16 June 2014

Lawyers Call for Rule Change after Police Refuse Meeting with Detainees on "State Security" Grounds

Original text here. For background, see here and here.

121 Legal Professionals Sign Citizen Petition Calling on State Council to Revise Article 374 of the Procedural Regulations for the Handling of Criminal Cases by Public Security Organs

15 June 2014

To: State Council of the People’s Republic of China

We are practicing lawyers and legal professionals in the People’s Republic of China. Recently, lawyers acting as defense counsel in a case in Zhengzhou, Henan, involving individuals suspected of gathering a crowd to disrupt order in a public place were illegally deprived of their right to meet [with clients] by the Zhengzhou No. 3 Detention Center and the Zhengzhou Public Security Bureau (PSB). The basis upon which the Zhengzhou PSB deprived these lawyers of their legitimate right to meet with clients was Article 374 of the Procedural Regulations for the Handling of Criminal Cases by Public Security Organs (MPS Decree No. 127, hereafter “Regulations”). After serious study and comparison between the Regulations and the Criminal Procedure Law (CPL), we believe that Article 374 of the Regulations is prone to ambiguity and makes an expanded interpretation of Article 37(3) of the CPL.

The details are as follows:

The Zhengzhou PSB placed Henan lawyers Chang Boyang 常伯阳 and Ji Laisong 姬来松 under criminal detention along with reporter Shi Ping 施平 [a.k.a. Shi Yu 施玉] on suspicion of gathering a crowd to disrupt order in a public place. After being appointed by their relatives, defense lawyers presented their lawyer’s licenses, visit applications, and letters of appointment to the Zhengzhou No. 3 Detention Center and requested to meet their respective clients. However, the detention center refused to arrange meetings, stating that it had received written instructions from the investigating organ that the latter must give prior approval before any meetings between defense lawyers and suspects in this case. The defense lawyers pointed out that it was illegal to refuse to arrange meetings because the offense alleged in this case was an ordinary crime not covered under the provisions of Article 37(3) of the CPL concerning need for prior approval for meetings.

With the detention center turning a deaf ear, the defense lawyers had no choice but to intervene with the Zhengzhou PSB. Deputy Chief Zhong Zhicai 钟志才 of the Zhengzhou PSB replied: “Even though the offense in this case is ordinary, the case involves matters of endangering state security and meetings with lawyers require approval in accordance with the law.” The defense lawyers pointed out that there was no legal basis for this and that it was a violation of the CPL. Deputy Chief Zhong said that they were implementing Article 374 of the Regulations, which states that “crimes of endangering state security” included both the state security offenses in Chapter I of the enumerated offenses of the Criminal Law and other offenses that endanger state security, and that the situation of Chang Boyang and Ji Laisong falls under the category of “other crimes that endanger state security.”

We believe that the Zhengzhou PSB’s reading of the Regulations is in error. But even setting aside the matter of whether or not their reading is correct, we believe the Regulations themselves are prone to ambiguity. The Regulations are internal rules enacted by the MPS in order to implement the CPL. According to the Legislation Law, they may not expansively interpret the provisions of superior law. According to Article 37(3) of the CPL, “In cases involving crimes of endangering state security, terrorist activity, or especially serious bribery, defense lawyers wishing to meet with suspects who are in custody during the preliminary investigation stage shall first receive approval from the investigating organ.” Here “ESS offenses” is clearly meant to be specific; in other words, “Crimes of Endangering State Security” in Chapter I of the enumerated offenses of the Criminal Law. There is nothing about “and other crimes that endanger state security.” The MPS Regulations are obviously an expanded interpretation of Article 37(3) of the CPL.

If no change is made to Article 374 of the Regulations, local investigators can arbitrarily deprive defense lawyers of their right to meet with clients in any ordinary case on the grounds that the case “involves matters that endanger state security.” This indirectly deprives suspects of their procedural rights, which will undoubtedly lead to violations of procedural justice—the importance of which it should be unnecessary to discuss in greater detail.

Therefore, in order to ensure the unity between human rights and the Chinese legal system, Article 374 of the Regulations should be revised in accordance with the law.

