Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Thursday, August 6, 2015

China Mulls Harsher Penalties for Protesters, “Cults”; Fewer Capital Crimes


Director Li Shishi of the Legislative Affairs Commission of the NPCSC explains proposed Criminal Law amendments to the NPC on October 27, 2014. Credit: infzm.com

In July, members of the National People’s Congress Standing Committee (NPCSC) published and opened for a one-month period of public consultation a set of proposals for amending China’s Criminal Law for the ninth time since it was overhauled in 1997. The proposals are a revision of an earlier draft first introduced in October 2014, and the NPCSC is likely to review a third (and probably final) draft of the proposed amendments at a bi-monthly meeting later this year.

The Chinese media has highlighted a number of overarching themes and new features in the proposed amendments. The draft introduces stronger provisions to combat terrorism and “religious extremism,” strengthens provisions connected to cyber-security, and imposes stricter anti-corruption measures.

Despite strong opposition from many in the legal community, the current draft also restricts lawyers from revealing certain types of case information and introduces harsher penalties for Article 309, “disrupting court order.” The sweeping crackdown on lawyers that Chinese authorities have carried out since July 10 places the significance of these provisions in a new light. (This topic will be covered in a subsequent post.)

This article focuses on provisions related to death penalty reform and the redefinition of punishments for protesters and “cult” members once commonly subjected to the now defunct system of reeducation through labor (RTL).

Death Penalty Reform

The current draft amendment proposes to remove the death penalty from nine criminal offenses (see below), which would bring the total number of capital crimes in China to 46. The removal of the death penalty from these nine offenses would not put much of a dent in China’s world-leading use of capital punishment, which largely focuses on homicide, rape, robbery, and drug offenses. It would, however, show the government continuing to make good on its pledge to work towards gradual abolition of the death penalty. The current proposal starts chipping away at the death penalty for offenses that involve a certain degree of violence, but since many of the 46 offenses that would remain eligible for capital punishment are non-violent in nature, China still has some way to go before it joins the growing ranks of abolitionist countries.

Crimes Slated to Remove Death Penalty
Article No. Offenses
151(1) Smuggling weapons or ammunition
Smuggling nuclear material
Smuggling counterfeit currency
170 Manufacturing counterfeit currency
192 Fraudulent fundraising
358(1) Organizing prostitution
Coercing into prostitution
426 Obstructing the performance of military duties
433 Spreading rumors and disinformation during wartime
Source: Dui Hua

At least two of the crimes, fraudulent fundraising and coercing into prostitution, recently stirred public controversies in connection with capital punishment. Wu Ying narrowly escaped execution when the Supreme People’s Court overturned the death penalty against her in May 2012. The decision followed several years of highly public campaigning on behalf of the young entrepreneur who was convicted of deliberately defrauding investors of 770 million yuan (approximately $100 million). Tang Hui—the “petitioning mother” who earned widespread public support after being sent to RTL in 2012—doggedly protested the unwillingness of the courts to sentence to death those convicted of forcing her 11-year-old daughter to work as a prostitute.

Though it is common to justify slower progress toward abolition with the presence of strong public support for the death penalty in China, there is resistance within China’s party and government institutions as well. According to reports, earlier drafts of the current amendments that circulated internally had proposed adding language to the Criminal Law’s general provisions specifying that the death penalty be limited only to the “most serious crimes.” This would have meant adopting the standard set in Article 6(2) of the International Covenant on Civil and Political Rights, which China has signed but not yet ratified. The language was ultimately dropped because of unspecified opposition.

Goodbye RTL, Hello Prison

Petitioners

Another aspect of the current amendments is changes made in response to the 2013 decision to eliminate RTL, a system of administrative custodial punishment used for decades to incarcerate individuals for up to three years for unlawful acts deemed too minor to pursue criminal punishment. With this tool of maintaining stability no longer available, the Criminal Law is being adapted to handle many of the kinds of cases that were previously dealt with through RTL.

One controversial example is the proposed amendment to Article 290(1), which covers “gathering a crowd to disrupt public order.” Citing the problem of individuals who engage in “persistent and disruptive petitioning” that disrupts work at government offices, drafters propose to expand this article to target those who fail to “correct” (gaizheng) their behavior after being given administrative penalties for “disrupting the work order of state organs on multiple occasions” and those who “disrupt social order by organizing or giving financial support to people for the purpose of gathering illegally on multiple occasions.” If the proposed amendment passes, these types of behavior—both of which might have been dealt with through RTL in the past—will be subject to criminal punishment of up to three years’ in prison.

Such changes amount to a complete redefinition of the offense currently covered by Article 290(1), given that it would apply to individual protesters regardless of whether they gather together with others. In the case of “organizing or providing financial support,” it is not even necessary for an individual to take part directly in any protest. Critics argue that it is potentially counterproductive to target individual protesters—many of whom are petitioners forced to resort to disruptive behaviors in order to draw attention to legitimate claims of injustice. As Tsinghua University law Professor Zhou Guangquan recently noted, “Criminalizing such acts will make it harder to carry out supervision and check that local party and government bodies are governing in accordance with the law.”

But the authorities have already signaled an intention to strike against those who engage in acts of public protest—whether as individuals or in groups—because of the perceived threat these disruptions pose to the stability upon which the political order supposedly rests. Together with the crime of “provoking a serious disturbance,” Article 290(1) has become a favored charge against activists who organize and demonstrate on behalf of social justice and legal reform, such as Xu Zhiyong or Guo Feixiong. In 2013, the Supreme People’s Procuratorate noted that illegal assembly and gathering crowds to disrupt social order were being carried out “with the goal of subverting state power.”

“Cult” members

Receiving less attention have been the changes proposed to Article 300, which covers the offense of “using a secret society, cult, or superstition to undermine implementation of the law.” Since 1997 this offense has primarily been used to target members of spiritual and religious organizations (like Falun Gong, Shouters, or Almighty God) that authorities have outlawed as “cults.”

There are presently two penalty ranges under Article 300 based on the severity of the offense as determined by a court. Ordinarily, “cult” activity carries a penalty of between three and seven years in prison, though certain mitigating factors or grounds for leniency can sometimes lead to sentences of less than three years. When there is a finding of “especially grave circumstances,” however, the court may impose a sentence of as high as 15 years.

Until recently, many of those accused of engaging in unlawful “cult” activities were not subject to criminal punishment. Instead, they were sent to RTL camps for up to three years—often multiple times. Though RTL camps were in many respects indistinguishable from prisons (and sometimes arguably worse), the punishment was still considered to be much more lenient than a prison sentence.

Since the elimination of RTL at the end of 2013, the only way for the authorities to punish those accused of “relatively minor” offenses related to “cult” activity beyond 10- or 15-day administrative detentions is through unlawful detention in “legal education centers.” In response, drafters have proposed an additional clause for Article 300 that would cover acts deemed to be “relatively minor” and make offenders subject to imprisonment of up to three years, short-term detention (lasting up to one year), “public surveillance,” or “deprivation of political rights.” Courts have also been empowered to impose monetary fines.

Perhaps in the spirit of the penal policy of “combining lenience with severity” (kuan-yan xiangji), the latest draft of the proposed amendment to Article 300 also proposes to raise the maximum penalty for “especially grave circumstances” to life imprisonment. According to the 1999 judicial interpretation covering Article 300, aggravating factors that can be considered “especially grave” include organizing groups or recruiting members across provincial boundaries, colluding with overseas organizations or persons, and printing or distributing very large quantities of propaganda. Also included in this category is a catchall of “inciting, deceiving, or organizing members or others to undermine the implementation of state law or administrative regulations that results in grave consequences.”

