Rights of Criminal Suspects and Defendants
China's Strike-Hard Anti-Crime Campaign
Detailed information
about the treatment of suspects and defendants at all stages of China's
opaque criminal justice process (and administrative detention process) is
limited. Nevertheless, some sense of the size of China's criminal justice
system may be gleaned from government announcements about periodic
anti-crime campaigns and government-published statistics.
China's current "strike hard" campaign against crime, launched in April 2001, continued unabated over the past year. "Strike hard" campaigns have been associated with harsh anti-crime tactics, violations of criminal procedure, and wrongful convictions.(35) In June 2003, President Hu Jintao praised the "remarkable successes" achieved in the campaign and stressed the importance of continued vigilance in cracking down on crime. From 1998 through the end of 2002, Chinese courts tried 2.83 million criminal cases, a 16 percent increase over the previous 5-year period, and sentenced 3.22 million defendants, an 18 percent increase. More than 800,000 defendants, or approximately 25 percent of the total, received penalties ranging from at least 5 years in prison to the death sentence.(36) According to official Chinese statistics, the conviction rate during this period was approximately 99 percent.(37)
In 2003, China's criminal code included 65 capital offenses, including financial crimes such as counterfeiting currency, embezzlement, and corruption.(38) The Chinese government does not disclose the number of death sentences carried out each year because it considers the number to be a state secret. Outside estimates of the number of executions in China range from 4,000 to more than 15,000.(39) Convicted criminals are
often executed after summary trials with no opportunity for appeal.
Political Crimes
Although the Chinese Constitution recognizes the rights to freedom of assembly, expression, and association,(40) the Chinese government continues to routinely detain and arrest individuals for engaging in the nonviolent expression of these rights. Chinese law enforcement and security authorities often charge these individuals
with crimes of "endangering state security," such as "subversion" or "incitement to subversion," or in the case of Tibetans and Uighurs, "inciting splittism." As detailed below, Chinese government authorities use these vague crimes to detain and charge individuals whose conduct they find threatening.(41) Chinese citizens who lead peaceful labor
protests, form political parties, or post articles on the Internet that
relate to political reform have been convicted of subversion.
According to Han Zhubin, the former head of the Supreme People's Procuratorate, the procuratorate has made a priority of cracking down on crimes threatening state security in recent years. From 1998 through the end of 2002, procurators approved the arrest of 3,402 criminal suspects and prosecuted 3,550 individuals on charges of crimes of threatening state security.(42) These statistics do not include political dissidents in administrative detention or psychiatric facilities and also exclude arrests and prosecutions for contravening laws and regulations against "heretical sects" (e.g., Falun Gong).(43) In 2001 and 2002, intermediate-level courts tried more than 1,600 people for endangering state security.(44) According to John Kamm of the Dui Hua Foundation, a U.S. NGO, "the great majority of cases of endangering state security for which we have information involve non-violent expression and association."(45) In the most notable subversion cases over the past 12 months:
A court in Liaoyang Province convicted Yao
Fuxin and Xiao Yunliang of subversion in May 2003 for leading the
Liaoyang labor protests in 2002, and sentenced them to 7 and 4 years of
imprisonment, respectively. The two men were detained for approximately
10 months before trial. The Liaoning Higher People's Court rejected
their appeals in mid-2003.
A court in Chengdu, Sichuan Province, convicted
Huang Qi, an Internet entrepreneur and activist, of incitement to
subvert state power in May 2003 for his alleged involvement with
politically sensitive postings on a Web site that he had developed,
www.6-4tianwang.com (now defunct). Huang was sentenced to 5 years
imprisonment, and his appeal is pending.
Four members of a discussion group - Xu Wei,
Jin Haike, Yang Zili, and Zhang Honghai - were detained in March 2001
and tried in September 2001 for subversion. They posted articles on the
Internet expressing concern over current events and social conditions.
In May 2003, a court found them guilty, sentencing Xu and Jin to 10
years in prison, and Yang and Zhang to 8 years each.
A court found lawyer Zhao Changqing guilty of incitement to subvert state power and sentenced him to 5 years imprisonment in a secret trial in July 2003.(46) Zhao had been detained since November 2002 after he drafted an open letter to the 16th Party Congress that was signed by 192 activists from 17 provinces. The letter made several political demands, including the release of all political prisoners and a reassessment of the 1989 democracy movement. Public security officials had taken at least six other signatories of the letter into custody by the end of 2002.(47) Human Rights in
China, a U.S. NGO, has submitted a petition on Zhao's behalf to the UN
Working Group on Arbitrary Detention.
Authorities detained Liu Di, a student and Internet activist, in November 2002. In December, she was arrested under suspicion of incitement to subvert state power. Liu was accused of posting essays on the Internet criticizing government Internet restrictions and expressing sympathy for fellow Internet activist Huang Qi. Human Rights in China also has submitted a petition on her behalf to the UN Working Group on Arbitrary Detention.
