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.

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

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 25, 2014

Converting Cult Work: From 610 to Social Service

Set up by the Gulou District 610 Office in 2009, the Loving Heart Home is a local experiment by Chen Dongxiao and his colleagues to try to raise the reentry rate for detained cult members. Photo credit: An Shu

For more than 15 years, Chinese politico-legal authorities have carried out a wide-ranging campaign against so-called cult organizations that has been coordinated via a network of dedicated units known as “610” (read “six ten”) offices. (These offices are named after the date of the order that founded them: June 10, 1999.) Although the effort to wipe out organizations like Falun Gong or the Almighty God sect has, from time to time, featured prominently in Chinese news coverage, much less has been written about the anti-cult offices or the often-controversial measures they employ.

That changed recently with a long feature published in the September 25, 2014, edition of Southern Weekly. The piece focuses on one particular 610 office in an urban district of Nanjing and the innovations its director, Cheng Dongxiao, has introduced to try to make the work of “converting” (or “de-programming”) cult members more effective and less coercive.

Cheng’s main innovation is the establishment of a center in which “model converts” are responsible for helping to convert exisitng cult members. Mirroring trends in other areas of law enforcement and “comprehensive social management,” this is an example of how China might use a community corrections approach to deal with social problems that in the past have relied on detention measures like reeducation through labor (RTL) or legal education classes. Now that RTL has been eliminated and legal education has come under increased scrutiny for, among other things, its murky legal basis, new approaches like Cheng’s may gain some traction with reformers.

As Cheng himself admits, even if less coercive measures are adopted, there is still an urgent need for clearer legislation to govern the practices associated with anti-cult “conversions,” particularly insofar as these practices involve deprivation of liberty. Perhaps unsurprisingly, the article pays no attention to the more fundamental question of whether China’s efforts to eliminate “cults” is justifiable from a human rights standpoint. This standpoint demands that freedoms of opinion be given due consideration in dealing with whatever harmful social consequences these organizations and their members may cause.

As significant as the publication of this unusual article is, it is equally significant to note that it was removed from the Southern Weekly website soon after publication. The reason is not particularly obvious, though there are a number of possibilities. Perhaps this rare look behind the scenes of one of China’s most secretive institutions was simply too daring. Perhaps the softer community-based approach of the Loving Heart Home is considered discordant with recent efforts to strike hard against Almighty God. Perhaps Cheng Dongxiao’s candid assessment of an inconsistent anti-cult system or the article’s description of what takes place in anti-cult “study sessions” was deemed unfit for public consumption.

Another possibility is that the article was pulled because there is, at present, insufficient consensus among the relevant authorities about the merits of Cheng’s approach to combatting organizations classified as cults. There may exist other competing community-corrections approaches or even more far-ranging proposals that would limit the state’s role in dealing with this issue altogether. Thanks to the story’s deletion, we are left to wonder not only where China’s anti-cult campaign might be headed but how much, if any, further sunlight will be allowed to shine on the issue.

In Conversion of “Cult Members,” “610” Goes from Secretive to Open

Southern Weekly, 25 September 2014

After five years, conversion work has begun to pay off at the Loving Heart Home, as attested by the award banners sent by many of the “cult members” who have graduated from its study classes. Photo credit: Liu Yanxun

Past: Preaching the law had little effect. When they left the study sessions, they hadn’t changed deep down and remained cult members.
Later: “Putting cult teachings in context and using cult teachings to undermine cult teachings.” For example, finding weak points and flaws in specific cult scripture and using them as evidence. This collapses a follower’s “sacred beliefs” and achieves double the results with half the effort.
Present: Establish the Loving Heart Home and focus on the “reentry rate.” Implement “self-education and self-management.” It’s like a doctor treating a patient, a teacher treating a student, and a parent treating a child.
Future: Conversion needs to be more public, brought out into the community, and turned into a public interest, and the 610 offices need to gradually recede into the background.

It was raining with low hanging clouds in Nanjing on September 23, 2014. The radio said a typhoon was skirting the region.

Cheng Dongxiao sat in a government office building just a few kilometers from the Yangtze River, his face sunny and full of laughter. Average in height, he spoke rhythmically and rather quickly. Cheng is the director of the 610 Office in Nanjing’s Gulou District. To the outside world, this is an extremely mysterious unit, the full name of which is the Gulou District Office for Prevention and Handling of Cult Problems.

Cheng Dongxiao has been working to convert cult members for 15 years. Since 2009, he has been trying to find more effective conversion methods. The “Loving Heart Home,” which has been running for the past five years, is a product of that effort. “There are very few other countries in the world that have a huge, top-to-bottom anti-cult organizational system like we do,” he notes. “But the actual results from these years have demonstrated that severe anti-cult measures have not only failed to turn the problem around, they have actually made it even more serious.”