Drafters have not publicly offered any justification for this significant increase in the maximum penalty for Article 300 nor have they given any indication of what sort of activity might necessitate a life sentence. Considering that Article 300 relies on arbitrary determinations of when particular belief systems qualify as “cults,” the possibility of life imprisonment for violating this provision poses a particularly grave threat to religious freedom that is excessive given the kinds of acts that presently qualify for the most serious punishment under that statute.

Tuesday, June 9, 2015

Despite Legal Reform, SPC Still Blocks Lawyer-Client Access


Defense lawyer Zhang Kai holds a sign outside Zhejiang's Pingyang County Detention Center requesting that he be able to meet with his client in October 2014. Image credit: Weibo

Improving criminal defense lawyers’ access to clients was hailed as one of the highlights of the revised Criminal Procedure Law (CPL) that came into force in 2013. Incorporating provisions of the 2007 Lawyers Law that had yet to be universally respected, the new CPL requires detention centers to arrange for access within 48 hours of request by a lawyer upon presentation of his or her license to practice, the certificate of his or her law firm, and power-of-attorney documentation. The only exceptions are cases involving state security, terrorism, or “particularly serious” bribery, for which police investigators can require that a lawyer seek their approval before a meeting can be arranged.

Although these new provisions have not been implemented perfectly, defense lawyers generally acknowledge that access to suspects has improved in most routine criminal cases. But what recourse is there when these provisions are not strictly enforced?

Background

On July 15, 2014, long-time petitioners Zhang Xiaoyu and husband Xu Youchen were formally “reprimanded” (xunjie) by Beijing police for disturbing public order. Two days later, officials from their hometown of Jiaozuo, Henan, accompanied them back home. Upon arrival, Zhang and Xu reportedly resisted attempts to hand them over to local police officers. Xu allegedly attacked a police officer with a small knife, causing a fatal wound. Xu and Zhang were then placed under criminal detention on suspicion of intentional homicide.

Lawyers for the couple attempted over a period of several days to meet with the detainees, but their multiple requests were refused by the Jiaozuo Detention Center. Finally, on July 25, lawyers got their first opportunity to meet with Zhang and Xu, who each spoke of being beaten by police. The lawyers took photographs of the couple’s bruised and swollen faces and uploaded these to the Internet.

The next day, detention center officials refused to provide the lawyers with any additional access to Xu and Zhang, saying that the lawyers had violated the rules by releasing photos of the detainees. The officials informed the lawyers that a complaint had been filed with judicial administration authorities in Shandong and that the detention center would not agree to any more visits, pending a decision on sanctions.

Over subsequent weeks, lawyers for the couple complained repeatedly to local and provincial authorities and attempted to get the official lawyers’ association to intervene on their behalf. When none of these efforts were successful, two of the lawyers—Liu Jinbin and Liu Shuqing—decided to sue the detention center in court.

Administrative Action or Judicial Process

Citizens or other parties who wish to challenge the legality of official government actions can do so under the Administrative Litigation Law (ALL). The challenge must involve a concrete administrative action directed against specific individuals or entities, rather than decisions with general applicability. The ALL also explicitly excludes certain areas from challenge, including national defense and foreign affairs, administrative rules and regulations, administrative decisions of an internal nature, and administrative acts that are deemed by the law to be within a particular state organ’s final authority.

Under the law, administrative actions are generally distinguished from actions related to judicial process. In theory, disputes that private parties may have with public authorities in the course of the judicial process should be dealt with as part of the judicial process itself. For example, unlawful coercion of confessions by investigators can be addressed through a request to have a court rule on exclusion of that confession from evidence. In China, however, many aspects of judicial authority are invested in the procuratorate, rather than the court. For example, procuratorates make decisions about whether suspects may be held under formal arrest pending trial and are generally responsible for ensuring that various parts of the criminal process are lawful.

China’s public security organs carry out a variety of functions, some of which fall under the category of administrative acts and some of which can be classified as being part of the judicial process. Punishments for public order offenses (such as short-term jailings, property confiscation, or fines) are unquestionably administrative actions and are, therefore, subject to challenge under the ALL. On the other hand, imposition of coercive measures and actions related to criminal investigation are considered to be actions related to the judicial process that are excluded from the purview of the ALL.

Legal Argument

In the nearly identical lawsuits that plaintiffs Liu Jinbin and Liu Shuqing brought before the Shanyang District People’s Court in November 2014, the main issue of dispute was whether arrangement of meetings between lawyer and detainee by a detention center should be considered an administrative action or part of the judicial process. The opportunity to argue this point at trial was itself a rarity, as courts throughout the country had basically refused to hear such cases for almost 15 years.

That hadn’t always been the case. In 1999, a Hunan lawyer named Liao Jianhua successfully sued the Loudi Public Security Bureau for refusing to allow him to meet with a detained suspect. According to Professor Chen Ruihua, there were a few other cases around that time where courts similarly granted relief to lawyers. But that effectively ended in March 2000, when the Supreme People’s Court issued an interpretation of the ALL that explicitly excluded from the purview of administrative litigation all “actions that the Criminal Procedure Law specifically empowers (shouquan) public security, state security [and other] organs to carry out.” With this provision, the SPC eliminated the courts as an avenue for lawyers to challenge decisions over access to detainees, which helped contribute to making the securing of such access one of the “three difficulties” often complained about by Chinese lawyers.

The lawyers argued that the Criminal Procedure Law only empowers the police to detain people and carry out investigations. Although the Detention Center Regulations issued by the State Council in 1990 gave responsibility over management of detention centers to public security organs and stated their purpose as “guarantee[ing] the smooth progress of the criminal process,” that role as custodian over detainees was merely a managerial function indirectly part of the criminal process. Under the law, the process of arranging meetings between lawyers and detainees was, at least in the case at hand, supposed to be a relatively simple matter of ensuring that the lawyer’s paperwork was in order and did not leave any room for discretion. Despite being set out in the CPL, this amounted to a routine approval process indistinguishable in form from other administrative actions and should, therefore, be subject to challenge under the ALL.

The court of first instance rejected this argument, finding that decisions over lawyers’ access were acts “empowered” by the CPL and, therefore, outside the purview of the ALL. In an appeal to the Jiaozuo Intermediate People’s Court in February 2015, Liu Jinbin argued that the district court’s conclusion was based on a flawed understanding of the word “empowered” (shouquan). He argued that arranging lawyers’ access to detainees was a responsibility, rather than a right, and could not therefore be the object of the word “empower.” Public security organs were only empowered by the CPL to detain and investigate suspects; if anything, it was lawyers who were empowered by the law with the right to access detainees.

The Jiaozuo Intermediate People’s Court essentially ignored this argument by noting that laws endow state organs with both powers and responsibilities. Arranging access between lawyers and detainees was a “clearly stipulated responsibility” under the CPL, it found, and if a lawyer believed that the exercise of his or her rights in this regard were being “hindered” (zu’ai), then the proper channel for seeking remedy was through complaint to the procuratorate. Since the matter was outside the scope of the ALL, the matter was dismissed.

SPC Interpretation Remains Supreme

Given that guaranteeing suspects’ access to legal assistance from the point of initial detention is an essential part of safeguarding their human rights and preventing torture and other miscarriages of justice, any violations of lawyers’ rights in the criminal process ought to be met with swift and strong consequences in order to ensure compliance. In the current legal environment, however, a lawyer’s only option is to seek intervention by the procuratorate. Notwithstanding that the Supreme People’s Procuratorate recently issued a set of regulations aimed at protecting the rights of lawyers, what happens if the procuratorate refuses or is slow to intervene? Or what if a procuratorate order goes unheeded?