Prosecutors also often charge political activists and members of religious and spiritual groups such as Falun Gong with nonpolitical crimes. Prosecutors have relied on charges of "disturbing the public order" to arrest and try thousands of adherents to unauthorized religions or spiritual movements. Fang Jue, a former official and prominent advocate of political reform, spent 4 years in prison for allegedly committing economic crimes. Labor leaders are often charged with "disturbing the public order" or "organizing an illegal procession."(48)
The Chinese
government has also taken advantage of the global war on terrorism to
persecute both Uighurs in northwestern China and political dissidents. In
February 2003, Wang Bingzhang, a U.S. permanent resident and veteran
pro-democracy activist, was convicted of "leading a terrorism
organization" and "spying" and sentenced to life imprisonment. The
Guangdong Higher People's Court rejected his appeal. In June 2003, the
Chinese government accused two overseas dissidents of "violent terrorist
activities" relating to an alleged plot to drop thousands of pro-democracy
leaflets over Tiananmen Square and the Beijing airport via
remote-controlled balloons.
Courts rarely acquit defendants charged with political crimes (or those charged with nonpolitical crimes to punish political activities). As John Kamm notes, "prosecutions in [endangering state security] cases almost always result in convictions, and parole and sentence reduction for prisoners convicted of endangering state security are rarely handed out."(49) The number of individuals serving time in Chinese prisons for political crimes is higher today than at any time since the end of 1992.(50)
Moreover, prospects are poor for criminal defendants who appeal their convictions. Lower courts often seek guidance from higher courts regarding legal issues in cases before them.(51) Consequently, many
judgments made in the lower courts reflect the views of the appellate
judges, making success at the appellate level much less likely. Defendants
in politically sensitive cases have little hope of a favorable result on
appeal.
Arbitrary Detention in the Criminal Process
According to official Chinese statistics on cases from 1998 through 2002, law enforcement authorities detained 308,182 people for periods longer than permitted under Chinese law.(52) In contravention of international human rights norms and standards, Chinese law does not give detained individuals the right to be brought promptly before a judge or to challenge the lawfulness of their detention and arrest.(53) Recognizing that unlawful custodial detention has generated significant public anger in China, the Supreme People's Procuratorate recently established two hotlines
and an e-mail address for public complaints about such unlawful detentions.(54) In addition, the National People's Congress (NPC) is reportedly reviewing proposals to strengthen laws designed to prevent extended detention.(55)
Pre-trial detention
Law enforcement authorities often hold criminal suspects and defendants in pre-trial detention for periods exceeding those permitted by both Chinese law and international human rights norms and standards. The International Covenant on Civil and Political Rights (ICCPR) provides that "it shall not be the general rule that persons awaiting trial shall be detained in custody," yet pre-trial detention in China is the norm. Judges rarely grant petitions from defense lawyers seeking to "obtain a guarantor pending trial" (qubao houshen), a type of non-custodial detention.(56) Detainees routinely languish in detention
centers for as long as a year, and sometimes longer, before a court
formally charges and tries them.
The case of pro-democracy activist Yang Jianli, a U.S. permanent resident, provides an egregious recent example of unlawful pre-trial detention. In April 2002, Yang traveled to China using a borrowed passport and false identity documents to interview and lend support to striking workers in northeast China. Public security officials took Yang into custody and held him incommunicado for more than 14 months. Yang was indicted for illegal entry into China and espionage in July 2003. Chinese authorities have refused to permit family members to visit or correspond with him. Moreover, Chinese officials refused his lawyer's repeated requests to meet with him until July 2003, more than a year after his detention. In June 2003, the UN Working Group on Arbitrary Detention concluded that the Chinese government's detention of Yang was arbitrary and violated international law.(57) Yang was tried in secret on August 4. No verdict was issued after the 3-hour trial. Yang's brother and sister traveled to Beijing for the trial but were barred from the court.(58)
Post-trial Detention
Authorities in China frequently detain defendants for long periods after trial while awaiting judgment, particularly in "sensitive cases." The PRC Criminal Procedure Law (CPL) provides that courts must pronounce the judgment no later than 21.2 months after accepting a case of public prosecution.(59) Internet activist Huang Qi spent nearly 2 years in detention awaiting the court's verdict in his case. Tried for subversion in September 2001, Internet activists Xu Wei, Yang Zili, Jin Haike, and Zhang Honghai remained in custody for more than 18 months awaiting their verdicts.(60) Authorities in Liaoyang Province held labor
protest leaders Yao Fuxin and Xiao Yunliang after their trial in
contravention of the CPL. They were tried in mid-January 2003, but did not
learn of their verdict until early May 2003. The Chinese government is
currently holding criminal defense lawyer Zhang Jianzhong in violation of
the CPL. Seven months after Zhang's trial in February 2003, the Beijing
Intermediate People's Court has yet to render a verdict in the
case.