“The fight against cults is, in the end, only a contradiction among the people,” Cheng Dongxiao says. “It’s nothing to be ashamed of and ought to be carried out with great fanfare!”

“I’m Most Opposed to Coercive Methods”

Cheng Dongxiao looks back fondly to the past: “Chairman Mao’s ideology is our most outstanding, most valuable possession.” But after more than 30 years of reform and opening, the emphasis on economic development has led to a kind of ideological slackening, he says. This, he feels, is unfortunate.

“When I was first transferred here from the district’s bureau of industry, I didn’t understand at all,” he recalled. “Later, I slowly came to understand the difficult lives these people have experienced.” He said that even though some of them had enjoyed a good life materially, there was something lacking in their spiritual life. Perhaps they encountered some misery or sorrow in their lives and wanted to find a kind of spiritual support.

On June 10, 1999, China set up a hierarchical system of anti-cult prevention organizations, which became commonly known as “610” offices.

At that time, Nanjing was one of the areas hardest hit by the cult problem nationwide, and Gulou, Xiaguan, and Xuanwu districts were the areas of Nanjing most affected. There were large numbers of cult members living in these three districts, including many at high levels within cult organizations and many who created disturbances and spread rumors. The first cult organization to appear in Jiangsu originated in Xiaguan District. At that time, a total of eight cult members were coalesced around a university lecturer.

For the first two years, Cheng Dongxiao says, “all we did was [detain people], and the RTL camps and similar places were all full.”

Besides detention centers and RTL camps, another place for reforming cult members goes by the name of “study class.” With sessions in the spring and fall, each session of 10–20 people lasts for three months. Responsibility for attending to the students goes to government personnel, as well as laid-off workers who receive 100 yuan per day. Cheng says that before each class begins, “We advise these attendants to remain vigilant and take shifts irregularly.”

Cult members sent to study classes stay in standard rooms with a toilet, similar to those found in guesthouses. If a cult member becomes over-excited or unruly, the number of attendants will immediately be increased. “To date,” [notes Cheng Dongxiao,] “there have been no homicides, generally only self-harm.” So [they need attendants with them] “24 hours a day, eating with them, living with them, watching television with them.”

During the daytime, cult members attend classes in their rooms, with one or several instructors for each person. “To make a somewhat inapt comparison,” [Cheng Dongxiao says,] “it feels a bit like a graduate student meeting with his or her advisor.” Sometimes, they may go to a dedicated counseling room, with two instructors generally responsible for counseling as a team. These days, some locations also hold “lecture classes,” but only to deal with issues common to all cult members. Individual problems are harder to resolve, and “individual problems are more pronounced in cult members.”

Cheng Dongxiao admits that they had little success at first trying to preach law to the cult members. Many former cult members who already been converted told Southern Weekly that merely being locked up and preached to about the law had little effect on them. Li He recalls that she wasn’t the least bit afraid back then: “Group solidarity ran high among us inside the RTL camp. We sang songs and recited our scripture, the sound reverberating in waves so much that we really raised the roof.”

Generally, the study classes last three months, which can be adjusted according to each individual’s circumstances and consideration of whether they have fully converted and can successfully leave the study class. To date, there is in fact no clear set of quantitative indicators [used to make such determinations].

For many years, the experience has involved the “three statements and five documents.” The “three statements” refer to the “statement of guarantee, statement of repentance, and statement of severed ties.” The “five documents” require the individual to write clearly on these five subjects: “how I got involved in cult activities in the past,” “past and current views on cults,” “why cults are a danger to society,” “in what ways cults have endangered me,” and “how I have endangered society.”

Do some people fake it? It’s possible. One reason is “our instructors can’t actually teach.” Some cult members write their three statements and five documents, leave the study class, and go home. But they have not truly changed. They’re still cult members and still believe in those old cult ideas. Some even become more committed to the cult.

“What I’m most opposed to are coercive methods,” says Cheng Dongxiao.

Cheng picked up a stack of documents from the table, saying they were quantitative indicators proposed by a group of experts who had recently come up from Xiamen. He said they were currently working on a project to develop a comprehensive assessment form to measure cult-member conversion. The hope was that this would be more scientific and systematic than the artificial and subjective “three statements and five documents” and better at evaluating whether a cult member has truly transformed their thinking and beliefs.

“It’s Hard to Change Beliefs or Souls”

Cheng Dongxiao and his colleagues began looking for more effective methods in 2002, including “putting cult teachings in context” and “using cult teachings to undermine cult teachings.”

