Monday, December 21, 2015

China: State Security Indictments Hit Record High in 2014

Sources: Dui Hua; China Law Yearbook (various years)

China indicted more people for endangering state security (ESS) crimes in 2014 than in any year since China Law Yearbook began reporting the figure in 1999. The number of people indicted rose to 1,411, up 2 percent from 1,384 in 2013. These indictments spanned 663 cases, compared with 608 cases in the previous year.

With the uptick in indictments, the number of trials in the category that includes ESS jumped 20 percent. China Law Yearbook reports ESS trials in aggregate along with trials for dereliction of military duty and possibly other crimes. The number of trials in this category hit 1,074 in 2014, compared with 893 in 2013. Based on indictment statistics from previous years, Dui Hua has assumed that the number of trials attributed to dereliction of military duty and other crimes was negligible. Trial numbers are limited to trials of first instance that courts concluded during the year.

The ESS trial that received the most international attention in 2014 was that of Uyghur activist and scholar Ilham Tohti. He was convicted of splittism in September 2014 and sentenced to life in prison for operating a Uyghur news website. Including Ilham Tohti, Dui Hua’s Political Prisoner Database has information on 18 people tried for ESS in 2014, down from 32 in 2013 and 26 in 2012. Thus far in 2015, Dui Hua has information on nine people tried for endangering state security.

Chinese courts invariably convict and sentence those tried for ESS. Although acquittals are extremely rare, relatively light sentences are sometimes imposed. In 2014, at least three of those tried—Gu Yimin, Liang Haiyi, and Liu Benqi—were released by year end. All three were convicted of inciting subversion. Gu and Liu were tried for online posts that were critical of the Chinese government. Gu was sentenced to 1.5 years in prison and Liu to three years, but both were released due to time served in detention. Liang was likely tried for online posts and her involvement in public protests. Detained in 2011, Liang was released after a court sentenced her to a suspended sentence of two years.

ESS covers a range of political crimes including subversion, inciting subversion, splittism, inciting splittism, espionage, and state secrets violations. While it is considered the most serious category of political crimes—and is the only category that carries a mandatory supplemental sentence of deprivation of political rights—ESS crimes are not the only legal avenue used to punish activists. In recent years, authorities have also used “disturbing social order” crimes like “picking quarrels and provoking troubles” and economic crimes like fraud and operating an illegal business to put away critics.

“The number of individuals indicted for ESS crimes reached an all time high in 2014, a striking and troubling development,” said Dui Hua Executive Director John Kamm. “Given ongoing campaigns against protest and dissent, especially in the western region of Xinjiang, the number of ESS indictments and trials are unlikely to fall in 2015.”

Thursday, December 17, 2015

Chinese Court Amends Charges Against Guo Feixiong Before Conviction

Democracy activists Guo Feixiong (a.k.a., Yang Maodong, pictured left) and Sun Desheng (pictured right) were recently sentenced to prison terms. Credit: Weiquanwang

On November 27, Guangzhou’s Tianhe District People’s Court sentenced veteran democracy activists Guo Feixiong (a.k.a., Yang Maodong) and Sun Desheng to six years and two and a half years’ imprisonment, respectively. The court convicted Guo and Sun of public order offenses connected to street protests carried out in Guangzhou and other cities in the early days following Xi Jinping’s accession to power. The crackdown on the “Southern Street Movement,” along with the repression of the New Citizens’ Movement, signaled the new leadership’s resolve to curb grassroots activism, clamp down on criticism, and take control over the political agenda.

As in many other politically motivated criminal cases in China, the allegations appear to exaggerate the social harm caused by the defendants’ actions and ignore rights to free speech and association nominally protected under China’s constitution. Moreover, violations of due process plagued the prosecution of Guo and Sun. These violations include prolonged pre-trial detention, obstruction of defense counsel, and numerous irregularities at trial. There have been allegations of torture and mistreatment.

There are many grounds upon which to criticize and even condemn the convictions of Guo Feixiong and Sun Desheng. In this essay, we focus on a small, but significant, aspect of the trial process: the court’s modification of charges immediately before conviction. We explain court action and inaction with the aim of further understanding China’s criminal process and some of its many weaknesses and challenges.

What Did the Prosecution Allege?

In the indictment submitted to the court in June 2014, prosecutors from Tianhe District charged Guo and Sun with “gathering a crowd to disrupt order in a public place” under Article 291 of the Criminal Law. The allegation was based on two separate sets of material facts and associated evidence.

The first set concerned three days of protests held outside the offices of the newspaper Southern Weekly in January 2013. These demonstrations followed a decision to censor a closely watched “New Year’s Editorial” that supported constitutionalism. Authorities alleged that Guo Feixiong was a chief organizer of the protests, which included speeches, signs, and banners hailing press freedom, and which attracted hundreds of participants and onlookers.

The second set of allegations surrounded a series of “flash mob” protests purportedly initiated by Guo and Sun and carried out in eight cities across China in April and May 2013. Protesters held up signs and banners demanding that officials disclose their assets as part of the fight against corruption and that the government ratify the International Covenant on Civil and Political Rights. Images of these street protests were circulated online, leading prosecutors to claim that they “created false impressions.”

What Did the Court Do?

Many accounts report that, just before it sentenced the defendants, the Tianhe District People’s Court added a charge of “provoking a serious disturbance,” which carries a heavier penalty than those under Article 291. Perhaps more accurately, the court “modified” or “amended” the prosecution’s charges. No additional facts or evidence were introduced to support the addition of a new charge during the trial. The court did, however, take issue with the prosecution’s characterization of “flash mobs” as “gathering a crowd to disrupt order in a public space.”

The court found that, based on the facts and evidence presented at trial, the defendants’ actions should have been prosecuted under the offense of “provoking a serious disturbance” pursuant to Article 293(4) of the Criminal Law. Having identified this error, the court proceeded to amend the charges and issue its verdict accordingly.

Amending the charges meant that the court could impose separate penalties and calculate a combined sentence for the protests outside Southern Weekly (gathering a crowd to disrupt order) and the anti-corruption flash mobs (provoking a serious disturbance). While the maximum penalty under the charges in the prosecution’s original indictment would have been five years’ imprisonment, after modification, the court was able to impose a sentence of between five and ten years—based on a maximum penalty of five years for each charge.

Did the Court Violate Chinese Law?

There is no explicit provision in the Criminal Procedure Law (CPL) that authorizes courts to modify the prosecution’s charges in this way. Instead, this action seems to follow from the Supreme People’s Court (SPC) Interpretation on the Application of the CPL, Article 241(2):

When the facts alleged in the indictment are clear and the evidence is reliable and sufficient but there is a discrepancy between the crime alleged and the crime found in the course of the trial, [the court] shall issue a verdict based on the crime found in the course of the trial.

