China's New Criminal Procedure Law: "Disappearance Clauses" Revised

Results of the vote on amendments to the Criminal Procedure
Law on March 14, 2012. Photo credit: Weibo.com

The Criminal Procedure Law (CPL) passed on March 14 contains many improvements to China’s criminal justice system, including enhanced rights for juvenile offenders, women in prison, and death row inmates. Suspects in the vast majority of criminal cases will enjoy greater due-process rights when the law takes effect on January 1, 2013. The modifications to the provisions on residential surveillance and arrest as they apply to suspects in endangering state security cases—from 2008 to 2010, more than 1,000 people were detained every year on suspicion of endangering states security, most of them for non-violent speech and association offenses—are welcome but do not go far enough in meeting the requirements of international human rights law.

In the short term, efforts should be made to stretch the provisions so that family members are given details on where and why their relatives have been taken into custody and individuals under residential surveillance should be allowed family visits, as was the case with Nobel laureate Liu Xiaobo and internationally recognized artist Ai Weiwei. Longer term the National People’s Congress (NPC) should revise the provisions on residential surveillance and detention to bring them in line with international standards.

Play by Play

On March 14, China’s NPC passed a set of amendments to the CPL by a vote of 2,639 to 160. Of the many provisions that have been changed or introduced in the amended CPL, few were as controversial as the “disappearance clauses”—provisions that, in the draft of the bill published on the NPC’s website for public comment in August 2011, would have authorized investigators to detain suspects in certain types of cases without requiring family notification. These provisions promised to reinforce a dual-track system of detention in which due-process rights guaranteed to ordinary criminal suspects could be denied to suspects accused of being serious threats to national security or public safety.

Soon after the draft amendments were published, fears were raised of “widespread secret arrest,” and the revision was branded a “major reversal” of progress towards rule of law. Of particular concern were new provisions concerning “residential surveillance in a designated abode.” As it was proposed, this measure could have been carried out for up to six months without requiring family notification. The United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) issued a statement in November expressing concern that the proposed revisions would legalize enforced disappearance and proclaiming, “Any enforced disappearance is unacceptable and such practices are in violation of international law.” The same month, Dui Hua Executive Director John Kamm, in testimony to the United States House of Representatives, asserted that the provisions on residential surveillance and detention as applied to suspects in endangering state security cases constituted enforced disappearance under international law.

In response to these criticisms, defenders of the CPL revision argued that, compared to the 1996 CPL, it actually placed tighter restrictions upon the circumstances under which detention could be carried out without notification. Neither the 1996 CPL nor associated regulations make any requirement for notification in cases of residential surveillance. They also allow for notification of criminal detention to be waived in cases “involving state secrets” or where “notification would interfere with the investigation.” On the other hand, the wording of some of the disappearance clauses found in the August draft was ambiguous, leaving the possibility for interpretation beyond the offenses explicitly named, and the 1996 CPL gave no circumstances under which notification could be withheld in cases of residential surveillance.

In the face of domestic and international criticism, many of the disappearance clauses were removed from the final legislation. Below, we compare the provisions for residential surveillance, criminal detention, and arrest as they first appeared in August with how they looked upon passage in March. (A full Chinese comparison of the 1996 CPL and newly amended CPL is available here.)

The outcome of these changes is mixed. As passed into law, the only situation in which authorities are allowed to waive family notification is when a suspect in a state security or terrorism case is placed under criminal detention (i.e., held in a detention center) and “notification has the potential to interfere with the investigation.” Criminal detention can last for up to 37 days.[*] In a concession to critics, a new provision requires notification once doing so would no longer “interfere with the investigation.”

Authorities must notify relatives of all persons placed under formal arrest or “residential surveillance in a designated abode,” although requirements to specify the grounds and whereabouts of the detention were cut from the final legislation. This means that, with respect to “residential surveillance in a designated abode,” investigators will be allowed to hold suspects in state security, terrorism, and major bribery cases in an undisclosed location for up to six months. They also have discretion to prevent defense lawyers from meeting with suspects in these types of cases. A United Nations joint study on secret detentions by the WGEID and other working groups, published February 19, 2010, states that any incommunicado detention for over 15 days is a violation of Article 10 of the International Convention on Civil and Political Rights, to which China is a signatory.