“Besides the law, you also have to start from cult doctrines and scriptures,” [Cheng says]. The bookshelves in his office are completely filled with cult literature. “If I want to destroy the cults, I have to understand cult scripture and doctrine better than the cult members themselves, then compare it to orthodox Buddhism or scientific theories and look for weak points and flaws.”

“I’ve read these several dozen times,” Cheng says. “I’m constantly going back to check things. We can’t neglect any areas.”

When trying to undermine cult teachings, one ordinarily might seize upon some bad aspect of the cult leader. “On the surface, he’s telling you how to be a good person, but in fact he’s leading you toward a more self-centered, autocratic, and lawless realm in which you separate yourself from the government and society.” Then, you look for weak points in specific scriptural passages to back up your point. This is the way you collapse a follower’s “sacred beliefs” and get double the results with half of the effort.

But it’s hard to avoid unexpected situations, and Cheng Dongxiao and his colleagues have their own methods for responding to such things. For example, one day when he is trying to break a cult member, he might forget a passage of scripture or get stumped. “I’ll just switch the subject to something else,” he said. “But I’ll remember to go back to that issue and immediately go look it up. You have to understand everything.”

“It’s hard to change people’s beliefs or their souls,” admits Cheng Dongxiao. “Closed classes are what we’ve found to work the best.” To this date, they’re still in use.

When they first started the study classes, many government officials looked down on cult members. But once they were sent to classes, these cult members would begin talking non-stop and even tried to “turn” some of the personnel assigned to them. Some of the cult members were intellectuals and could quote from the classics. “Occasionally, we couldn’t out-talk them,” Cheng laughs, “so they forced us to study.”

As for those cult scriptures and theoretical books, Cheng says: “Once you feel it’s necessary to read these things to do your work, reading them won’t be too much of a headache.” But some personnel found it very difficult. “Once I had a deputy who said he really couldn’t keep reading—every time he tried, he’d doze off,” [recalls Cheng]. “I told him he wasn’t suited for this kind of work and was better off working for the neighborhood committee. Soon afterwards, he was transferred there.”

“There’s not a lot of novelty in this kind of work,” says Cheng Dongxiao. “It’s not like you reporters, who get a new subject to work on every day. For us, it’s repetitive.”

“Consolidated Reentry, Coordinated Education”

The Loving Heart Home and the Care and Concern Association are both located in the same courtyard. There, 55 volunteers work hard together with Cheng Dongxiao to convert “cult members.” Photo credit: An Shu

Once they leave the study classes, many cult members have nothing to do. They’re basically all theists who see gods and ghosts behind everything. If they get sick or have some complications in their lives, they will turn again to the cult. “It’s easy to relapse,” admits Cheng. The relapse rate among cult members is quite high, basically the same as with drug addicts at 70 to 80 percent.

Some start reading books on Buddhism or Christianity. Sometimes they’ll get some of their former classmates to read along with them and discuss the books. But if they gather together for too long, outsiders will start to get nervous and report them. Then the neighborhood committee and police come to prevent them from meeting. This leads these former cult members to fall into a new trap of emptiness and depression.

Cheng Dongxiao and his colleagues thought there had to be a better way than simply dispersing them. As the saying goes, “Damming the flow is not as good as dredging a new channel.” So, they planned to find a place where they could let former cult members openly and freely gather to chat. In the end, that’s why they set up the “Loving Heart Home,” a place inseparable from Zhang Jing’s research project.

Zhang Jing was one of those “classic cases.” Zhang, 58, is a researcher in sociology at the local academy of social sciences. Around 2000, she lost herself in a cult. Like many other cult members, she went to Beijing to petition and was sent to RTL and study classes. Finally, under Cheng Dongxiao’s efforts to “undermine cult teachings with cult teachings,” she was successfully converted in 2002. After leaving the study class, she made cults the subject of her own research. In 2007, she received support from the Jiangsu 610 Office and the provincial academy of social science to work on a project titled “Present Situation and Countermeasures for Education and Conversion of Cult Members in Jiangsu.”

Using the methods of sociology, she launched a study of 13 counties and cities in the province, ultimately producing a 50,000-character report of statistics and analysis and identifying several issues. Zhang Jing told Southern Weekly how government officials at all levels use follow-up strategies in which three or four officials take responsibility for individuals who complete study classes and, during major holidays or sensitive periods, go to their homes to follow up or “check in.” These methods make people who have already been “converted” feel uncomfortable. Zhang Jing describes these tactics as “pressure follow-ups” and “charitable check-ins.”

Besides this, another clear problem is the way that units at all levels pay attention only to the “conversion rate” when it comes to cult members, “which is just like paying attention only to GDP figures in thinking about economic development.” This leads to false reporting and exaggeration of success. Zhang Jing suggests that instead of the “conversion rate,” we should be considering the “reentry rate” which would give a truer measure of effectiveness.