This provision implies, but does not expressly state, that the court may unilaterally modify the charges under these specified circumstances.

Of course, the question remains whether it is legitimate for the SPC to broaden its powers in this way. As a constitutional matter, the use of judicial interpretations to supplement and elaborate on existing law in a generalized manner appears to exceed the authority granted to the SPC to answer concrete applications of law. As a matter of practice, however, such legislation-through-interpretation is considered legitimate, and courts treat these interpretations as equivalent to law.

In short, while the legal basis for the court’s actions is not free from controversy, practically speaking, no appellate court is likely to accept a challenge on the grounds that the court acted contrary to law.

Did the Court’s Actions Amount to an Unfair Trial?

There is little question, however, that the effect of the court’s action deprived Guo and Sun of their right to a fair trial, which would make the decision illegitimate under Chinese and international human rights law.

By unilaterally modifying the charges just before sentencing, the court deprived the defendants of their right to a fair hearing by denying them adequate time and facilities to prepare a defense. Though much of the defense lawyers’ detailed statements to the court remained applicable, the lawyers could not have anticipated the court’s modification. Thus they were not prepared to present a thorough challenge to the applicability of Article 293(4). Lawyers were instead asked to deliver opinions on the spot and were interrupted by the court when they protested.

One of the principles underlying the idea of a fair judicial hearing is the “equality of arms” between prosecution and defense. Given that criminal defendants have the power of the state arrayed against them, adequate time and facilities to prepare is an essential part of guaranteeing some semblance of parity.

Article 227(3) of the CPL states that where the trial of first instance “deprives or restricts the statutory procedural rights (fading susong quanli) of a party to the case (dangshiren),” the appellate court should remand the case for retrial. Lawyers might try to make this argument when the case is appealed to the Guangzhou Intermediate People’s Court, but if the case is retried and the charges are modified in some other way, it seems highly unlikely that the court would reach a different result.

How to Modify Charges Fairly

There are many circumstances in which a charge might need to be re-characterized in the course of a trial. A charge of homicide might fall apart on the question of the defendant’s intention and need to be modified to intentional injury. There is often ambiguity about whether a defendant caught carrying drugs was trafficking or merely transporting.

Note that in both of these examples modifications would likely benefit the defendant, as the modified offenses are less serious than those originally applied. This is not what happened in the case of Guo Feixiong. Nonetheless, even when the defendant stands to benefit from amended charges, fair-trial principles should require the use of a more elaborate procedure with more of a role for both prosecution and defense.

This is the argument put forward recently by Shandong rights lawyer Xi Xiangdong. He notes that if the prosecution had wanted to modify its indictment, Supreme People’s Procuratorate rules would have required prosecutors to first seek approval from their superiors and submit the amended indictment to the court. Then, the court would notify the defendant, and a new trial hearing would have to be held—complete with investigation of evidence, debate, and final statements from both sides.

If the court identifies the need to modify the charges, Xi says, it can make this recommendation to the prosecution. If the prosecution agrees, the process would follow as described above. If the prosecution rejected the recommendation, then the court could proceed to amend the charges if it was in the interest of justice and proper application of the law. Xi rightly insists, however, that this ought to be the exception, rather than the rule. Finally, he notes that any such decision should only be made after giving due consideration to both prosecution and defense in the form of a hearing where both sides can confront each other’s opinion.

To be sure, such procedures would necessitate extra time and complication for all parties involved. Considering that the court let a year elapse between trial and verdict in the case of Guo Feixiong and Sun Desheng, there really is no excuse for not taking even this small step to provide a measure of protection to the fair-trial rights of the defendants.

Thursday, November 5, 2015

Guangdong High Court Asks Why So Few Are Found Innocent

A recently freed, wrongfully accused man becomes emotional during a 2014 interview. Credit:

Since 2012, Chinese legal authorities have overturned a series of high-profile convictions and taken steps to prevent miscarriages of justice, but one question is still being asked: why do Chinese courts acquit so few defendants? (In 2013, the acquittal rate rose for the first time since 2000, growing annually from six acquittals per 10,000 adjudications to seven.) Some argue that institutional support for conviction stands in the way of systemic change.

Researchers at Guangdong High People’s Court wanted to find out for themselves, conducting interviews, holding seminars, and analyzing court documents related to acquittals throughout the province. The results, which were published as a report last year, offer a fascinating view into how those within the judiciary interpret the institutional, legal, political, and social factors that shape the way Chinese courts operate.

The researchers report that, for the five years between 2008 and 2012, Guangdong courts acquitted only 198 individuals in 180 cases. This represents a mere 0.04 percent of all individuals subject to criminal decisions that took effect during the period. The great majority (86 percent) of acquittals were on grounds of insufficient evidence, with a handful of others issued for things like self-defense, mental incompetence, or defendants who were under the age of 16. Acquittals occurred in a wide variety of cases—though not in any involving state-security offenses—but were most frequent in cases of assault. The trial process typically took longer than average when it resulted in acquittal, extended in accordance with the law by both courts and prosecutors. The average length of a trial that ended in acquittal was 169 days, or about five months, with the longest stretching to 504 days and the shortest at 55.

These quantitative results are not the most interesting part of the report, in part because there are so few cases to study. Much more interesting are the authors’ observations on the factors contributing to the dearth of acquittals, the impact this has on the legal system and society at large, and what might be done to remedy the situation.

Acquittal Averse Strategies

The extremely low number of acquittals doesn’t mean that criminal prosecutions in Guangdong are rock-solid. The report points out that, when the facts of the case are unclear and evidence is insufficient, judges use a number of strategies other than acquittal. In relatively minor cases, for example, courts might work out an informal “plea bargain,” promising to hand down a non-custodial penalty (like a suspended sentence) in exchange for a defendant’s promise not to appeal. In death-penalty cases, on the other hand, a court might issue judgments “with room to maneuver” (liu you yudi caipan)—imposing a more lenient suspended death sentence that gets commuted to life imprisonment (and then, later, a fixed-term sentence) almost automatically. Appeals courts are in an even better position to shift responsibility, as they can always send cases back to a lower court for retrial rather than rule to acquit.

Another common way courts avoid acquittals is to allow the prosecution to withdraw its indictment, which it may do at any point before a verdict is announced. In some cases, this has the effect of ending the case against the defendant, but in others, the prosecution can decide to submit a new indictment or send the case back to police for additional investigation. This amounts to a waste of resources, the report says, and results in individuals being locked up for far longer than they ought to be.

