31 August 2011

Lawyers Express Criticism of Criminal Procedure Law Revision Draft

Yesterday, the controversial draft revision of China's Criminal Procedure Law (CPL) was finally published on the National People's Congress. As usual, Forgotten Archipelagoes has provided a set of useful links to relevant documents, including a chart comparing the current and proposed texts side by side.

My last post on the subject of the draft's troubling "residential surveillance" provisions seems to have sparked a strong protest. Outside China the issue has been covered widely by the international media (a recent example from Reuters), while, after a short delay, the issue is now being discussed on microblogs and BBSes inside China as well.

Since the publication of the text yesterday afternoon, a number of commentators have given critical assessments. The general feeling is, as one lawyer put it, "The bright spots are all very theoretical, while the regressions are all very concrete." For example, Zhang Peihong, a criminal defense lawyer perhaps best known for representing Stern Hu during the Rio Tinto trial, published the following 18 points on his Weibo account.

The NPC has given the public until the end of September to comment on the CPL revision draft. It will be worth watching whether and how public criticism of some of the draft's provisions has an impact on the legislation.

1. Considering that it's taken 14 years to revise and that it won't be revised again for another long while, you'll have to forgive me for my disappointment after having read the entire CPL draft revision. Around 2000 or so, I recall seeing the first draft containing opinions and recommendations from a group of scholars (running to about 600-700 articles). Honestly, this current draft doesn't measure up to what came out a decade ago, either in terms of its concepts or its measures.

2. Its normal for legislation to get tangled up in trying to balance "protection of society" with "safeguarding human rights," but it's an undeniable fact that China's CPL over-emphasizes "protection of society" while ignoring—even infringing on—"human rights." In the face of this grim situation, the draft offers no answer as it elaborates on the "mandate and basic principles" of the criminal procedure law.

3. For a long time, there has been an abnormal system that has never been fixed—namely, the procuratorate's so-called "power of legal oversight" over the courts. In a trial between prosecution and defense, the procuratorate is one of the competitors—how can they then also act as a check on the referee during the contest? This pernicious influence from the former Soviet Union seriously influences the court's independence. Unfortunately, the draft retains this.

4. I also want to say something about the system of the court of second instance issuing the final verdict. In truth, even considering the workload and pressure already facing the judicial system, we should change to a three-stage trial system. In light of present realities, we can set up an independent hearing procedure prior to the third trial stage to consider whether or not the case needs to be heard. This would help to reduce the amount of litigation-related petitioning and protect the legal rights of defendants. Unfortunately, the draft makes no mention of this.

5. A bright spot is that lawyers have been clearly granted the role of "defense counsel" during the investigative stage. But when you look closely at the draft, you find that what defense counsel is able to do [at that stage] is not much more than "lawyers providing legal assistance" have been allowed to do up to now. In other words, the significance of this change lies merely in the change of phrase from "lawyer" to "defense counsel." This so-called bright spot just got darker.

6. On the issue of meetings [between lawyers and suspects], the CPL draft incorporates some provisions from the new Lawyers Law, meaning that in the majority of cases lawyers can expect to arrange meetings within 48 hours [of detention]. But in the second part of the same article [i.e., Article 37 of the draft], it also says that in major criminal cases involving more than one suspect, like corruption, permission must still be sought from the investigating organ. I ask you: What corruption case isn't "major"? What corruption case doesn't involve more than one suspect? This is truly a setback.

7. It's never been made clear whether the defense counsel's responsibility is to prove [innocence] or to rebut [the prosecution's charges]. Since the new Lawyers Law eliminated the word "prove" from the provision describing the responsibility of defense lawyers, this revision does the same for the CPL [in Article 35]. But it's still not clear whether this means that the defense counsel's responsibility is to rebut the charges and not to prove innocence, because of a tautological error in the original text.