The “Loving Heart Home,” set up by the Gulou District 610 Office in 2009, is a local experiment by Chen Dongxiao and his colleagues to try to raise the “reentry rate.”

The Loving Heart Home is located in an abandoned school in Xiaguan District. Passing an alleyway piled high with discarded junk and stepping through a set of large metal double doors, you enter this spacious area, quiet and filled with tall, luxuriant parasol trees.

Cheng Dongxiao says, “We’re like a doctor treating a patient, a teacher treating a student, a parent treating a child.”

“Enrich Their Minds So They Won’t Go Back to the Cult”

When the Loving Heart Home was first set up, Cheng Dongxiao and his colleagues still had their doubts.

To that point, throughout the country the conversion of cult members had always taken place in closed classes, because the thinking was it was better to keep people separate rather than gather them together. But at the Loving Heart Home, they were actually all gathered together. At the time, some senior officials worried: “What if they repeatedly collude with each other and revolt en masse? What then?”

Cheng Dongxiao firmly insisted that this would not happen. His confidence came from the “troops under his control,” a group of 22 former cult members whom he had successfully converted.

“When I started running study classes and converting people in 2002,” [says Cheng,] “these people gradually joined me and started to help.” Back then, they were not called volunteers; instead, they were considered “model converts.”

“The idea was to have them use their own experiences to illustrate the law,” says Cheng. “You needed to treat them like friends. Most of them were older then me, so I addressed them as ‘Big Sister.’”

The Loving Heart Home practices “self-education and self-management.” Among the volunteers, a group of seven to nine forms an organization committee responsible for routine daily matters. “General matters are decided on their own, following discussion by the organization committee, while for important matters, they seek guidiance from the relevant government agencies.” Every Tuesday, Thursday, and Saturday, a certain number of volunteers remain on duty. Each year, there is a meeting of volunteers and every two to three years there is an election of a new organization committee and revision of the Loving Heart Home charter.

Li Zhonglan chairs the organization committee. Slightly plump, Li fell into a cult back in 1995 and once was a major figure in the local Nanjing cult organization who traveled widely “propagating the teachings.” When China outlawed the cult in 1999, she had a complete breakdown. Li Zhonglan told Southern Weekly that it was not until 2002, after study classes and “using cult teachings to undermine cult teachings,” that she was finally converted. “Now, at the Loving Heart Home, I can help others to clear up their confusion and help myself as well,” she said.

Besides the organization committee, ther are three others that Cheng Dongxiao has selected to be permanently stationed at the Loving Heart Home to serve as liaisons between the home and the 610 office. In Cheng Dongxiao’s words, they’re there to “pour some sand in the mix” [that is, to ensure a bit of variety –Trans.].

Qiao Zhanyu is one of those three. He came to the Loving Heart Home after retiring as principal and party-committee secretary at a middle school. He told Southern Weekly that, back when he was still a principal, there was an art teacher at his school who became mixed up with a cult. He decided to “take charge of his own children” and had teachers at the school rotate in shifts every day, two attendants per shift, to help the teacher convert. It was this experience that made Qiao the most successful candidate for this current work. But he says, “This is harder than managing a school, you know. You can’t rely on issuing compulsory orders or administrative sanctions. You have to put on a kind face and make people see the light through reasoning with them.” He says when he first arrived at the Loving Heart Home, the volunteers there considered him to be a government “mole” or “spy” and they didn’t want to have anything to do with him. But after a while, “I treated people with sincerity and people began to respond to that. Now, they often don’t call me ‘Secretary Qiao,” but call me ‘Brother Qiao’ instead.”

Often, Loving Heart Home will show movies and programs on traditional culture. “We generally choose sentimental movies, like the Taiwanese movie My Beloved or Jane Eyre,” says Cheng Dongxiao with a laugh. “The cult took them away from ordinary human emotions, so we want to strengthen their sense of ethical sentiment and sympathy.”

Sometimes they invite experts on religon and Confucianism to give lectures. They also run a quarterly magazine called Spirit Station. Cheng says, “We want to enrich their minds so that they won’t return to the cult.”

“610 Office Needs to Gradually Recede into the Background”

All sorts of people become members of cults. There are former senior police officers, a head of a university organization department, civil servants from government departments, and others. At Loving Heart Home, people generally stay for around three months. Once they’re educated and stable, they don’t need to return. Of course, some of those former believers who have been stabilized apply to become volunteers and continue participating in activities at the home.

To date, the number of volunteers at the Loving Heart Home has grown from 22 to 55. Some of them are not former cult members but university students or concerned members of the public who have come purely to volunteer.

