Will a New Judicial Interpretation on Cults Lead to Greater Leniency?

Underground church goers watch a service on a video screen in Beijing. Image Credit: Express UK.

Since coming into force in October 1997, Article 300 of the Criminal Law “organizing/using a cult to undermine implementation of the law” has been frequently used to suppress groups such as Falun Gong, unofficial Christian groups, Buddhist sects, and over a dozen qigong groups including Zhonggong. Accompanying this law, two judicial interpretations were jointly issued by the Supreme People’s Court and Supreme People’s Procuratorate on October 1999 and June 2001, respectively, to explain the law's specific application. Effective since February 1, 2017, the latest joint interpretation of Article 300, consisting of sixteen articles, adds a new penalty range based on leniency and serves to redefine the sentencing standard.

New Sentencing Standard

The new interpretation incorporates previous changes made to the ninth amendment of the Criminal Law in November 2015 concerning the standard of punishments for cult crimes. Of significance is the elaboration of what is meant by “relatively minor circumstances” that can result in a sentence of three years or less, detention, surveillance, deprivation of political rights, fines, or combined penalties with fines. Such “circumstances” are defined in the interpretation as acts that inflict lighter social harm, which are measured by quantifiable factors such as: the number of cult propaganda materials produced and disseminated, the number of views or downloads of a cult propaganda video, the amount of economic loss caused by cult activity, or the number of members recruited by the cult. An act is considered relatively minor when such an amount or number falls below one-fifth of what is accepted as the new normal standard (see below).

In the future, we can expect to see more cult offenses deemed as “relatively minor” cases, partly because by raising the benchmark for evidence necessary to imprison cult prisoners for up to three to seven years, the new interpretation has expanded the scope of activities that fall under the category of “minor” cases. For instance, the quantity of print propaganda materials (such as leaflets, banners or newspapers) produced or disseminated for cult purposes that constitute a normal offense has now been raised to 1,000, a significant leap from 300, as stated in the 2001 interpretation. For propaganda in the form of books or publications, the quantity for a normal offence requires evidence of at least 250 materials, again a significant leap from the previous count of 100 publication materials. The interpretation also quantifies a number of additional criminal behavior used to determine sentencing.

List of criminal behaviors revised in Article 2 of the interpretation:

• Recruiting over 50 members;
• Swindling or leading to an economic loss of over one million yuan;
• Using at least 500 banknotes as a means to disseminate information about a cult;
• Manufacturing or disseminating cult propaganda over a certain amount:
  
  • over 1,000 leaflets, spray paints, pictures, banners and newspapers;
  • over 250 copies of books or publications, cassettes or audio-videotapes; or logos or signs;
  • over 100 CD-ROMs, U-disks, memory cards, mobile hard drivers or other mobile storage devices;
  • over 50 banners.
• Using the Internet to disseminate information about a cult:
  
  • manufacturing or disseminating over 200 digital pictures or articles, over 50 copies of e-books, publications, audios or videos, electronic files with over five million characters, or electronic files exceeding 250 minutes;
  • composing or making over 1,000 messages or phone calls;
  • using online chatrooms, chat groups, WeChat, microblogs or other social networking services to spread information about a cult involving over 1,000 members or followers;
  • cult messages with over 5,000 views or clicks.

A circumstance is considered “especially grave” when the quantity is five times more than the numbers stated above, and can lead to imprisonment of seven years or more. Although the ninth amendment to the Criminal Law increased the maximum sentence from 15 years to life, it has not been imposed for the single offense of Article 300. For example, while the Buddhist leader Wu Zeheng (吴泽衡) received a life sentence for charges of fraud and rape, his crime related to cult activity afforded him a sentence of 12 years.

Greater Leniency Despite a Surge in Cult Cases

Dui Hua’s Political Prisoner Database has collected information on over 8,000 individuals convicted of Article 300 of the Criminal Law between 2000-2016. Most convictions in the early years after Falun Gong was labelled an “evil cult” in 1999 are now considered “particularly serious circumstances” under the new interpretation. During that time, a number of high-profile leaders such as Wang Zhiwen (王治文) and Li Chang (李昌) were given lengthy sentences of over 10 years for multiple offenses.

Image Credit: Dui Hua Foundation.