8. As expected, there's no provision giving criminal suspects and defendants a "right to remain silent" during the criminal proceedings. Therefore, it's hard to expect much from the new provisions about "no person may be compelled to incriminate himself" [Article 49] or "evidence obtained illegally should be excluded" [Article 53]. In particular, the prosecution can simply switch personnel to "resolve" the problem of illegal evidence. In fact, this is the same as no exclusion of illegal evidence. That's no good!

9. Release on guarantee pending further investigation should be the standard practice in the majority of cases. Pretrial incarceration should be used with great caution. We've always done the opposite, and to cover up our mistakes we sentence the innocent to suspended sentences. This results in many murky cases. Looking at the draft, it seems the legislative organ isn't interested in changing this situation. Otherwise, all they'd have to do is change Article 64's "may" [release on guarantee] to "shall" [release on guarantee].

10. Residential surveillance, in my experience, has basically become a synonym for disguised detention. Many suspects would rather be arrested and sent to detention centers, rather than sleep with police investigators or even military police. The draft further intensifies the original provisions, in effect legalizing past mistakes. Already this year we've seen the harm caused by this provision in a number of individual cases. Put simply: it's extremely terrifying.

11. There's a very irrational change in the area of time limits. An earlier judicial interpretation says that "if the last day of the period is a holiday, the time limit will expire on the first day after the holiday." Now [the draft] says [in Article 101(4)] that detainees do not get an extension because of holidays. The problem is that if a verdict is handed down before the holiday and the time limit expires during the holiday but the lawyer has no way to meet [with the defendant] because of the holiday, how can you prepare an appeal? This provision betrays ulterior motives!

12. Investigators are all laughing at the extension of the period of criminal summons from 12 hours to 24 hours [in Article 106(2)]. As everyone knows, the first 24 hours undergoing investigation are tough on a criminal suspect. Given people's physiological cycles, this provision can be seen as an endorsement of disguised torture.

13. Let's now look at the problem of Article 117's provision concerning "shall truthfully answer" investigators' questions. "Truthfully answer" means one must speak in a way that is "not contrary to the facts." If a criminal suspect is guilty, then clearly to answer truthfully would be "self-incrimination." So then how are we supposed to understand Article 49's provision concerning "no person may be compelled to incriminate himself"?

14. Whether you accept it or not, technical and secret investigations have always existed—from ancient times to the present, in foreign countries and here in China. The problem is what sort of restrictions to place on [these investigations]. If you say [in Article 150] that a county-level public security official can authorize wiretaps and secret surveillance, that's too frightening! I think that only the provincial-level public security organ or the county-level people's congress standing committee should be able to authorize such measures.

15. [Requiring] witnesses and police to testify in court is a bright spot. But the provisions [in Article 186] aren't clear enough. For example: "People's police officers should testify in court as a witness about criminal activity witnessed in the course of carrying out their duties, in accordance with the above provision." Well, what if he carried out torture? Should he appear in court to face cross-examination? The draft is so considerate!

16. No longer can there be an endless cycle of appeal and remand for retrial. The CPL revision draft states [in Article 224(2)] that the court of second instance must issue a decision [on an appeal of a case that has already been sent back once for retrial]. This is a small improvement. At least we won't see any more poor bastards sentenced to death four times for the same case, each time having the case sent back for retrial.

17. I'm cautiously optimistic about the draft's first-ever mention of "settlement agreements between the parties" [in Articles 274-276]. I have reservations, though, about whether it's necessary to include this process in the criminal procedure law.

18. Looking at the CPL draft overall, the public security system has turned the tables on their attackers and scored a big victory. The procuratorate has held their ground, particularly since some of extremely unreasonable provisions haven't been eliminated -- so they've held steady. As for the courts, well when it's come to this point, anything's okay with them. But lawyers? What happened to the lawyers?

26 August 2011

China Set to "Legalize" Enforced Disappearance?

