xinjiang accounted for 75 percent of ESS trials in 2012 and 86 percent of ESS trials in 2011. (This revises lower Dui Hua estimates based on disaggregated national data.) Xinjiang's high court reported in January that 314 ESS trials of first and second instance were concluded in the autonomous region in 2012. Xinjiang Yearbook, an official compendium, reported that courts in the region concluded 366 first-instance ESS trials in 2011. In consideration of recent national data and historical regional statistics, Dui Hua does not believe that the annual decrease in the number of ESS trials in Xinjiang corresponds with declines in the number of people arrested or indicted for ESS during the year. Splittism trials in Xinjiang have been known to include scores of defendants.

Table 1. ESS Statistics, 2010-2012
Year Arrests
Nationwide
Indictments
Nationwide
First-Instance ESS Trials*
  People Cases People Cases Nationwide Xinjiang
          No. of Trials No. of Trials % of National
2010 1045 424 1223 419 - - -
2011 930 405 974 377 427 366 86%
2012 1105 474 1049 385 369 278† 75%
Source: Dui Hua, China Law Yearbook, Xinjiang Courts Annual Work Report, Xinjiang Yearbook
* Nationwide data is given as cases received. Xinjiang data is given as cases concluded.
† Based on the number of aggregated first and second instance trials, this Dui Hua estimate assumes that 88.4 percent of trials were in the first instance, as was the case in 2011 according to a comparison of aggregated data in the Xinjiang Courts Annual Work Report and disaggregated first instance trial data in Xinjiang Yearbook.

In contextualizing the crackdown on ESS, China Law Yearbook said there had been an increase in violent terrorism and extremist events in recent years. It underscored the need to keep “high pressure” on ESS crimes and “resolutely fight the crimes of splittism, subversion, terrorism and all kinds of cult organizations in accordance with the law to maintain state security and social and political stability, consolidate the party’s ruling position, and defend the socialist regime.” (……坚决依法打击分裂国家、颠覆国家政权、恐怖犯罪和形形色色的邪教组织犯罪,维护国家安全和社会政治稳定,巩固党的执政地位,捍卫社会主义政权……)

According to local public security statistics cited by Xinhua’s weekly magazine Outlook (瞭望), violent terrorist incidents increased significantly in Xinjiang in 2012 to exceed 190 incidents. In Tibetan regions, the frequency of self-immolations increased dramatically ahead of the 18th Party Congress in November 2012. During China’s Universal Periodic Review, the Chinese delegation blamed the “Dalai Lama clique” for organizing the immolations.

In the resolution on deepening reform efforts passed at its 3rd Plenum on November 12, 2013, the Central Committee of the Communist Party of China said it would establish a state security committee. The committee is expected to primarily focus on internal threats, particularly in Xinjiang and Tibetan regions. Due to real and perceived independence movements, Uyghurs and ethnic Tibetans bear the brunt of crackdowns on splittism and terrorism—the latter is not an ESS crime.

Naming Names

Information on ESS cases is classified as state secrets, and Dui Hua’s Political Prisoner Database has information on just 17 individuals tried or convicted of ESS in 2012: five Han Chinese, five Uyghurs, five Tibetans, and two ethnic Mongolians (Table 2). All five Han Chinese were charged with subversion or inciting subversion. Zhu Yufu (朱虞夫) and Zhang Shaofeng (张绍峰) allegedly circulated online calls for “Jasmine Revolution.” Li Tie (李铁) and Cao Haibo (曹海波) were convicted of organizing banned political groups that criticized one-party rule. Chen Pingfu (陈平福) was accused of writing articles critical of the Chinese government; his case was withdrawn due to insufficient evidence.

Bo Xilai’s Chongqing public security bureau chief Wang Lijun was one of two ethnic Mongolians known to be convicted of ESS for his defection to the US Consulate in Chengdu in February 2012. Govruud Huuchinhuu, a member of the Southern Mongolian Democratic Alliance which advocates for Mongolian self-determination, received a suspended sentence for allegedly leaking state secrets.

Tibetans accused of being involved in pro-independence or self-immolation protests were convicted of splittism or state secrets charges. The outcome of Jigme Guri’s case remains unclear. He has been detained multiple times since releasing an online video in 2008 deploring religious suppression in Tibet.

Uyghurs faced charges of splittism or inciting splittism. In August, official news media widely publicized the conviction of Abdirahman Yimer. He allegedly used USBs and CD-ROMs to disseminate “jihad,” “religious extremism,” and separatist ideas. Kurban Haji was one of 11 Uyghurs deported from Malaysia and sentenced to 11 months to 15 years in prison for splittism or terrorism, according to Radio Free Asia. A court in Kashgar Prefecture reported in 2012 that Mehmet Zunun Awut was tried in a splittism case alongside 22 other defendants. Sidik Kurban, a Muslim leader who ran religious homeschools throughout Xinjiang, received a 15-year sentence for inciting splittism.

