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George Washington University Law School

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Friday, December 12, 2008

Legal analysis of Liu Xiaobo's detention

Liu Xiaobo, one of the signatories of Charter 08, has been in detention since Dec. 8, probably in connection with that document. Here's a brief overview of some of the relevant legal issues, courtesy of Joshua Rosenzweig (Dui Hua Foundation) and Nicholas Bequelin (Human Rights Watch). Comments and corrections welcome.

I. Coercive measures:

Under the provisions of China's law on criminal procedure (and associated regulations), the following types of "coercive measures" (强制措施) are at police disposal in the investigation of a case:

Coercive summons (据传): Police can hold suspect for up to 12 hours, after which point they must either release or formally change status. Suspect must be shown the summons and is required to sign or otherwise acknowledge its delivery. Police cannot use series of coercive summons to detain someone indefinitely. Zhang Zuhua was apparently given coercive summons and then subsequently released on bail pending further investigation (see below).

Release on bail pending investigation (取保候审): Decision issued from the public security bureau (PSB, not  local police station), read to suspect, suspect required to sign or otherwise ackowledge. Under this status, suspect cannot leave local area without permission, is required to appear when summoned for questioning, and is prohibited from tampering with witnesses or destroying evidence. Local police station takes responsibility for enforcement and can require suspect to make periodic reports. Bail period cannot exceed 12 months. No formal notification to family is required.

"Residential surveillance" (监视居住): Decision issued from PSB (not police station), read to suspect, suspect required to sign or otherwise acknowledge. Under this status, suspect cannot leave residence or designated dwelling without permission, meet with anyone other than his lawyer, is required to appear when summoned for questioning, and is prohibited from tampering with witnesses or destroying evidence. Surveillance period cannot exceed six months. No formal notification to family is required.

In theory, "residential surveillance" should take place at one's residence (thus meaning there is little need for family to be notified). However, in practice police have often stretched the provisions of the law and applicable regulations and held suspects in guest houses or other locations. (This is illegal when the suspect has a residence that could otherwise be used for this purpose.) According to a SPC interpretation, "residential surveillance" under such circumstances constitutes "deprivation of liberty" and, therefore, the length of time spent under such surveillance must be counted as "time served" in any eventual sentence. However, the lack of requirement for notification appears to be a major loophole.

Criminal detention (刑事拘留): Police must notify family within 24 hours of placing suspect under criminal detention, unless PSB approval on one of following grounds: other suspect in the case may abscond or destroy or tamper with evidence; suspect does not give true name, address, identity; or other factors that could hinder investigation. Under normal circumstances, decision to request formal arrest should be made within three days, but this can be extended to up to one week with approval of PSB. Detention of up to 30 days can be approved in cases involving criminal acts in different jurisdictions, more than three criminal acts, or cases involving two or more individuals. In most political cases, detention for 30 days is the norm.

II. Access to a lawyer:

Access to a lawyer and access by a lawyer to his/her client is a notoriously sore point in China's criminal system.

A criminal suspect can retain a lawyer after his first interrogation by the investigative organs, or from the day the detention starts [Criminal Procedure Law (CPL), art. 96]. Liu's lawyer, Mo Shaoping, has already indicated that he estimates that police has exceeded the time limits. ["The police must notify the family of the reasons for detention within 24 hours," lawyer Mo Shaoping told AFP. "It has been nearly three days since they arrested him so (the police) are violating the law." (AFP, Dec. 12, 2008)]

However, one important exception concerns cases "involving state secrets," for which the hiring of a lawyer is conditioned on approval by the investigating organs. In those cases, the time limits and procedures to gain access are set by specific regulations (the "Joint Regulations" from the SPC). The Joint Regulations provide that law enforcement agencies must comply with a valid visit request from a retained lawyer within 48 hours in "ordinary cases" and within five days if the case involves organized crime or is "especially complicated." In cases "involving state secrets" the right to visit is conditioned on the approval of the investigation organs.

The revised Law on Lawyers, who took effect on June 1st this year, has removed all exceptions to the right to meet with a suspect in detention, including for cases "involving state secrets." There is a bit of a tussle to know what should have precedence: the Law on Lawyers or the Criminal Procedure Law, with contradictory statements from various officials. In practice the PSB and the Procuracy continue to deny access to clients on the basis that the case involves state secrets. The authorities justified denying access to Hu Jia on this basis earlier this year, and it is hard to see why the police could not invoke this in Liu Xiabo's case.

III. Liu Xiaobo's detention history

It must be stressed that as far as we know, and despite his long history of harassment, by the authorities, Liu Xiaobo has never been formally arrested or convicted of a criminal offense:

  • He spent two years in prison following the crushing of the democracy spring movement (June 6, 1989 to January 1991) without being tried.
  • He was detained for eight months, between May 1995 and January 1996, for his involvement in a petition campaign.
  • He spent three years of reeducation-through-labor (from October 8, 1996 to October 7, 1999) for having "repeatedly stirred up trouble and disrupted public order." The UN Working Group on Arbitrary Detention issued a decision saying that the government had not given "any supporting evidence to back up these charges" and declared his detention to be arbitrary (September 15, 1999).
  • Since his release in 1999, Liu Xiabo has been subjected to ruanjin (软禁), a form of police surveillance and house arrest with no legal basis.

In view of the above it is clear that a formal criminal detention would be an escalation, and we have no doubt that the authorities are well aware of this.

IV. Criminal penalties for "inciting subversion"

The crime of "inciting subversion" is defined by Article 105(2) of China's criminal code as "inciting others by spreading rumors or use of slanders or any other means to subvert state power or overthrow the socialist system." Under normal circumstances, the maximum penalty for inciting subversion is five years' imprisonment. For "ringleaders" or in "major cases" (a standard for which there is no real criteria), five years' imprisonment is the minimum sentence. If a defendant is found to have committed this crime "in collusion with any organ, organization or individual outside the territory of China," Article 106 of the criminal code provides for heavier punishment. (In addition, those previously convicted of criminal charges who re-offend within five years of completing their sentence are also subject to heavier penalties, but this provision is irrelevant in Liu's case.)

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