10 May 2011

What's So Magic About 37 Days? (Or: "The Law Will Not Protect You")

It's been 37 days since Ai Weiwei was taken away by police in Beijing. Because China's Criminal Procedure Law sets a maximum deadline of 37 days on initial criminal detention before a decision on formal arrest must be issued by the procuratorate, many think that some sort of movement in Ai's case is likely to happen today. Given the recent willingness of police in Beijing and elsewhere in China to ignore legal procedure when it suits them, I'm less optimistic.

I think the analysis posted earlier on Twitter by Liu Xiaoyuan, a Beijing-based rights lawyer and prolific blogger, is generally right on the money, so I've translated his comments below:

Today is the 37th day since Ai Weiwei was taken away by police. If, on the day he was taken away, the police issued a decision to place him under criminal detention, then the criminal detention period expires today. Since his freedom has not yet been restored, it's possible that he has been [formally] arrested or else transferred to "residential surveillance." But even if he has been arrested, the police can use the excuse of "hindering the investigation" and not notify his family [of his status].

Another possibility is that after Ai Weiwei was taken away, he was placed under residential surveillance. According to the law, as long as a criminal suspect has a legal residence in the location where the case is being handled, [residential surveillance] should be carried out in that legal residence. But in law enforcement practice, we cannot exclude [the possibility] that [residential surveillance] has not been carried out in accordance with the relevant regulations. Even if the residential surveillance is being carried out in a designated location, according to the provisions of the law his family and lawyer should be able to see him. But the problem is that there is no way to be certain that he has been placed under residential surveillance.

The third possibility is that he is in a "gray area" outside the provisions of the law. If this is the case, the 37-day deadline is irrelevant. If, after being taken away, criminal detention has never been imposed, there is naturally no question of arrest. Of course, when a person has been taken away for this long without criminal detention, arrest, or residential surveillance, this is not in accordance with legal procedures. In my analysis, Ai's situation will unlikely remain unclear until the report on his tax account has been completed.

As Ai Weiwei's friend and as a lawyer, I hope that his case can be clarified and begin following normal legal procedures as soon as possible.

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