Table 2. ESS Cases in Dui Hua’s Political Prisoner Database, 2012
English
Name
Chinese
Name
Province Crime Sentence Date
Sentenced
Li Tie 李铁 Hubei Subversion 10 yrs 1/18/12
Zhu Yufu 朱虞夫 Zhejiang Inciting subversion 7 yrs 2/10/12
Zhang Shaofeng 张绍峰 Gansu Inciting subversion 1.5 yrs 11/7/12
Cao Haibo 曹海波 Yunnan Subversion or inciting subversion 8 yrs 10/30/12
Chen Pingfu 陈平福 Gansu Inciting subversion Withdrawn
Govruud
Huuchinhuu
高布如特•胡琴呼 Inner Mongolia Leaking state secrets Suspended 11/28/12
Wang Lijun 王立军 Sichuan Defection (and other crimes) 15 yrs 9/24/12
Tseyang 才央 Sichuan Inciting splittism 7 yrs 4/12
Yonten Gyatso 云丹嘉措 Sichuan Illegally procuring state
secrets for foreign entities
7 yrs 6/18/12
Lobsang Tashi 洛桑扎西 Sichuan Illegally procuring state
secrets for foreign entities
7 yrs 9/18/12
Bu Thupdor 图多尔 Sichuan Illegally procuring state
secrets for foreign entities
7.5 yrs 9/18/12
Jigme Drolma 晋美卓玛 Sichuan Inciting splittism 3 yrs 2012
Sidik Kurban 斯迪克•库尔班 Xinjiang Inciting splittism 15 yrs 5/13/12
Kurban Haji 库尔班•哈吉 Xinjiang Splittism 6 yrs, reduced to 3 yrs 7/12
Abdirahman Yimer 阿布都热合曼•依米尔 Xinjiang Inciting splittism 13 yrs 2012
Jigme Guri 久美嘉措 Gansu Inciting splittism - -
Mehmet Zunun Awut 麦麦提祖农•阿吾提 Xinjiang Splittism - -

Wednesday, November 20, 2013

Petitioner's Account of RTL Reforms

Jiang Jiawen rents a place in the Beijing suburbs, far from the bustling city center. He remains there as he seeks his own vision of justice. (Photo credit: Zhou Xifeng)

As part of a major new set of proposals intended to set the agenda for reform under new Chinese leader Xi Jinping, the Chinese Communist Party Central Committee recently announced its endorsement of plans to eliminate the controversial system of administrative detention known as reeducation through labor (RTL). The announcement has been expected for many months, since party and government leaders first suggested that RTL would be abolished or reformed late last year in the wake of a series of controversial cases involving the practice.

However, it remains to be seen what will be put in place of an RTL system that, despite its many serious flaws, authorities used as a tool for maintaining the all-important tenets of social order and stability. In November 2012, a reporter from Changsha’s Xiaoxiang Morning News attempted, with limited success, to get details about pilot projects in four Chinese cities which were studying possible reform measures. One year later, the details of RTL reform remain hazy. Despite clear signs the existing system is to be eliminated, there exists little information about what sort of institutions and legislation might be introduced to fill the perceived “gap” between the system of public-order penalties and criminal punishment.

Earlier this week, the same reporter from Xiaoxiang Morning News greeted the news of RTL’s impending demise by featuring the story of a man who has spent much of the past eight years locked up in an RTL facility. Jiang Jiawen, was sent to RTL five separate times in connection with his petitioning activity in Beijing—something that local authorities in his hometown of Dandong, Liaoning, take very seriously given the negative impact petitioning has on official evaluations of their performance in maintaining social stability.

The account of Jiang’s experience inside RTL is not as detailed as that published earlier this year about conditions inside Liaoning’s RTL facility for women at Masanjia. Yet his experience confirms the way that, in anticipation of ending RTL, law-enforcement authorities throughout the country had quietly stopped sending people into the camps and began releasing inmates ahead of schedule this past year. By the time he was released in September, Jiang was one of six inmates still remaining in a facility that had once held several hundred.

Jiang says that the facility he was at in Dandong will be devoted to compulsory drug treatment in the future, a shift that has already been undertaken in many RTL facilities throughout the country. But he also notes that guards from his facility were being trained in preparation for their transfer to a system providing “legal education classes,” which hints at one possible method that local authorities may use to detain some of the individuals who would have been sent to RTL in the past.

These “legal education classes” currently have an ambiguous status under Chinese law and, like RTL, have been criticized for arbitrarily depriving individuals of their freedom without due process. Recently, a group of Chinese human rights lawyers called on officials to, among other things, eliminate “detention places used for the illegal deprivation of liberty that have all along been operated outside the legal system.”

This serves as a reminder that, as the Xiaoxiang Morning News put it, “This is not the end, but rather a new beginning.” While China’s new commitment to eliminate RTL is welcome step in the right direction, it is important to remain aware of and to closely examine all forms of unlawful and arbitrary detention in China, as these measures could very well become the new tools with which authorities impose stability in violation of individual rights.

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Sent to RTL Five Times, Six Times in the RTL Facility: RTL Inmate Recounts His Past

Zhou Xifeng
Xiaoxiang Morning News, November 19, 2013

Editor’s note: On November 12, the Third Plenary Session of the 18th Chinese Communist Party (CCP) Central Committee passed a “Resolution of the CCP Central Committee Concerning Some Major Issues in Comprehensively Deepening Reform,” comprising 60 items in 16 areas. On November 15, the full text of the decision was published. The decision put forward [a plan to] abolish the reeducation through labor (RTL) system, perfect the laws for the punishment and correction of unlawful and criminal acts, and strengthen the community correction system.