“Each year we recruit a little, but we don’t dare recruit too much,” says Cheng. “Those who want to be volunteers must be reliable.” Recently, their work has received recognition from senior levels of the national 610 office. At the recent Loving Heart Home fifth anniversary meeting, a central official came to attend. Some of the local officials in attendance were even moved to tears.

Volunteers don’t receive much remuneration, Cheng says. “Actually, no one is here for money. They’re here to educate and rescue people.”

“But the current situation remains as serious as ever,” says Cheng. “Besides Falun Gong, Almighty God has become a main force. It is based on Christian scriptures so those doing conversion work must study new material.” Currently, his colleagues and the volunteers need to read the Bible and Almighty God doctrine. “[As Sun Tzu said:] If you know yourself and your enemy, you can win the battle every time.”

When Cheng Dongxiao says “the current situation remains serious,” he also means “the state needs to standardize its anti-cult work. Currently, each locality has its own way of doing things and it’s all messed up.”

“For example personnel is complicated, in some places the 610 office operates independently, rather than as part of the local government like we do here,” [he explains]. “In some places, it falls under the politico-legal committee, in others it falls under the public security bureau, and in others still it falls under the domestic security protection unit.” Not long ago, the relevant state authorities gathered directors of local 610 offices for a conference. Cheng Dongxiao was one of them. He said very straightforwardly that China’s current anti-cult efforts need to be regulated through legislation that clarifies the screening criteria for cults and the responsibilities of the governing authorities. “For example,” he asks, “should the the National People’s Congress Standing Committee authorize the Ministry of Public Security to take responsibility?”

There’s also the problem of funding. “Our anti-cult work in Gulou District is part of the government budget,” he explains. “But many locations lack funding. How can they carry out cult conversion work?” Cheng said the problem is especially serious in northeast China. Once, at a meeting, he shared a room with a prefecture-level 610 Office director from somewhere in the northeast. As they chatted, that director began complaining about how he only had four people working for him in a city where there were more than 60,000 cult members. “In Nanjing,” Cheng notes for comparison “we only have just over 4,000 cult members in the entire city.”

“The bottom line is [that anti-cult work needs] to be more public, brought out into the community, and turned into a public interest,” [says Cheng.] “As the government pays for more social services, the 610 Office needs to gradually recede into the background.”

(Li He, Zhang Jing, Li Zhonglan are all pseudonyms)

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, October 2, 2014

Torture in Harbin Drug Cases Met with Little Punishment

Seven defendants stand trial for torture at the appellate court, Harbin Intermediate People's Court, in August. Image credit:

A recent court case in the northeastern city of Harbin is shining new light on some of the extremes to which police investigators occassionally go to get criminal suspects to confess in China. It also raises new questions about whether the Chinese criminal justice system punishes the perpetrators of torture severely enough to act as a deterrent.

Last May, a court in Harbin convicted seven defendants of coercing confessions through torture in connection with seven separate incidents, all committed in March 2013. The court imposed sentences ranging from a suspended one-year prison sentence to two-and-a-half years in prison. At least one of the defendants appealed the verdict, landing the case at the Harbin Intermediate People’s Court for an appellate hearing at the end of August.

The court found evidence of what appeared to be routine use of electric shock and other physical torture in the investigation of drug cases by officers at the Daowai District Branch Public Security Bureau. One suspect recalled being handcuffed to a metal chair and shocked with electric batons. Mustard oil was poured up his nose. When he refused to tell police where he got his drugs, they took off his shoe and applied wires to one of his toes. The wires were then connected to an old-fashioned military crank telephone, which sent a current of 120 volts through his body as they cranked it, causing his entire body to convulse.

The same technique was used during another drug investigation that same month. Again, a drug suspect surnamed Liang was handcuffed to a chair. When he began to shout, a towel was stuffed in his mouth. One interrogator began beating Liang in the face with the sole of a shoe. During this ordeal, Liang lost consciousness. By the time they realized that something was wrong, he was dead.

One of the unusual things about this case is that only three of the defendants were police officers. Most of the defendants, including the ones responsible for carrying out most of the actual physical torture, were what is commonly known as “special informants” (teqing, or teshu qingbao renyuan). Police investigators often rely on these informants to provide information or leads that can help them crack cases. In this instance, however, it seems that police were also delegating some of their authority to carry out interrogations—or at least using special informants to do some of their dirty work for them.

Another thing that has attracted attention about the case is the relatively light sentences, especially considering that one victim of torture apparently died during interrogation. As legal scholar Wang Gangqiao pointed out in an opinion piece published in The Beijing News on September 23, the maximum penalty for coercing confessions through torture is three years’ imprisonment, but torture resulting in serious injury or death should be punished according to the more serious offenses of intentional injury or homicide. He questions the court’s failure to hand down more serious penalties in this case, even hinting at the possibility of collusion between law-enforcement authorities to prevent torturers from being held fully accountable.