Disappearances
Public security and law enforcement authorities periodically detain dissidents before significant public anniversaries or meetings, such as the 16th Party Congress held in November 2002. For example, the sister of democracy activist Fang Jue reported him missing in early November 2002, just before the Party Congress began. Authorities held Fang incommunicado, without charging him with a crime, until they expelled him from China in January 2003. Fang believes that he is the first Chinese citizen arrested and expelled from China without a trial or any other legal process.(61)
Democracy activist Wang Bingzhang was missing for 6
months before Chinese government authorities admitted in December 2002
that they had arrested him on terrorism and spying charges. Public
security authorities apparently detained Wang and two other expatriate
dissidents who were traveling with him for 6 months but denied any
knowledge of their whereabouts. After being released, the two dissidents
traveling with Wang claimed that Chinese agents abducted the three in
Vietnam in June 2002 and forcibly took them into China, where they were
held incommunicado. Wang subsequently was convicted of terrorism and
espionage and is currently serving a life sentence. In July 2003, the UN
Working Group on Arbitrary Detention declared that Wang's arrest and
imprisonment violated international law.
Administrative Detention
Public security officials have the power to send individuals to "re-education through labor" (laojiao) for terms of up to 3 years, with the possibility of a 1-year extension, subject to only minimal judicial checks that are rarely invoked in practice.(62) Police also have the power to commit drug users to detoxification centers and re-education centers.(63)
Although routine, these forms of detention, which are carried out pursuant to administrative regulations, violate China's Constitution and law, as well as international human rights norms and standards that require prompt judicial review for detainees.(64) Such unfettered police power can have disastrous consequences for others besides the detainee. In mid-2003, a 3-year-old girl named Li Siyi died alone at home of thirst or starvation when public security officials sent her mother - her only caregiver - to a detoxification center to serve a 3-month sentence. The mother pleaded with the authorities to help find someone to care for her child, but her pleas went unheeded.(65)
Law enforcement authorities also have the power to commit individuals to psychiatric facilities called ankang ("Peace and Health"). Although ankang are intended for the custody and treatment of severely mentally ill offenders, they have also been used to detain individuals who are mentally sound, but have somehow run afoul of persons in power. The courts have no visible role in the process of committing offenders to ankang.(66) One of the three main types of individuals whom police commit to ankang are "political maniacs"(zhengzhi fengzi), a category that includes those who "shout reactionary slogans, write reactionary banners and reactionary letters, make anti-government speeches in public, and express opinions on important domestic and international affairs."(67) This category can easily be applied to mentally stable individuals who simply express dissenting political views. Veteran human rights activist Wang Wanxing remains detained in an ankang center in Beijing for attempting in June 1992 to unfurl a banner in Tiananmen Square to commemorate the third anniversary of the 1989 Tiananmen crackdown.(68) In 2001, the UN Working Group on Arbitrary Detention concluded that the Chinese government had detained Wang arbitrarily after he peacefully expressed his right to freedom of opinion and expression.(69) Authorities have reportedly detained hundreds of Falun Gong practitioners, whom they have found to be suffering from "evil cult-induced mental disorders," in mental asylums and ankang facilities throughout the country.(70) According to some reports, thousands of Falun Gong practitioners have also been sentenced to re-education through labor.(41)
Until June 2003, public security officials also had the power to detain anyone lacking an identification card, temporary residence permit, or work permit under a 1982 regulation entitled "Measures for the Custody and Repatriation of Vagrant Beggars in Cities."(72) Exiled activist Tong Yi testified before a Commission roundtable in June 2003 that official mistreatment of detainees was rampant in the more than 800 custody and repatriation centers in China.(73) Controversy over the regulation boiled over in the spring of 2003, after the Shenzhen newspaper Southern Metropolitan Daily revealed that a university graduate student named Sun Zhigang had been mistakenly detained under the regulations and beaten to death while in custody.(74) In response to public pressure, which included legal petitions [see Section V(e)], the State Council repealed the custody and repatriation regulation and issued a new regulation entitled "Measures on the Administration of Aid to Indigent Vagrants and Beggars in Cities."(75) The new regulation authorizes the Ministry of Civil Affairs, rather than the Ministry of Public Security, to manage shelters that are intended to provide temporary assistance to indigent vagrants and beggars. The regulation outlaws forced detention and labor, extortion, and other abuses, and requires local governments to fund the shelters.(76) While many outside China welcome this
positive reform, some have noted that the government designed the original
1982 vagrancy regulation as a "welfare" measure. The success of the new
measure will depend on the effectiveness and thoroughness of its
implementation.
