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40–481 PDF 2008

RIGHTS OF CRIMINAL SUSPECTS 

AND DEFENDANTS

REPRINTED

FROM THE

2007 ANNUAL REPORT

OF THE

CONGRESSIONAL-EXECUTIVE 

COMMISSION ON CHINA

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

OCTOBER 10, 2007

Printed for the use of the Congressional-Executive Commission on China

(

Available via the World Wide Web: http://www.cecc.gov 

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA 

LEGISLATIVE BRANCH COMMISSIONERS

House Senate

SANDER LEVIN, Michigan, Chairman 

MARCY KAPTUR, Ohio 

MICHAEL M. HONDA, California 

TOM UDALL, New Mexico 

TIMOTHY J. WALZ, Minnesota 

DONALD A. MANZULLO, Illinois 

JOSEPH R. PITTS, Pennsylvania 

EDWARD R. ROYCE, California 

CHRISTOPHER H. SMITH, New Jersey

BYRON DORGAN, North Dakota, Co-Chairman 

MAX BAUCUS, Montana 

CARL LEVIN, Michigan 

DIANNE FEINSTEIN, California 

SHERROD BROWN, Ohio 

SAM BROWNBACK, Kansas 

CHUCK HAGEL, Nebraska 

GORDON H. SMITH, Oregon 

MEL MARTINEZ, Florida

EXECUTIVE BRANCH COMMISSIONERS

PAULA DOBRIANSKY, Department of State 

CHRISTOPHER R. HILL, Department of State 

HOWARD M. RADZELY, Department of Labor

DOUGLAS GROB, Staff Director 

MURRAY SCOT TANNER, Deputy Staff Director

(II) 

(1)

RIGHTS OF CRIMINAL SUSPECTS AND DEFENDANTS

INTRODUCTION

Since 2001, the Commission has been monitoring the development of human rights and the rule of law in China. The Commission’s legislative mandate calls for scrutiny of Chinese government 

actions that either comply with or violate the fundamental human 

rights enjoyed by all individuals, including those individuals accused of a crime under China’s domestic laws. The mandate calls 

specifically for the monitoring of criminal defendants’ rights,

including the right to be tried in one’s own presence; to defend oneself in person or through legal assistance; to be informed of the

opportunity for trial and criminal defense; to receive legal aid services where necessary; to be afforded a fair and public hearing by 

a competent, independent, and impartial tribunal; to be presumed 

innocent until proven guilty; and to be tried without undue delay.1

In addition, the mandate requires that the Commission focus continuing attention on those individuals believed to be imprisoned, 

detained, placed under house arrest, tortured, or otherwise persecuted by Chinese government officials in retaliation for the mere 

pursuit of their rights.2

The Commission’s annual report recommendations over the past 

five years have focused on the gap between mere legal ideals and 

actual law enforcement practice. In 2002, 2004, and 2006, the Commission underscored the continuing need to help fund and 

strengthen the work of criminal defense lawyers in China. In 2003, 

and again in 2006, the Commission emphasized that the detention 

and imprisonment of activists and rights defenders only serve to 

undermine the legitimacy of China’s developing legal system. It 

thus called for the need to press for release of targeted individuals. 

Between 2002 and 2004, the Commission underscored the significance of multilateral and diplomatic efforts in encouraging the Chinese government to grant unconditional visits to the UN Working 

Group on Arbitrary Detention and the UN Special Rapporteur on 

Torture.3 Based on the findings of those UN bodies, the Commission focused in 2006 on the urgency of reforming China’s administrative detention system, abolishing forced labor practices, and

ensuring that the procuracy exercise greater oversight over police 

abuses. 

Domestic and international developments in 2006 have helped to 

highlight the Chinese leadership’s desire to increase China’s profile 

among the international community of rule of law nations. China 

was elected to serve for a three-year term on the newly established 

UN Human Rights Council, noting in its application that it had acceded to 22 international human rights accords, including 5 of the 

7 core conventions.4 The Chinese government promised that it 

would amend its Criminal, Civil, and Administrative Procedure 

2

Laws, as well as reform its judiciary, in preparation for ratification 

of the International Covenant on Civil and Political Rights.5 In addition, Chinese citizens were appointed to lead international bodies 

such as the International Association of Anti-Corruption Authorities and the World Health Organization.6