Therefore, we request that the State Council use its official powers to revise Article 374 of the Procedural Regulations for the Handling of Criminal Cases by Public Security Organs (MPS Decree No. 127).

N.B.: A copy of this recommendation letter will be sent to the National People’s Congress Standing Committee, calling on it to carry out its oversight of the “exercise of official duties by the State Council. We welcome lawyer colleagues to sign and defend the right of lawyers to meet with clients.

Signed,

Liu Shuqing 刘书庆 (Shandong, lawyer)
Lin Qilei 蔺其磊 (Beijing, lawyer)
Zhang Junjie 张俊杰 (Henan, lawyer)
Fu Yonggang 付永刚 (Shandong, lawyer)
Jiang Yuanmin 蒋援民 (Guangdong, lawyer)
Qin Yongpei 覃永沛 (Guangxi, lawyer)
Jiang Tianyong 江天勇 (Beijing, lawyer)
Zhang Zhongshi 张重实 (Hunan, lawyer)
Li Ruyu 李如玉 (Jiangsu, law Ph.D.)
Pang Kun 庞琨 (Guangdong, lawyer)
Feng Yanqiang 冯延强 (Shandong, lawyer)
Shi Yongsheng 石永胜 (Hebei, lawyer)
Chen Jian’gang 陈建刚 (Beijing, lawyer)
Liang Xiaojun 梁小军 (Beijing, lawyer)
Liu Weiguo 刘卫国 (Shandong, lawyer)
Tang Jitian 唐吉田 (Beijing, lawyer)
Yue Jinfu 岳金福 (Shandong, lawyer)
Wu Kuiming 吴魁明 (Guangdong, lawyer)
Ge Wenxiu 葛文秀 (Guangdong, lawyer)
Liu Sixin 刘四新 (Beijing, lawyer)
Wen Yu 闻宇 (Guangdong, lawyer)
Li Dawei 李大伟 (Gansu, legal professional)
Zhang Lei 张磊 (Beijing, lawyer)
Chen Shuqing 陈树庆 (Zhejiang, lawyer)
Teng Biao 滕彪 (Beijing, lawyer)
Cheng Weishan 程为善 (Jiangsu, lawyer)
Chen Jinxue 陈进学 (Guangdong, lawyer)
Lan Zhixue 兰志学 (Beijing, lawyer)
Sui Muqing 隋牧青 (Guangdong, lawyer)
Jiang Yongji 蒋永继 (Gansu, lawyer)
Deng Wei 邓巍 (Shandong, lawyer)
Xu Guijuan 许桂娟 (Shandong, lawyer)
Situ Yiping 司徒一平 (Shandong, lawyer)
Zheng Xiang 郑湘 (Shandong, lawyer)
Shu Xiangxin 舒向新 (Shandong, lawyer)
Li Chunfu 李春富 (Beijing, lawyer)
Zhang Keke 张科科 (Hubei, lawyer)
Li Jinxing 李金星 (Shandong, lawyer)
Zhang Chuanli 张传利 (Beijing, lawyer)
Ran Tong 冉彤 (Sichuan, lawyer)
Zhang Weiyu 张维玉 (Shandong, lawyer)
Chen Jinshi 陈金石 (Hunan, lawyer)
Wang Cheng 王成 (Zhejiang, lawyer)
Li Heping 李和平 (Beijing, lawyer)
Li Fangping 李方平 (Beijing, lawyer)
Wang Quanping 王全平 (Guangdong, lawyer)
Ge Yongxi 葛永喜 (Guangdong, lawyer)
Chen Keyun 陈科云 (Guangdong, lawyer)
Liu Zhengqing 刘正清 (Guangdong, lawyer)
Liu Shihui 刘士辉 (Guangdong, lawyer)
Wu Zhenqi 吴镇琦 (Guangdong, lawyer)
Xie Yang 谢阳 (Hunan, lawyer)
Xu Can 徐灿 (Beijing, lawyer)