These scenarios suggest that some form of judicial remedy could be helpful in vindicating lawyers’ rights to meet with detainees. There are, however, few signs that the door to administrative litigation will open anytime soon. A revised version of the ALL took effect on May 1, and even though legislators still have not explicitly excluded acts connected to the criminal process from the scope of administrative litigation, officials at the SPC have made clear that the relevant provision of its previous interpretation remains binding.

One possible solution would be pending legislation regarding detention center management. Were management of detention centers to be shifted toward the judicial administration authorities that also manage China’s prisons, it would potentially result in a much clearer separation between the administrative management of detainees and the investigative powers associated with the criminal justice process itself. However, even though there has been a great deal of support among legal experts for making such institutional reform part of a proposed Detention Center Law, current indications are that public security authorities will retain power over detention facilities for the time being. This means that, barring change to the SPC interpretation, the boundaries between criminal investigation and detainee management will remain blurred.

Thursday, March 5, 2015

Article 293: Deeming Free Speech Disorder in Internet Space


Prior to his arrest for "creating a serious disturbance," Pu Zhiqiang (bottom right) joins others to discuss June Fourth at a private home in Beijing.

In September 2013, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) jointly issued a judicial interpretation addressing a number of issues related to criminal speech online. That interpretation held that use of information networks “to berate or intimidate others,” “to disseminate false information . . . that one has either invented or clearly knows to be fabricated,” and “to organize or incite others to disseminate [such information]” should be punished under Article 293 of the Criminal Law, “creating a serious disturbance.”

This marked a major elaboration of Article 293, which is also known by its literal translation, “picking quarrels and provoking trouble.” Prior to the interpretation, the offense had targeted a variety of behaviors deemed to be disruptions to social order, such as fighting, looting, throwing rocks or refuse at vehicles or buildings, or otherwise stirring up trouble in public spaces. Now, the interpretation seems to have expanded the definition of “public space” to include online space, treating it not only as a platform through which to incite others to disrupt social order but as a kind of public space itself that can be thrown into disorder by certain kinds of acts.

Since September 2013, a growing list of Chinese people have been detained or charged for speech-related incidents under the provisions of Article 293. Perhaps the most well-known is the crusading rights lawyer Pu Zhiqiang, whose initial detention for “creating a serious disturbance” appeared to be connected to a private meeting to discuss issues related to June Fourth. According to recent reports, however, it appears that the authorities may also be trying to prosecute Pu under Article 293 (in addition to even more serious speech-related charges, including “inciting subversion” and “inciting splittism”) for a series of items he posted on social media.

Prosecutors in Zhengzhou, Henan, also recently presented an indictment for “creating a serious disturbance” against Yu Shiwen, a former student leader during the 1989 democracy movement who was arrested last year in connection with a public memorial commemorating former leaders Zhao Ziyang and Hu Yaobang and those who died in the June Fourth crackdown. The authorities appear to have been unaware that the memorial had taken place until Yu and other participants posted photographs online and gave interviews to overseas media.

Critics have argued that the judicial interpretation by the SPC and SPP is improper because by significantly expanding the scope under which Article 293 can be applied, it has ventured into the jurisdiction of China’s legislature. Peking University’s Zhang Qianfan recently took up the argument from a position defending the freedom of expression. In a blog post that has been widely republished on numerous Chinese-language websites, the liberal constitutional law scholar warns that overemphasis on preventing disorder in virtual space risks undermining what is not only a fundamental human right but also an essential component of ensuring proper governance. He describes Article 293 as a “pocket crime”—an offense so vaguely defined that nearly anything can be stuffed into it—and warns that, unless the boundaries are tightened up, even more Chinese citizens are likely to fall victim to arbitrary and abusive uses of offenses like these.

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Don’t Let “Creating a Serious Disturbance” Become a “Pocket Crime”

Zhang Qianfan
February 5, 2015

Over the past year, the offense of “creating a serious disturbance” (Article 293 of the Criminal Law) has been applied more and more often in cases involving speech by citizens. Legal scholars are widely concerned that this offense has already become a “pocket crime” whose borders can be extended at will. This not only violates the principles of “governing the country in accordance with the law” and “governing the country in accordance with the constitution” that were promoted at the Fourth Plenum of the Eighth Chinese Communist Party Conference; it will also inevitably lead to serious abuses of state power and an extreme restriction of citizens’ freedom of expression that is protected under Article 35 of China’s constitution.

In a certain respect, we can consider the state as a supremely powerful Hobbesian “Leviathan,” but this Leviathan does not have a will of its own. On the contrary, it is a product of human reason. We establish the state and invest it with such huge powers so that it may control the irrationality of private individuals and prevent their using violence to harm others. At its most basic, the function of the state is to use its monopoly of lawful violence to control the unlawful violence committed by private individuals. The criminal law is the main means by which the state carries out this basic function, and police are the specific force through which the criminal law is enforced. You could say that it is a limb of the Leviathan. For rational people, limbs must be controlled by the brain. If the brain loses control, then the limbs can move wildly on their own in a dangerous manner. The same is true with the state.

What is the “brain” of the state? The “brain” of the state is the public reason expressed through its laws. In a healthy state under ordinary conditions, law exists to serve the common interests of all people. But what exactly is the “common interest”? What sort of policies, laws, or institutions bring the greatest happiness to people? There can be no single answer to these questions, and since each person has freedom of thought and expression, no person can claim that he alone possesses the truth. So-called public reason is a social consensus that is formed in the course of free discussion, meaning that free expression is an institutional precondition for the production of public reason. Of course, total consensus is impossible, because no viewpoint can secure the agreement of every single person in society. We must be able to cast votes to determine the majority position at any time and use this as the basis for the laws that govern us. Only such laws can be considered “good laws” that express public reason. Public reason of this kind is bound to be flawed and can only attain perfection through practice. But it is inevitably far superior to any private individual reason—because humans are rationally self-interested, individual reason can only serve particular individuals. Only public reason formed in the context of free expression can serve the entire society.

We can only live in a reasonable state if we enforce good laws, implement the rule of law, and allow our public reason “brain” to control the limbs of the state. On the other hand, if the limbs take control of the brain and prevent the brain from thinking in a normal way—or if individual reason is allowed to replace public reason and the machinery of the state is used to suppress and “manage” speech—then the “arms control the brain” and the state cannot operate normally. Arms can only control arms. State violence can only be used to control violence by private individuals and not to govern speech.

Of course, if speech truly threatens to incite an immediate, obvious, and serious danger—for example, if a person spreads panic in a crowded place and causes a stampede—then that sort of speech should be liable for criminal responsibility. But so long as there is no such “clear and present danger” and there is still time to clarify the truth through additional discussion, free speech should be allowed to continue without state power intervening to impose silence.

As long as the state’s “brain” is still capable of ordinary thought, the “arms” must not be allowed to control the “head.” The reason is simple: arms can never be as good at thinking as the head. Likewise, police are no more capable than ordinary people of correct judgments about matters of right or wrong or expertise. When the arms control the head, coercive power is substituted for public reason.