While the Commission recognizes the progress that China has 

made in bringing its own practices into compliance with international standards, it also notes that significant gaps remain within Chinese laws and regulations, and between law on the books 

and law in action. The ideals embodied in recent legal and regulatory reforms are positive first steps, but nonetheless incomplete, 

and have not necessarily translated into the everyday practice of 

local law enforcement officers. For example, international human 

rights standards require that due process of law be accorded to all 

criminal suspects and defendants, and that they be free from torture, arbitrary detention, and prosecution on the basis of their political opinions or exercise of human rights.7 Nonetheless, China’s 

Criminal Law, Criminal Procedure Law, and accompanying regulations leave too much room for discretion and abuse. As a result, 

NGO and media reports indicate that criminal defense efforts have 

been hampered, numerous Chinese citizens continue to be arbitrarily detained and convicted, and torture remains widespread. 

The Commission’s findings in this section have been placed in 

the context of five years of monitoring and reporting on criminal 

justice reform, and take into account some of the systemic problems 

that have persisted throughout China during that timeframe. In 

many areas of criminal procedure, reforms that were initiated several years ago have stalled in the past year, and failed to achieve 

the goals of better protecting human rights and guarding against 

official abuse. The problems that persist, and the reforms designed 

to confront those problems, are analyzed in greater detail throughout the remainder of this section. The first part of the section discusses continuing abuses of criminal law and procedure, while the 

second part turns to institutional failings that make these abuses 

possible. 

LAW IN ACTION: ABUSES OF CRIMINAL LAW AND PROCEDURE

Arbitrary Detention 

The UN Working Group on Arbitrary Detention (UNWGAD) defines the deprivation of personal liberty to be ‘‘arbitrary’’ if it meets 

one of the following criteria:

• there is clearly no legal basis for the deprivation of liberty; 

• an individual is deprived of his liberty because he has exercised rights and freedoms guaranteed under the Universal Declaration of Human Rights (UDHR) or International Covenant 

on Civil and Political Rights (ICCPR); or 

• non-compliance with the standards for a fair trial set out in 

the UDHR and other relevant international instruments is sufficiently grave to make the detention arbitrary.8

The ICCPR provides that the deprivation of an individual’s liberty is permissible only ‘‘on such grounds and in accordance with 

such procedure as are established by law,’’ and that an individual 

3

must be promptly informed of the reasons for his detention and any 

charges against him.9

Arbitrary detention in China takes several different forms, including detention and incarceration for the peaceful expression of 

civil and political rights, detention and incarceration in circumvention of criminal procedure protections, and illegal extended detention in violation of China’s own Criminal Procedure Law. 

Political Crimes 

China’s Criminal Law was revised by the National People’s Congress in 1997 to eliminate mention of the socialist revolution and 

counterrevolutionary crimes, but to otherwise preserve the political 

and economic orientation of the Chinese criminal justice system:

The aim of the Criminal Law of the People’s Republic of 

China is to use criminal punishments to fight against all 

criminal acts in order to safeguard security of the State, 

to defend the State power of the people’s democratic dictatorship and the socialist system, to protect property owned 

by the State, and property collectively owned by the working people and property privately owned by citizens, to 

protect citizens’ rights of the person and their democratic 

and other rights, to maintain public and economic order, 

and to ensure the smooth progress of socialist construction.10

Nonetheless, Chinese prisons continue to hold individuals who 

were sentenced for counterrevolutionary and other crimes that no 

longer exist under the current Criminal Law.11 Shortly preceding 

the annual session of the UN Human Rights Commission in 

2005,12 Chinese central government officials pledged to ‘‘provide relief’’ to those imprisoned for political acts that were no longer 

crimes under the law.13 The U.S. State Department reported that 

in 2006, despite the urging of foreign governments, the Chinese 

government had yet to conduct a national review of such cases and 

continued to hold approximately 500 individuals in prison for 

counterrevolutionary crimes alone.14

Developments over the last year have breathed new life into this 

issue. The Dui Hua Foundation, which researches and seeks to 

curb political imprisonment, recently confirmed that on November 

11, 2007, Chinese authorities will release one of the last known 

prisoners serving a sentence for the former crime of 

‘‘hooliganism.’’ 15 Authorities originally detained Li Weihong, a 

manufacturing worker in Changsha city, Hunan province, in April 

1989 for helping to organize protests that subsequently turned

violent. In February 2006, authorities released journalist Yu 

Dongyue, who was detained for throwing paint during the 

Tiananmen democracy protests of 1989 and later convicted of 

‘‘counterrevolutionary propaganda’’ and ‘‘counterrevolutionary sabotage and incitement.’’ 16 Numerous others remain in prison for 

counterrevolutionary crimes, including: Hu Shigen, who helped to 

establish the China Free Trade Union Preparatory Committee and 

China Freedom and Democracy Party, and was later convicted of 

‘‘organizing and leading a counterrevolutionary group’’ and ‘‘engaging in counterrevolutionary propaganda and incitement’’ 17 [see Section II—Worker Rights for additional information about his case]; 