On her Forgotten Archipelagoes blog, Flora Sapio has compiled a most useful summary of some of the proposed revisions currently being considered for China's Criminal Procedure Law. Since the text of the draft itself has not been made public, our understanding of what might be included must be based on various media reports, for which Flora helpfully provides many links.

One of those links in particular caught my eye. According to this article on the Legal Daily website, the draft legislation includes a new exception to the provision on residential surveillance that would allow police to detain suspects in a "designated residence" other than their home in state security, terrorism, or major corruption cases "where carrying out residential surveillance in the home may impede the investigation." Such a decision would need to be approved by the procuratorate or public security organ at a higher level. And, again, in state security and terrorism cases, the police would not be required to provide notification to the suspect's family "if such notification would impede the investigation."

Based solely on what has been written here, this is a rather shocking development. It means that, for example, individuals suspected of "inciting subversion," can be taken into custody by police and held in a designated location (as long as it's not a place of detention) for up to six months without any need to notify anyone of their whereabouts or the charges against them. All on the pretext of "impeding the investigation," a vague criterion that police investigating these types of cases should have little difficulty convincing their superiors of.

Readers of this blog (among others) will recognize that were this to become law, it would essentially give legal cover to the sort of enforced disappearance that befell Liu Xiaobo, Ai Weiwei, Liu Shihui, and others. Rather than closing the loopholes that police have been using to engage in this sort of activity, China's legislators seem set to legitimize it.

It's ironic, given that "residential surveillance" is actually intended to be the least restrictive coercive measure available to police investigators. Indeed, the article above concludes with experts saying that the proposed revisions concerning residential surveillance (which include other, more sensible changes) represent an effort to safeguard citizens' individual rights.

If you're accused of one of China's many vague state security offenses, though, your rights apparently mean little compared to the interest of the state.

22 August 2011

"I've Only Begun to Scratch the Surface": Liu Shihui Reveals Details of 108-Day Detention

Chinese lawyer Liu Shihui was one of the first casualties of the crackdown on activists and rights defenders that began intensifying last February. Brutally beaten by unidentified assailants as he attempted to take photos of planned street protests in Guangzhou on 20 February, Liu subsequently joined the ranks of the "disappeared," spirited off by police for 108 days of incommunicado detention on charges of "inciting subversion."

I once met Liu briefly, and I followed his posts on Twitter. The connection to Liu and several of the the other victims of this year's crackdown made its injustice all the more personal and palpable to me.

Six months after he was first attacked, Liu has returned to Twitter to reveal details of his ordeal. I've done a rough translation of most of those tweets, which were sent out over a 3-1/2-hour period last night.

Hello to all the friends who follow me! Because of the "flower affair" I was imprisoned under so-called "residential surveillance" for 108 days from 25 February to 12 June on charges of "inciting subversion of state power." On 12 June, this was switched to "release on guarantee pending further investigation" (without time limit), and I was sent back to my hometown in Inner Mongolia. (ZH)

At 2 a.m. on 25 February, police busted down the door, leaving the steel outer door twisted like a pretzel. They searched my house, turning everything in the room upside down, and took away my computer, books, discs, case files, copies of poems about June Fourth, USB drives, an MP5 player, my mobile phone, and a stock-market tracker. (ZH)

My newlywed Vietnamese wife and I were both taken into custody. If we hadn't been stuck in Guangzhou waiting for the Vietnamese consulate to notarize a document, we would have already gone to my hometown in Inner Mongolia to register the marriage. (ZH)

At the time [of the detention], I repeatedly explained that my wife was a foreigner who didn't understand Chinese and asked [police] not to give her any trouble. If they insisted on taking her, I asked that they produce the relevant procedural documents. But without following any of the relevant procedure, this young foreign woman who had no idea what I had done was taken away on the pretext of a "criminal summons." She was then illegally detained for 17 days before being sent back to Vietnam. (ZH)

On the evening of 25 February, the Guangzhou police informed me that they were placing me under "residential surveillance" on charges of "incitement." (ZH)