If a criminal offense becomes a “pocket crime” that can be expanded or contracted at will such that it becomes a way of punishing citizens’ speech, then the “arms are controlling the head.” The fourth clause of the offense of “creating a serious disturbance” refers to “stirring up trouble in a public place that creates serious disorder in [that] public place.” Since the Supreme People’s Court and Supreme People’s Procuratorate have expanded the meaning of “public place” to include online space, this clause has often been applied in cases involving citizens’ speech. Looking purely at the text of the statute, there’s no big problem with this offense. Whether it’s speech or acts, if there truly is “serious disorder in a public place,” then the person(s) responsible should be held criminally liable. The problem is how to define “serious disorder in a public place” and, particularly, disorder as applied to the “public space” of the Internet. The Internet is a platform for free expression and it is normal for there to be different opinions expressed there. “Order” in this kind of space connotes a kind of place where one person has all the say. In the “public space” of the Internet, it’s practically impossible for there to be “serious disorder” in the sense of the criminal law. Does crude, acrimonious, and radical online speech that leads to widespread arguments or even abuse constitute “creating a serious disturbance”? Even if you believe in the idea that there is “verbal violence” online, you should not use physical violence to counter verbal violence.

Under ordinary circumstances, the criminal law should only apply to actual violence that takes place in the real world, not virtual “violence” that takes place in the online world—with the exception of online speech that can actually cause “serious disorder in a public place” in the real world. If online speech that does not satisfy this condition is treated as “creating a serious disturbance,” then it is another case of the arms controlling the head.

The analysis above does not simply apply to “creating a serious disturbance” and can be applied to all other “pocket crimes” as well. The unlimited expandability of “pocket crimes” not only restricts citizens’ right to free expression but also can easily lead to abuses of power by local authorities. In China, no matter whether it’s the constitution, laws, or central policies like the Fourth Plenum decision, all are used by central authorities to regulate the behavior of local authorities at all levels. But if the constitution is not implemented fully and laws become pocket crimes to be interpreted arbitrarily by local authorities, then not only is the law unable to serve any normative function but it can actually become a powerful weapon with which local authorities can abuse their power.

For example, in Henan a rights defender named Jia Lingmin provided free legal advice for many years to families who had been forcibly evicted from their homes. She was warmly welcomed by people all over for spreading legal information concerning land seizures and forced evictions. But because she was a thorn in the side of the local authorities, she was framed on charges of “creating a serious disturbance.” However, not only did Jia’s speech not cause any “serious disorder in a public place,” it played an extremely positive role by protecting the lawful rights and interests of evicted households, upholding social stability, and preventing predatory behavior by those with power. Such an abuse of power by local authorities seriously undermines the rule of law and shows flagrant contempt for central authority.

To prevent “creating a serious disturbance” from becoming a “pocket crime,” we must strictly define key legal criteria like “serious disorder in a public place.” The crime should only be constituted in cases where expression has truly caused serious disruption to the order of an actual public place. And in order to constitute “serious disorder,” the speech in question must cause harm that is clear and imminent. If “serious disorder” is simply determined by the subjective conjecture and imagination of those in charge of the case or based on fear of some unpredictable or uncertain outcome, it naturally cannot be considered “serious.”

A classic example is the case of Yu Shiwen and others from Henan who publicly mourned Zhao Ziyang. Zhao Ziyang was originally from Henan, and there is nothing out of the ordinary for people from Henan to mourn other people from Henan. There was no disorder on the scene, and the mourning took place without any interference. It was only when Yu Shiwen and others put a video of the mourning online that they were detained by Henan police. But there is no evidence to prove that these videos caused any disorder in a public place. When investigators make such accusations, they must provide the national public with a convincing explanation in order to prevent the impression that the machinery of state power is being operated by a few arms in order to control 1.4 billion heads.

Thursday, January 15, 2015

Congressional Action on Hong Kong Set to Roil US-China Relations


Hong Kong people demand genuine democracy during a seven-week civil disobedience campaign in 2014. Photo credit: ezone.hk news

Buried in the massive 1,600-page, $1.1 trillion omnibus spending bill that was signed into law by President Obama on December 16, 2014, is a provision requiring the Department of State to resume reporting under the terms of the Hong Kong Policy Act of 1992. A report on Hong Kong covering topics such as the development of democratic institutions, change in the exercise of sovereignty, and bilateral relations with the United States must be submitted to Congress no later than January 31. The Department of State is currently drafting the report and will submit it by the deadline imposed by Congress. The last time a report was filed under the Hong Kong Policy Act was in 2007.

Resumption of reporting as provided for in the omnibus spending bill applies only to 2015, but legislation being reintroduced to the House of Representatives by Congressman Chris Smith (R-NJ), co-chairman of the Congressional-Executive Commission on China, would extend reporting for many years to come. The legislation in question is the Hong Kong Human Rights and Democracy Act (HKHRDA), which was originally introduced in both the House and Senate in November 2014. Although it passed the Senate Foreign Relations Committee in the waning hours of the 113th Congress, both the Senate and House adjourned before further action could be taken.

The HKHRDA stipulates that the Department of State file annual reports on conditions in Hong Kong for 10 years, or until “the Secretary of State certifies that Hong Kong has held free and fair elections for two consecutive Chief Executive and two consecutive Legislative Council periods.” Of greater concern to Hong Kong and mainland officials is the stipulation that the Secretary of State issue an annual certification that Hong Kong is sufficiently autonomous to warrant separate treatment under US law. The Department of State has made clear that it is opposed to this certification requirement. The Hong Kong Policy Act does not require annual certification. It gives the president the discretion to decide whether Hong Kong enjoys the high degree of autonomy called for under both the Sino-British Joint Declaration and the Basic Law, Hong Kong’s mini-constitution. Between 1993 and 2007, no president exercised the discretion to deny Hong Kong separate treatment.

Congressman Smith is also putting together a Hong Kong Caucus in the House of Representatives. The caucus, which must be approved by Speaker of the House John Boehner (R-OH), is expected to hold its first meeting in the coming weeks. At some point, Congressman Smith, possibly accompanied by other caucus members, will seek to visit Hong Kong on a “fact finding mission.” Like all members of Congress, he travels on a diplomatic passport, which means that he will need to get a visa from the Chinese Embassy in Washington in order to do so. Long a critic of China’s human rights record, Congressman Smith has had his applications to visit mainland China rejected on several occasions. It remains to be seen whether the Chinese Embassy will issue a visa to allow him to enter the Hong Kong Special Administrative Region (SAR). In light of the recent refusal by the Chinese Embassy in London to issue visas to British members of parliament seeking to visit Hong Kong, chances are high that Congressman Smith will not get a visa, something likely to prompt a strong reaction in Washington.

Members of Congress are taking action on Hong Kong in part to support “genuine democracy” (i.e., universal suffrage and an open selection of candidates) in response to the Occupy Central protests that paralyzed parts of Hong Kong for seven weeks from late September to mid-December 2014. They may also be responding to how Hong Kong authorities handled the Edward Snowden affair in June 2013. When the SAR government allowed Snowden to leave Hong Kong for Moscow, it looked to many in Washington that it had done Beijing’s bidding, raising questions about the level of autonomy in Hong Kong.

Although the Chinese government has not made statements on the renewal of reporting and the introduction of the HKHRDA, it is certainly deeply opposed to both. The Ministry of Foreign Affairs’ spokewoman stated on September 29, 2014 that “Hong Kong affairs fall entirely within China’s internal affairs. [The ministry] urge[s] relevant countries to be prudent in their words and deeds [and to] refrain [from] interfering in Hong Kong’s internal affairs in any way.” Chinese leaders believe that foreign governments, led by the United States, were behind Occupy Central. Congressional action on Hong Kong will reinforce this belief.