Access to Counsel
Only about one in three criminal defendants in China has legal representation.(77) The Chinese government often deprives defendants in political cases of their legal right to counsel. The Yang Jianli case illustrates the lengths the Chinese authorities often will go to deny a criminal suspect the right to counsel. In violation of
Chinese law, public security authorities never issued a written notification of detention to Yang's family. Because defense lawyers often require a detention notice before they will accept a case, this official misconduct prevented Yang's family from hiring counsel for him until February 2003.(78) Law enforcement authorities repeatedly denied the requests of Yang's lawyer to see his client on the grounds that the case involved state secrets.(79) Under the CPL, if a case involves state secrets, a lawyer must obtain approval from the investigating authorities before meeting with his or her client.(80) Thus, invoking the
state secrets provision provides officials with a convenient method to
deny suspects and defendants access to legal counsel without independent
review by a judge. In the case of Yang Jianli, the authorities acquiesced
to an initial meeting between the lawyer and Yang just 1 month before the
trial.
Chinese criminal defense attorneys may face intimidation, harassment, or prosecution if they offend procurators or other government authorities while vigorously defending a client in a sensitive case.(81) More than 100 lawyers have been prosecuted since 1997 under Article 306 of the criminal law for "perjury" or "evidence fabrication by lawyers."(82) Zhang Jianzhong, one of the best-known
criminal defense lawyers in China, was detained on Article 306 charges, but prosecuted under Article 307, a general perjury and evidence fabrication provision.(83) This intimidation has had serious
consequences for the criminal justice system and the rights of criminal
defendants. As the Commission noted in a May 2003 topic paper, the
percentage of criminal cases in which defendants have legal representation
has declined in recent years, in part because lawyers consider criminal
defense to be high-risk work.
Lawyers specializing in criminal defense cases are not the only advocates that the public security authorities persecute. Any lawyer who takes up a cause deemed "sensitive" runs the risk of official harassment and sometimes prosecution. In August 2003, Shanghai authorities formally tried Zheng Enchong, a lawyer who had been assisting displaced families affected by redevelopment projects, on charges of "stealing state secrets."(84) The verdict in Zheng's case had not been announced as of late September 2003. In July 2003, the International Commission of Jurists, an international lawyers group, wrote the Chinese government to condemn Zheng's arrest and detention as well as a 2001 government decision to revoke his law license.(85)
Torture and Abuse in Custody
Even though Chinese law prohibits the use of torture to obtain confessions, the use of electric shock, beatings, sleep deprivation, mental abuse, and other forms of torture remains widespread in China, chiefly during the investigative stage of the criminal process.(86) Senior Chinese officials recognize that torture and coerced
confessions corrupt the criminal justice system and undermine legitimate law enforcement goals, but the government has taken few practical steps to address this chronic problem. Former detainees report numerous instances of torture and other forms of abuse in detention centers and prisons.(87) Internet activist Xu Wei, who was sentenced in May 2003 to 10 years in prison, complained to the court that he had been beaten in custody and tortured with electric shock to his genitals, causing long-term numbness in his lower
body.(88) Longstanding allegations of rampant abuse and ill-treatment in custody and repatriation centers were confirmed in 2003 after the beating death of Sun Zhigang in a custody and repatriation center in Guangzhou.(89)
Since the official repression of the Falun Gong movement began in 1999, Falun Gong organizations outside China have reported several hundred deaths of practitioners in Chinese custody as a result of torture, abuse and neglect.(90) Zhao Ming, a Falun Gong practitioner, reported that he was punched, beaten with electric batons, and deprived of sleep while being held in a re-education through labor camp in Beijing from June 2000 to March 2002.(91) In March 2003, a court in Yangzhou city,
Jiangsu Province, sentenced Charles Li, a U.S. citizen and Falun Gong
practitioner, to 3 years in prison for attempting to sabotage
state-controlled television broadcast facilities. Mr. Li admitted the
basic facts as alleged by the prosecutor, but he denied that he had
intended to do harm or commit sabotage. Credible reports suggest that
prison authorities have subjected Mr. Li to both mental and physical abuse
due to his Falun Gong beliefs.
