By Jerome A. Cohen
Yesterday was International Human Rights Day. As we look back at Beijing’s human rights record this past year, one of the most troubling abuses in China continues to be arbitrary detention (I’ve written about this subject with Yu-Jie Chen, SSRN here).
Rights lawyers are often the target for such abuses. Persisting prominent examples are lawyers WANG Quanzhang and YU Wensheng, who remain in detention. Foreign critics and activists are not spared. YANG Hengjun, for example, a famous Australian-Chinese blogger, has been detained on the charge of espionage since January. Policy experts like Michael Kovrig and business people like Michael Spavor, the two Canadians detained in China after Canada arrested Huawei’s CFO in accordance with the U.S. extradition request, have been in detention for a year. Just to name a few.
The victims often suffer prolonged detention in a non-transparent process. While China’s Criminal Procedure Law provides some legal time limits on holding detained and arrested persons, there are exceptions to these limits that the police and procuracy have the liberty to invoke in practice. For example, the National People’s Congress Standing Committee (NPCSC) can approve unlimited extensions of time for a criminal investigation! What is less clear is whether the NPCSC, when approving extensions, is supposed to issue a public notice to this effect as it does with other actions. Has the NPCSC ever done so?
Another technique for exceeding the prescribed criminal procedure time limits is for the police to restart the clock on the ground that investigation of the suspect has revealed the need to investigate another major crime that the suspect may have committed. My impression is that this has frequently been done in practice but with no systematic reporting of such important decisions to the outside world. Papers are processed within the police bureaucracy, and perhaps the procuracy is informed if it has inquired.
If police officials deign to acknowledge inquiries from a defense lawyer or family member, they might well release this often spurious “new crime” rationale for extending the detention time of a suspect whose case has been delayed for political or other meretricious reasons. But there is no way in practice for such a decision to be effectively challenged. When the case finally comes to trial, the rationale for the delayed detention might often be mentioned in the indictment and would be in the appended police documentation of the case and usually mentioned in the account of procedure rendered in the court’s judgment. Yet these are formalities, not protections.
Of course, it is important to bear in mind that in practice people are often detained in the criminal process in blatant disregard of prescribed limits (Think Gui Minhai, the Swedish national who was kidnapped from Thailand and now disappeared in the arms of Mainland police).
Moreover, with the recent introduction of the “supervision commission” process, suspects can be detained for 6 months before a decision is made about whether to turn the victim over to the formal criminal process or some other sanction.
Finally, there are also other supposedly “non-criminal” detention procedures such as those still existing for drug and prostitution offenders. Others are also detained wholly outside the formal criminal process and even outside the formal police short-term administrative detention process that annually punishes many millions of people for up to 15 days in jail. Of the more than one million Chinese Muslims who have been detained in Xinjiang’s re-education camps, only a minority have been detained under formal criminal procedures.
This is not an exhaustive list. The PRC has mastered many forms of arbitrary detention.