Although RTL played a positive role historically, in recent years it has been widely criticized for a series of problems in its implementation.

Amid many years of calls from legal experts and members of the public, this institution of more than half a century is finally to be abolished. But this is not the end, rather a new beginning.

In fact, prior to the decision to abolish RTL, RTL facilities everywhere had already been undergoing quiet changes. How exactly have RTL facilities changed or transformed? Where will the targets of RTL and the RTL guards go? Once RTL has been abolished, how will the community corrections system develop? It has been one year since this paper published a major series of reports entitled “RTL: Retention or Reform” on November 21–22, 2012. Xiaoxiang Morning News reporters have been carrying out new interviews and analysis in an attempt to think about the work that will be needed in the “post-RTL era.”

Of the past eight years, Jiang Jiawen spent nearly five in an RTL facility.

If it had not been for the abolition of RTL, Jiang’s time in the RTL facility would have been set to end on November 7, 2013. In fact, he was “released” early on September 18.

At the National Conference on Politico-Legal Work held on January 7 of this year, news emerged that “the RTL system would cease [operations] this year.” Nevertheless, Jiang Jiawen was still sent to RTL in March.

As a petitioner, Jiang has been detained in an RTL facility six times over the past eight years and sentenced to RTL five times. This rare experience has led him to be known among petitioners as the “RTL champion.”

Jiang’s story confirms a kind of dissimilation of the RTL system: as an instrument of stability maintenance, it has continually been abused.

And, now, in its specific operational form, the RTL system is about to die a natural death.

Sent to RTL Five Times, Six Times in the RTL Facility

On March 15, 2013, police took Jiang Jiawen from Shijingshan District, Beijing, back to his hometown of Dandong. The next day, he was sent to the Dandong RTL facility.

The RTL decision found the “facts of unlawful [behavior]” as follows: Between October 22 and 27, 2012, JJW incited petitioners diverted to the Dandong Processing Center for Letters and Visits to go to Beijing to petition and create disturbances, disrupting the normal work order. It was decided to send him to RTL for one year, from November 8, 2012, to November 7, 2013.

How, then, was it that Jiang Jiawen came to be in Beijing during his RTL sentence? “I was sent to the RTL center on November 8, 2012,” he recalled, explaining how he was sentenced five times to RTL but sent to RTL six times. “Then, 20 days later, I was released for carrying out a hunger strike in protest. There was never any paperwork when I was sent in and out of RTL, so they actually combined these two times to make a year of RTL.”

On January 7 of this year, Jiang was in a small room in the Beijing suburbs when he heard news from the National Politico-Legal Work Conference that “the RTL system would cease [operations] this year.”

He was therefore indignant when he was again sent to the RTL facility. “RTL has been abolished,” he thought, “so why am I being sent to RTL?” Moreover, his health was not good, as he suffered from high blood pressure and heart disease.

On March 17, Jiang learned that State Council Premier Li Keqiang, while answering reporters’ questions at a press conference during the meeting of the 12th National People’s Congress (NPC). stated that the relevant departments were intensively studying how to enact a reform plan for RTL and that plans hopefully would be unveiled by year-end.

This led Jiangto realize that RTL was about to become history. As he counted the days, although he was uncertain when he would be released, one thing was for certain: this would be the last time he would be sent to RTL.

Fight Becomes a Turning Point in Life

Jiang Jiawen is 58 years old this year and is a resident of Yuanbao District, Dandong, Liaoning. One verbal argument was the turning point in his life.

According to Jiang’s account, at 9:30 a.m. on November 3, 2001, a man was repairing a farming tricycle under the streetlight ten meters in front of his house. He went over to have a look, and several men from the car repair shop inexplicably began to hurl insults at him. The two sides began to argue verbally, and this led to a fight. Someone grabbed a brick from Jiang’s hand and struck him with it in the face, breaking his cheekbone and leaving it dented and dislocated, fracturing his maxillary sinus and membrane, and resulting in internal bleeding in his left eye and abrasions on the left side of his face.

Jiang spent 55 days in the Dandong Public Security Hospital. His injuries resulted in paralysis on the left side of his face, frequent headaches, and difficulty swallowing.

Unsatisfied with the public security organ’s handling of the case, Jiang began to petition. Later on, police arrested two of the assailants, both surnamed Yu. In August 2005, a court sentenced each of the two men to prison terms for intentional assault.

But Jiang maintains that the true attacker escaped justice. He has always alleged that the owner of the repair shop, Zhang X, was the one who attacked him with the brick. “It’s as if ‘X’ hit me with the brick, but it was ‘Y’ and ‘Z’ who were arrested and convicted.”

