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)

14 June 2014

Liu Weiguo: "If I am Arrested"

If I am Arrested by Liu Weiguo 刘卫国

If I am arrested one day,
Friends, fellow lawyers,
You must
          must
Go public
          take a stand
                      and make a fuss.

If I am arrested one day,
Friends, fellow lawyers,
You must
          must
Treat it like a political issue.

If I am arrested one day,
Friends, fellow lawyers,
You must
          must
Refuse to deliver depressing or dispiriting news.

That is not who I am.
Most certainly not who I am.

Further reading:
Zhang Xuezhong Discusses Strategy in the Pu Zhiqiang Case
Arrested Chinese Lawyer Pu Zhiqiang Speaks from Prison

11 June 2014

Learning to Count Under China's Criminal Procedure Law

You might have already heard that one of the magic numbers in Chinese criminal procedure is 37.

Individuals placed under criminal detention by investigators can be held in custody for a maximum of 37 days without any intervention by any other authority. That is, criminal detention can last for up to 30 days, at which point the investigating body must (a) apply to the procuratorate (prosecutor's office) for permission to carry out formal arrest, (b) release the suspect on guarantee pending further investigation or into residential surveillance, or (c) release the suspect outright. In case of (a), the procuratorate then has seven days in which to make a decision, during which time the suspect generally remains in custody—so, a total of 37 days.

Here, I'll only mention in passing that criminal detention is, in theory at least, not intended to be used nearly as routinely as it is and that the degree to which detentions are regularly stretched to their 30-day limit also goes well beyond the rather limited set of circumstances for which such detention is provided by law. (For more on this subject, see this.)

My real interest, though, is the question of how to calculate the relevant deadlines with respect to this magic number. It's not nearly as simple as you might think.

First of all, one must be aware that criminal detention may be preceded by up to 24 hours of questioning under the procedure of criminal summons. So, for example, if police come to my home on 1 May with a warrant for me to appear for questioning, they can question me at the police station for up to 24 hours before issuing an official detention notice. Only after this notice is issued am I considered to be under criminal detention.

The second complicating factor is that Article 103 of the Criminal Procedure Law states, in part: "Time periods are calculated in hours, days, and months. The initial hour or day does not count toward the time period."

What does this mean in practice? Let's say my criminal detention notice was issued at 8 p.m. on 1 May. For the purposes of calculating my detention, the clock starts ticking at midnight on 2 May, meaning that 30 days would expire at 11:59:59 p.m. on 31 May. Note that this would be true whether I was placed under detention at 12:01 a.m. or 11:59 p.m on 1 May. In any of these cases, for the purposes of counting the days, you would start from midnight on 2 May.

So, in this hypothetical situation, if the police wanted to arrest me, they would have to send their request to the procuratorate on 31 May at the latest. The subsequent seven days would start from midnight on 1 June, meaning that the procuratorate would have to issue a decision by the end of the day on 7 June.

It's worth pointing out that, other than what I've cited above, the law is not too specific about when to start counting. What I've provided here is the most common scenario, likely to apply in the majority of instances. But, as they say, your mileage may vary.

09 June 2014

Zhang Xuezhong Discusses Strategy in the Pu Zhiqiang Case

Pu Zhiqiang (lower right) was one of several
detained after participating in a seminar
commemorating June Fourth.

In early May, Beijing police detained a handful of people who had participated in a private meeting to discuss and commemorate the 25th anniversary of June Fourth. Among them was Pu Zhiqiang, a former student leader during the 1989 protests who has since become an outspoken defense lawyer and advocate of free speech in China. During his career, Pu has proven himself more than willing to butt heads with authority and mobilize the media and public opinion to exert pressure in hopes of influencing the outcome of the many controversial cases he has taken on.

In contrast to Pu’s outspokenness, however, veteran defense lawyer Zhang Sizhi has been far more circumspect in the way he has handled Pu’s case since being appointed as his lawyer following Pu’s detention. In spite of this low-key approach, however, Zhang has been routinely prevented from meeting with Pu, as police reportedly claim that Pu has been taken for questioning each time a meeting is requested. Another lawyer acting for Pu, Qu Zhenhong (Pu’s niece), has herself been placed under criminal detention, along with two reporters who worked closely with Pu in the past.

Many initially believed that Pu and the others would be released from detention after the sensitive June Fourth anniversary passed. In fact, most of the other detainees connected to the case have been released on guarantee pending further investigation. Pu, however, remains in custody, indicating that police in Beijing have sent a request for arrest approval to prosecutors and may, in fact, be seriously contemplating criminal prosecution. That decision is expected to be handed down later this week.