The report argues that prosecutors, with the help of the courts, are abusing this provision of the Criminal Procedure Law (CPL) and that the practice needs to be more strictly regulated. For example, it recommends that prosecutors generally not be allowed to withdraw indictments for unclear facts or insufficient evidence. This is because the CPL already gives prosecutors two opportunities to request trial adjournment for additional investigation. If this is not enough, the report concludes, then the court should exercise its power to issue an acquittal. The report also suggests prohibiting prosecutors from withdrawing an indictment once investigation of the facts and evidence has begun at trial and, when withdrawal is approved, limiting prosecutors to one re-indictment.

Inside the Pressure Cooker

Why is it necessary to go through so much effort to avoid issuing acquittals? A recurring theme throughout the report is pressure. Stability-first governance campaigns and a whole system of associated performance measurements create pressures for conviction throughout the criminal justice system. Written and unwritten rules place a premium on rates of case-solving, arrest approval, and conviction as factors used to measure police or procuratorate effectiveness and can be tied to individual promotion or ranking. Since acquittals have the effect of lowering these statistics, police and prosecutors are incentivized to seek conviction and mobilize all manner of available resources to influence courts not to acquit.

As the final stop in the criminal process, courts bear the brunt of the pressure to convict that’s built into the system. As the report puts it: “The public security bureau is responsible for cooking the meal and the procuratorate for serving it. Last to come, the court has only two choices as it faces this meal—either eat up or reject all the work that the first two institutions have already put into the case.” Acquittal, in other words, puts courts in potential conflict with other local law-enforcement bodies that are expecting conviction.

In major cases, especially homicides, police often face considerable political and social pressure to bring a culprit to justice. When they do make arrests, it can lead to merit citations being publicly issued to the investigation team even before indictment, let alone conviction. If the court later acquits, not only must these citations be withdrawn, there will likely be compensation claims made against the police for wrongful detention. In some cases, the same individuals who had been rewarded for solving the case might end up facing investigation for misconduct or even criminal liability.

Prioritizing Public and Process

There are many negative consequences arising from courts’ failure to issue acquittals, according to the report. The most obvious effect is on the credibility of the courts. On this point, the report is particularly frank, warning: “the public is already deeply suspicious and dissatisfied with the [level of] fairness in our criminal justice system, and wrongful convictions are adding fuel to the fire.” They continue, stating: "Convictions based on protecting face and reducing pressure only bring momentary peace and tranquility. When and if the bomb will explode all becomes a matter of luck. But what’s certain is that, the moment the bomb goes off, the courts will suffer the heaviest casualties."

In order to prevent calamity, the report recognizes that courts must exercise their judicial powers more independently, but it provides little advice on how to do so, apart from improving awareness and understanding of the law and legal principles like the presumption of innocence. There is no mention of the "coordination” between police, procuratorates, and courts by the party’s politico-legal committees and little on the role of adjudication committees, where senior court officials get an opportunity to weigh in on how to rule in complex or important cases they have not personally heard.

In fact, the authors appear to believe that increased communication between investigators, prosecutors, and judges can help judicial authorities make their case about resolving problematic prosecutions through acquittal. They recommend, for example, having police and prosecutors sit in on adjudication committee meetings in cases where problems arise. The assumption is that this will enable the courts to exert influence over the other law-enforcement bodies as opposed to the other way around.

One thing that seems to be on the minds of the report’s authors is a responsibility system for wrongful convictions. They make the case that mistakes are inevitable within any legal system and that neither wrongful convictions nor acquittals should automatically be thought of as “mistakes” for which someone must be punished. That is what happens, they suggest, when too much emphasis is placed on outcomes without giving due weight to process.

This is especially important for judges, they argue, and requires transforming the way that judges are evaluated and how data is used. They believe that judicial statistics like conviction rates have no place in deciding promotion or professional ranking. They do, however, see value in continuing to collect statistics and conduct ongoing research in order to evaluate the performance of the criminal justice system as a whole and to boost its credibility with the public.

Thursday, September 17, 2015

China Adds Life Without Parole to Anti-Corruption Arsenal

The National People's Congress passes the ninth amendment to the Criminal Law in August. Credit:

Just before passing the ninth amendment to the Criminal Law late last month, the Standing Committee of China’s National People’s Congress inserted a new provision. Unlike many other new provisions, including those regarding defense lawyers and capital punishment, “cults,” and protestors, this provision was not subject to public consultation. In China’s non-democratic political system, public consultation is one of the few chances for citizens to provide input into the legislative and policymaking processes. It is intended, at least in part, to reinforce popular support for the outcome.

This last-minute provision altered Article 383, which covers the offenses of corruption and taking bribes. Effective November 1, the provision authorizes courts, in certain cases, to add a condition at the time of sentencing to require an individual to spend life in prison without possibility of sentence reduction or parole. The condition may only be applied in corruption cases where the defendant received a suspended death sentence and had that sentence commuted to life imprisonment after the two-year period of reprieve. If such a condition is imposed, the convicted individual will not be eligible for clemency that is ordinarily available under law—meaning that he or she will truly be required to spend the rest of his or her life in prison.

Paving the Way to Abolition

Chinese media has emphasized the significance of this provision as part of the sweeping anti-corruption campaign that has become a signature policy of Xi Jinping. Legal experts and commentators have widely praised the move for sending a strong signal that corruption will continue to be punished severely.

Others have noted that the introduction of life without possibility of release may have wider implications for abolishing the death penalty in China. Public attitudes toward the death penalty are complex and context-dependent, but continued popular support for capital punishment is one factor underlying the cautious and gradual approach that China’s leaders have adopted in reducing its use. Longstanding anger over rampant corruption has helped fuel public support and contributed to anxiety over efforts to strip the death penalty from many economic and non-violent offenses.

Part of this anxiety is rooted in the belief that the death penalty is the only punishment severe enough to deter the most serious crimes. However, in recent years, policies aimed at gradual abolition have led to fewer and fewer death sentences in corruption cases, making suspended death sentences the de facto maximum penalty. Through commutation and sentence reduction, individuals given suspended death sentences can potentially leave prison after serving terms not much longer than the maximum sentence of fixed-term imprisonment, or about 18 years. Some members of the public also worry that corrupt officials might be able to use connections or bribes to buy prison stays that are even shorter.

Given these factors, the introduction of life without parole in serious corruption cases has the potential to mitigate some of the public doubts about lenient punishment for corrupt officials. In so doing, it could also clear the way for China to eventually eliminate the death penalty for corruption. Advocates of death penalty reform anticipate that imprisoning corrupt officials for the rest of their lives would satisfy the public’s expectation of severe punishment. They also believe that in the future life without parole could be extended to other types of crime—including violent offenses.

Following a reform model often seen in China, legal reformers thus appear to have taken advantage of the current anti-corruption environment to experiment with a new kind of punishment and assess the prospects for further refinement and expansion based on practical experience.