[*] Time limits for criminal detention carried over to the amended CPL, in Article 89, from the 1997 CPL require police to request approval for formal arrest in three days. Under “extraordinary circumstances,” that time limit may be extended to seven days, and when the detainee is a “major suspect” suspected of committing crimes in more than one location, committing offenses multiple times, or committing offenses in league with others, the time limit may be extended to 30 days. Despite these guidelines, it has become routine to delay requests for approving arrests for 30 days, after which the procuratorate has up to seven days to render a decision.

Revisions

Below, we compare the provisions for residential surveillance, criminal detention, and arrest by using English translations of the text as it first appeared in August 2011 with English translations of the final text passed in March 2012. Strikethrough text denotes deletions from the August draft, while bold text denotes additions to the August draft.

RESIDENTIAL SURVEILLANCE

Article 73 (August 2011 draft)    Residential surveillance shall be carried out in the residence of the criminal suspect or defendant. When there is no fixed residence, it may be carried out in a designated abode. In cases involving crimes of endangering state security, terrorist activity, or major bribery, if carrying out [residential surveillance] in the residence [of the criminal suspect or defendant] has the potential to interfere with the investigation, it may also be carried out in a designated abode following approval by the procuratorate or public security organ one level superior. But [residential surveillance] may not be carried out in a place of detention or place specially designated for handling cases.    When residential surveillance is carried out in a designated abode, a relative of the person under residential surveillance shall be notified of the reason for and location of the residential surveillance within 24 hours after initiating the residential surveillance, except when it is impossible to give notice or in cases involving crimes of endangering state security, terrorist activity, or major bribery, when notification has the potential to interfere with the investigation.    [With respect to] appointing defense counsel, criminal suspects or defendants placed under residential surveillance being carried out in a designated abode, apply the provisions of Article 33 of this law.    The people's procuratorate shall oversee the legality of any decision and execution of residential surveillance in a designated abode.

Article 73 (March 2012 final)    Residential surveillance shall be carried out in the residence of the criminal suspect or defendant. When there is no fixed residence, it may be carried out in a designated abode. In cases involving crimes of endangering state security, terrorist activity, or especially serious bribery, if carrying out [residential surveillance] in the residence [of the criminal suspect or defendant] has the potential to interfere with the investigation, it may also be carried out in a designated abode following approval by the procuratorate or public security organ one level superior. But [residential surveillance] may not be carried out in a place of detention or place specially designated for handling cases.    When residential surveillance is carried out in a designated abode, a relative of the person under residential surveillance shall be notified of the reason for and location of the residential surveillance within 24 hours after initiating the residential surveillance, except when it is impossible to give notice or in cases involving crimes of endangering state security, terrorist activity, or major bribery, when notification has the potential to interfere with the investigation.    [With respect to] appointing defense counsel, criminal suspects or defendants placed under residential surveillance being carried out in a designated abode, apply the provisions of Article 33 of this law.    The people's procuratorate shall oversee the legality of any decision and execution of residential surveillance in a designated abode.

CRIMINAL DETENTION

Article 84 (August 2011 Draft)    When the public security organ detains a person, it must show a warrant of detention.    After detention, the detainee shall be immediately transferred to a detention center for custody no later than 24 hours. Within 24 hours of detention, a relative of the detainee shall be notified of the reason for and location of the detention, except when it is impossible to give notice or in cases involving serious offenses such as crimes of endangering state security or terrorist activity, when notification has the potential to interfere with the investigation.

Article 83 (March 2012 Final)    When the public security organ detains a person, it must show a warrant of detention.    After detention, the detainee shall be immediately transferred to a detention center for custody no later than 24 hours. Within 24 hours of detention, a relative of the detainee shall be notified of the reason for and location of the detention, except when it is impossible to give notice or in cases involving serious offenses such as crimes of endangering state security or terrorist activity, when notification has the potential to interfere with the investigation. When the circumstances of interference with the investigation no longer exist, a relative of the detainee shall be notified immediately.

