Supreme People's Procuratorate Recognizes Continuing Problem of Extended Detention

June 30, 2006

The Supreme People's Procuratorate (SPP) recognized that unlawful extended detention is a continuing problem in China, in a May 21 article (in Chinese) published in the Procuratorial Daily. The article cites SPP figures to report a steady decline in the number of extended detentions since 2003, when the SPP passed Certain Provisions Regarding the Prevention and Correction of Extended Detention in Procuratorial Work (2003 Provisions). Despite this decline, the article notes that authorities continue to misuse provisions in the Criminal Procedure Law to disguise extended detentions. The SPP is now working with the Supreme People's Court and Ministry of Public Security to approve a final version of "Certain Provisions Regarding the Prevention and Correction of Extended Detention" by the end of 2006.

The Supreme People's Procuratorate (SPP) recognized that unlawful extended detention is a continuing problem in China, in a May 21 article (in Chinese) published in the Procuratorial Daily. The article cites SPP figures to report a steady decline in the number of extended detentions since 2003, when the SPP passed Certain Provisions Regarding the Prevention and Correction of Extended Detention in Procuratorial Work (2003 Provisions). Despite this decline, the article notes that authorities continue to misuse provisions in the Criminal Procedure Law to disguise extended detentions. The SPP is now working with the Supreme People's Court and Ministry of Public Security to approve a final version of "Certain Provisions Regarding the Prevention and Correction of Extended Detention" by the end of 2006.

Law enforcement authorities continue to hold Chinese citizens for long periods without formal charge or trial, despite official statements to the contrary. The May 21 article reported that in 2005, no cases of extended detention occurred in any of nine provinces and municipalities, including Beijing municipality, or in the Xinjiang Production and Construction Corps. During the same week that the Procuratorial Daily published its article, Chinese authorities announced a tentative trial date for Zhao Yan, a researcher at the New York Times Beijing bureau. Beijing authorities repeatedly had used provisions in Chinese law to hold Zhao from September 17, 2004 until June 16, 2006 without trial. In June 2005, Beijing police claimed that they found new evidence of fraud against Zhao, so that they could hold him beyond the seven-month time limit on investigative detention. The Beijing procuratorate twice returned Zhao's case to investigators for supplementary investigation, to hold him for the maximum period between investigation and indictment. On March 17, 2006, the Beijing procuratorate received permission from the court to withdraw its case against Zhao, and should have released him. Authorities continued to hold him, however, and the procuratorate issued a new indictment against Zhao on May 12. To date, no investigation into the actions of the Beijing procuratorate in Zhao Yan's case has been announced.

A representative of the SPP Procuratorial Office for Prisons and Jails told the Procuratorial Daily that authorities must "strictly prohibit the handling of cases that exceed time limits and the use of prolonged detention periods, restarting of the detention clock, return of the case for supplementary investigation, withdrawing of charges, changing of jurisdiction, and other methods that disguise extended detention of a criminal suspect or defendant." The 2003 Provisions contain similar prohibitions and entitle a criminal suspect, his legal representatives, or his near relatives to complain to the people's procuratorate that made the decision to arrest him, or to the next higher-level people's procuratorate, if they believe that the detention has exceeded legal time limits. Criminal suspects held in extended detention also have a right to demand release from criminal detention or arrest. Moreover, the 2003 Provisions authorize disciplinary sanctions and criminal liability under Article 397 of the Criminal Law against procuratorate officials who abuse their authority to unlawfully hold an individual in detention.

The UN Working Group on Arbitrary Detention (UNWGAD) has concluded that Zhao Yan's detention is arbitrary. The UNWGAD defines a detention as arbitrary if it meets one of the following three conditions: (I) there is clearly no legal basis for the deprivation of liberty (for example, when individuals are kept in detention after the completion of their prison sentences or despite an amnesty law applicable to them, or in violation of domestic law or relevant international instruments); (II) the individual is deprived of his liberty because he has exercised the rights and freedoms guaranteed in certain provisions of the Universal Declaration of Human Rights (UNDHR) or the International Covenant on Civil and Political Rights; or (III) noncompliance with the standards for a fair trial set out in the UNDHR and other relevant international instruments is sufficiently grave as to make a detention arbitrary. The UNWGAD concluded that Zhao's detention falls into categories II and III above because it contravenes Articles 9, 10, and 19 of the UNDHR. Articles 9, 10, and 19 guard against arbitrary arrest, detention, or exile; guarantee the right to a fair and public hearing by an independent and impartial tribunal to determine criminal liability; and guarantee the right to freedom of opinion and expression.

For additional information on Arbitrary Detention in the Formal Criminal Process, see Section III(b) of the CECC's 2005 Annual Report.