A number of issues remain to be addressed. Zhuang Deshui, an anti-corruption expert at Peking University, points out that in order for the new measure to have its desired deterrent effect, courts must “dare” to use it. To this end, Professor Zhao Bingzhi of Beijing Normal University Law School notes that it is necessary for the Supreme People’s Court to issue a judicial interpretation setting clear guidelines for when to apply the new condition. How fairly the condition is applied will play an important role in whether the public can accept life without parole as a substitute for the death penalty.

Choosing Retribution over Rehabilitation

By choosing to deprive certain prisoners of any possibility for early release, China is giving more weight to the retributive and deterrent functions of criminal punishment than to its longstanding emphasis on rehabilitation and reform. If things continue to develop in this direction, what impact might this have on China’s criminal justice system?

Other than the United States, where in the 1980s an abrupt departure from reformative justice helped make life without possibility of commutation or parole a common sentence, very few other jurisdictions impose such categorical penalties. Elsewhere, in fact, it is more common to make possible some form of conditional release after ensuring that an individual has been imprisoned long enough to reflect the seriousness of his or her offense. This is in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners. The rules state that the protection of society through imprisonment, and other deprivations of liberty, “can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.”

In an article published just last year, Professor Zhao Bingzhi criticized life imprisonment without the possibility of sentence reduction or parole as inhumane and a violation of human dignity comparable to the death penalty itself. In a forum on death penalty reform in 2008, Zhao and other Chinese legal experts presented arguments on why life without parole was unreasonable and ill suited to China’s justice system. Now, however, these same experts appear to be embracing more stringent penalties in the interest of making it possible to do more to reduce the death penalty. Life without the possibility of release for corrupt officials may be popular with the public, but the American experience ought to serve as a warning to China that failure to strike the right balance between punishment and reform can lead to many new and serious challenges to human rights.

Tuesday, August 18, 2015

Draft Criminal Law Amendment Takes Aim at Defense Lawyers in China

China's National People's Congress in session in Beijing. Credit: Xinhua

One of the more controversial parts of the current proposal to amend China’s Criminal Law concerns the possible expansion of Article 309, covering the offense of “disrupting courtroom order.” Lawmakers have argued that new measures are necessary to “ensure the ability of the people’s courts to implement their adjudicatory powers in an independent and impartial manner” by punishing those who might try to use courtroom disruptions to influence judicial decision-making. They are responding to worries about a worsening atmosphere inside China’s courtrooms—particularly the sense that growing antagonism between judges and defense lawyers is helping to undermine the dignity and credibility of the courts in the public eye. Critics, on the other hand, argue that the proposal unfairly targets lawyers and will have a chilling effect on their ability to pursue vigorous defense on behalf of clients.

Few would challenge the value to society of preserving a substantial degree of courtroom order. A courtroom should be a forum in which opposing sides of a contentious issue may argue in a reasonable, if sometimes heated, manner over important matters of truth and justice. It is thus reasonable to demand that all sides adhere to a set of fair and impartial rules and standards of decorum because respect for the outcome of the judicial process is linked to the respect that all participants demonstrate toward the process itself. If disorder in China’s courts is in fact contributing to a public crisis of confidence, then addressing the problem at its root is an essential step toward furthering the development of rule of law.

At the heart of the debate over the proposed amendment to Article 309 is disagreement over the root causes of tension in the courtroom. Who is to blame when conflict erupts between the various parties at trial, especially between lawyers and judges? Are unscrupulous lawyers showing brazen contempt for the law and the courts, or are judicial bias and procedural violations forcing some lawyers to adopt more confrontational tactics as a form of protest? Regulating lawyer behavior through the threat of criminal sanctions might lead to a more orderly courtroom, but if defense lawyers become meek participants in judicial proceedings that remain arbitrary and biased, then this is likely to do little to enhance the courts’ reputation for delivering justice. On the contrary, imposing further limits on the fragile rights of lawyers may actually erode public confidence in the Chinese judicial system even further.

Letter of the Law

The existing offense under Article 309 imposes a maximum sentence of three years in prison for “gathering people to stir up trouble or attack a courtroom” or “assaulting a judicial officer (sifa gongzuo renyuan),” when those acts “seriously disrupt courtroom order.” The draft amendment proposes to expand the assault clause to include “those participating in the proceedings.” It also adds two new offense categories: “insulting, defaming, or threatening a judicial officer or participant in the proceedings after being told by the court to stop” and “engaging in other acts that seriously disrupt the order of the court.”

The first of these changes is relatively unproblematic. Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, has in fact been quick to point out that expanding the scope of protection against courtroom assaults is aimed at protecting the rights of lawyers. In particular, he believes that the change will help address attacks by victims’ family members against defense lawyers or defendants’ relatives. Such attacks are unfortunately frequent in China, particularly in cases involving the death penalty.

There is much less support for the two other proposed amendments to Article 309. Critics contend that “insulting,” “defaming,” and “threatening” are acts that can each be defined quite broadly. Professor Qu Xinjiu of China University of Political Science and Law notes that “insult” can include ordinary name-calling, damage to reputation that might be eligible for civil litigation, and a relatively rare degree of offense that might qualify for criminal prosecution. The proposed expansion of Article 309 does not make clear what degree of insult would qualify for criminal prosecution, or why the existing criminal statute covering insult and defamation is insufficient to handle the acts being targeted. Observers similarly note the ambiguous and subjective nature of the word “threaten” (weixie), which has no corresponding criminal offense. To remedy these problems, Professor Chen Xingliang of Peking University Law School has recommended scrapping the “insulting, defaming, or threatening” clause entirely and expanding the assault clause to cover the more menacing act of “intimidating” (konghe) judicial officers and other parties.

The prospect of sanctions against insult and defamation at trial is particularly troubling to lawyers, who feel unfairly singled out given the way the offense is written to presume the court’s authority. Many have argued that China should in fact adopt measures to give lawyers civil and penal immunity for statements made in connection to a case—a recommendation based on Article 20 of the UN Basic Principles on the Role of Lawyers. Otherwise, it is feared, lawyers who dread the consequences of their speech may become “obsequious and servile” and reluctant to express their defense opinions fully, thereby potentially harming the interests of the defendants they represent.

It is the final clause, known as the “pocket clause” for its ability to contain almost anything, which has generated the most opposition. Lawyers and legal scholars are frequently critical of such legal formulations, considering them to be sloppy, “unscientific,” and open to arbitrary and abusive interpretations. In this instance, critics argue, the inclusion of such a clause is particularly detrimental to lawyers. This is because, as Chen Xingliang explains, both the Supreme People’s Court and Supreme People’s Procuratorate have the power to issue legal interpretations that can shape how provisions like these are applied. In other words, of the three main participants in courtroom proceedings, only lawyers have no say over what “other acts” might be construed as serious disruptions to courtroom behavior—potentially putting them at a serious disadvantage.