In August 2005, public security organs across the country launched a major campaign to centralize the process for receiving petitions and addressing issues raised by petitioners. Jiang Jiawen went to the Liaoning Public Security Department, but it still left him dissatisfied: “The public security organ upheld the original review opinion because: one, there was insufficient evidence to pursue criminal responsibility against Zhang and two, the Jiudao Police Station did not err in enforcing the law, and this case should be considered closed.”

Jiang was unable to provide this reporter with the case files from the assault case, and the truth [of his account] is difficult to confirm. But what is certain is that it was his dissatisfaction with the results that led him to begin petitioning in Beijing and caused his fate to become entwined with RTL.

At that time, RTL had already begun to be criticized from all sides. In March of that year, at the Third Session of the 10th NPC, a Law on Correction for Illegal Acts, which intended to replace RTL, was included in the legislative plan of the NPC Standing Committee.

Jiang’s final RTL decision referred to all five of his sentences: one year of RTL each in 2005, 2007, 2008, 2011, and 2012.

Cycle of “Petitioning, Stability Maintenance, RTL”

Originating in the 1950s, RTL was originally designed as a measure for compulsory education and reform, as well as a way of placing [individuals] into employment. After several decades of evolution, the scope of RTL expanded dramatically. Peking University law professor Jiang Ming’an calls it “+X,” explaining, “RTL became a big basket, into which anything could be placed.”

“In fact, RTL has been dissimilated into a tool of stability preservation,” says lawyer Chi Susheng, a former NPC delegate. Criticizing RTL, she notes that some officials treat RTL like a “magic weapon” against petitioners and use it with a high degree of frequency and effectiveness to cover up social conflict and block the voices of common people. When they encounter long-term petitioners, they get the RTL committees located inside the Public Security Bureau to affix their chop and immediately send them to the RTL facility.

Shortly after being released from RTL in March 2008, Jiang Jiawen again went to Beijing. During that year’s “two meetings,” NPC delegate and Shaanxi People’s Congress Standing Committee member Ma Kening formally made a recommendation calling for the abolition of RTL. Ma Kening held that the State Council’s administrative regulations concerning RTL ought to be abolished for violating provisions of the constitution and the Legislation Law, as well as the Administrative Penalties Law and the Public Order Management Penalty Law.

However, Jiang faced another term of RTL. On the eve of the 2008 Olympics, when police took him to the hall of a Beijing hotel, he used a razor blade to slit his wrists. After being taken into custody back to Dandong, he was found to have disrupted the normal order of the hotel and sentenced to RTL.

“From that point on, I basically stopped petitioning. I have no home and am just staying in Beijing.” Jiang says that each RTL has been because of petitioning; he has become a stability-maintenance headache for the local government.

RTL, Beijing, RTL—over these years, it’s as if Jiang were shuttling back and forth between these two stations. He is almost fixated on continuing to live in Beijing and seeking what he considers to be justice.

His rented room is in the Beijing suburbs, far from the bustling city center. It’s nearly a one-hour bus ride past the terminus of one of the city’s metro lines. Not even 10 square meters, he pays a monthly rent of 200 yuan for the room. Adding other costs, his monthly expenses total nearly 1500 yuan. For a laid-off worker such as Jiang, this is a serious economic burden.

However, this is an unstable life. He has moved more than a dozen times. “Each time, the landlord has come under pressure from the police,” he says. “They raise the rent so we can no longer pay and have no choice but to move elsewhere, further and further from the city center.”

After several stints in RTL, Jiang says that he no longer goes to the relevant departments seeking justice like he used to four years ago. He has just grown accustomed to staying in Beijing. After divorcing in 2003, he lives alone and no longer has a home. Support from his family is limited. When his son married at 32, he was in RTL and was unable to attend the banquet.

Changes in the RTL Facility: Labor Time Shrinks

As a veteran petitioner, Jiang has become accustomed to paying attention to high-level trends and policy directions. He was able to watch television and read newspapers at the RTL facility. His focus on external events, particularly policy trends, made him especially sensitive to the smallest changes in the RTL facility.

Having been sent to the RTL facility so many times, he came to know nearly everyone who worked there. “Some really sympathized with me,” he said, “but I warned them not to lose their jobs by having too much contact with me.” On the outside, Jiang never telephoned any of the guards inside the RTL facility. “I didn’t want to get them involved.”

At the RTL facility, labor was the primary means of “reform.” Jiang still remembers the two slogans posted on the wall of the RTL facility: “Fertile Soil for Ideological Reform and Correction” and “Harbor for Rehabilitation and Education.” In fact, when he was first sent to RTL in 2005, he was sent out to dig ditches and lay foundations. By 2008, he began to do manual labor indoors: “making watches, [plastic] flowers and the like—whatever work was at hand.”

This year, after it was announced that RTL would cease operations within the year, the RTL facility he was at underwent a series of changes. One noticeable change was that the time spent on production shrank. “When there was no work, they had us study—legal knowledge, moral education, and so on,” he recalled. “Of course, labor still came first.”

“I heard they set up a legal education class and even put up a new building,” he said. “Young officers at the RTL facility were being trained for transfer to the legal education class.” Jiang thinks that the methods of control and education in the RTL facility are much better than they were before. This past year, no one was sent to solitary confinement or beaten for failing to complete a work assignment.

