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George Washington University Law School

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Thursday, February 21, 2013

Zhejiang man tried for 1967 Cultural Revolution killing

130219 Man tried in Zhejiang for Cultural Revolution killing (small pic)
Here's a pretty astounding story that's currently agitating the Chinese twittersphere/blogosphere: a Zhejiang man in his eighties was tried for a murder that took place in 1967, at the height of the Cultural Revolution. According to the China News Service story, the defendant, surnamed Qiu, was directed by the local militia to strangle the victim, a doctor suspected of being an informant for unspecified others - perhaps a rival group. Qiu was arrested in July 2012, after having been out of the area of decades. (The South China Morning Post story linked to above says he was "on the run", but the Chinese text doesn't support that interpretation; it just says he had been away from home for decades, without any implication that he was trying to avoid capture.)

This case raises two interesting legal issues.

First, is there no statute of limitations in China? Yes, there is. The longest period allowed is 20 years; that's for crimes punishable by life imprisonment or the death penalty (Art. 87 of the Criminal Law). There are two ways this prosecution could lawfully go forward, however, in spite of the passage of time. First, Art. 88 says that the ticking of the clock is suspended if the suspect flees investigation after authorities have initiated one or a court has already accepted the case. Thus, I suppose the case could be brought now as long as the authorities initiated an investigation within 20 years of the killing and the suspect is deemed to have fled. (If they waited longer, then there would be no crime left to prosecute, at least as I understand the rule.) That's possible: twenty years later puts us in 1987. Second, Art. 87 says that prosecutions can when necessary be brought even after twenty years have passed, but only with the permission of the Supreme People's Procuratorate. The short press report we have does not, of course, say anything about this.

Second, aren't the courtrooms of China going to get a little, ahem, crowded if we start prosecuting everyone who was involved in extrajudicial killings during the Cultural Revolution? One can understand the policy decision that some cans of worms should be left unopened. The Chinese Communist Party does not do Truth Commissions. Indeed, this very issue has already been thought about, and there was in the past an official poicy on it.

In 1984, the Supreme People's Procuratorate (the body in charge of prosecutions) issued an official Reply to a question from the Hebei Provincial Procuratorate about whether to prosecute those who had caused injury or death in the course of struggle sessions or forcing confessions through torture during the Cultural Revolution. The answer: "Cultural Revolution cases took place during special historical conditions. The issue of whether or not to prosecute these cases is highly political. In accordance with the spirit of relevant rules of the Central [Party Committee] and the Provincial Party Committee, the matter should be handled by political-legal organs according to law after reporting to the Party Committee [the administrative level of which is left unspecified] for examination, approval, and decision. If relevant organs have different views in the course of carrying out [this policy], they should report to the Party Committee for resolution through adjustment." In other words, it is recognized that these cases are not simple murder cases, and essentially a fact-intensive political decision must be made each time one of them comes up.

The legal effect of this document, however, was annulled in 1993 by another document from the Supreme People's Procuratorate. No reason is provided; perhaps it was just embarrassing to have this reminder around, or perhaps someone thought the language about having everything decided by the Party, instead of by legal professionals, was a little outdated and reminiscent of the Bad Old Days. The document does not explain why the earlier document was annulled or what policy should take its place, so it's a little unclear where we now stand: since the 1983 document essentially establishes a restriction on prosecutions and then provides a way to proceed, does annulling it abolish the restriction or does it abolish the way to proceed?

Whether this prosecution is a one-off or a harbinger of more to come is a question of more than just academic interest. The Cultural Revolution has not yet (despite the Party's best efforts) passed into the mists of history, where "the memory of man runneth not to the contrary," as they say in property law. People who were 20 in 1967 - certainly old enough to beat people to death - are now 66 and possibly still in good shape if they been doing their tai-chi. People who lost relatives are still alive, too. This case may awaken what was perhaps a long-dormant desire for vengeance.

I've provided a screen shot of the Chinese news story at the top of this post; it's already been scrubbed from several sites, and by the time I post this and you read it, it may be unavailable at the link I've provided.

http://lawprofessors.typepad.com/china_law_prof_blog/2013/02/zhejiang-man-tried-for-1967-cultural-revolution-killing.html

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