According to reports, however, local prosecutors lacked evidence to bring homicide charges because police cremated the body of the deceased as the incident was under investigation. As a consequence, a deputy chief at the Daowai Public Security Bureau who ordered the cremation has since been put on trial for abuse of power.

Use of torture to extract confessions is a problem in many countries, especially in situations where investigators lack the skill or experience to build a case through other means. But acceptance of torture can also become part of an institutional mindset, especially when there are expectations of impunity. In this case, the highly politicized nature of China’s “People’s War on Drugs” and the criminal justice system’s long-standing reliance on confession to secure convictions appear to have been contributing factors.

Don’t Let Harbin Torture Trial Serve as Negative Model

Wang Gangqiao
The Beijing News, 23 September 2014

Recently, the trial of Wu Yan and others charged with extracting confessions through torture entered the second-instance appellate phase in Harbin. Earlier, the court of first instance found evidence of seven instances of torture, all occurring in March 2013. Official reporting on the case said “the methods used to extract confessions were extremely vile.” [One defendant,] Wu Yan, was sentenced to two-and-a-half years’ imprisonment. [Another,] Zhao Xiaoguang, received a one-year sentence, suspended for a year. All of the other defendants in the first-instance trial received sentences of between one and two years in prison.

A maximum sentence of two-and-a-half years doesn’t seem all that severe. Looking at the statute, the Criminal Law provision on coercing confessions through torture states: “Any law-enforcement officer who extorts confession from a criminal suspect or defendant by torture or extorts testimony from a witness by violence shall be sentenced to fixed-term imprisonment of not more than three years or penal servitude. If he causes injury, disability, or death [to the victim], he shall be convicted and given a heavier punishment based on the provisions covering the crimes of intentional injury or intentional homicide.” According to the Xinhua News Agency’s report on the case yesterday, on March 24 of last year, Wu Yan accused Chen Xiaowei, Pan Yongquan, and Li Yingbin of using an old-fashioned military crank telephone to electrocute a [suspect] surnamed Liang; Cheng Xiaowei was in the process of beating Liang in the face with the sole of a shoe when Liang suddenly died.

This is probably the reason why the Harbin torture case has been described as involving “extremely vile” methods. The law says that when torture leads to death, it should be “given a heavier punishment based on the provisions covering the crimes of intentional injury or intentional homicide.” Looking at the less serious of these two offenses, intentional injury resulting in death, the penalty should be “fixed-term imprisonment of 10 years or more, life imprisonment, or the death penalty.” This is worlds apart from the sentences handed down in the present case. The reason for this case being tried in second instance is apparently because the defendants appealed. It’s unclear whether the prosecution also appealed the verdict acording to the provisions of the Criminal Law on the grounds that the sentences were abnormally light. It’s really nonsense to think that a one- or two-year sentence—especially a suspended sentence—could help to contain the coercion of confessions through torture, a practice which previous prohibitions have failed to stop.

It’s even more noteworthy that, of the defendants in this case, only Wu Yan, Zhang Siliang, and Zhao Xiaoguang were police officers. Defendants Cheng Xiaowei, Pan Yongquan, Li Chunlong, and Li Yingbin, who also took part in torturing suspects, were not police at all, but rather, “special informants.”

Investigative power is a power specially designated by the state that only specialized units and personnel are authorized to exercise. The interrogation of criminal suspects is the most important part of the investigative process, an activity that is to be carried out only by qualified investigative personnel. “Special informants,” also known as xianren, are individuals whose status is defined by their ability to provide needed information for use by investigators during the investigative process and help them to solve cases. According to the law, “special informants” are still ordinary citizens. They play an auxilliary role in investigations and come under the responsibility of investigative units, but they do not have any investigative power themselves.

Everyone understands the evils of coercing confessions through torture. Police are law-enforcement personnel who have a personal responsibility to maintain law and discipline and safeguard human rights. So when some law-enforcers instead knowingly violate the law and treat torture as an ordinary investigative tool, they ought to be severely punished in accordance with the law. In this case, however, if the prosecution never appealed the verdict, then under the principle of “no heavier penalty on appeal,” the court of second instance cannot increase the penalties given to the defendants in the first-instance verdict. This perhaps demonstrates that, in some locations, police, prosecutors, and courts have come to a kind of “consensus” about lenient punishment for the use of torture to extract confessions.