When he was released early, Jiang learned that the RTL faciliy was to become a drug treatment center. “In the past, those sent for RTL and those sent for compulsory drug treatment were all mixed together; later, the two were separated.”

In the Third Plenum decision, abolishing RTL was an important aspect of the clearly proposed plan to improve the system of human rights and legal protections. In the view of experts, elimination of an old system that restricted individual liberty without legal process or judicial decision is in itself a huge contribution to the protection of human rights.

Jiang has previously written essays criticizing RTL and posted them online. “Evil law” and “human rights” are words that appear frequently in these pieces, and the influence [of these articles] was significant.

Some of the officers in the RTL facility were angry when they saw [the essays] and rebuked him, saying: “How can you write things like that?” But other officers expressed their agreement with his articles.

2013: Last Days inside RTL

“There’s an unwritten rule at the RTL facility,” says Jiang. “New arrivals are first sent to the strict-control unit and held separately there under strict control for three months before being transferred to other brigades.” Jiang explained that he was an exception: since he did not obey the guards and was a “frequent visitor” at the RTL facility, he stayed in the strict-control unit the entire time.

This year, he noticed something strange. After his arrival, nobody new was being added to the strict-control unit. “This meant that the RTL committee wasn’t deciding any new RTL cases,” he concluded. This is consistent with reports emerging from locations across the country of public security organs stating that this year they would no longer approve any new RTL cases, signalling that RTL was no longer being used.

The RTL facility where Jiang Jiawen was held is medium-sized. Over the past few years, he estimates that it housed at most several hundred men. In March of this year, there were approximately 90 or so at the RTL facility. At the end of June, the RTL facility began releasing people, many before their scheduled time. In early June, 16 men were transferred from an RTL facility in Dalian, including six who were sent to the strict-control unit. Less than a month later, those six had been released early. Over the next three months, others were gradually released from RTL.

On September 18, the day before the Mid-Autumn Festival, the Dandong RTL facility gave Jiang and the other men there each a mooncake. The guards bought fruit, chicken, fish, and beverages. There were only six men remaining at the RTL facility: “The four remaining in the Fourth Brigade were combined with the strict-control unit. At that time, I was the only one left in strict control, and there was another guy in the Second Brigade.”

But the inmates refused to accept the treats provided by the RTL facility and threw the mooncakes on the floor. Jiang said that he refused to eat as a protest against RTL.

It all happened very suddenly, but it was all within reason. At 2 p.m. on the 18th, the head of the brigade told Jiang and the other inmates to gather their belongings and go to the management office to complete paperwork because they were all being released. Jiang did not sign the paperwork; in his mind, he never accepted that he should have been sent to RTL in the first place.

Jiang did not take any items, such as quilts or sweaters. Carrying only a few items of seasonal clothing, he left the RTL facility. Behind him was an iron gate, four meters high.

Tuesday, October 22, 2013

Politico-Legal Committee Issues Rules to Prevent Injustice

Four well-known miscarriages of justice befell (from left) Zhao Yanjin (in prison nearly a decade), Nie Shubin (executed, 1995), She Xianglin (in prison 11 years), Hugejiletu (executed, 1996). Photo credits: Sanlian Life Weekly, xinhuanet.com, sohu.com

A series of high-profile cases involving wrongful conviction and other miscarriages of justice has increasingly forced China’s top law-enforcement officials to address this troubling issue head-on. In March, the president of Zhejiang’s High People’s Court placed much of the blame for wrongful convictions on the extraction of confessions through torture. President Xi Jinping has spoken prominently about the need for “the popular masses to feel fairness and justice in every judicial case,” and new Supreme People’s Court President Zhou Qiang has called on lawyers and scholars to help reform the criminal justice system.

Then, in mid-August, the Chinese Communist Party’s Central Politico-Legal Commission (CPLC) issued a set of 15 provisions aimed at systemic changes that could help prevent future injustice. Met with considerable fanfare by Chinese media, the provisions included a call to establish a new responsibility system in which judges, prosecutors, and police would be held accountable for life for negligent or wrongful acts that result in wrongful conviction.

Over the past two months, judicial and law-enforcement bodies throughout China have been studying the CPLC pronouncements. The Supreme People’s Procuratorate has already issued provisions for implementation. Despite all the attention, copies of the provisions have not been widely circulated. In fact, Dui Hua has only been able to find one copy online (translated below) as circulated by a local party branch politico-legal committee in Jining, Shandong Province.

On one level, much of the CPLC guidelines reiterate provisions and principles that are already part of China’s Criminal Procedure Law and related regulations. The emphasis on fully recording interrogations and excluding illegally obtained evidence reflect the growing recognition of the need to protect the rights of criminal suspects and defendants, but implementation of these important protections has yet to become routine. Likewise, the CPLC provisions emphasize the importance of keeping channels of communication open within the criminal process and acting on information in a timely manner, whether it be the opinions of defense lawyers or allegations of wrongdoing made by convicted persons.