Critics and Crackdowns

Stepping back from the issue of how the proposed offense would be worded, critics of the amendment also doubt whether an expanded criminal offense is even necessary. In addition to existing offenses covering insult and defamation, Article 194 of the Criminal Procedure Law empowers a presiding judge to forcibly remove a trial participant or spectator for continuing to violate courtroom order after being warned to stop. In serious cases, the judge may also impose a fine of up to 1000 yuan or a jail term of up to 15 days. With respect to lawyers, other disciplinary sanctions—such as formal warnings or suspensions from practice—can be applied to deal with the most serious cases.

Despite all of these arguments, which were amply presented to lawmakers when the first draft of the Criminal Law amendments was made public in late 2014, the proposed expansion of Article 309 remained essentially unchanged in the second draft presented to the National People’s Congress Standing Committee (NPSC) in late June. Drafters are expected to submit one final proposal for passage later this year.

Will lawmakers once again ignore the opposition of lawyers and legal scholars?

They may very well do so, if the recent crackdown on Chinese rights lawyers is any indication. Liang Jianbing, a law professor at Liaoning Normal University in Dalian, believes that there is a clear link between public opposition to the proposed changes to Article 309 and the sweeping detention of lawyers initiated on July 10. He suspects that many members of the NPCSC were swayed by the outpouring of criticism directed at the first draft by lawyers and legal scholars, putting the future of the proposed amendments in jeopardy. In response, law-enforcement institutions and others who want to see this legislation passed have carried out a highly public campaign against a group of rights lawyers, some of whom have been engaged in courtroom confrontations in the past. The media exposure of these lawyers as “criminals,” Liang argues, is a tactical move intended to overcome remaining skepticism and resistance and secure enough support to ensure that the amendment passes.

Even if the campaign against lawyers is not directly aimed at ensuring passage of an amended Article 309, both threaten to contribute to fragmentation and passivity among lawyers and accentuate divisions between lawyers and other legal professionals. Han Jiayi of the All-China Lawyers Association has warned of lawyers choosing to “stay away from the courts” and instead focusing their practice on matters that do not involve litigation. Those in power might not mind if more lawyers opt to stay out of the courtroom, or if the ones who go to trial are less willing to challenge authority. Nevertheless, these outcomes would create a version of “rule of law” unlikely to satisfy many Chinese citizens.

Thursday, August 6, 2015

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

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

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

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

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

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

Death Penalty Reform

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

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

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

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

Goodbye RTL, Hello Prison


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

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

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

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

“Cult” members

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

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

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

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

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

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

Tuesday, July 28, 2015

Fewer Juvenile Arrests Approved; Migrants Bear Brunt of Charges

Judge reads the suspended sentence verdict to juvenile offenders. Credit: Yunnan Qujin People's Congress, March 2015

The Supreme People’s Procuratorate (SPP) recently held a press conference announcing new figures that show “strict adherence” to the policy of reducing juvenile arrests and indictments, and a startlingly high percentage of migrants among juveniles charged. About 27 percent of juvenile arrests and seven percent of juvenile indictments were not approved in 2014, compared with 18 percent and five percent, respectively, in 2012 (see chart below).

Prosecution of Juveniles in China, 2012-2014

Arrests not approved Indictments not approved
2012 17.51% 5.18%
2013 25.23% 6.65%
2014 26.66% 7.34%
Source: Supreme People’s Procuratorate, Dui Hua

The SPP made no mention of sentencing outcomes for indicted juveniles, but a source with knowledge of the data told Dui Hua that non-custodial sentences were given to 40.24 percent of juveniles who went to trial in 2014. This compares to 41.75 percent (including those who were exempted from punishment) in 2012, as reported by the Supreme People’s Court Research Office, and 35.56 percent in 2010, according to the official compendium China Juvenile Justice (zhongguo shaonian sifa). In 2010, the majority, or 84.81 percent, of juveniles who received non-custodial punishments or exemptions were given suspended sentences. Fines were the next most common punishment at 5.96 percent, followed by exemption from punishment (5.43 percent) and public surveillance (3.80 percent).

Since a section on juvenile cases was included in the amended Criminal Procedure Law (CPL) that went into effect in 2013, more than 40 percent of juveniles going to trial each year have received non-custodial sentences. Sources indicate, however, that this percentage dipped in 2014 compared to 2013 and 2012. This may be partially explained by the fact that drafts of the proposed CPL amendments were made public as early as 2011. Judicial organs at various levels likely began increasing non-custodial measures for juveniles in 2012 and early gains may have exceeded those of later interventions.

A decline in the percentage of non-custodial sentences may also be due to the fact that, in 2014, 74.84 percent of indicted juveniles were migrants. Juveniles whose hukou, or household registration, is outside the place where they commit an offense are less likely to receive non-custodial sentences for myriad reasons. These include inability to offer compensation; monitoring organizations that refuse migrants; and difficulty finding guardians, which leads to lengthy detention periods bordering on excessive punishment.

In Zhejiang, a province outdone only by Guangdong in its number of migrant workers, juvenile offenders received non-custodial sentences in fewer than 25 percent of cases in both 2009 and 2014. In Liaoning Province, with a much smaller migrant population, nearly 55 percent of juvenile offenders received non-custodial sentences in 2009. The figure increased to 58.76 percent, almost 20 points above the national average, in 2014.

Another factor at play could be the concentration of violent offenses. In 2014, the most common offenses committed by juveniles across China were theft (29.3 percent), robbery (20.73 percent), intentional assault (15.57 percent), picking quarrels and provoking trouble (7.64 percent), and affray (7.35 percent). Drug offenses, rape, and forcible seizure also accounted for a relatively large number of crimes. Due to public safety concerns, people who commit violent crime are less likely to receive non-custodial sentences.

The SPP also announced that juvenile offenders are getting younger, with an uptick in offenses among 14- to 16-year-olds. The young age of juveniles in conflict with the law may have contributed to decisions not to approve arrests and indictments. It also underscores the growing importance of records sealing.

NGO Law Threatens Support for Reform

Dui Hua held an exchange on the topic with the Supreme People’s Court (SPC) and judges from 12 Chinese provinces and municipalities in October 2014. As it stands, the Chinese government appears to be closing the door on these kinds of exchanges, which have the potential to assist homegrown initiatives to improve rights protections for Chinese citizens. The amendments to the Criminal Procedure Law that went into effect in 2013 were the first revisions to that law in 16 years and were greatly facilitated by domestic and foreign non-governmental organizations (NGOs). Among these NGOs, Dui Hua held juvenile justice exchanges with the SPC in 2008, 2010, 2012, and 2014. Concepts proposed during the exchanges were incorporated into the amended law.