Since the 1980s, numerous credible foreign press accounts have detailed the practice of state-sanctioned removal and sale of the internal organs of executed prisoners. For example, an article in the Observer in 2000 described how hundreds of foreign patients with
kidney diseases traveled to dilapidated hospitals in Chongqing in hopes of a kidney transplant.(92) Sources quoted in the article said they were told explicitly that the kidneys would come from executed prisoners. A June 2000 article in the International Herald Tribune reported that the travel of patients from one Southeast Asian country to China resulted from a 1998 visit of doctors from a military hospital in Chongqing. The doctors spoke to potential transplant recipients about prices and procedures for going to China for a transplant.(93)
Reports on this topic are unusual in the Chinese press, but one expose, "Where Did My Brother's Body Go," appeared in a small paper in Jiangxi Province in 2001, and subsequently also appeared on the Web site of the People's Daily.(94) The article described a woman's plan to sue the government for selling her brother's organs
without his permission. The brother had been executed for criminal offenses. Yao Xiaohong, the author of the article, was subsequently fired for violating "editorial rules."(95) Many wondered how this article found its way onto the official paper's Web site, but an unnamed Chinese journalist explained to a Western journalist that "there are people who are against this practice.... Sometimes in China, things sneak through the cracks."(96) In August 2003, the Standing Committee of the Shenzhen People's Congress passed China's first regulations on organ transplants, but the new regulations do not specifically govern transplants of organs from executed prisoners.(97)
Public Trials
Although the Criminal Procedure Law requires that trials be held in public, courts frequently ignore this requirement, particularly in politically sensitive cases.(98) The CPL permits some exceptions, notably in cases involving state secrets. Wang Bingzhang's trial was conducted in secret under the state secrets exception. U.S. consular officials requested permission to attend Wang's appeal hearing, but the court denied the request. The courts also tried Tibetans Tenzin Deleg and Lobsang Dondrub in secret, and restricted attendance at the trials of both Zhang Jianzhong and Zheng Enchong.(99) Yang Jianli's trial was held behind closed doors because it also purportedly involved state secrets. The Chinese government denied a request from the U.S. Embassy to observe the trial.(100)
Authorities put Yang Bin, a Dutch orchid tycoon born in China, on trial in Shenyang on fraud and bribery charges in early 2003. The court granted a handful of his relatives and employees permission to attend the hearing, but court officials ordered court employees
to stay away.(101) The authorities permitted a Dutch consular official
to attend the trial, apparently pursuant to a bilateral consular convention permitting consular officials to attend trials involving Dutch citizens.(102) Chinese courts permitted U.S. consular officials to attend the trial and appeal hearing in a recent case involving Charles Li. The courts likely cooperated because the U.S.-PRC Consular
Convention requires both countries to permit consular officers to attend trials or other legal proceedings involving defendants who are nationals of the other country.(103)
Public Discussion and Debate About Criminal Justice Issues
Spirited debates about some criminal justice issues are taking place in China today. In December 2002, for example, the Institute of Law at the Chinese Academy of Social Sciences, the Danish Institute of Human Rights, and Xiangtan University jointly sponsored a conference on the death penalty at Xiangtan University in Hunan Province. Chinese scholars participating in the conference presented a range of positions and arguments, from limiting the death penalty to outright abolition.(104) According to a report of an interview with Tian Wenchang, among China's most well-known criminal defense lawyers, arguments in favor of reducing the number of executions have also been heard in government circles.(105) The newspaper Southern Weekend published an in-depth report about the conference, thereby moving the debate about capital punishment from academic circles into the public domain. The issue was reportedly hotly debated in Internet chat rooms.(106)
In March 2003, the Great Britain-China Center, the Renmin University Law School Criminal Procedure Center, and the Dongcheng District Procuratorate of Beijing jointly sponsored a conference on bail reform at which more than 100 participants discussed the similarities and differences between the British system of bail and China's practice of "obtaining a guarantor pending trial" (qubao houshen). Participants included not only prominent criminal procedure scholars and well-known criminal defense lawyers but also officials from the Supreme People's Procuratorate and lower-level procuratorates, the Supreme People's Court, the Legislative Affairs Commission of the NPC Standing Committee, and the State Council's Office of Legislative Affairs.(107) According to press accounts, the conference began by examining the problem of illegal prolonged detention as well as the high rate of pre-trial detention in China.(108)
In September 2003, the American Bar Association Asia
Law Initiative, in cooperation with the All China Lawyers Association,
sponsored a Beijing conference on the role of criminal defense lawyers.
The conference included lawyers, academic experts, judges, and law
enforcement officials from both the United States and China, and addressed
a range of topics related to criminal defense.
Footnotes
35: Susan Travaskes, "Courts on the Campaign Path in China: Criminal Court Work in the 'Yanda 2001' Anti-Crime Campaign," 42 Asian Survey, no. 5 (September/October 1995), 676.
36: Supreme People's Court 2003 Work Report, 11 March 2003.
37: The format of official Chinese legal statistics makes it difficult to calculate a precise conviction rate. However, a 2003 Supreme People's Court report notes that between 1998 and 2002, 3,222,000 individuals were convicted of crimes in trials of first instance, while 26,521 defendants were found innocent of crimes (which gives a conviction rate of roughly 99.1 percent). Situation of Judgment Work and the Building of Judicial Cadres of the People's Courts, 1998-2002 [1998-2002 nian renmin fayuan shenpan gongzuo heduiwu jianshe qingkuang] (17 March 2003). This figure corresponds with the annual conviction rate for 2001 provided in the China Law Yearbook. See 2002 China Law Yearbook [2002 Zhongguo falu nianjian], (Beijing: Law Publishing House, 2002), 144.
38: People's Republic of China Criminal Law [Zhonghua renmin gongheguo xingfa], enacted July 1979.