Since December 2012, the total number of cult convictions recorded in the database has surged as a result of the nationwide clampdown on the group the Almighty God, and an improved level of judicial transparency due to the more regular online posting of court judgments. Nonetheless, the appearance of a new religious threat does not appear to be met with the same intensity compared to the Falun Gong crackdown of the early 2000s. Most convictions of Almighty God members resulted in sentences of three to four years' imprisonment, and fewer than 10 percent of all cult sentences in the same period exceeded seven years. Also noteworthy is the surge of cases now considered relatively minor with sentences of three years or less. In 2016, over half of the convictions for cult activity are now considered relatively minor cases according to the new interpretation, superseding the number of ordinary cult cases for the first time since the offense was codified in the Criminal Law.

Leniency in the form of shorter sentences is a further indication of an overall relaxation of the clampdown on cults. Article 9 of the interpretation states that:

“a perpetrator can be exempt from indictment or criminal punishment if he or she expresses sincere remorse about his wrongdoing, and exhibits a willingness to leave the cult and cease joining in its activities. Those who are deceived or intimidated into joining the cult will not be handled as criminals.”

Showing remorse is a prerequisite for prisoners seeking clemency, and it is not uncommon for prisoners charged with cult crimes to receive sentence reductions after expressing remorse for their behavior. Dui Hua’s Political Prisoner Database recorded over 300 instances of clemency in 2014 for cult prisoners and in 2015, the number surged to nearly 500.

Deprivation of Political Rights

Despite the trend towards greater leniency in sentence reductions, public security authorities also appear ready to continue exercising control over cult prisoners even after they have completed their sentences. Article 14 of the interpretation states that a supplemental sentence of “deprivation of political rights” (DPR) up to five years may be imposed on cult prisoners. Prior to the interpretation, only prisoners sentenced for the crime of “endangering state security” and a number of violent crimes were subject to a supplemental DPR sentence, depriving them of the right to vote, the right to stand for office and the right to hold a position in a state-owned company, regardless of the fact their sentences had already been completed. Of particular concern to cult prisoners is that individuals under DPR are prohibited from writing articles or giving interviews.

Dui Hua will closely monitor the application and impact of this new interpretation for cult prisoners. The new sentencing standards suggest an expansion of crimes considered “minor” and hopefully a reduction of cult prisoners serving long sentences. That said, the enhancement of the use of DPR may present new opportunities for public security authorities to exert control over cult members even after their release.

Leping 5.24 Murder Case: Wrongfully Convicted Seek Justice From Those Responsible

In May 2015, lawyers and activists protesting outside of Jiangxi High Court for the right to review the Leping case file. Source: ifeng.com, China Digital Times

On January 16, a group of lawyers filed a criminal complaint with prosecutors in Jiangxi Province against law-enforcement and judicial personnel responsible for one of China’s most infamous cases of wrongful conviction. There is yet no word on whether prosecutors will act on the complaint.

Late last year in the city of Leping, four men were acquitted of murder and rape, charges dating back to a sensational case from May 2000 involving the murder and dismemberment of a man and a woman. Local police came under serious pressure to solve the case after it went unsolved for two years, leading them to arrest Huang Zhiqiang, Fang Chunping, Cheng Fagen, and Cheng Lihe in 2002. These men have spent most of the last decade and a half behind bars, many of those years awaiting execution.

The former defendants in what became known as the “Leping 5.24 murder case” were convicted of murder, rape, and robbery and sentenced to death by the Jingdezhen Intermediate People’s Court. That verdict was overturned on appeal, and the case was sent back for retrial after the defendants alleged that their confessions had been obtained through torture. Despite the continued insistence that torture had taken place and inconsistencies in the defendants’ testimonies, death sentences were handed down again in 2004, only to be suspended by a two-year reprieve on appeal.

In 2011, the allegations of torture gained more credibility after a suspect in another criminal case confessed to having committed the crimes for which the four men had been convicted. Despite this confession, it still took officials another four years to reopen the case, and even then the defendants’ lawyers were prevented from accessing necessary case files. Meanwhile, lawyers and family members held a weeklong demonstration outside the provincial court as well as nightly candlelight vigils.

The lawyers’ protest took place amidst an ongoing crackdown of rights lawyers in China, who employ pressure tactics such as mobilizing public opinion to seek justice. In fact, an activist named Wu Gan—known more commonly by his online name, “Super Vulgar Butcher”—was detained in connection with the courthouse protest and now awaits trial on charges of subversion in Tianjin.