The impending passage of the foreign NGO management law now threatens to regulate exchanges like these into extinction, taking with them tangible benefits to the Chinese people. The draft law has also been criticized extensively for the large cost it could bring to domestic Chinese NGOs and China’s general populace. In its current form, the law offers little but a lose-lose situation for China and its achievements in human rights.

Tuesday, July 7, 2015

More People Say China Doesn’t Respect Human Rights: Global Poll

Hundreds of protesters march in Istanbul on July 5 against Beijing's policies towards the Muslim Uyghur minority. Source: AP
Chinese diplomats often assert that progress on human rights in China has been remarkable and is plain to see. The results of a recent survey by the Pew Research Center call this rosy assessment into question. In country after country, including China’s top trading partners, big majorities see human rights in China as bad and getting worse.

Since 2013, the year Xi Jinping assumed China’s presidency, the Pew Research Center’s Global Attitudes project has conducted a one-of-its-kind survey that asks whether the Chinese government respects the individual liberties of its people. Over the last three years, Pew has polled more than 120,000 individuals in 49 countries. People in 34 of these countries were surveyed in all three years of Xi’s presidency. Pew conducted the latest survey in 40 countries from May 25–27, 2015; the results were released on June 23.

"Does the government of China respect the personal freedoms of its people?" (Global median)

Sources: Pew Research Center, Dui Hua.

The survey finds a sharp deterioration in international opinion towards the Chinese government’s human rights record since the last survey of 43 countries in 2014. The poll poses the question: “Does the government of China respect the personal freedoms of its people?” In 2015, the global median responses for “Yes” and “No” showed an 11-point spread (34 percent “Yes” and 45 percent “No”), compared to a four-point spread in 2014 (36 percent “Yes” and 40 percent “No”). Of the 35 countries surveyed in both years, 23 registered an increase in the percentage of “No” responses, while 15 tallied an increase in the percentage of “Yes” responses. (Some countries showed increases in both the “Yes” and “No” results.)

Between 2014 and 2015, the median percentage of people who said that the Chinese government does not respect the personal freedoms of its people increased in every geographic area surveyed.

"Does the government of China respect the personal freedoms of its people?"
(Median percentage saying "No" by region, 2014-2015)

Sources: Pew Research Center, Dui Hua

Attitudes towards China’s human rights record are particularly bad in Western Europe, North America, Northeast Asia, and Australia. In France, 93 percent replied that the Chinese government does not respect the personal freedoms of its citizens. In Germany 92 percent held that view, as did 88 percent in Spain. In the United States, the percentage of those who say that China does not respect the personal freedoms of its people rose steadily to 84 percent in 2015, from 71 percent in 2013, and 78 percent in 2014. Responses in the United Kingdom show a similar trend.

In Italy, South Korea, Japan, and Australia, eight in ten or more of respondents in 2015 indicated that China lacks respect for personal freedoms.

One of the biggest shifts in opinion took place in Turkey, where the percentage of those who said that China does not respect the personal freedoms of its people rose to 58 percent in 2015 from 38 percent in 2014.

While opinions towards China’s human rights record in Latin America turned largely negative, the Pew survey found a staggering 31 percentage point increase in the percentage of Chileans—from 20 percent in 2014 to 51 percent in 2015—who said that China does respect its people’s personal freedoms. Other countries that registered double-digit improvements in perceptions of China’s human rights record were Pakistan (up 13 points), the Philippines (up 11 points), and Nigeria (up 13 points).

One is left to speculate on why there has been such a sharp deterioration in China’s human rights image overall. In some countries, especially those engaged in territorial disputes with China, geopolitical factors might be at play. Countries with large Christian populations may have been affected by reports of church demolitions. In Turkey, China’s suppression of the economic, social, and cultural rights of Uyghurs, a Turkic-speaking Muslim ethnic group of Xinjiang, has almost certainly played a role in the dramatic fall of China’s image. (Uyghur economist Ilham Tohti was sentenced to life in prison for splittism in September 2014, and protests over China’s treatment of Uyghurs erupted in Istanbul in early July 2015.) Countries that value the rule of law may have been repelled by the increase in the jailing and beating of lawyers and human rights defenders. Beijing’s refusal to show flexibility in its dealings with Hong Kong protesters over political reforms and the, at least initially, heavy-handed police response to the protests were widely reported. Foreign journalists in China, many of whom complain of their treatment at the hands of Chinese authorities, not surprisingly, focus on reporting negative stories.

On the other hand, the Chinese government’s effort to counter the country’s negative image has been feckless and episodic. Perhaps its biggest achievement in human rights in recent years is its sharp reduction in the number of executions. The government rarely highlights this feat, and when it does, omits specific figures, which it chooses to classify as state secrets.

Tuesday, June 23, 2015

China: Women Prisoner Numbers Rise 10 Times Faster than Men

Women exercise in the yard at Henan Women's Prison. Image credit:
The number of women in prison in China surpassed 100,000 in 2013, continuing a decade-long trend of population growth for women prisoners far exceeding that of men. Between 2003 and 2014, the number of women incarcerated in Chinese prisons soared 46 percent, 10 times faster than growth for the population of incarcerated men. By comparison, the number of women in US prisons grew 15 percent over the period, about one and a half times faster than the growth rate for men. As of mid-2014, 103,766 women were serving sentences in Chinese prisons.

If current trends continue, China will imprison more women than the United States, often cited as the world’s largest jailer, within five years. Over the past decade, the number of incarcerated women has increased an average of 3 percent per year in Chinese prisons, compared with 1 percent growth in American prisons. Accounting for more than 100,000 prisoners in each country, women make up 6.3 percent and 7 percent of total prisoner populations in China and the United States, respectively.

Number of Women in Prison in China and United States, 2003-2021*

Sources: Dui Hua; China Statistical Yearbook; Asian and Pacific Conference of Corrections Administrators (APCCA); Carson, E. Ann and Mulako-Wangota, Joseph. Bureau of Justice Statistics. Generated using the Corrections Statistical Analysis Tool (CSAT) - Prisoners at (03-Jun-15).

Notes: Chinese prisoner data is as of the beginning of the year except for 2013 and 2014 data, which is mid-year. To allow for comparison, US prisoner data for each year is year-end data for the previous year. *Data from 2015-2021 is projected using historical data.