39: The U.S. State Department provides an estimate of 4,000 executions. Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, "Country Reports on Human Rights Practices - 2002, China (includes Hong Kong and Macau)," 31 March 2003 (8 July 2003). John Kamm of the Dui Hua Foundation conservatively estimates that at least 10,000 executions are carried out each year. Commission staff Interview. Disidai, a book purportedly written by a knowledgeable government source, claims that China has executed up to 15,000 people per year since beginning of this strike hard campaign in April 2001 "Sichuan Gangsters Sentenced to Death; Strike Hard Campaign Continues," Hong Kong Agence France-Presse, 19 July 2003, in FBIS, Doc. ID CPP20030719000050.
40: Constitution of the People's Republic of China, art. 35.
41: Crimes of endangering state (or national) security are found in the Criminal Law, arts. 102-113. The most notable are Article 105, which prohibits the organizing, plotting or carrying out of a scheme to subvert State power or overthrow the socialist system or inciting others to do the same, and Article 103, which prohibits the organizing, plotting or carrying out of a scheme to split the State or undermine the unity of the country or inciting others to do the same.
42: "Chinese Procuratorates Crack Down on Crimes Threatening State Security," Xinhua, 11 March 2003, (11 March 2003).
43: Article 300 of the Criminal Law prohibits using a heretical sect "to undermine implementation of the laws."
44: The Dui Hua Foundation, "Surge in Arrests and Prosecutions for Endangering State Security," Dialogue, Issue No. 11, Spring 2003, 2.
45: Ibid.,1.
46: Human Rights in China Press Release, "Dissident Zhao Changqing Jailed for 5 Years," 4 August 2003.
47: The six other known cases relating to the open letter to the 16th Party Congress calling for political reform are He Depu, Sang Jianchen, Ouyang Yi, Dai Xuezhong, Han Lifa, and Jiang Lijun. (Human Rights in China, "China and the Rule of Law," No. 2, 2003, 99-104.) According to the Dui Hua Foundation, Dai Xuezhong was sent to re-education through labor for 3 years for "endangering state security." Han Lifa was reportedly "released on bail awaiting investigation" [baowai houshen].
48: John Kamm, "China Wages Silent War on Dissident Thought," Project Syndicate, 15 June 2003. Article 300 of the Criminal Law is frequently used to further the persecution of Falun Gong members; it prohibits, among other things, the use of "heretical sects" or "superstition" to undermine implementation of laws, rules, and regulations.
49: The Dui Hua Foundation, "Surge in Arrests and Prosecutions for Endangering State Security," Dialogue, No. 11, Spring 2003, 3. See also Robin Munro, Dangerous Minds: Political Psychiatry in China Today and Its Origins in the Mao Era, (New York: Human Rights Watch & Geneva Institute of Psychiatry, 2002) 3 ("[E]ven today the acquittal rate for people accused of political crimes in China is virtually nil.").
50: The Dui Hua Foundation, "Surge in Arrests and Prosecutions for Endangering State Security," Dialogue, No. 11, Spring 2003, 3.
51: Human Rights in China, Empty Promises: Human Rights Protections and China's Criminal Procedure Law in Practice, 1 March 2001, 22; Randall Peerenboom, China's Long March toward Rule of Law (Cambridge, U.K.: Cambridge University Press, 2002), 314-15.
52: Supreme People's Procuratorate 2003 Work Report, 11 March 2003.
53: The International Covenant on Civil and Political Rights provides that "[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power" and "[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." Arts. 9(3) and 9(4). In China, a suspect or defendant may only seek release when detention has exceeded the permissible time periods under the CPL.
54: "China's Public Prosecutors Crack Down on Illegal Prolonged Detention," Xinhua, 22 July 2003 available in FBIS, Doc. ID CPP20030722000129. The email address is cyjb@spp.gov.cn, and the hotline numbers are 010-68650468, 010-65252000.
55: "Procuratorial Organs Take Action to Curb Extended Detention of Criminal Suspects," Zhongguo Xinwen She, 3 August 2003, translated in FBIS, Doc. ID CPP20030803000050.
56: Human Rights in China, Empty Promises: Human Rights Protections and China's Criminal Procedure Law in Practice, 1 March 2001, 38-9; Yu Ping "Glittery Promise v. Dismal Reality: The Role of a Criminal Lawyer in The People's Republic of China After the 1996 Revision of the Criminal Procedure Law," 35 Vanderbilt J. Transnational Law 827 (2002): 841-42.
57: See UN Working Group on Arbitrary Detention, Opinion No. 2/2003.
58: "Beijing Conducts Trial of U.S. Based Activist Accused of Spying For Taiwan," South China Morning Post, 5 August 2003, in FBIS, Doc. ID CPP20030808000075.
59: Article 168 of the Criminal Procedure Law requires, as a general rule, that courts announce their decisions in public prosecution cases within 1.5 months of accepting the case. If certain specific conditions are met, however, the time period may be extended by 1 month, for a total of 2.5 months. People's Republic of China Criminal Procedure Law [Zhonghua renmin gongheguo xingshi susongfa], enacted 1 July 1979, art. 168.
60: See Section III(d).
61: Fang Jue, "A New Type of Political Exile," China Rights Forum, No. 2, 2003, 62.