I was interrogated day and night for five days straight without sleep. Only after I finally collapsed on the bed and a doctor checked my blood pressure did they finally allow me to sleep. At that point I could barely take off my pants, as my injured left leg had swollen to double its original size. (ZH)

The five days without sleep, the incessant air-con, the abusive threats -- all of these tortures are nothing compared to having my wife and home taken from me. (ZH)

I realize that I face some danger from revealing the truth [about my ordeal] and that being kept under tight control. But if one is forced even to be suffer the insult of having one's newlywed wife stolen from him, it can only lead to more like Yang Jia! I don't want to become a Yang Jia, so I'm speaking out. If the security police get upset about this, I'd ask them to think it over -- what would you be thinking if it happened to you? (ZH)

The security police fabricated a lie when they sent my wife back [to Vietnam]: they said that someone had accused me of defrauding them of some money and implied that I was a swindler and a scoundrel. (The security police later told me about this.) I'll never forgive them for destroying our newlywed bliss. What angers me the most is that my new wife never even knew why I'd been arrested and left China with this misunderstanding. (ZH)

The security police showed me video of my Vietnamese wife being sent back. When I heard the interpreter reading the letter I had written to her (in which I was absolutely forbidden from discussing the case), I suddenly began sobbing uncontrollably. (ZH)

Other than the questioning, the only other thing I could do is pace around and around. In 108 days of detention, I walked the 5,000 miles from Guangzhou to Beijing. (ZH)

My Vietnamese wife was held by them for 17 days. I have no clue what happened to her during the time she was in their hands. (ZH)

When I was released, I had lost seven or eight pounds. Perhaps someone like Ai Weiwei can take comfort in this free weight-loss regime, but for a skinny guy like me it was like a disaster had befallen me. Now I have all sorts of illnesses. I can only sleep four or five hours a day, and I can't get back to sleep after waking at two or three in the morning. (ZH)

Besides my wife and my house, they also seized property rights worth more than 300,000 yuan earned as a lawyer. Forced to leave Guangzhou, these rights are as good as gone. (ZH)

If I don't even dare reveal the humiliation of having my newlywed wife stolen from me, then God wasted his time making me a human! Haven't I been "released pending further investigation"? Whatever they do to me, it'll still be the same lousy fate! (ZH)

Beginning on the evening of 20 February -- when I went into the provincial hospital after having been beaten -- I was unable to cancel my mobile account. When I was released, I though I'd be able to continue using it. So I called China Mobile, but they said there were orders from above and there was no way. I still had about 150 yuan of airtime on account! (ZH)

I feel better to talk about this a little. Otherwise, I'd explode! (ZH)

After 10 p.m. on 11 June, the security police suddenly announced I'd be on a flight early the next morning. They also gave me back my computer. Up to that point I repeatedly emphasized to them that any personal or professional data unrelated to the case must be returned to me, and the security police officer in charge agreed. But after I got to Inner Mongolia and turned on my computer, I found that it was empty and my HP hard disk had been switched out. (ZH)

There were 50-60 GB of personal and professional data, the product of more than 10 years of my legal career and personal life. Others might not see this as being worth much, but it's priceless to me, at least! Now it's all gone, leaving not even a trace! (ZH)

When I discovered my data was missing, I tried calling the number that I'd been given by the security police, but the phone was always switched off. I also tried calling a number they had left with my father, but the phone refused to pick up so I sent text messages. I never imagined I'd receive eight different junk messages in response, each of them costing me one yuan for a total of eight yuan. (ZH)

Think about it: who in China has the ability to transfer personal text messages to those junk-message sites without any consequences? The answer is clear. (ZH)

Some Twitter followers say that I'm revealing everything. On the contrary -- I've only begun to scratch the surface! I'll stop here for now. (ZH)

18 August 2011

Translation: "What is This Thing Called 'Street Crime'?"