“Incidents” in the criminal process like this Harbin torture case are a portent of things to come. Behind this incident are the sprouts of many other incidents. For example, the extreme chaos surrounding the system of “special informants,” the extremely casual way that investigative powers are delegated, etc. Open violations like this involve “sprouts of accidents” that should have been extremely obvious to see. While we are pursuing criminal responsibility for coercion of confessions through torture, those units and officials who are responsible for oversight should undertake some serious reflection: As the “safety officials” of the criminal process, what have you done to contain and eradicate this kind of mishap? Oversight requires the establishment of rules and measures that prevent law enforcers from doing things they’re not supposed to do. These are preventative measures for which we can no longer wait!

Thursday, September 4, 2014

MPS: China Has 116 Custody and Education Centers Nationwide

Detainees participate in work training at a custody and education center in Nantong, Jiangsu Province. Image credit: 

As several recent posts have pointed out, the formal abolition of reeducation through labor (RTL) at the end of last year has prompted new scrutiny of other arbitrary forms of detention routinely used in China. Getting the most attention in recent months is the system known as “custody and education,” used to punish both prostitutes and their clients with up to two years of detention without any formal judicial process.

A recent article from the Guangzhou newspaper Southern Metropolis Daily showed how critics of custody and education have successfully used requests for “open government information” to get details about the measure and its use in China. This summer, Beijing lawyer Zhao Yunheng received a reply to his request to the Ministry of Public Security (MPS) for information about custody and education. The reply included an acknowledgment that there are currently 116 custody and education facilities nationwide.

Though Zhao did not get all of the detailed information he requested, the MPS response does reveal a number of interesting things. First, it is clear that, with only 116 facilities nationwide, there are many parts of China where custody and education is not being enforced at all. Thus, in addition to the arbitrary nature of the procedures used to send individuals to custody and education, there is also a serious problem of geographical inconsistency of enforcement—meaning that individuals accused of the same illegal behavior might receive very different degrees of punishment, for example up to 15 days of administrative detention in places where there are no custody and education facilities but a minimum of six months in custody and education in places where there are.

Distribution of custody and education centers by province based on provincial public security department data obtained by Southern Metropolis Daily. Image credit: 

Second, there are some puzzling discrepancies between the data reported on the national level and information collected locally. The MPS report of 116 custody and education centers contrasts with an earlier figure of 90 facilities derived by Southern Metropolis Daily through open government information requests and reporting at the provincial level. Because the MPS did not provide details, such as the names of each facility or their relative distribution throughout the country, it is difficult to know how to reconcile the two different figures.

Even though he did not get all of the information he requested, Zhao Yunheng expresses general satisfaction with the way the MPS handled his response and remains optimistic that custody and education will undergo substantial reform in the near future. The fact that the issue continues to receive periodic coverage in the national media suggests that changes to the system may indeed be on the reform agenda. Continued pressure from the media and civil society—including demands that the government reveal more details about the various ways it locks up its citizens—will undoubtedly help to further this process along.

MPS Replies to Open Government Information Request,
Now 116 Custody and Education Centers Nationwide

Wang Xing, Southern Metropolis Daily
August 1, 2014

In a recent reply to an open government information request, the Ministry of Public Security (MPS) for the first time made public the number of custody and education facilities nationwide—116. The MPS also stated that China has not yet abolished custody and education and that public security units continue to enforce this measure.

“I never imagined that the MPS Open Government Information Office would take such a conscientious attitude,” said lawyer Zhao Yunheng, who applied to have the information made public. “They acted fully in accordance with procedures, and even telephoned me to explain when they needed to extend the time limit.”

Custody and Education Still Being Enforced

In its July 22 reply entitled “MPS Open Government Information Response,” the MPS Open Government Information Office responded separately to each of Zhao Yunheng’s three questions.

On the question of which provinces, municipalities, and autonomous regions were still enforcing custody and education and which had effectively abolished or ceased enforcing the measure, the MPS reply stated: In 1991, the National People’s Congress (NPC) Standing Committee passed its Decision Concerning the Strict Prohibition of Prostitution and Visiting Prostitutes.” Article 4(2) of that decision states: “Public security organs, in cooperation with other relevant agencies, may subject those who engage in prostitution or visit prostitutes to between six months and two years of compulsory legal and moral education and productive labor so that they may change their bad habits. Detailed measures are to be enacted by the State Council.” In 1993, the State Council promulgated and put into effect the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes. These measures specify that prostitutes and those who visit prostitutes are subject to custody and education and provide detailed provisions concerning the decision-making body, term of custody, testing and treatment for sexually transmitted disease, inmate education and management, and procedures for release and remedy. The reply added: “Currently, the state has not abolished custody and education and public security authorities continue to enforce the measure. We have no information about abolition of custody and education by local authorities.”