62: For a discussion of re-education through labor, see Congressional-Executive Commission on China, Annual Report 2002, 29.
63: "China Makes Drug Addicts Say 'No')," Associated Press, 15 November 2001, (8 July 2003). China had one
million registered drug addicts by the end of 2002, up 11 percent from 2001. See "China Registers One Million Drug Addicts by End of 2002," China Internet Information Center, 25 June 2003, (8 July 2003). In 2000, China had 746 detoxification centers and 168 re-education centers for drug users.
64: See Section V(e). Chinese scholars have argued in different contexts that administrative regulations restricting the personal freedom of citizens are unlawful because (1) under Articles 8 and 9 of the Legislation Law and Article 8 of the Administrative Punishments Law, the freedom of citizens can only be restricted by law (not by administrative regulations) and (2) under Article 37 of the PRC Constitution, no citizen may be arrested except with the approval of a people's procuratorate or people's court, and unlawful deprivation of freedom by detention or other means is prohibited. In the international context, the ICCPR provides that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power" and "[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." ICCPR, arts. 9(3) and 9(4).
65: John Pomfret, "Child's Death Highlights Problems in Chinese Justice," Washington Post, 3 July 2003, A1.
66: Robin Munro, Dangerous Minds: Political Psychiatry in China Today and Its Origins in the Mao Era (New York: Human Rights Watch & Geneva Institute of Psychiatry, 2002), 118-22.
67: Ibid., 121.
68: Ibid., 36, 235.
69: UN Working Group on Arbitrary Detention, Opinion No. 20/2001, E/CN.4/2003/8 Add.1, adopted on 28 November 2001.
70: Robin Munro, Dangerous Minds, 19, 37-38.
71: Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, "Country Reports on Human Rights Practices - 2002, China (includes Hong Kong and Macau))," 31 March 2003, (8 July 2003). See also Veron Hung, "Reassessing Re-education Through Labor," China Rights Forum, No. 2, 2002, 35. According to credible sources, as of late January 2003, hundreds of female Falun Gong practitioners were being held in a single re-education through labor camp in Sichuan.
72: See Congressional-Executive Commission on China Annual Report 2002, 29, 30, for a discussion of custody and repatriation. See also Human Rights in China's reports on custody and repatriation and the hukou system: Not Welcome at the Party: Behind the "Clean-Up of China's Cities - A Report on Administrative Detention Under 'Custody and Repatriation'" (1999) and Institutionalized Exclusion: The Tenuous Legal Status of Internal Migrants in China's Major Cities (2002), and Congressional-Executive Commission on China Roundtable, Voices of the Small Handful, 1989 Student Movement Leaders Assess Human Rights in Today's China, 2 June 2003, Testimony of Tong Yi.
73: Torture, rape forced labor, and other forms of abuse were commonplace in the custody and repatriation centers. Public security officers often abused their power by detaining migrant workers and then extorting money from them or their families in exchange for their release.
74: "The Death of Sun Zhigang in Custody and Repatriation [Bei shourongzhe sun zhigang zhisi]," Southern Metropolitan Daily, [Nanfang dushibao], 25 April 2003, (3 September 2003).
75: Daniel Kwan, "Police Lose Power over Rural Migrants," South China Morning Post, 23 June 2003, Measures on the Administration of Aid to Indigent Vagrants and Beggars in Cities [Chengshi shenghou wuzhe de liulang qitao renyuanjiuzhu guanli banfa], issued 18 June 2003.
76: Ibid.
77: Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, "Country Reports on Human Rights Practices - 2002, China (includes Hong Kong and Macau)," 31 March 2003, (8 July 2003) 3. See also Tom Kellogg, "A Case for the Defense," China Rights Forum: China and the Rule of Law, No. 2, 2003, 33 (noting a law professor in China estimated that 70 percent of criminal prosecutions take place without defense counsel).
78: See People's Republic of China Criminal Procedure Law [Zhonghua renmin gonghe guo xingshi susong fa], enacted 1 July 1979, art. 64. UN Working Group on Arbitrary Detention Opinion, 2-3. See also Congressional-Executive Commission on China Roundtable, China's Criminal Justice System, 26 July 2002, Testimony of Jerome Cohen:
"It should be emphasized that the CPL does not require a lawyer to show the detaining authority a copy of the detention notice in order to get access to his client. Yet police and prosecutors frequently take this position, and defense lawyers themselves will often reluctantly tell a would-be client that they cannot even accept the case unless a copy of the detention notice is provided to them."
79: Ibid.
80: Criminal Procedure Law, art. 96. See also Congressional-Executive Commission on China Roundtable, China's Criminal Justice System, 26 July 2002, Testimony of Jerome Cohen. "Yet PRC police and prosecutors often deny lawyers access to their clients on far-fetched claims of 'state secrets.'"