FORMAL ARREST

Article 92 (August 2011 Draft)    When a public security organ arrests a person, it must show a warrant of arrest.    After arrest, the arrestee shall be immediately transferred to a detention center for custody. Within 24 hours of arrest, a relative of the detainee shall be notified of the reason for and location of the arrest, except when it is impossible to give notice or in cases involving serious offenses such as crimes of endangering state security or terrorist activity, when notification has the potential to interfere with the investigation.

Article 91 (March 2012 Final)    When a public security organ arrests a person, it must show a warrant of arrest.    After arrest, the arrestee shall be immediately transferred to a detention center for custody. Within 24 hours of arrest, a relative of the detainee shall be notified of the reason for and location of the arrest, except when it is impossible to give notice or in cases involving serious offenses such as crimes of endangering state security or terrorist activity, when notification has the potential to interfere with the investigation.

Detention House Rules Can’t Accommodate Oversight

On March 1, China’s State Council published long-awaited rules governing the management of police-run detention houses (拘留所). Also known as administrative jails, these facilities are primarily used for people given administrative detentions of 10 to 15 days for violations of the Law on Public Security Administration Punishments. (Detention houses are different from criminal detention centers (看守所), which are police-run facilities that hold individuals being investigated or prosecuted for violations of the Criminal Law.)

The regulations include many new protections for detainees, including prohibitions of forced labor and detainee abuse, provisions guaranteeing health and safety standards, and a requirement that relatives be notified “promptly” after detainees are taken into custody. Beijing-based criminal lawyer Tang Hongxin told China Daily that the new provisions are “up to international standards” and will offer better protection to detainees “if they can be enforced well.”

The need for improved detention-house regulation has been evident for some time. The jails are currently regulated by provisional rules formulated in 1990, well before more progressive thinking about rule of law and the need to protect individual rights began to take firm hold in China. Moreover, the nation’s detention facilities have come under scrutiny in recent years for a spate of suspicious detainee deaths that were widely reported by domestic media. Concern over the deaths, and their implications for poor jail management, has been compounded by police who have attributed them to seemingly incredible causes, like falling out of bed during a nightmare or drowning while washing one’s face.

The majority of reported incidents took place in criminal detention centers, but administrative jails have not been immune. It is notable, then, that the new regulations eliminate a draft provision that would have required police to report unnatural deaths and procuratorates to investigate their cause. This is one of several provisions involving external procuratorial oversight that were struck from the rules that become effective next month. Other provisions, including a ban on using detainees to control other detainees, were also removed.

Professor Li Kejie.
Photo credit:
Shandong University of
Political Science and Law

Li Kejie (李克杰), a law professor at the Shandong University of Political Science and Law, argues in a Legal Daily article (translated below) that the omissions demonstrate the limitations of administrative regulations, which are rife with institutional interests. In this case, police may have chosen to omit certain provisions to reduce demands on enforcement, which is their responsibility. It is also simply the case, Li notes, that State Council agencies like the Ministry of Public Security have no authority to legislate action by judicial bodies like procuratorates or the courts. Thus, in order to establish adequate procuratorial oversight of administrative jails, administrative regulations are ineffectual and a law enacted by the National People’s Congress is essential.

*

Detention House Rules Bound by Administrative Regulation [Status]

Li Kejie, Legal Daily

March 5, 2012

The State Council recently issued Detention House Regulations (拘留所条例) that will take effect on April 1, 2012. The regulations require detention houses to protect the personal safety and legal rights of detainees in accordance with the law; prohibit the act of or the permission or instruction of others to humiliate, corporally punish, or abuse detainees; and prohibit forced labor. However, compared to the previous discussion draft, [the regulations] also eliminate provisions for things such as “submitting to oversight by the procuratorate” and “notifying relatives within 12 hours of custody” (The Beijing News, March 2).

