Monday, June 8, 2009

Six Months Later: What's Next for Liu Xiaobo?

Prominent Beijing intellectual Liu Xiaobo (刘晓波) was taken into police custody on December 8, 2008. The exact reason is unknown, but his detention appears to have been connected to his role as an original signatory of Charter 08, a public appeal to promote human rights and democracy in China. However, authorities may have also been anxious to take Liu—a longtime critic of the Chinese Communist Party—out of circulation before China's year of sensitive anniversaries in 2009.

According to reliable reports, police have been holding Liu under "residential surveillance" (监视居住) in a hotel located in the Beijing suburbs. One of several "coercive measures" (强制措施) provided for under China's Criminal Procedure Law (CPL), residential surveillance authorizes police to restrict a suspect from leaving his or her residence while an investigation is carried out. In this case, police in Beijing appear to have violated the law and applicable regulations by holding Liu in a hotel, rather than his residence. The six-month time limit established by law for this status is set to expire soon, presumably on or shortly after June 8, 2009.

There is some uncertainty about what might happen to Liu when the period of residential surveillance expires—in part because the charge against him has not been made public and few know exactly why he is being held. Though more attention has been paid in recent years to abiding by certain provisions of the CPL, Chinese law-enforcement authorities have in the past frequently ignored legally established rights and time limits, especially in cases like this one that appear to be of a political nature.

It is clear, however, that when the six-month period expires it will be unlawful for Chinese police to simply continue holding Liu Xiaobo under residential surveillance. Some change to his status will need to be made, and no matter what, this change should have significant consequences. Based on a careful reading of the CPL and the associated regulations on implementing the CPL issued by the Supreme People’s Procuratorate and the Ministry of Public Security, Dui Hua believes that Beijing police have the following options open to them:
  • They can release Liu and end their criminal investigation.
  • They can release Liu on bail pending further investigation. Under this status, Liu would presumably be free to return home but would remain under police monitoring; he would be unable to leave Beijing without permission, required to appear when summoned for questioning, etc. The investigation against Liu would continue. This status can last 12 months.
  • They can place Liu under criminal detention and transfer him to a police-run detention center. Normally, this would involve issuing a notice to Liu’s family, specifying the charge, but police could be exempted from this requirement if they make some (in this case, tenuous) argument that doing so would hinder their investigation. In practice, police would be able to detain Liu for 30 days before needing to again decide how to handle his case.
  • They could formally arrest him, with approval of the procuratorate. Again, this would normally involve issuing a notice to Liu’s family specifying the criminal charge, but exemptions are allowed under the law under certain circumstances. If police were to formally arrest Liu, they could theoretically keep him in custody in a detention center for up to five months while they continued their investigation.
  • They could claim to have uncovered evidence of a new crime and launch a new investigation against Liu, at which point all procedural time limits would be reset.
  • Or, they could send his case to the procuratorate for prosecution. At this point, all of Liu’s rights to engage and meet with a defense attorney would automatically take effect. It is true that the procuratorate could decide to place Liu under a further six-month period of residential surveillance, but his status would change significantly with respect to rights as a criminal suspect in comparison to the previous six months.
It seems obvious that, short of releasing him outright, the best scenario for Liu Xiaobo as far as making the charges against him known and restoring his procedural rights would be for the case to be submitted to the procuratorate for prosecution. The CPL simply gives China’s police too much leeway to hold suspects without making the charge known and without allowing access to a lawyer. Unfortunately, sending the case to the procuratorate would be bad news for Liu on another front, as a very high percentage of the political cases that reach China’s courts result in conviction.