81: For a discussion of the problems plaguing Chinese criminal defense lawyers, see Congressional-Executive Commission on China Topic Paper, "Defense Lawyers Turned Defendants: Zhang Jianzhong and the Criminal Prosecution of Defense Lawyers in China," 5 July 2003.
82: "Lawyers Turn Pale at the Mention of Defending Criminal Suspects - on Worries Arising from Decreasing Ratio of Lawyers Taking on Criminal Defense Cases," Fazhi Ribao, 13 January 2003, translated in FBIS, Doc. ID. CPP20030213000191.
83: See Congressional-Executive Commission on China Paper, "Defense Lawyers Turned Defendants;" Tom Kellogg, "A Case for the Defense," China Rights Forum: China and the Rule of Law, No. 2, 2003.
84: "Shanghai Lawyer Zheng Enchong Formally Arrested," Human Rights in China Press Release, 20 June 2003.
85: "Interventions Made on Behalf of Jailed Lawyer," Human Rights in China Press Release, 30 July 2003. See also International Commission of Jurists Web site for its letter to the Chinese government, (22 September 2002).
86: See Congressional-Executive Commission on China 2002 Annual Report, 28-29 and specific cases detailed below.
87: Bureau of Democracy, Human Rights, and Labor, U.S. Department of State "Country Reports on Human Rights Practices - 2002, China (includes Hong Kong and Macau))," 31 March 2003 (8 July 2003).
88: Human Rights in China Press Release, "Four Internet Activists Imprisoned for Subversion," 28 May 2003.
89: Congressional-Executive Commission on China Roundtable, Voices of the Small Handful, 1989 Student Movement Leaders Assess Human Rights in Today's China, 2 June 2003, Testimony of Tong Yi.
90: Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, "Country Reports on Human Rights Practices - 2002, China (includes Hong Kong and Macau)," 31 March 2003, (8 July 2003).
91: Amnesty International Report 2003: China. Available at www.amnesty.org. AI Index: POL 10/003/2003.
92: Ian Williams, "China Sells Organs of Slain Convicts," The Observer, 10 December 2000, (22 September 2002).
93: Thomas Fuller, "An Execution for a Kidney," International Herald Tribune, 15 June 2000, (22 September 2002).
94: "Rare Chinese Newspaper Expose Details Prisoner Organ Harvests," Washington Post, 31 July 2001, www.washingtonpost.com.
95: "China Paper Sacks Organ Trade Reporter," Reuters, 2 August 2001. When Yao was hired later the same year at a unit of Guangdong's Yangcheng Evening News, he was quickly fired on orders from central and provincial Propaganda authorities. "Whistle-blower Sacked Again," South China Morning Post, 5 October 2001.
96: "Chinese Journalist Who Reported on Human Organ-Harvesting is Dismissed," Associated Press, 4 August 2001,
(24 September 2003).
97: "Shenzhen: First Domestic Regulations Passed on the Donation and Transplantation of Human Organs" [Shenzhen: Guonei shoubu renti ziguan sunxian yizhi tiaolie huo tongguo], People's Daily [Renmin ribao], (22 September 2003).
98: See Article 152 of the PRC Criminal Procedure Law requires trials to be heard in public with a few exceptions, and further provides that the reason for not hearing a case in public must be announced in court. People's Republic of China Criminal Procedure Law [Zhonghua renmin gonghe guo xingshi susong fa], Art. 152 enacted 1 July 1979.
99: See Congressional-Executive Commission on China Topic Paper: "Defense Lawyers Turned Defendants," 5; "China: Trial of Shanghai Lawyer Accused of Passing State Secrets to Foreigners Opens," Hong Kong RTHK Radio 3, 28 August 2003, in FBIS, Doc. ID
CPP20030828000132.
100: "China Bars U.S. From Activist's Trial," New York Times, 1 August 2003.
101: "Chinese-Born Tycoon on Trial on Charges of Fraud, Bribery," Associated Press, 11 June 2003, (11 June 2003).
102: Ibid.
103: Consular Convention between the United States of America and the People's Republic of China, 18 February 1982, art. 35(5).
104: John Gittings, "China Questions Death Penalty," The Guardian, 15 January 2003, (16 January 2003).
105: "Death-row Lawyer Heads China's Execution Debate," Reuters, 4 February 2003, (4 February 2003).
106: Guo Guangdong, "Death Penalty: Keep it or Abolish it?" [Sixing: Baoliu? Feichu?] Southern Weekend [Nanfang zhoumo], 9 January 2003.
107: "International Conference on Bail Opens in Beijing," [Baoshi zhidu guoji yantaohui zai jing zhaokai], Chinese Lawyer Net [Zhongguo lu shiwang], 3 June 2003 (6 July 2003).
108: See, e.g., "Bail System: Learn From Others Or Keep What We Already Have?" [Baoshi
zhidu: ta shan zhi shi haishi huai bei zhi ji]," Procuratorate Daily
[Jiancha ribao], 24 April 2003, (7 July
2003). |
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