Zhang Xuezhong
It is in this uncertain context that Zhang Xuezhong, a legal scholar and lawyer based in Shanghai who has been critical of the Chinese political system and taken on a number of controversial criminal defense cases, has penned an essay expressing his views about the need to resist the sense of fear that many feel about exposing the injustices of the criminal system and adopt a new defense strategy in Pu’s case, one that will take a less deferential attitude toward what appears to be obvious retaliation against Pu’s past legal activism and a clear warning about what fate might befall others who engage in similar outspokenness and willingness to challenge authority.
 

My Personal View on the Defense Strategy in the Pu Zhiqiang Case

Zhang Xuezhong
Lawyer Pu Zhiqiang is my friend. When the court refused to permit me and five other original lawyers to continue representing Liu Ping, Wei Zhongping, and Li Sihua during their second trial hearing, I invited Pu Zhiqiang to participate in the defense. At the time, Lawyer Pu had many of his own cases and his health was not so good, but he still agreed without hesitation and even insisted on covering all of his own travel expenses. I have always felt grateful for his willingness to help out when the circumstances were dire.

As Pu’s friend and colleague, I should have made vigorous appeals and condemned the authorities for their political persecution after he was detained by Beijing police on cooked-up charges. But seeing as his family members and defense lawyer wished to do things more quietly, I of course ought to respect this. Therefore, after writing a short legal brief on the case I have since kept silent and waited.

Personally, I think that the present defense lawyer’s decision to handle the case in a circumspect manner, wait to see how things developed after the detention period came to an end, and how that the case would turn for the better after 4 June is all understandable and can be considered a rather sound defense strategy. (Of course, there are also those who consider this strategy to be overly conservative.)

Now, the detention period has already come to an end. The other suspects have all been released leaving only Lawyer Pu still in custody. (Presumably, a request for arrest approval has already been sent to the procuratorate.) Given the earlier focus of the police on Pu and their intensive investigation, one can see that the authorities have already decided to punish Lawyer Pu. This initial outcome ought to show that the original low-key, non-political strategy did not have a beneficial effect. Of course, we should not condemn the original defense strategy from a position of clear hindsight. But based on the new developments in the case, it is undoubtedly necessary to make adjustments to the original defense strategy.

Some worry that a determined and resolute defense will lead the authorities to retaliate against a suspect. I think that this depends on the circumstances of each case. When a suspect has misbehaved (or is even guilty) or has a poor public image, if the defense lawyer provokes the authorities or stirs up public opinion, it’s entirely possible that it might result in in a heavy sentence for his or her client. (The Li XX case is perhaps an example of this.) But if the suspect is innocent and has a good public image, then a determined and resolute defense can force the authorities to consider the negative consequences and pull back to a certain degree.

We must take note that the exercise of institutional power is rarely individual in nature. In this sort of political case, a low-key and restrained defense attorney is unlikely to move the system to act with kindness or mercy. After all, power is characterized by a tendency to expand and is only likely to stop expanding or pull back in the face of sufficient resistance.

As to the substantive issues in the case, Lawyer Pu merely attended a seminar in a private residence and Beijing police placed him under criminal detention for creating a serious disturbance. This kind of charge is clearly preposterous. With respect to procedure, the Beijing police have flagrantly deprived Pu’s defense lawyer of his right to meed with his client. Clearly, Pu’s detention and the charges against him are legal persecution from beginning to end. At this point, if we continue with a restrained defense strategy, the authorities will be happy to see this persecution through to the end. But if a defense lawyer were to expose the authorities’ persecution publicly and attract the broader attention of public opinion, the authorities might pull back a bit. We should realize that, based on human nature, the more that people can deceive the public, the more daring those people become in persecuting the innocent. When they are in the glare of the public eye, however, those persecutors will feel a certain amount of apprehension and cowardice.

For example, in Zhejiang Wu Ying was given the death sentence in the trial of first instance. After her father went around campaigning on her behalf and wider attention was paid by public opinion, she was rescued from danger and was able to escape with her life. But in Hunan, Zeng Chengjie was sentenced to death on the same charge and his defense attorney adopted a restrained defense strategy in hopes that he would be spared; in the end, though, Zeng was executed.

In reality, the case against Pu Zhiqiang has from the beginning been retaliation for all of Pu’s previous actions in the public interest. What his family and defense lawyers most need to consider now, therefore, is how to prevent the authorities from retaliating against Pu and not worrying whether a strong defense might lead the authorities to retaliate. This is because the authorities’ decision whether or not to punish Pu will be primarily based on what Pu has done prior to being detained, not on what Pu’s defense lawyer does after Pu was arrested.

These are all my personal opinions, and perhaps I am mistaken or my strategy is inappropriate. But I hope that everyone will believe that my intentions are good.

9 June 2014