4

and former Tibetan monk Jigme Gyatso, who was detained for distributing pro-independence leaflets and putting up posters and 

later convicted of ‘‘forming a counterrevolutionary organization’’ 18

[see Section IV—Tibet for additional information about his case]. 

The Chinese central government officially maintains that there 

are no ‘‘political prisoners’’ in China, but ample evidence suggests 

that the Criminal Law is routinely abused to target and imprison 

individuals for their political opinions or the exercise of their fundamental human rights. China’s official position on this issue has 

remained the same since 1991, when the State Council Information 

Office issued its first white paper on human rights: ‘‘In China, 

ideas alone, in the absence of action which violates the criminal 

law, do not constitute a crime; nobody will be sentenced to punishment merely because he holds dissenting political views.’’ 19 However, since 2002, the Commission has reported on the repeated

harassment, detention, and imprisonment of political dissidents, 

journalists, writers, lawyers, human rights defenders, Protestants, 

Catholics, Falun Gong practitioners, Tibetans, and Uighurs, among 

other groups. Many of these individuals continue to serve long prison or reeducation through labor sentences as a result of their 

peaceful exercise of fundamental rights guaranteed under China’s 

Constitution, the UDHR, and the ICCPR.20

The ability of local law enforcement officers to target and punish 

these individuals is made possible, in large part, by the existence 

of vague criminal and administrative provisions, which allow for 

the punishment of activists for crimes of ‘‘disturbing public order’’ 

and ‘‘endangering state security.’’ 21 Over the past five years, the 

Commission has reported on numerous instances in which these 

two categories of crimes have been used to charge and convict individuals for their politics, beliefs, and affiliations.22 After a 2004 

visit to China, the UN Working Group on Arbitrary Detention 

(UNWGAD) recommended that the Chinese government define 

these crimes in precise terms and create exceptions under the 

Criminal Law for peaceful activity in the exercise of fundamental 

rights guaranteed by the UDHR.23 In his March 2006 report to the 

UN, Special Rapporteur on Torture Manfred Nowak noted that to 

date, UNWGAD’s recommendation has not been implemented.24 He 

further concluded: ‘‘The vague definition of these crimes leaves 

their application open to abuse particularly of the rights to freedom 

of religion, speech, and assembly.’’ 25 In its 2006 Annual Report, the 

Commission echoed these international calls for greater clarity in 

the definition of such crimes under Chinese law. No progress has 

been made on this front. 

The reality is that Chinese citizens remain susceptible to detention 

and incarceration as punishment for political opposition to the government, as well as for exercising or advocating human rights. China’s leaders say that they are committed to building a fair and just 

society based on the rule of law, with adequate guarantee of civil 

and political rights. In order to demonstrate true commitment to 

these claims, China’s leaders need to ensure the prompt review of 

cases in which an individual was charged with counterrevolutionary 

crimes. They have already set a precedent for doing so, by resolving 

and releasing one of the last known prisoners serving a sentence 

for hooliganism, another crime eliminated by the 1997 revision to 

5

the Criminal Law. Logical next steps would include taking prompt 

action to clarify the Criminal Law’s vague definitions of crimes that 

‘‘disturb public order’’ or ‘‘endanger state security,’’ and providing 

for the parole or immediate release of all political prisoners. 

Detention Outside the Criminal Process 

Chinese law enforcement officers routinely detain individuals 

without formal charge or judicial review, in contravention of international human rights standards and Chinese law. Both the UDHR 

and ICCPR provide that everyone is entitled to a ‘‘fair and public 

hearing’’ by an ‘‘independent and impartial tribunal,’’ and that the 

accused shall enjoy ‘‘the right to be presumed innocent until proved 

guilty according to law.’’ 26 These guarantees have been incorporated into China’s Criminal Procedure Law (CPL) and related 

regulations. Nevertheless, public and state security officials regularly authorize mass security sweeps and take advantage of law

enforcement tools that include incommunicado detention, surveillance, house arrest, and administrative detention measures such as 

reeducation through labor, to harass and control Chinese citizens. 

