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,, 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.

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.


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.