For now at least, Beijing is content to let the Hong Kong government take the lead in lobbying Congress and the Obama administration not to enact the HKHRDA. The Hong Kong Trade and Economic Commission in Washington is actively meeting with state department officials and congressional staffers. It has enlisted the support of trade organizations who warn of dire consequences if Hong Kong is stripped of separate treatment under US law.

How a Bill Becomes a Law

The HKHRDA has a long way to go before it passes both chambers of Congress and lands on President Obama’s desk. A person involved in the drafting of the bill told Dui Hua that it is not expected to pass both houses of Congress until the summer of 2015—around the time that Hong Kong’s Legislative Council will vote on the political reform package based on the National People’s Congress Standing Committee decision issued August 31, 2014.

Once Congressman Smith introduces the HKHRDA, it will receive a number and be referred to committees with jurisdiction, almost certainly the House Foreign Affairs Committee but possibly, since the legislation touches on economic and trade issues, the House Ways and Means Committee as well. Hearings on the bill would likely be held before passage by the full committees, after which it would head to the House for a vote.

The HKHRDA was co-sponsored in the 113th Congress by Senator Marco Rubio (R-FL), but has yet to find a Senate sponsor in the 114th Congress. Assuming a senator does introduce the bill in the Senate, it would follow a path similar to that in the House. Opposition by the Department of State could cause some Democratic senators to oppose the bill and affect its chances of passage. Assuming the bill does pass both chambers and the version that passes the Senate is different from that which passes the House, a conference of members from both chambers would hammer out a bill that merges the two. Both chambers must in turn pass that bill before it goes to the president for his signature or veto. If President Obama vetoes the bill on the grounds that it removes his discretionary power, two-thirds of the members of both the House and Senate would need to vote to override the veto.

The long process of hearings and debates, denial of visas to American congressmen bent on visiting Hong Kong, and strong statements by the Chinese government that are expected to ensue should make human rights and democracy in Hong Kong a bone of contention in US-China relations for the months ahead. Weeks after the Department of State issues its report at the end of January, the department will issue its country report on China’s human rights record, which contains a section on Hong Kong. In the words of an official involved in writing this year’s report, it will be a “scorcher,” guaranteed to raise hackles in Beijing.

Monday, December 22, 2014

Why Feng Zhiming’s Arrest Is Not Enough to Prevent Injustice


Feng Zhiming, lead investigator in the 1996 case against Huugjilt, is under investigation for dereliction of duty. Image credit: CCTV

The Chinese Communist Party’s Fourth Plenum that took place in October was notable for its emphasis on promoting “rule of law” and laying out guiding principles for further reform of the country’s legal system. Events in recent weeks have pushed one subject discussed at the Fourth Plenum into the spotlight: namely, the desire to implement more stringent systems of personal accountability for law-enforcement personnel to help stem the problem of wrongful convictions and other miscarriages of justice.

The face that has lately come to exemplify China’s resolve to address the problem is that of Huugjilt, who as an 18-year-old young man from Hohhot, Inner Mongolia, was executed back in 1996 for a rape and homicide he did not commit. Huugjilt became a suspect after he and a friend told police of their discovery of a woman’s dead body in a public toilet. He was brought to justice swiftly on the basis of an alleged confession, with just over two months elapsing between his arrest and eventual execution by gunshot.

In 2005, however, a serial murderer named Zhao Zhiheng confessed to a string of murders, including the one for which Huugjilt had been convicted. When Zhao’s case went to trial the following year, however, he was not charged for that particular murder and the conviction against Huugjilt was left to stand. Fearing that local authorities were trying to cover up evidence of a miscarriage of justice, a Xinhua News Service reporter named Tang Ji wrote up the first of several internal reports on the case intended for the eyes of central authorities.

The following year, the Inner Mongolia Autonomous Region Politico-Legal Committee conducted a review of the case that determined Huugjilt had been wrongly convicted. Over the years that followed, central and regional authorities issued instructions for the case to be reopened, but court officials repeatedly demurred and no one was held responsible for this tragic miscarriage of justice. In fact, as a recent graphic that circulated online makes clear, the main people responsible for seeing Huugjilt’s case through the system went on to receive promotions and commendations.

That nine-year process of legal limbo came to an end abruptly last month, as the Inner Mongolia Autonomous Region High People’s Court held a new trial in the case that posthumously exonerated Huugjilt of all charges on December 15. Even more dramatic was the announcement days later that Feng Zhiming, the police official who had led the original criminal investigation in 1996, had been placed under arrest by the local procuratorate and was being investigated for dereliction of duty, coercing confessions through torture, and taking bribes.


A spokesperson for the Inner Mongolia High People's Court announces investigation of Feng Zhiming at a December press conference. Image credit: CCTV

While many are hailing this as a victory (albeit belated) for justice, several commentators have greeted the news of Feng’s arrest with a more cautious eye. At issue is how far the accountability drive will go in holding all those responsible for miscarriages of justice like this and whether it will be carried out in ways that promote positive systemic change.

In a recent commentary in The Beijing Times, a frequent legal pundit who writes under the name “Binglin” argues the need for openness and transparency in the process of holding officials accountable for wrongful convictions. For one thing, transparency will facilitate both to ensure that the process is as comprehensive and thorough as possible. Keeping the process in the public eye will also strengthen its effectiveness at molding the behavior of others within law-enforcement.

Accountability for acts carried out in individual cases is perhaps the easy part; much more difficult is to assess responsibility for the deeper institutional causes underlying wrongful convictions—such as the role that inter-institutional “coordination” plays in weakening the procedural checks that are supposed to protect suspects and defendants from miscarriages of justice. The worst outcome would be for accountability in the Huugjilt case to be merely a propaganda effort aimed at convincing the public of authorities’ sincerity at tackling the problem of wrongful convictions. Punishing Feng Zhiming for wrongdoing is only the first step. What’s even more essential is to bring an end to the ways that campaign-style “strike hard” policing and stability-first policies have shaped practices within the Chinese criminal justice system for decades.

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Openness Will Encourage Birth of “Wrongful Case Responsibility-Tracing Mechanism”

Binglin
The Beijing Times, 19 December 2014

When neither information nor process is public, the mechanism for tracing past responsibility loses its most important role as a warning to others. Without strict assurance of open information and transparent procedures, it’s hard to ensure there will be no cover-ups.

The recent spate of actions taken to redress wrongful judicial decisions has caused a great deal of public excitement. Particularly after the Inner Mongolia [High People’s Court] re-tried the case against Huugjilt and pronounced him innocent, the public has been paying a great deal of attention to the pursuit of accountability in wrongful convictions. So far, the Inner Mongolia Public Security Department, High People’s Court, and Procuratorate have all publicly announced that they have launched investigations into personnel related to the Huugjilt case. The most recent news is that Hohhot Public Security Bureau Deputy Chief Feng Zhiming, who led the special investigative team in Huugjilt’s case, has now been taken into custody by the procuratorate and is under investigation for suspected criminal offenses committed while on the job.

Along the assembly line on which wrongful convictions are manufactured, those parts of the system that are intended to uphold justice frequently fail to do so. From investigative units that are eager to solve cases, to prosecutors who are supposed to screen and examine cases, and to adjudicating bodies responsible for conviction and sentencing—no matter what the reason for the failure might be, objectively speaking, none can easily evade responsibility when there is a wrongful conviction. After enduring a marathon process of petition, re-examination, and re-trial in the Huugjilt case, the swift launch of the legal accountability process is, to a certain degree, a response to the public’s demands and can mark a good beginning of the implementation of a system to trace accountability in wrongful convictions.