With everything from content to form, the Detention House Regulations clearly show progress towards rule of law. In terms of content, the regulations strengthen the protection of detainees’ rights, providing: when carrying out a detention, [one] shall inform detainees of their rights and promptly notify their relatives. During detention, [one] shall provide detainees with food and drink and respect their ethnic dietary customs; guarantee at least two hours per day of activity outside the holding room; prohibit forced labor; not monitor or intercept correspondence; and not monitor or intercept documents such as those [necessary for] detainees to lodge a complaint or request administrative review. Detainees enjoy visitation rights and may request leave for school-entrance examinations, the birth of a child, or the life-threatening illness or death of a close relative.

In form and in terms of legal hierarchy, the rules are administrative regulations. When they come into effect, they will replace the internal rules that have been used for the past 22 years, strengthening the authority of rule-making and displaying abundant respect for and effective protection of citizens’ personal rights.

However, we also note with disappointment that the formally announced Detention House Regulations concurrently eliminate several major provisions that were included in the discussion draft. These include provisions like “detention houses carrying out detention activities shall submit to legal oversight by procuratorates,” “the death of a detainee from unnatural causes shall be reported to the procuratorate and investigated immediately,” “relatives shall be notified within 12 hours of custody,” and “detainees must not be used to manage other detainees.” Speaking as a matter of rule of law, I think that these provisions ought to be included in the national legal document that governs detention houses. But why were they ultimately removed? Based on my analysis, there are probably two major reasons: First, the regulations strongly tend towards institutional rulemaking, and [provisions] were [thus] eliminated to make enforcement more convenient for the institution or to accommodate reality. The last two of the aforementioned provisions may fall under this category. Second, limited by their nature as administrative regulations, the rules cannot issue orders to procuratorates. So in order to avoid overstepping legislative authority, it was necessary to remove [certain provisions]. The first two of the aforementioned provisions would fall into this group.

In my view, both of these reasons clearly show the limitations of administrative regulations. The only way to better resolve the problems associated with detention houses and have their work follow a truly norm-abiding, rule-of-law path is to speed up the legislative process of the National People’s Congress (NPC) and promptly enact a law on detention houses. Even though administrative regulations enjoy considerable authority in China, they are ultimately administrative legislation that, according to Chinese conventional practice, is mostly drafted by enforcement agencies. Commonly called “institutional rulemaking,” the provisions and even principles of such laws are strongly infused with institutional interests, and many considerations are made to convenience management and enforcement, while insufficient consideration is given to the legal rights of those being managed. As such, there are always doubts about the fairness of “institutional rulemaking.” On the other hand, NPC legislation is able to enact laws that are much fairer and take into account the interests of all parties. This is by virtue of its high level of democratization in which various voices may openly compete as well as the impartiality of the NPC as an institution.

When it comes to issues concerning procuratorial oversight, it is certainly inappropriate for administrative regulations to provide specific provisions. First, there is currently insufficient direct legal basis for [a provision saying that] “detention houses carrying out detention activities shall submit to legal oversight by procuratorates.” Looking at China’s Organic Law of the People’s Procuratorates and Law on Prosecutors, there are only provisions covering legal oversight of prisons and detention centers (看守所), while no provisions concern procuratorates’ legal oversight of detention houses (拘留所). If the Detention House Regulations added such provisions, it would raise concerns that the State Council had exceeded its legislative powers.

“Procutorial oversight in the event that a detainee dies of unnatural causes” should be treated differently. A regulation requiring that “the procuratorate at the same [administrative] level shall immediately investigate and determine the cause of death” also seems like something that an administrative regulation is unable to stipulate because it also involves the separation and arrangement of power. But there is nothing wrong with “the detention house shall immediately notify the procuratorate,” because it has a legal basis. This is because, first of all, the public security organ must avoid suspicion, and second of all, the procuratorate has the legal responsibility to investigate crimes of dereliction of duty. When an unnatural death occurs in a detention house, the procuratorate should arrive at the scene as soon as possible—this is the fundamental requirement set out in Article 18(2) of the Criminal Procedure Law.

(Author is a law professor at Law School of the Shandong University of Political Science and Law)