Besides the proposed responsibility system, another theme of note in the CPLC provisions is the need to insulate the judicial process from external interference. Public opinion, petitioning, and “stability preservation” are all cited as sources of external pressure that should not be allowed to influence decisions made during the criminal process. By the same token, the guidelines also point to the possibility of less interference by local party and government officials by limiting the scope of politico-legal committees’ guiding opinions and efforts to “coordinate” opinions between law-enforcement bodies when there are disagreements about how a case ought to be handled.

There is much in these guidelines that sounds positive from the perspective of promoting procedural fairness and rule of law in China. The ultimate impact of these pronouncements, however, is likely to depend on how much weight they are given vis-a-vis other, well-established imperatives to pursue stability in the interest of the overall socio-political order, for it is the perception that these interests can trump the law and political and civil rights that contributes most to miscarriages of justice in China.

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Provisions on Earnest Prevention of Miscarriages of Justice

In order to give thorough implementation to the spirit of the important written instructions given by General Secretary Xi Jinping and Comrades Meng Jianzhu and Guo Shengkun, fully realize the spirit of the Fourth Plenary Session of the Central Politico-Legal Commission, punish crime in accordance with the law, respect and safeguard human rights, increase the credibility of the judicial system, and uphold social fairness and justice, we hereby enact the following provisions on the subject of strict adherence to legal procedure and holding firm to the bottom line on prevention of miscarriages of justice.

  1. Except in emergencies when it is necessary to conduct on-the-spot questioning, questioning of criminal suspects or defendants ought to be carried out in case-handling locations provided for [by law and regulation]. After a criminal suspect has been transferred to a detention center for custody, questioning shall be carried out in the detention center interrogation room with simultaneous audio- or video recording of the entire process. The investigating organ may not use reasons such as recovering stolen goods or [conducting an] identification [procedure] to remove suspects from the detention center in order to conduct questioning outside the facility.
  2. When the investigating organ transfers a case [to prosecutors], it ought to include all evidence of the guilt or innocence of the suspect or defendant as well as of the severity of the crime. It is strictly forbidden to withhold or fabricate evidence.
  3. When evidence that ought to be excluded is discovered during investigation, prosecutory review, or trial, it ought to be excluded in accordance with the law and may not serve as the basis for requesting arrest approval, approving or issuing an arrest decision, transferring the case for prosecutory review, making a decision to prosecute, or issuing a verdict. Suspect or defendant confessions obtained through torture or other illegal means, or witness testimony or victim statements obtained through violence, threats, or other illegal means may not be used as the basis for conviction.
  4. People’s procuratorates shall conduct oversight in accordance with the law as to whether investigation activities are lawful; provide opinions and recommendations as to the collection, securing, and perfection of evidence; and, when necessary, appoint procurators to take part in discussions with the investigating organs concerning major or serious cases and re-testing or re-examination of crime scenes or items, persons, or corpses associated with a crime.
  5. People’s procuratorate shall strictly ensure the standards for arrest review, prosecutory review, and prosecutory appeal. In cases that do not meet the statutory requirements for arrest or prosecution, it shall withhold arrest approval or issue a decision not to prosecute in accordance with the law. Appeal shall be made in accordance with the law in cases that meet the conditions for prosecutory appeal, especially when the innocent are found guilty, the guilty are found innocent, or the sentence is either unusually light or unusually heavy.
  6. Firmly adhere to the principle of judgment on the basis of evidence. When a witness who ought to appear in court in accordance with the law refuses to appear or appears but refuses to testify without good reason and the court has no way to confirm the veracity of his or her testimony, the testimony of that witness may not be used as the basis for conviction. Any evidence that has not been presented, examined, and cross-examined in court and verified through these court investigation procedures may not be used as the basis for conviction.
  7. Strictly implement the legal standard of proof. When there is only a defendant’s confession and no other evidence, the defendant cannot be convicted or given criminal punishment. In cases where there is insufficient evidence to convict, the presumption of innocence shall be adhered to and the defendant pronounced innocent in accordance with the law, standards cannot be lowered to issue a verdict with a “margin of error.” When evidence to convict is truthful and sufficient but there are doubts concerning evidence with implications for sentencing, a sentence favoring the defendant shall be issued.
  8. When people’s courts, people’s procuratorates, or public security organs handle criminal cases, they must take facts as the basis and law as the criterion and cannot issue judgments or decisions that violate the provisions of the law due to pressure caused by public-opinion hype, disruptive petitioning by a parties to the case or their relatives, “case-solving deadlines,” or local “stability preservation.”
  9. Earnestly safeguard the rights of defense lawyers to meet [with clients], read case files, carry out investigations, and obtain evidence, and to raise questions, cross-examine evidence, and debate in court. During the phases of concluding the investigation, prosecutory review, and final review of death sentences, people’s courts, people’s procuratorates, and public security organs ought to hear defense lawyers’ opinions in accordance with the law. With respect to the defense arguments and evidentiary materials submitted in defense by defendants and their defense counsel, people’s courts ought to give them serious review and provide an explanation in the court decision as to why they were accepted or rejected.
  10. People’s procuratorates and people’s courts ought to conduct timely review in accordance with the law when receiving allegations or petitions that may truly involve miscarriage of justice. After review, if a criminal verdict or decision is found to be in error, prosecutory appeal or request for retrial shall be made in accordance with the law. People’s procuratorates shall immediately rectify mistaken decisions made in a criminal case by itself or by its subordinate procuratorates in accordance with statutory procedures.
  11. Prisons or other penalty-enforcement organs may not withhold petitions, allegations, or accusation materials made by offenders and ought to transmit them or request the relevant authority to handle them in a timely manner. The relevant authority ought to conduct a serious review and handle [the petition, allegation, or accusation] in a timely manner and notify the prison or other penalty-enforcement organ of its decision. When offenders make petitions or allegations, it shall not affect their eligibility for sentence reduction or parole.
  12. Establish a strong case-management responsibility system in which the collegiate bench as well as individual judges, procurators, and police officers are held equally accountable and judges, procurators, and police officers are held accountable for life for the quality of the way a case is handled insofar as the purview of their duties is concerned. Responsibility for unlawful acts related to the handling of cases by judges, procurators, and police officers shall be pursued in accordance with the relevant laws and provisions.
  13. Clarify the standards for [what constitutes] a miscarriage of justice as well as procedure for and agent who can initiate remedial action and establish a strong mechanism for pursuing responsibility in miscarriages of justice. Acts such as coercion of confession through torture, use of violence to obtain evidence, and withholding or fabricating evidence shall be severely punished in accordance with the law.
  14. Establish a strong, scientific, and rational system for case-management performance evaluation that adheres to judicial rules; do not one-sidedly pursue targets such as a case-solution rate, arrest rate, prosecution rate, or conviction rate.
  15. Party politico-legal committees at all levels ought to support the independent and fair exercise of judicial and procuratorial powers by the people’s courts and people’s procuratorates and support each politico-legal unit in carrying out its work in an independently responsible and coordinated manner in accordance with the constitution and laws. In cases where the facts are unclear or the evidence is insufficient, do not coordinate [opinions between law enforcement bodies]; when coordinating [opinions regarding] cases, generally refrain from making specific opinions regarding the determination or substantive handling of a case.