But there are also reasons not to be so optimistic. A special team to re-examine Huugjilt’s case was set up back in 2006, so why did it take nine years for this case to get resolved? Was there obstruction to the re-examination? Was it anything that people should be held accountable for? Was responsibility for the wrongful conviction limited to the police, prosecutors, and courts? It is crucial that any accountability system for wrongful convictions be comprehensive, open, and thorough. However, a recent media accounting of 10 wrongful convictions in recent years revealed that, apart from the Zhao Zuohai case (in which five police officers were convicted of coercing confessions through torture), in most of the other cases the decisions about accountability were not revealed to the public. In the case of the Zhejiang man and his nephew wrongly convicted of rape or the five young men from Xiaoshan wrongly convicted of fatal robberies, there were only “internal investigations into accountability,” “the details of which cannot be released.” It is worth questioning seriously just how heavy the sanctions are in such internal accountability investigations and how much they serve as warnings to others handling cases within the law-enforcement system. After all, it is not all that uncommon to see institutions respond perfunctorily to public opinion oversight through such actions as horizontal re-shuffling or even apparent demotions that are actually promotions.

More importantly, non-public and non-transparent accountability processes in response to wrongful convictions are less likely to become subject to public oversight and cause people to suspect that there may be something fishy going on. When neither information nor process is public, the mechanism for tracing past responsibility loses its most important role as a warning to others in the system, who can’t appreciate the severity of the accountability or use the result of the process to regulate their own specific case-handling behaviors. We must realize that when a system for tracing past accountability in wrongful convictions is limited to internal processes within enforcement agencies, sometimes those who ought to be held accountable are actually leading cadres within those agencies. Without strict assurance of public information and transparent procedures, it’s hard to ensure there will be no cover-ups.

At the end of the day, if you want to prevent the mechanism for tracing past accountability from becoming a sham, there needs to be open and transparent procedural mechanisms and the accountability process itself must be part of what officials are held accountable for. If the response to a wrongful conviction is limited only to payment of state compensation and those “law-enforcers” are never held accountable for causing innocent people to spend time in prison or go to their graves proclaiming their innocence, then this kind of remedy will ultimately fail to bring any improvement to the judicial environment. It will seem to people as if the state is left to foot the bill whenever law-enforcement officials make mistakes, and the gap between power and responsibility will mean that other law-enforcement personnel will learn no lessons from the process.

Accountability is a crucial part of legal justice. The decision of the Fourth Plenum of the 18th Party Congress clearly called for the implementation of a lifetime responsibility and punishment mechanism for individuals who handle cases within the law-enforcement system and a system to trace accountability in cases of wrongful conviction. These systems are intended to help ensure that cases are handled in a way that can stand up to the scrutiny of both law and history. It might be worth starting with the wrongful convictions and other miscarriages of justice that have been uncovered in recent years to launch a process of accountability that demonstrates the same resolve and severity shown in the anti-corruption campaign and lets the mechanism for tracing past accountability come into being.

Tuesday, November 18, 2014

Deciding Death: How Chinese Judges Review Capital Punishment Cases

In a separate unmarked building, the five criminal divisions of the Supreme People's Court review capital punishment cases. Image credit: internet image.

In the eastern part of Beijing, not far from the city’s main railway station, sits an unmarked, multi-storey office building whose importance can only be discerned by the presence of armed police guards posted at its entrance. This is where the five criminal divisions of China’s Supreme People’s Court (SPC) are located, the place where the fates of the country’s death-row defendants are ultimately determined.

A recent feature article in Guangzhou’s Southern Weekly newspaper has shed new light on how the more than 300 court personnel who work in this building handle the thousands of capital punishment cases sent for final review each year. Below, we summarize the article’s descriptions of the process in order to enable even more people to understand the way that these life-and-death decisions are made.

After the appeals process has run its course and a decision involving the death penalty takes effect, the case file is sent to the SPC for mandatory review. The case is first assigned a case number, and then all of the relevant case files are delivered to one of the court’s five divisions according to the geographic origin of the case or, in some cases, the type of crime involved.

Unlike the other four divisions, which are larger and handle many more cases, the court’s second criminal division is dedicated to handling review of some of the most sensitive cases: those involving crimes by government or party officials; cases involving foreigners or defendants from Hong Kong, Macau, or Taiwan; crimes under the category of “endangering state security”; and cases involving defendants from Xinjiang.

Division Region Specialization
First Shaanxi, Gansu, Qinghai, Ningxia, Shandong, Zhejiang, Anhui, Fujian Crimes against the rights of women and children, the environment, intellectual property
Second Nationwide, Xinjiang Crimes involving people from Hong Kong, Taiwan, Macau, and foreign countries; occupational crimes; crimes involving members of the armed forces; cases involving crimes of endangering state security and politically sensitive cases; all Xinjiang cases
Third Yunnan, Guizhou, Sichuan, Chongqing, Tibet, Shanghai, Jiangsu, Jiangxi Organized crime
Fourth Heilongjiang, Jilin, Hebei, Guangdong, Guangxi, Hainan Major accident liability crimes
Fifth Beijing, Tianjian, Liaoning, Shandong, Inner Mongolia, Henan, Hubei, Hunan Drug crime
Source: Dui Hua, Southern Weekly

Within each division, cases are assigned first to quasi-administrative units divided either by geography or case type. These units then assign each case to a panel of three judges, one of whom is designated as the principal case manager. This judge will take responsibility for reviewing the case files and liaising with lower courts or law-enforcement agencies over any questions that might arise.

Sometimes, review of the case files uncovers very basic errors that could have an impact either on conviction or sentencing. In many instances, additional details or investigation will be required, and sometimes the SPC judge handling the case will have to go personally to the provinces to conduct investigations. According to one SPC official, additional investigation was required in 39 percent of the cases sent to the SPC for review in 2013.

Under new provisions introduced into the Criminal Procedure Law in 2012, judges are also required to interview defendants before deciding whether or not to confirm a death sentence. If the case is relatively straightforward, these interviews may be conducted remotely via video feed. However, if more problems are uncovered in the case file, then the judge handling the case will typically go to conduct the interview in person. One judge told Southern Weekly that, in the interest of reducing the burden on local courts, SPC judges try to minimize travel to the provinces and attempt to handle multiple cases on a single trip as much as possible.

The principal judge will then write a detailed report covering the results of his or her review of the case, summarizing any problems with the evidence or other issues that could have an impact on conviction or sentencing. This report is then circulated along with the case file to the other two members of the judicial panel responsible for the case, each of whom conduct their own review and write their own report.

Then, after each of the three judges has reviewed the case independently, they meet to discuss the case as a group in the presence of a court clerk. After coming to a decision, the panel then reports to the responsible division head and SPC vice president. If the decision is to execute the death penalty, the case then goes to the SPC president for his signature.

If court officials identify a problem with the panel’s decision or the panel is unable to reach consensus on how to decide, the case might be sent to the division’s council of chief judges for additional discussion. If this does not lead to a decision, the case might be sent for discussion by the SPC adjudication committee or the special committee for criminal adjudication. The Southern Weekly article makes pains to note that these bodies play only an advisory role and that final decision-making power rests solely with the three-judge panel.

As they review death penalty cases, judges pay particular attention to issues of evidence and penal policy. In recent years, the SPC has introduced and refined measures for excluding evidence that has been obtained illegally, and the court’s stricter line on evidence is one of the reasons why China’s highest court rejects roughly 10 percent of death penalty cases each year.