Chen Wuquan 陈武权 (Guangdong, lawyer)
Wang Quanzhang 王全章 (Beijing, lawyer)
Hu Guiyun 胡贵云 (Beijing, lawyer)
Zhao Yonglin 赵永林 (Shandong, lawyer)
Liu Wei 刘巍 (Beijing, lawyer)
Zheng Enchong 郑恩宠 (Shanghai, lawyer)
Zhou Lixin 周立新 (Beijing, lawyer)
Fan Biaowen 范标文 (Guangdong, lawyer)
Liang Xiubo 梁秀波 (Henan, lawyer)
Li Weida 李威达 (Hebei, lawyer)
Yu Quan 于全 (Sichuan, lawyer)
Liu Wei 刘伟 (Henan, lawyer)
Wang Zongyue 王宗跃 (Guizhou, lawyer)
Xiao Fanghua 肖芳华 (Guangdong, lawyer)
Zhang Guo 张国 (Hunan, lawyer)
Guo Lianhui 郭莲辉 (Jiangxi, lawyer)
Li Changming 李长明 (Beijing, lawyer)
Wei Youyuan 魏友援 (Jiangxi, lawyer)
Tong Chaoping 童朝平 (Beijing, lawyer)
Huang Yuzhu 黄聿珠 (Shandong, lawyer)
Xiao Guozhen 肖国珍 (Beijing, lawyer)
Xue Rongmin 薛荣民 (Shanghai, lawyer)
Liang Lanxiang 梁澜馨 (Hebei, lawyer)
Liu Lianhe 刘连贺 (Tianjin, lawyer)
Deng Shulin 邓树林 (Sichuan, lawyer)
Wang Xueming 王学明 (Shandong, lawyer)
Xu Hongwei 徐红卫 (Shandong, lawyer)
Xu Tao 徐涛 (Hubei, lawyer)
Peng Jian 彭剑 (Beijing, lawyer)
Hou Lingxian 候领献 (Heilongjiang, lawyer)
Xu Xianghui 徐向辉 (Guangdong, lawyer)
Qin Lei 秦雷 (Shanghai, lawyer)
Wang Yu 王宇 (Beijing, lawyer)
Wang Xing 王兴 (Beijing, lawyer)
Xi Xiangdong 袭祥栋 (Shandong, lawyer)
Liu Xiaoyuan 刘晓原 (Beijing, lawyer)
Wang Shengsheng 王胜生 (Guangdong, lawyer)
Ma Lianshun 马连顺 (Henan, lawyer)
Zhang Hai 张海 (Shandong, lawyer)
Zou Lihui 邹丽惠 (Fujian, lawyer)
Liu Jinbin 刘金滨 (Shandong, lawyer)
Xu Zhong 徐忠 (Shandong, lawyer)
Zhang Zanning 张赞宁 (Jiangxi, lawyer)
Yu Wensheng 余文生 (Beijing, lawyer)
Wei Liangyue 韦良月 (Heilongjiang, lawyer)
Yu Guoqiang 喻国强 (Hunan, lawyer)
Fang Qing 方庆 (Henan, lawyer)
Wang Lei 王磊 (Henan, lawyer)
Chen Yixuan 陈以轩 (Hunan, lawyer)
Deng Linhua 邓林华 (Hunan, lawyer)
Zhu Xiaoding 朱孝顶 (Beijing, lawyer)
Xu Silong 许思龙 (Yunnan, lawyer)
Cai Ying 蔡瑛 (Hunan, lawyer)
Liu Yan 刘彦 (Shandong, lawyer)
Zhang Jiankang 张鉴康 (Shaanxi, lawyer)
Zhang Kai 张凯 (Shandong, lawyer)
Zhang Weiyun 张维云 (Beijing, lawyer)
You Feizhu 游飞翥 (Sichuan, lawyer)
Huang Hanzhong 黄汉中 (Beijing, lawyer)
Liu Xinming 刘新明 (Xinjiang, lawyer)
Liu Xinwei 刘新伟 (Shandong, lawyer)
Li Guangming 李光明 (Shandong, lawyer)
Fu Jianbo 付剑波 (Chongqing, lawyer)
Long Zhongyang 龙中阳 (Hunan, lawyer)
Huang Yizhi 黄溢智 (Beijing, lawyer)
Zhuang Daohe 庄道鹤 (Zhejiang, lawyer)
Gao Chengcai 高承才 (Henan, lawyer)
Liu Jinxiang 刘金湘 (Shandong, lawyer)

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