According to an investigation by Southern Metropolis Daily (see the previous report in Weekly In-Depth Report, July 2 [Translator’s note: This report is no longer available on their website, but is available here.]), of the 31 provincial-level areas nationwide (excluding Hong Kong, Macau, and Taiwan), 26 have at least one custody and education center. Anhui, Jiangxi, Ningxia, Qinghai, and Tibet do not currently have custody and education centers. Of these, Ningxia, Qinghai, Tibet, and Jiangxi have never had custody and education centers, so abolition is not an issue there. Anhui once had 17 custody and education centers, but around 2005 they were ordered to close because the “conditions for custody no longer existed.” Even though there is no longer custody and education there, no one has ever said anything about formally “abolishing the custody and education system.”

No Mention of Specific Designations or Distribution

With respect to the number of custody and education centers nationwide, as well as their designations and locations, the MPS reply states: Article 4 of the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes stipulates that: “Based on the need for custody and education work, public security organs at the level of the province, autonomous region, municipality or autonomous prefecture, or city district shall submit plans for the establishment of custody and education centers to the people’s government at the same level for approval.” According to figures from the MPS Detention Facility Administration Bureau, there are 116 custody and education centers nationwide.

There are more than 330 cities or autonomous prefectures at the prefectural level in China. With 116 custody and education centers, that means that there is one center for every two prefectural cities on average.

Between April and May of this year, public security departments in 19 provinces nationwide responded to requests for open government information, revealing a total of 55 custody and education centers. Southern Metropolis Daily reporters then visited the 12 other provincial-level public security departments, all of which apart from Guizhou provided figures on the number of local custody and education centers. Calculating from the 19 provincial replies to requests for open government information and the information provided during visits to 11 other provinces (excepting Guizhou), one gets a total of 90 custody and education centers.

According to Zhao Yunheng’s analysis, perhaps the custody and education centers in some areas have already stopped operating in practice, but because they have not been formally abolished, this leads to the discrepancy in the data.

The MPS reply did not provide the specific designations or distribution of the 116 custody and education centers. Based on previous investigations, the centers are distributed extremely unevenly. In some provinces, nearly every city has one, while in others the centers have been set up in only a few cities. Yesterday, Zhao Yunheng submitted another open government information request for additional information.

Applicant: MPS Attitude Conscientious

Zhao Yunheng, the person who made this application for open government information, is the director of the criminal defense division at the Dacheng Law Firm. In early June, he, Duan Wanjin, and other criminal defense lawyers at the Dacheng Law Firm met to discuss the problem of custody and education, out of which came the request for open government information. “A few days later, I got a call from the MPS Open Government Information Office,” said Zhao. “They said our request wasn’t formatted correctly and suggested that I go to the MPS website to download the correct form and reapply.” By default, the applicant on the standard open government information request form is a citizen or legal entity, so when Zhao Yunheng resubmitted the application it was in his capacity as an individual citizen.

Zhao’s application requested information about the implementation of custody and education in each province; the names, numbers, and distribution of custody and education centers nationwide; and the number of people being held in custody and education. Zhao Yunheng believes that many delegates to the NPC and Chinese People’s Political Consultative Conference, legal experts, lawyers, and others have already made a great effort and carried out a valuable investigation into the issue of custody and education. He and his colleagues wanted to approach the problem from the angle of open government information in hopes that they could provide a better basis for debate if they received more information.

According to the regulations on open government information, the department receiving the request should furnish a reply within 15 working days. As the deadline was about to approach, Zhao Yunheng received a call from the MPS Open Government Information Office. “They said this information concerned a large number of bureaus and that they themselves did not have the information,” Zhao recalled. “They said they would have to coordinate with these agencies to collect statistics, so they hoped to extend the 15-day deadline. This was fully in keeping with the regulations, and I felt this was perfectly ordinary.” On July 23, a registered letter was delivered to the Dacheng Law Firm. It was dated July 22—a reply delivered within the statutory deadline.

Zhao Yunheng said that in his many telephone interactions with them, the MPS Open Government Information Office took a very conscientious attitude, and he was personally satisfied with their attitude and the response they provided: “I believe the MPS took a positive attitude. I am relatively optimistic that custody and education will be reformed in the near future.”

Tuesday, August 26, 2014

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

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

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

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

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

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

Xinjiang and Tibet

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

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

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

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

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

TV Set Confessional

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

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

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

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

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

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

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

Thursday, August 7, 2014

Gao Zhisheng Begins Sentence of Deprivation of Political Rights

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

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

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

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

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

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

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

* * *

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

Order 23

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

Minister of Public Security Tao Siju
February 21, 1995

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

Section I. General Provisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section V. Additional Provisions

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