In some instances, police hold individuals in custody for a few 

days before ultimately releasing them, without any justification 

other than a general desire to avoid protests and other instances 

of social unrest that might undermine Party governance. The CPL 

permits detention without arrest or charge, but generally requires 

notification of family members or the detainee’s workplace within 

24 hours of custody.27 Public security officials have been known to 

conduct mass security sweeps during politically sensitive periods in 

China, including the approach of significant public anniversaries, 

the annual sessions of Party or central government officials, and 

the duration of visits by foreign dignitaries.28 Citizens from localities throughout China travel to Beijing to voice their complaints 

before central government offices, often congregating together in 

‘‘petitioners’ villages’’ on the city’s outskirts. [See Section III—Access to Justice for a discussion of petitioning]. NGO and media 

sources have reported that police officers conduct night raids of 

these villages, sending petitioners to a special holding location 

called ‘‘Majialou’’ pending their forced repatriation home.29 In 2006, 

a senior official from the Ministry of Public Security justified such 

security sweeps on the basis of the government’s need to ‘‘manage 

public order’’ and to ‘‘reduce some of the factors threatening social 

stability.’’ 30

In March 2007, officials launched ‘‘the largest ‘clean-up’ operation by the police in recent years’’ and detained over 700 individuals.31 According to Human Rights Watch (HRW), the detentions 

of more than 700 individuals in advance of this year’s session of 

the National People’s Congress were ‘‘widely seen as a grand rehearsal in public order tactics for two even more important upcoming events: the Communist Party’s 17th Congress in October 2007 

and the Olympics Games in 2008.’’ On August 30, officials posted 

notice of imminent plans to demolish an area bordering the southern railway station in Beijing, where an estimated 3,000 to 4,000 

petitioners congregate.32 The notice provides a three-week deadline 

for relocation and attributes the timing of the demolition to 

6

planned road construction, but HRW asserts that it may also be 

the result of the ‘‘clean-up’’ in advance of the Party Congress.33

In other instances, Chinese law enforcement officers have relied 

on measures such as surveillance and house arrest34 to punish and 

control political activists, despite the lack of any legal basis for 

such deprivations of liberty. Brad Adams, Director of HRW’s Asia 

Division, has commented that house arrest is becoming ‘‘the weapon of choice for the authorities in silencing and repressing civil 

rights activists.’’ 35 He added, ‘‘It is imposed at the entire discretion 

of the police and takes place outside of any legal procedure—you 

can’t get more arbitrary than that.’’ The case of Chen Guangcheng, 

a legal advocate who exposed and challenged the abuses of local 

population planning officials in Linyi city, Shandong province, provides one concrete example to support HRW’s analysis. Public security officials at the county level placed Chen under house arrest in 

September 2005, one year before authorities ultimately charged 

and convicted him.36 A network of Chinese human rights activists 

and groups worked with Chen’s defense lawyers to submit information about his case to the UNWGAD, the UN Special Rapporteur 

on the Independence of Judges and Lawyers, and the Special Representative of the Secretary General for Human Rights Defenders.37 Around the time of Chen’s retrial on November 27, 2006, the 

same public security officials issued a formal decision to place 

Chen’s wife, Yuan Weijing, under house arrest from November 28, 

2006 until May 27, 2007.38 Despite the expiration date made explicit in this order, security officers reportedly obstructed Yuan’s 

attempts to meet with U.S. Embassy officials in July 2007 and prevented her from exiting the country in August to receive an award 

on behalf of her husband.39

In cases where there is insufficient evidence to proceed with formal prosecution,40 or it is expedient for the local government to 

keep watch over an activist for up to several years,41 public security officials have taken advantage of their power to punish Chinese citizens through administrative sanction. Chinese law allows 

for punishment that includes ‘‘administrative,’’ rather than criminal, detention of individuals who have been accused of ‘‘public security’’ offenses such as public order disturbances, traffic offenses, 

prostitution, and other ‘‘minor crimes’’ under the Criminal Law.42

Pursuant to the Public Security Administration Punishment Law 

(PSAPL), effective March 1, 2006, public security officials can impose sanctions ranging from a warning or fine, to a maximum of 