The impact of penal policy is much more fluid and hard to predict. Over time, the court has settled on a number of general principles designed to reduce use of the death penalty. For example, in cases involving the death of a single victim the death penalty is typically waived if the defendant surrenders or if the case involves a dispute among family members or neighbors. But putting these more lenient policies into effect often requires overcoming resistance from a victim’s family members. In fact, one reason why the process of reviewing death penalties is often delayed is because efforts are underway to use court mediation to “work on” these family members and obtain their agreement for more lenient punishment.

For example, the article reveals that in the case of Li Yan (李彦), whose sentence to death for murdering her abusive husband caused a national sensation in 2013, the SPC’s adjudication committee decided relatively early on that the circumstances of the case did not require her immediate execution. The victim’s family initially refused to accept anything less that Li’s execution, even staging protests outside local court buildings. But rather than give in to such pressure, the court delayed its decision until emotions died down and the victim’s relatives were able to accept the decision.

As the Supreme People’s Court Monitor blog recently pointed out, one potentially groundbreaking reform being considered would ensure that all defendants in death penalty cases are represented by a lawyer during the death penalty review process. The Southern Weekly article reveals that the SPC is in the process of drafting provisions entitled “Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases.” These follow on amendments to the Criminal Procedure Law in 2012 aimed at strengthening legal representation during the death penalty review process that have not yet fully translated into a right to legal defense for capital defendants. Ensuring that all defendants in cases involving capital punishment have legal representation throughout the criminal process, regardless of economic means, would be another important step toward strengthening rights protections in the criminal process in China.

Thursday, August 7, 2014

Gao Zhisheng Begins Sentence of Deprivation of Political Rights

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

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

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

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

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

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

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

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

Order 23

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

Minister of Public Security Tao Siju
February 21, 1995

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

Section I. General Provisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section V. Additional Provisions

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

Wednesday, July 2, 2014

Is Detention Center Law Enough to Prevent Police Abuse?

A cell inside Zhejiang Zhoushan Detention Center, July 2013. Image credit: eastday.com

Wrongful convictions and other miscarriages of justice have been the subject of intense scrutiny in China over the past several years. When details emerge of, for example, a person who has been mistakenly convicted of a crime he did not commit or detainees mysteriously dying inside detention facilities, these cases can easily become sensational news. They can also become opportunities for members of the public to vent anger over arbitrary and abusive actions taken by law enforcement authorities who are under strong pressure to fight crime effectively and efficiently in the name of preserving stability.

More often than not, individual cases are symptomatic of institutional flaws and weaknesses in the Chinese criminal justice system. Awareness of these flaws, if left unaddressed, threatens to undermine public confidence in China’s legal system, which in turn reflects badly on China’s political leaders. This, then, creates an opportunity to push harder for reforms to the legal system and, in some cases, overcome resistance from certain sectors who have a vested interest in maintaining the status quo.

When it comes to the problem of torture and abuse in China’s pre-trial detention centers, there has been no shortage of expert opinion about how reform ought to proceed. Previous attempts to regulate these facilities by replacing outdated administrative regulations with national legislation have been stymied, however, despite support from the highest levels in China’s government. Although there is widespread consensus about the desirability of placing pre-trial detention centers under the management of judicial administration authorities (who already manage most of China’s other custodial facilities) and of breaking the current tendency of the police to use pre-trial detention as an instrument of solving crime, such an institutional rearrangement would have practical implications for the “balance of power” inside the criminal justice system. Moreover, by constraining the ability of police investigators to “dig for additional crimes” among detainees, detention center reform could have a significant impact on the perceived effectiveness of China’s law enforcement authorities.

These and other issues were recently explored in an article published in China Youth Daily. The article notes that the Ministry of Public Security has taken the lead in drafting new legislation to regulate pre-trial detention centers. This suggests that long-awaited reforms to the system may be imminent. Experts surveyed on the subject express optimism about the prospects for specific reforms to be integrated into the new legislation, but there is also an undercurrent of disappointment. More far-reaching proposals appear to be off the table, and for the time being at least, China’s police seem poised to retain control over pre-trial detention.

Among the experts interviewed by China Youth Daily was Cheng Lei, deputy director of the Center for Criminal Procedure and Reform at Renmin University of China. Professor Cheng partnered with Dui Hua to conduct research at Chinese women’s prisons and detention centers last year as part of our women in prison symposium. During his interviews, incarcerated women complained most about insufficient family contact. In practice, family visits are prohibited for people in pre-trial detention.

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Can a Detention Center Law End “Death by Blind Man’s Bluff”

Xu Xiaotong
China Youth Daily, May 14, 2014

“Coercion of confessions through torture, jailhouse bullies, detention beyond legal time limits, and digging for additional crimes” are four major abuses of the current detention center management system. The 2012 revisions to the Criminal Procedure Law established provisions that prohibit coercion of confessions through torture and forcing self-incrimination and require exclusion of illegally obtained evidence and full audio-visual recording of interrogations. But these are all missing from the Detention Center Regulations. A Detention Center Law being drafted by the Ministry of Public Security will remedy this, possibly ending incidents like “death by blind man’s bluff” and “death by drinking water” that have aroused such public doubt.

At a seminar held at the Institute of Law of the Chinese Academy of Social Sciences in April 2014, Director General Zhao Chunguang from the Department of Prison Administration at the Ministry of Public Security (MPS) revealed that the ministry is in the process of drafting a Detention Center Law (DCL).

Following that, scholars under the MPS said that the formulation of the DCL is focused on incorporating detention centers’ years of reform experience and bringing them into line with the new Criminal Procedure Law (CPL) in order to better serve the entire criminal justice system.

Consensus on Detention Center Legislation

The current Detention Center Regulations were issued 24 years ago in 1990. Since then, China’s CPL has undergone two major revisions in 1996 and 2012.

These antiquated regulations are no longer in sync with the CPL.

Fan Chongyi, honorary director of the Criminal Procedure Research Center at China University of Political Science and Law, gives an example: “Now we call them ‘criminal suspects.’ At that time, they were called ‘criminals.’”

The 2012 CPL revisions established mechanisms to prohibit coercion of confessions through torture. Among these are provisions that prohibit forcing self-incrimination, exclude illegally obtained evidence, and stipulate full audio-visual recording of interrogations. But these are all missing from the Detention Center Regulations.

Fan Chongyi believes that, whether in terms of terminology or content, the Detention Center Regulations have already fallen behind the needs of the current era. He also says that another principal feature [of the legislation] will be to sum-up and regularize the reform experiences of the past several years.

In 2009, Li Qiaoming was beaten to death by a jailhouse bully while detained at the Puning Detention Center in Yunnan Province. The detention center claimed that Li had died while playing blind man’s bluff with other detainees. Following this, there were a series of unnatural deaths in detention centers, leading public opinion to focus attention on detention centers.

Under scrutiny from all sectors, the MPS began carrying out reforms to the detention center system. Cheng Lei, deputy director of the Center for Criminal Procedure and Reform at Renmin University of China, told China Youth Daily that to date the MPS has already issued around 200–300 normative documents related to detention centers, with no shortage of highlights.

At the end of 2013, the Henan High People’s Court instituted a reform of its trial process whereby defendants are not required to wear “prisoner uniforms” when appearing in court. Cheng Lei notes that, many years ago, internal MPS rules concerning detention centers had stated that detainees could choose their own clothing when appearing in court. But these rules did not carry the force of law; therefore, it was necessary to upgrade them into law and routinize this practice.

In October 2013, the 12th National People’s Congress (NPC) Standing Committee announced its legislative agenda for the coming five years, and the DCL was among the 68 pieces of draft legislation listed therein.