I'm easing back into this blogging thing, so no extensive commentary to accompany my translation of an opinion that first appeared in the 16 August edition of the Beijing Evening News under the name Zhen Yan (which, incidentally, sounds exactly like "the truth" in Chinese). Since then, it's been republished widely newspapers and website around the country.

I'm no media critic, so I'll just say that I'm hopeful that its appearance on the opinion page of the normally liberal Beijing News indicates that at least some of the reprinting is being done on direction from above.

But you never know.

How is There Such an Offense as "Street Crime"?
Zhen Yan
Beijing Evening News
16 August 2011

In early August, social unrest broke out in London and several other English cities. The British government mobilized thousands of police to suppress [the riots], and more than 2,000 “criminals” were arrested. British Prime Minister Cameron announced “zero tolerance for street crime” and appointed Bill Bratton, an American expert in fighting “street crime,” as a consultant for British police responding to urban street-gang culture and large-scale rioting.

This kind of news leaves people confused. What sort of crime is “street crime”? What sort of culture is street-gang culture? It seems this only exists in Western countries’ definition of crime and, when the same type of thing occurs in other countries, Western governments and media don’t seem to talk about this kind of offense. Rather, they glorify it as “democracy movement” or “anti-tyranny,” something with absolutely no relation to criminality. Dressed up as “democracy” or “human rights,” it then becomes an excuse for Western governments and media to pressure other countries.

This is a strange way of judging the difference between right and wrong. Whenever social unrest or incidents occur in developed Western countries, they are called extremism or violent behavior. But when the same incidents happen in non-Western countries—especially China—a completely different judgment is reached, with talk of human rights violations and suppression of “peaceful protest.” The 14 March [2008] incident in Lhasa and the 5 July [2009] incident in Urumchi were unquestionably violent crimes that caused ordinary citizens to incur serious death, injury, and property damage. But Western governments and media incredibly stood on the side of the rioters, criticizing the Chinese government for upholding social order and lecturing [China] while wearing the guise of a human rights defender. Is Cameron’s “zero tolerance” applicable only to England, or is it “universal”?

Most incomprehensible and illogical is that whenever hideous incidents occur in Western countries like England, the United States, or Norway, they are treated as random and apolitical or else isolated individual cases. Even when riots break out in several British cities, they cannot be called political rioting. But in other countries, even incidents involving individuals get inflated into problems with the political structure. And it’s not only Western media and governments who repeatedly say these things. Following their lead, some media in China have begun to parrot these things and chime in with their own excuses, becoming wholesale mouthpieces of Western government and media and losing their fundamental value judgment and standard of right and wrong. Have they forgotten the ugly performance by Western governments and media at the time of the olympic torch relay processions in London and Paris? Or the farce of the Norwegian Nobel Peace Prize? The standpoint of Chinese media should be firm, clear, and uniform. This is seeking truth from facts and reflecting the desires of the entire Chinese people.

Each can draw his or her own conclusions about what’s right and wrong. The world is complex and there are differences between cultures and national circumstances. But there should be a common standard for judging right and wrong. “Don’t do to others what you would not have them do to you.” If you, yourself, consider it to be a crime but insist on packaging it as “justice” to attack others, you’ll just wind up shooting yourself in the foot. Why don’t you talk in “universality” now? You use one standard for others, and another for yourselves. It seems that “universality” is nothing more than a fraud, the emperor’s new clothes. With control of the world’s resources and opinion, Western countries have sailed along for several hundred years. But now they’ve encountered hard times and keep making fools of themselves. The “superior political system” that Americans always boast of is now shown to be full of defects and has become the biggest obstacle to the ability of the United States to weather the [economic] crisis. Europe is deep in the mire of debt and has lost control over social order. Without reform, there is no solution. History and practicality tell us that the road is ours to choose. History and the facts will judge whether or not the path is correct. Today, the Chinese people have the confidence to take their own road. Faced with the current fluctuations in the world, we must be even more resolute.