Thursday, November 16, 2017

Five Years and Counting

Guangdong Jiangmen Detention Center. It is divided into 79 cells and the buildings form a large enclosed space in the middle. In 2013, the facility held about 1,600 detainees. One of them was Mark Swidan. Image:

A troubling feature of China's criminal justice system is that a judgment in a criminal trial can be postponed indefinitely after the trial concludes. American citizen Mark Swidan was formally detained on drug charges on November 14, 2012. He was tried in 2013 by the Guangdong Jiangmen Intermediate People's Court. The court has yet to announce its judgment; the Supreme People's Court in Beijing has extended the deadline for the court to render a judgment at least a dozen times. The most recent extension was granted on October 14, 2017. This extension, as with the others, is for three months. A judgment must be announced or another extension must be applied for by January 14, 2018. January 14 is Mark Swidan's birthday.

In the meantime, Mark Swidan remains held in the Jiangmen Detention Center run by the Jiangmen Public Security Bureau. He receives monthly visits from an officer at the American Consulate in Guangzhou.

Mark Swidan in happier days. With mother, Katherine, in Houston, 1991. Image credit: Katherine Swidan

Mark Swidan was taken into custody during a police raid on his hotel room on November 12, 2012. He was on a business trip. Two individuals – an interpreter and a driver – had come to his room. Police reportedly found drugs on their persons. No drugs were found on Mr. Swidan or in his room. Drugs were found in the room of another suspect. No forensic evidence has been produced – no drugs in his system, no DNA on the packages, no fingerprints on the packages or drug paraphernalia – tying Mr. Swidan to the drugs. No emails, letters, or phone calls have been found that link Mr. Swidan to any drug transaction. The indictment states that Mr. Swidan played a secondary role in the alleged crime. Prosecutors recommended a lesser sentence. Mr. Swidan has no history of criminal behavior, including using or trafficking in drugs.

The alleged crime involved 11 people, including, in addition to American citizen Mark Swidan, four Mexicans, one Canadian, one Hong Kong resident, and four Chinese citizens. It is believed that some of defendants have pointed the finger at Mr. Swidan, who comes from a Texas family of limited means. He is unable to hire good legal counsel. Mr. Swidan refuses to admit guilt. He is said to rather die than admit to a crime he didn't commit.

Reports given to the family over the years suggest that Mr. Swidan has suffered during his five years in the detention center. He has had his art supplies seized. He has been shackled, bullied, and denied medical treatment. His mother is often unable to have her letters delivered. He has threatened suicide. Detention centers are often accused of being carceral facilities where torture is common place.

According to a human rights officer working for the United Nations in Geneva, the way Mr. Swidan's case has been handled is a "cut and dry case of arbitrary detention." In perhaps the best known case of someone determined by the Working Group on Arbitrary Detention to have been arbitrarily detained in part because of a long delay in announcing a verdict, the WGAD found that the failure to announce a verdict in the case of American journalist Jason Rezaian, detained in Iran in 2014 and tried in the summer of 2015, was a violation of Article 14 of the International Covenant on Civil and Political Rights.

It is not unheard of for Chinese defendants to have their judgments delayed for a period of several months. Prominent dissidents like Gao Yu, Guo Feixiong, and Pu Zhiqiang all had their judgments delayed for many months. But holding a foreigner for five years without adjudication is unheard of. No Chinese official has given an explanation for this interminable delay, merely stating that the case is "complicated."

Article 202 of China's Criminal Procedure Law (CPL) states that a people's court should announce judgment within two months of the completion of the trial, and no more than three months can pass without a judgment being announced. If the crime can result in a death sentence or if there are complicating factors, then the higher court can extend the time for rendering a judgment by three months. "If there are special circumstances requiring additional extensions, the court must apply to the Supreme People's Court for approval." There is no statutory limit for the number of times a judgment can be extended.

Complicating factors leading to an extension of the judgment include 1) if the offense involves both criminal and civil penalties (Article 202); 2) if the case is an important or complicated one in rural areas with inconvenient transportation; 3) if the case involves large criminal organizations; 4) if it is an important case involving crimes committed in multiple locations; and 5) if collecting evidence is difficult (2-5 are covered by Article 156.) In short, there are many reasons why a Chinese court can extend a judgment for as long as it wants, and there are no means to force a decision.

"Justice delayed is justice denied" is a legal maxim, widely ascribed to the British jurist William Gladstone, that is the basis of a fundamental due process right, the right to a speedy trial and judgment. Another legal maxim is that a suspect is innocent until proven guilty. In the eyes of the law, Mark Swidan is an innocent man.

Justice has been denied to Mark Swidan and he and his family have suffered greatly. But China's reputation as a country that respects the letter and spirit of law and protects fundamental rights has also suffered. The Jiangmen Court needs to announce its judgment, a judgment which will hopefully result in Mark Swidan going home without further delay.