Actually, the MPS began researching how to revise the Detention Center Regulations as early as 2000. In December 2008, the second Central Plan for Legal System Reform clearly called for “perfecting legislation related to detention centers and improving the mechanisms for procuratorial monitoring of detention centers.” These then became legal-system reform tasks assigned to the MPS to take the lead in implementing with assistance from the State Council Legislative Affairs Office and other bodies.

In 2011, the revision plans for the Detention Center Regulations were basically ready, but in the end, they were never passed.

Fan Chongyi told China Youth Daily that the revisions were not passed because of a recommendation from the Legislation Committee of the NPC Standing Committee. The Legislation Committee considered that, according to the provisions of the Legislation Law, coercive measures and procedural institutions concerning restriction of individual freedom can only be enacted through legislation and this legislative authority cannot be delegated to the State Council.

For this reason, revision of the Detention Center Regulations was temporarily put on hold.

Cheng Lei also believes that it would be inappropriate for legislation concerning detention centers to continue to take the form of administrative regulations. He contends that only administrative organs can be bound by State Council regulations, whereas detention centers must also interact with judicial organs like the procuratorates and courts.

Fan Chongyi told China Youth Daily that the MPS began drafting work on a DCL a year ago and has now completed a preliminary draft. Cheng Lei believes that there is basic consensus about the content of the detention center legislation but that its progress will depend on whether the State Council Legislative Affairs Office, which is taking the lead, has enough legislative resources to see it through.

Debate over “Combining Investigation and Detention”

On the subject of detention center legislation, what one hears most from criminal justice experts and lawyers are calls for detention centers to be stripped away from the public security bureaus.

According to the current Detention Center Regulations, detention centers are units of governments at the county level and above that are managed by public security organs. Under this kind of system, detention centers serve the interests of handling cases. They have turned into combined investigation-custody units—that is, they serve the purpose of case investigation.

Professor Meng Zhaoyang of the People’s Public Security University of China has written that, in several seminars discussing the Detention Center Regulations in 2010, scholars all maintained that “coercion of confessions through torture, jailhouse bullies, detention beyond legal time limits, and digging for additional crimes” were four major abuses of the current detention center management system, the causal root of which was the investigation-custody combination.

According to Fan Chongyi, one of the goals of the current legislation is to transform thinking from the notion that detention centers should serve the interests of case investigation to [the notion that they should serve] an impartial position in service of the criminal process. “If you don’t take proper custody and beat everyone to death, how can the criminal process proceed?” he asks. “When it becomes common practice to coerce confessions and beat people during interrogation, how can you safeguard the criminal process?”

The newest recommendations come from the Zhejiang High People’s Court. According to a report in Qianjiang Evening News, Qi Qi, president of the Zhejiang High People’s Court, summed up the characteristics and lessons of wrongful convictions as part of the work report delivered to the second plenary session of the 12th Zhejiang Provincial People’s Congress in January 2014. During his report, Qi also recommended the “separation of investigation and custody.”

But there are some practical obstacles to transferring management of detention centers to the judicial administration authorities. Most detention centers are located at the county level, explains Fan Chongyi. If detention centers are transferred too suddenly, the county-level judicial administration authorities “might not have the personnel, budget capacity, or material resources to keep up.”

Furthermore, Cheng Lei points out that it would be easy to fix many of the problems facing detention centers under public security management. The institutional bottlenecks that inhibit development of detention centers do not all originate in the public security organs; rather, they come from other institutions. “For example,” he says, “[they are the result of the] finance, housing, civil affairs, and health [institutions]. Detention centers are spaces in which people live. It’s necessary to deal with many different aspects, and this depends on the public security organs’ ability to coordinate with each of these institutions.”

Beginning in 2009, the MPS undertook a series of reforms to strengthen the neutral position of detention centers. Fan Chongyi believes that, after five years of reform, they have gradually begun to take on an internal functional neutrality. For example, the MPS requires that responsibility for management of detention and investigation at the county and prefectural levels be divided between two separate deputy public security heads. In this way, there develops a kind of mutual constraint at the leadership level.

A scholar who has participated in several discussions on the problems facing detention centers told China Youth Daily that the biggest obstacle preventing the neutrality of detention centers is “digging for additional crimes.” This refers to the additional questioning and investigation of offenders being held in detention centers or prisons in an effort to uncover new facts or leads related to crime. Objectively speaking, many cases are solved through digging for additional crimes.

According to statistics published in the 2008 China Law Yearbook, more than 600,000 leads related to additional crimes were dug up in public security detention facilities nationwide, from which more than 300,000 criminal cases were solved—12.6 percent of all cases solved by public security organs nationwide that year. For this reason, detention centers have been criticized as the “second front” for public security investigation.

On this subject, Cheng Lei has suggested the possibility of reforming detention center management following the proposal in recent legal system reforms to unify the management of local courts and procuratorates under the provincial level. In other words, provincial-level public security departments would manage all detention centers, enabling them to break free from management by county- and prefecture-level public security units. “This is because the pressure to solve cases comes mainly from the local level,” Cheng says. “In this way, there would be a lot less pressure on the heads of local detention centers.”

Another of his recommendations would be to set up a custodial enforcement authority that would be responsible for managing prisons, detention centers, drug treatment centers, and other custodial enforcement units.

On this point, however, scholars involved in the process told China Youth Daily that the draft being proposed by the MPS would not make major changes to the institutional structure of detention centers.

Opening up the Closed Doors

Apart from an overall change in the way of thinking, detention center legislation is also being directed toward the protection of rights and openness and transparency.

Cheng Lei’s Center for Criminal Procedure and Reform at Renmin University of China is working with the MPS Department of Prison Administration to carry out pilot reform projects in detention centers throughout China. Two such projects concern systems for carrying out inspections of detainees and handing detainee complaints. In the former project, ordinary people are selected to serve as specially invited inspectors authorized to enter detention centers at any time to meet with detainees and carry out spot inspections. In the latter project, individuals from all sectors of society are invited to form a complaints committee to handle major and difficult complaints raised by detainees.

Cheng says that the results from these projects over the past two or three years have been good and have helped make detention centers more open and transparent.

Another area [awaiting reform] is the problem of pre-trial visitation [by family members]. In China, once criminal suspects are taken into custody the earliest they see their family members is at trial. Cheng Lei notes that, actually, the law has no provision prohibiting [earlier] visits. “The detention centers’ own rules state that you must first seek approval from the unit handling the case, but the unit handling the case definitely won’t permit visits in order to facilitate its own investigation.” Because the legal provisions are not clear on this, Cheng believes, there are deviations in enforcement that lead to detainees being deprived of their lawful rights. This is a problem, he contends, that the current round of legislation should try to overcome.

Another area of reform is the strict execution of offsite transfers. According to Cheng Lei, coercion of confessions through torture usually takes place prior to arrival at the detention center or during temporary transfers outside the detention facility. Now, these temporary releases must first get the signed approval of the principal person in charge at the local public security bureau, and [the law] requires that detainees be returned the same day and prohibits them from being held overnight. Moreover, [detainees] must be given physical examinations before they leave and upon return to the facility.

Even though the results of these reforms have been positive, there remain concerns. Can the good intentions of the MPS be implemented in the more than 2,700 detention centers throughout the country? Cheng Lei is not optimistic: “No matter how good central policies might be, public security bureaus are under pressure when they need to solve major or important cases. When they ask a detention center to assist in the investigation, what can the head of the local detention center do?”