Women in Prison in China and United States, 2003-2014
Year China United States
Number % of Prison Population Number % of Prison Population
2003 71,286 4.6 95,137 6.7
2004 75,870 4.9 98,332 6.8
2005 77,279 5.0 101,972 7.0
2006 77,771 5.0 104,797 7.0
2007 78,334 5.0 109,257 7.1
2008 80,951 5.1 111,544 7.1
2009 85,167 5.2 112,136 7.1
2010 90,322 5.5 111,071 7.0
2011 93,051 5.6 110,478 7.0
2012 95,770 5.8 109,037 6.9
2013 100,584 5.9 106,279 6.9
2014 103,766 6.3 109,020 7.0
Sources: Dui Hua; China Statistical Yearbook; APCCA; Carson, E. Ann and Mulako-Wangota, Joseph. Bureau of Justice Statistics. Generated using the Corrections Statistical Analysis Tool (CSAT) - Prisoners at (03-Jun-15).

The number of women in prison refers to the number of women reported to be serving custodial sentences in Chinese and American prisons. It does not include the number of women and girls held in Immigration and Customs Enforcement facilities, pre-trial detention, or juvenile facilities in the United States, or in detention centers, custody and education camps, legal education centers, mandatory drug treatment, or juvenile detention facilities in China. If all these data were included, the number of women and girls incarcerated in China would likely already exceed that of the United States.

Root Causes and Political Activism

Decisions to put women behind bars are made by prosecutors and courts, but women’s choices that lead to conflict with the law are often rooted in gender-based violence and poverty. A 2009 survey conducted by the All-China Women’s Federation indicates that domestic violence plays a role in more than half of crimes committed by Chinese women and that domestic violence causes 80 percent of the violent crimes they commit.

Demonstrating the importance of economic factors, drug- and property-related crimes were the most common offenses committed by women surveyed in five Chinese prisons and detention centers by researchers from Renmin University of China Law School in the summer of 2013. The researchers noted that the “vast majority” of women involved in drug crime, which includes possession, trafficking, and sheltering others to use drugs, is illiterate and relies on drug trafficking as its primary source of income. Property crime, which includes theft, fraud, illegal fundraising, and extortion, was most prevalent among low-wage earners in developed cities in eastern China.

Crackdowns on civil and political rights also contribute to an uptick in the number of women in prison. Women account for at least a quarter of people in custody who are listed in Dui Hua’s Political Prisoner Database. About 37 percent of prisoners of conscience involved in religious activities (including Falun Gong) are women, as are about 20 percent of petitioners.

China's Women Prisoners by Selected Crime Type

Source: Dui Hua; Cheng Lei, et al., “Research Report on the Treatment of Women Detainees in China.” Note: Percentages do not add up to 100, since researchers do not account for all crime types but focus instead on these five categories. There is also significant overlap between "non-violent" crime and all other listed crime types.


Perhaps not surprisingly, overcrowding is already a serious problem in women’s prisons in the United States and China. China has built six women’s prisons since 2003. Two of these were built after 2007, during the period when China experienced the most dramatic growth in its population of women prisoners. If China distributed women inmates evenly between its 36 women’s prisons, each would house 2,882 inmates, a figure 14 percent higher than for men incarcerated at China’s 614 men’s prisons. Some Chinese women’s prisons far exceed this average. Guangdong Women’s Prison, for example, opened in 2003 with a capacity of about 5,000 prisoners. That said, building prisons neither reduces the social and financial costs of incarceration nor addresses the root causes women’s conflict with the law.

Doing Women Justice: The Bangkok Rules

The large and growing population of women in prison in China, the United States, and worldwide makes attention to and implementation of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) all the more urgent. These rules provide a framework for improving conditions for women in prison by taking into account the fact that women in conflict with the law are more likely to have histories of abuse and different healthcare needs and child-rearing duties than men.

The Bangkok Rules also provide guidance on increasing the use of non-custodial measures to keep women out of prison in the first place. Since most women do not commit violent crimes or commit them in response to gender-based violence that was perpetrated against them, imprisonment is often disproportionate and unnecessary. It also carries with it the risk of further gender-based harassment and abuse.

Tuesday, June 9, 2015

Despite Legal Reform, SPC Still Blocks Lawyer-Client Access

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

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

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


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

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

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

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

Administrative Action or Judicial Process

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

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

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

Legal Argument

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

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

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

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

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

SPC Interpretation Remains Supreme

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

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

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

Tuesday, May 19, 2015

Quest for Retrial: Court Holds Novel Hearing on Nie Shubin Case

Nie Shubin. Image credit: Internet photo

For a decade, the name Nie Shubin has been synonymous with the problem of wrongful conviction in China. A court in Hebei executed Nie in 1995 for the rape and murder of a woman in a suburban cornfield. Ten years later, Wang Shujin, a man arrested in connection with three other rape-murders during the same period, confessed to the crime, referencing a number of specific details about the crime scene that were not publicly known. His confession attracted national attention, leading many to assume that Wang was the “true culprit” in the case and, consequently, that Nie's conviction was an injustice that must be remedied.

With 2015 well underway, the Chinese criminal justice system has yet to confirm either of those assumptions. Nie's family has been trying for years to get his conviction overturned, but they were stymied in their efforts by, among other things, their inability to obtain a copy of the original court verdict (until it mysteriously arrived by courier after two years of petitioning). Meanwhile, after a protracted and closely watched trial, in September 2013 the Hebei High People's Court upheld a lower court’s decision to sentence Wang Shujin to death for all of his confessed crimes except the offense that led to Nie’s execution.

The court cited insufficient evidence to corroborate Wang's confession, and many legal scholars praised the court for upholding the presumption of innocence. But the court's failure to convict Wang left Nie's guilt in limbo and forced observers to consider what the outcome of Nie Shubin's trial might have been had he been granted a similar presumption of innocence.

Now, two decades after Nie Shubin's life was ended with a bullet to the head, that opportunity might finally come to pass. Last December, the Supreme People's Court announced that it was assigning the Shandong High People's Court to review whether Nie's case should be reopened and a new trial held.

Normally, this would have led to an internal review of case files and written submissions from all parties to the case.

Instead, judicial authorities in Shandong took the completely unexpected step of announcing late last month that it would hold a kind of preliminary hearing. The procedure would allow both sides to present their positions in front of a five-person judicial panel responsible for the case and a 15-person panel selected to give their opinions on whether to reopen it.

As there is presently no law or regulation providing for such hearings, the Shandong court was entering uncharted terrain. According to Judge Zhu Yunsan, who presided over the judicial panel, a hearing would help the court to accentuate openness, fairness, and impartiality, as well as give both the petitioners and the public a sense that the case was being handled in a just manner. A hearing would also enable the court to increase the level of transparency surrounding the case and involve a degree of public participation in a highly controlled manner. All of this was a way of acknowledging that the considerable public attention surrounding the case demanded more than a routine review process.

