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| 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 [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 |
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 |