Tuesday, September 24, 2013

Justice Ministry to Silence Lawyers with New Confidentiality Rules

China University of Political Science and Law Professor Wang Jianxun. Photo credit: sohu.com

Months before China’s highest court and prosecutor prescribed imprisonment for online posts that got too popular, the Ministry of Justice introduced information controls in draft regulations targeting criminal defense lawyers. Circulated to province-level judicial administration departments earlier this summer, the rules were met with criticism from those in the legal profession.

Defense lawyers voiced concern that certain provisions would impose upon them absolute obligations to keep various case details confidential. Compared with the Supreme People’s Court’s judicial interpretation of the Criminal Procedure Law that barred the use of social media in the courtroom, the Ministry of Justice rules go further. While the judicial interpretation only covers the conduct of lawyers inside the courtroom and, specifically, their ability to reveal trial proceedings, the rules impose limitations on things like sharing case information with the relatives of defendants or accessing or reproducing court records. As the body mandated with the supervision of lawyers, the ministry also has more direct weapons (e.g., the approval of lawyer licenses) to use as punishment against those who fail to abide by its rules.

The main concern, explains China University of Political Science and Law Professor Wang Jianxun, is that the rules are aimed at preventing defense lawyers from using the media and the Internet to raise public awareness about individual cases that may become miscarriages of justice.

In recent years, Chinese lawyers have increasingly made public details of ongoing criminal cases involving procedural irregularities or other types of injustice. There is a perception among some, however, that such mobilization of public opinion interferes with courts’ ability to adjudicate cases independently and ought to be curbed in an effort to promote rule of law.

But as Professor Wang notes, in an article published by Caijing (translated below), the Chinese judicial system is plagued by insufficient transparency and imperfect attention to procedural rights. Moreover, “coordination” between judicial and law-enforcement bodies under the party’s guidance limits, rather than promotes, judicial independence. Under these circumstances, publicity and public opinion offers an important channel through which courts, prosecutors, and police may be held accountable for their actions in the criminal process. Imposing an absolute ban on revealing case details would further limit lawyers’ ability to defend their clients and could potentially result in sanctions for those lawyers who violate these provisions.

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Lawyers’ Defense Rights and the “Cutthroat” Bill

Wang Jianxun
Caijing, July 29, 2013

In the wake of the promulgation of rules related to the new Criminal Procedure Law by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security, the Ministry of Justice (MOJ) has also drafted a consultation version of Regulations on Several Issues Concerning Criminal Defense by Lawyers, regulations specifically aimed at regulating the criminal defense activities of lawyers. These regulations concern issues related to the appointment of criminal defense lawyers and their abilities to meet with clients, read case files, and carry out defense work. Many provisions tend toward restriction of lawyers’ defense rights, among which a widely criticized one is the requirement that lawyers keep case information confidential.

According to Articles 18, 27, and 42 of these regulations, defense lawyers must not leak notes, audio recordings, video recordings, or photographs to relatives of criminal suspects or defendants or use case-file documents or notes or audio- or video recordings made during the trial for purposes other than defense in that case. Also, any audio- or video recording of the trial or requests to view or reproduce audio- or video recordings of the trial made by the people’s court must first get the court’s approval.