It was made clear, however, that the hearing would not be about reassessing Nie Shubin's guilt or innocence. Instead, the matter under consideration would be simply to determine whether there were sufficient grounds to initiate retrial proceedings. This would mean meeting the standards set out in Article 242 of the Criminal Procedure Law, which include the existence of new evidence disproving facts confirmed in the original judgment that could affect conviction or sentencing, or the presence of procedural violations that could have had implications for the fairness of the trial.

It is unlikely that the Shandong High People's Court would initiate this hearing process without approval from the Supreme People's Court. Given that there seems to be a trend towards the use of hearings and other forms of expanded participation in recent criminal procedure reform, it even seems possible that preliminary hearings of this type might become a normal part of the process of reopening decided cases. (A similar hearings procedure has also been used as part of the process of determining whether to reopen civil trial proceedings.) If such hearings are to become more routine, judicial authorities may be hoping that the high profile of Nie Shubin’s case can help justify this particular reform, even in the absence of any provisional normative guidelines.

The Hearing

Evidence is presented to a 15-person panel during the hearing.
Image Credit: Shandong People's High Court

The hearing commenced at 1:30 p.m. on April 28 and was finally brought to a close shortly before midnight. The proceedings differed from a regular trial in that evidence presented was not subject to cross-examination and there was no debate between contending sides. In fact, the two sides made completely separate appearances. The judges and panel heard first from lawyers Li Shuting and Chen Guangwu, representing Nie's family. That was followed by a presentation from personnel representing the Hebei Public Security Department, Hebei People's Procuratorate, and Hebei High People's Court—all three of which had been responsible for handling Nie's case.

The role of the 15-person panel was to listen to the presentations, at the end of which they were permitted to ask questions and seek clarifications. The panel was made up of five academic experts, four delegates to China's legislative bodies, four “grassroots” representatives (including two representing women's organizations), and two members of the court's group of appointed external “supervision personnel.” All participants were required to be at least 45 years old and demonstrate “good character.” In the interest of objectivity, panel members must not have expressed any opinions on Nie's case in the past.

At the end of the hearing, panelists were asked to convey their opinions on anonymous forms that they placed into a sealed box. These opinions, together with the case files and the presentations made by the other participants in the hearing, would then form the basis for the court to make a decision, on a later date, about whether to initiate a retrial.

Citing concerns for the victim's privacy, the Shandong High People's Court did not open the hearing to the public, but rather provided live updates on the hearing through its microblog.

During the hearing, Nie Shubin's lawyers presented evidence of a number of substantive and procedural problems with the original trial. Among the most sensational of their allegations was the suggestion that Hebei judicial authorities may have falsified the date of Nie's execution. Court documents all claim that Nie was among a group of people executed by gunshot on April 27, 1995. However, Nie's lawyers pointed to a petition in the case file bearing Nie's signature that was dated May 13, 1995. Lawyers also raised questiones about photos taken to document the execution that appeared to show Nie and others wearing heavy winter clothing and snow on the ground—despite a recorded temperature of nearly 26˚C (79˚F) on April 27. These allegations were rebutted by a representative from the Hebei provincial court, who claimed that Nie had written the wrong date in his petition. He also denied that the photos showed anyone wearing winter clothing and claimed that the “snow” in the photos was actually sand from the dry riverbed where the executions were carried out.

Questions about the exact date of Nie Shubin's execution may seem like they have little to do with whether he received a fair trial. But Nie's lawyers pointed to a pattern of sloppy record-keeping, including many instances in which court officials apparently forged Nie Shubin's signature on legal documents. Court officials acknowledged these procedural irregularities during the hearing, explaining the forgeries by noting that defendants had sometimes used pens to assault court officials, injure themselves, or destroy documents. To prevent this, court officials would sign the documents on behalf of the defendant, who would then confirm the process by applying his fingerprint. Though this practice did not follow the letter of the law, court officials insisted that these procedural irregularities did not rise to the level of error that would justify a retrial.

Another major point of controversy was whether Nie Shubin's confession of guilt had been extracted through torture. Lawyers noted that Nie's first documented statement to police was not given until the fifth day after he was taken into custody. Prior to that point, Nie had been held under dubiously lawful “residential surveillance” at the local police station. Lawyers raised questions about what may have transpired during this four-day period and presented a statement from a Hebei prison inmate surnamed Ji who had been held in the same detention center as Nie and claimed that Nie had told him he had been tortured.

The Hebei prosecutor attending the hearing reported that the authorities had already investigated the torture claim in 2005 and were able to find no evidence. Moreover, he noted that detention center records showed that Ji and Nie were not housed in the same cell and could not have had the close contact and opportunity for communication claimed by Ji. Furthermore, they questioned Ji's reliability by noting that he had been imprisoned several times for fraud.

Doubts about Nie's confession are extremely significant, because, aside from that confession, there is no other evidence linking Nie directly to the crime. All the other evidence in the case serves to corroborate statements made in the confession, so if that confession can be called into doubt, the prosecution's case would weaken substantially. Moreover, the presence of Wang Shujin's later confession puts the questionable circumstances surrounding Nie's confession in a new light and may be considered the “new evidence” necessary to secure a new trial.

Wang Shujin stands trial in 2013. Image Credit: CCTV

Even if the possibility of a coerced confession and Wang Shujin’s confession were both set aside, there would still remain at least one key argument for retrying Nie’s case. Because the police medical examiner did not even try to recover traces of sperm from the victim’s body, the only evidence used to convict Nie on the charge of rape was his confession—a clear violation of the Criminal Procedure Law. Several legal experts—including Professor Hong Daode of China University of Political Science and Law, who was one of the panel members in the Shandong hearing—have pointed to this fact as an irrefutable basis for re-opening the case.

Official media coverage of the hearing has been largely supportive of the Shandong high court's “innovative” efforts to increase transparency in this contentious and controversial case, and legal scholars have generally expressed praise. That said, the ad-hoc nature of the hearing procedure has concerned some observers. Some wonder whether it was fair to have the Hebei authorities present their case to the panel last, rather than allowing lawyers for Nie's family to have the final word. Professor He Jiahong of Renmin University was among those who called on the court to make the panelists opinions—though not their identities—public, so that the public might see how the court's later ruling made use of this new body's input.

Now that so much of the evidence in the case has been subjected to such intense and public scrutiny, it seems almost inevitable that the Shandong court will agree to a retrial. But what then? If a new trial proceeds based on the present evidence and a new presumption of Nie's innocence, then it is quite possible that the court will be unable to convict him for the crimes for which he has already been put to death. That wouldn't necessarily be the same thing as finding him innocent, however. Despite confessions by two separate “culprits,” it's possible that this case ends with neither Nie Shubin nor Wang Shujin being found guilty. Though that outcome may not satisfy those in China who have come to assume Nie's innocence and Wang's guilt, it may be the kind of result necessary if the Chinese criminal justice system is to make real progress toward preventing miscarriages of justice in the future.