Tuesday, August 26, 2014

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

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

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

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

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

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

Xinjiang and Tibet

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

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

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

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

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

TV Set Confessional

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

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

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

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

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

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

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

Thursday, August 7, 2014

Gao Zhisheng Begins Sentence of Deprivation of Political Rights

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

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

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

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

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

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

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

* * *

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

Order 23

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

Minister of Public Security Tao Siju
February 21, 1995

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

Section I. General Provisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section V. Additional Provisions

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