What do these provisions mean, ultimately? Will they constrict the already narrow space available for criminal defense even further? How will lawyers’ criminal defense rights be protected?

There’s no doubt that criminal cases are special, and it’s understandable that lawyers’ activities in criminal litigation be subject to certain regulation and restriction. But the problem is that restrictions on lawyers’ activities ought to be premised on protecting their rights to engage in defense and motivated by protecting the rights of criminal suspects and defendants. After all, the entire system of criminal defense was set up to protect the rights of these persons, and to protect the rights of lawyers to engage in defense is also to protect the rights of suspects and defendants.

In this respect, there is nothing improper about requiring criminal defense lawyers to fulfill certain confidentiality obligations, but complete or unconditional requirements that lawyers keep case information secret are inappropriate.

If in certain special instances secrecy does not benefit a lawyer’s exercise of defense rights or benefit protection of the rights of a criminal suspect or defendant, then there is no reason to require the lawyer to fulfill this kind of confidentiality obligation. For example, the MOJ regulations bar defense lawyers from leaking notes, audio recordings, video recordings, or photographs to relatives of criminal suspects or defendants. Does this mean that defense lawyers may not report information about the case or give a progress report to those relatives? If those things are prohibited, how are they supposed to coordinate on behalf of defending the suspect or defendant?

As another example, the MOJ regulations also bar lawyers from using case documents or notes or audio- or video recordings of the trial for purposes other than defense in the case at hand. This provision is intended to prevent lawyers from revealing information about cases to outsiders.

The question is: what is the legal basis for this sort of prohibition? If a defendant’s confession is coerced through torture, can’t a lawyer notify relatives of audio or videotapes or make them public? And how does one define “other purposes”? Does discussing details of the case with relatives of a suspect or defendant count as “other purposes”? Does being interviewed about a trial count as “other purposes”? Does publicizing details of the trial online count as “other purposes”?

There is widespread concern among lawyers that these provisions barring defense lawyers from revealing case details will in fact block them from using the media and public opinion to prevent miscarriages of justice. In a society where rule of law is imperfect and the judicial process is not independent, there is already limited space for criminal defense. The rights of lawyers to engage in criminal defense work are unable to receive effective protection, and the rights of criminal suspects and defendants are often violated. For proof, just look at the frequent occurrence of miscarriages of justice and the jailing of some criminal defense lawyers.

If one says that the confidentiality responsibility of lawyers in societies with rule of law does not worry people because of procedural justice, then in a society with imperfect rule of law this kind of confidentiality responsibility has the possibility to deny a wrongly accused criminal suspect or defendant their final hope of obtaining justice.

In fact, when we look at the level of practice, in a society where the judicial process is not independent and procedural justice is not made manifest, the act of a lawyer revealing case details will often enable an unfair case to turn itself around and either prevent or remedy a case of injustice due to false evidence or errors in the law.

Cases like the “Beihai Case” in Guangxi or the “Xiaohe Case” in Guiyang were able to benefit to a considerable degree from timely publicity of case information by defense lawyers in order to avoid an even greater degree of judicial unfairness. As everyone knows, one of the chronic problems of the criminal process is insufficient openness and transparency. Even though trials and verdicts are supposed to be public according to the law, in practice both are regularly done in a non-open manner—especially those so-called sensitive or major and important cases. The court often makes excuses for refusing to try a case in public, whether it’s through the excuse that all observer permits have been distributed already, deliberately holding the trial in a small courtroom, or even making it impossible for the defendant’s relatives to observe.

In essence, these kinds of trials are secret trials, and not only do secret trials violate the law, they are also unfair. Even worse, in many criminal cases, defendants and their relatives don’t even get copies of the verdicts.

In this kind of situation with no open trials or verdicts, what is the crime in a defense lawyer making details of the case public? Otherwise, would there be any openness to speak of in the entire criminal process? Without openness, how can the fairness of the judicial process be guaranteed?

One of the signs of humanity’s becoming more civilized is the shift from secret trials to public trials and the shift from secret decisions to public decisions. Where there are secret trials and secret decisions, there is no reason to bar lawyers from revealing case details; otherwise, it’s unavoidable that defendants’ rights will get trampled upon.

Then if you permit lawyers to reveal case details as they please—especially in those cases that have not yet been tried—what do you do when these actions have negative consequences for adjudication or even judicial independence? Frankly speaking, this sort of worry is not without merit because public opinion has the potential to be a double-edged sword.

However, the way to go about resolving this problem is not to bar lawyers from revealing case details, which could possibly make it so that these cases of injustice have no remedy. Rather, the solution is to establish judicial independence in an institutional way and realize the procedural justice of the Criminal Procedure Law.

Were the judicial process to truly achieve independence, then even if a lawyer reveals details of a case or public opinion exerts pressure on the judicial process the judicial process would be able to handle it calmly, stand firm, and carry on. It thus wouldn’t have to worry about the improper influence of public opinion or the media.

Only a judicial system that is not independent will be vulnerable in the face of public opinion and [state] power.

The author is an assistant professor at China University of Political Science and Law.