Neither the lawyers’ protest nor the charges facing Wu Gan feature in a recent opinion piece in The Beijing News, in which lawyer Ruan Ziwen focuses on the justice still due these four men following their release. Victims of earlier cases of wrongful conviction and even wrongful execution have received state compensation following their exoneration. Ruan makes it clear that compensation is not enough; accountability is also needed if there is to be any hope of changing the behavior of law enforcement officials and judicial personnel and preventing wrongful convictions.

The authorities in Jiangxi should be given credit for acknowledging past mistakes in the Leping case and righting the wrong that has been done. But it should not be forgotten that the four original defendants in the Leping case are free today largely because of the efforts of lawyers and others who continuously fought to challenge the conviction and demand justice. In China’s current legal environment, where questioning a court decision can be construed as a challenge to judicial authority or even be considered a politically subversive act, it remains to be seen how many lawyers will continue to stand up on behalf of defendants like those in the Leping case.

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It is Right and Proper for Victims of Injustice to File Complaints

Ruan Ziwen
The Beijing News, January 17, 2017

According to The Beijing Times social media channel, the five men wrongfully convicted in the "Leping 5.24 Murder Case”, together with their lawyers, have filed a criminal complaint with the Jiangxi Procuratorate, accusing police and procurators of “intentional homicide” and the Jiangxi High Court judge, who originally handed down the sentence against Huang Zhiqiang and three other defendants of “bending the law for personal interest”. The complainants have requested that their allegations be submitted to the Supreme People’s Procuratorate and that provincial law enforcement and judicial authorities completely recuse themselves from the case.

The difficult step, taken by these victims of wrongful conviction with the help of lawyers, to file these criminal complaints has immeasurable practical significance and social impact.

The past few years have seen the reversal of a number of wrongful conviction cases with major national influence. Not too long ago, the defendants in the Leping case were acquitted by the Jiangxi High Court. According to the provisions of the State Compensation Law, victims of wrongful conviction may seek compensation ranging from a few million yuan to tens of millions. In cases ranging from the Huugjilt case, to the case of the uncle and nephew surnamed Zhang, to the Nie Shubin case, the victims or their immediate family members all applied for state compensation, however none filed criminal complaints against those responsible for the case.

From a technical legal perspective, there are challenges involving discovery and making a legal case that must be overcome in order to prove criminal wrongdoing by someone carrying out their duties in the handling of a case. From a practical legal standpoint, without institutional safeguards or effective oversight mechanisms, it is also difficult to get law enforcement or judicial bodies to bring “their own” to justice. It is therefore not hard to understand the sense of helplessness that makes victims of injustice unwilling to initiate complaint procedures.

Despite this environment, the victims of injustice in the Leping case were still willing to file their complaints. The key significance of their action is that they are claiming their inherent rights. At the present, when a country governed by laws [is advocated], there is long-lasting value in using an individual case such as this to force law-enforcement personnel and judicial authorities to investigate, prosecute, and adjudicate in accordance with the law.

If we take a moment to sift through the wrongful convictions that have been overturned in the past few years, we find that nearly all of them involved coercion of confessions through torture, insufficient evidence, or unclear facts. Nevertheless, contrary to the rule of law, the investigation, prosecution, and adjudication processes all managed to produce a guilty verdict and force victims to either die an unjust death or spend years in prison for crimes they didn’t commit. It’s hard to chalk this up simply to a lack of professional quality among those who handled the case; sometimes, the problem is that those handling the case perverted the course of justice.

Reasonably speaking, the exercise of the Leping victims’ rights is both justified and normal. In compliance with the law, the Jiang Xi legal authorities should grant them adequate protection and response.

Even though many wrongful convictions are connected to institutional problems, inadequacies of laws and regulations, or even human interventions and policies, these things cannot be used as excuses for legal officials to evade responsibility in handling cases. The legitimacy of how evidence is obtained, the proper finding of facts, and the proper application of the law have all been explicitly formulated in the provisions of both substantive and procedural law, even when we look at the legal provisions from 10 or 20 years ago.

It’s possible that some of the people responsible for these miscarriages of justice lacked respect in the law or lacked faith in the idea of in judicial fairness. If that’s the case, the malicious intent behind their deliberate actions and perversions of the law will be relatively evident.

No matter what the outcome will be, the fact that the victims of the Leping wrongful conviction case have filed their complaint ought to get the attention of those who design the legal system. It also ought to alert those in the judicial and law-enforcement agencies of the need, in the future operation of the legal system, to reduce and eliminate wrongful convictions and give due legal punishment to those legal personnel responsible for making those wrongful convictions.