20 days in administrative detention.43 A total of 165 offenses, including ‘‘taking on the name of religion or qigong to carry out activities disturbing public order,’’ 44 are subject to sanctions under 

the PSAPL. In November 2006, three house church Christians in 

Wendeng city, Shandong province, succeeded in forcing the local 

public security bureau (PSB) to rescind its decision to hold them 

in administrative detention for 10 days for allegedly committing 

this particular offense under the PSAPL.45 Their success was attributable to the PSB’s willingness to reach an out-of-court settlement and therefore avoid the issue of whether the detention had 

violated their constitutional and legal rights.46 [See Section II—

Freedom of Religion—Religious Freedom for China’s Protestants for 

a more detailed analysis of efforts to defend religious rights.] Li 

7

Baiguang, who represented the three, agreed to drop the administrative complaint that he had filed on October 12 against the PSB 

in exchange for its promise to rescind the decision.47

China’s system of ‘‘reeducation through labor’’ (RTL) has long 

drawn fire from various members of the international community 

as the most egregious abuse of administrative detention measures. 

Under the RTL system, public security officials can investigate a 

case and propose that an individual be confined to a RTL center 

for up to three years, with the possibility of a one-year extension.48

The list of offenses subject to RTL is broad and vaguely defined,49

lending itself to abuse by public security officials in order to silence 

Chinese citizens who attempt to express their political opinions or 

assert their fundamental rights.50 Moreover, the RTL administrative committees that are responsible for making the final decision 

consist of representatives from each of the local public security, 

civil affairs, and labor bureaus,51 but in practice, are dominated by 

public security officials.52 Despite being harsher than some criminal punishments,53 a RTL decision is typically imposed in the

absence of judicial review by an independent and impartial tribunal.54 The Chinese government has argued that administrative 

detention decisions are subject to judicial review under the Administrative Litigation Law (ALL), but the UNWGAD found ALL review ‘‘of very little value’’ and maintained that ‘‘no real judicial 

control has been created over the procedure to commit someone to 

[reeducation] through labor.’’ 55 In practice, the decision to confine 

someone to a RTL center is rarely successfully challenged.56 Between 1999 and 2002, the number of individuals held in RTL centers was estimated to range from 260,000 to 300,000.57 According 

to the U.S. State Department, official statistics released in 2005 reflect the rapid growth of these numbers over the past few years, 

to a new total of approximately 500,000.58

Chinese authorities use RTL and other forms of administrative 

detention to circumvent the criminal process in a manner which 

disregards the procedural protections guaranteed under domestic 

and international law.59 China’s Legislation Law requires that all 

deprivations of personal liberty be authorized by national law, and 

not just by administrative regulation.60 Under the criminal justice 

system, a Chinese citizen cannot be found guilty of any crime, even 

a ‘‘minor crime,’’ without being judged guilty by a people’s court.61

The Constitution makes explicit the inviolable nature of a person’s 

liberty and further dictates:

No citizen may be arrested except with the approval or by 

decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security 

organ. Unlawful deprivation or restriction of citizens’ freedom of person by detention or other means is prohibited. 

...62

While the Chinese government consistently emphasizes the beneficial ‘‘reeducation’’ function of administrative detention measures,63 Manfred Nowak, UN Special Rapporteur on Torture, found 

after visiting China that ‘‘some of these measures of [reeducation] 

through coercion, humiliation and punishment aim at altering the 

personality of detainees up to the point of even breaking their 

will.’’ 64 In his March 2006 report, Nowak concluded that RTL and 

8

other forms of administrative detention ‘‘go beyond legitimate rehabilitation measures provided for in [A]rticle 10 of the ICCPR.’’ 65

During the seven years between visiting China in 1997 and again 

in 2004, the UNWGAD found that the Chinese government had 

made no significant progress in reforming the administrative

detention system to ensure judicial review and to conform to international law.66

Domestic pressure has been building to reform the RTL system,67 but efforts have focused on better codification, rather than 

outright elimination, of the practice. Since March 2005, the National People’s Congress (NPC) has been considering a new Law on 

the Correction of Unlawful Acts that would reportedly enhance the 

rights of RTL detainees by setting a maximum sentence of 18 

months, and by permitting detainees to hire a lawyer, request a 

hearing, and appeal decisions imposed by public security officials in 

RTL cases.68 The draft law does not currently provide the accused 

with an opportunity to dispute accusations of guilt before an independent adjudicatory body.69 According to one drafter, the Ministry 

of Public Security and the Supreme People’s Court continue to disagree about whether courts should get involved in the decision 

making process prior to administrative enforcement of a RTL decision.70 In an attempt to enhance the transparency of the process,71

Chongqing municipality recently issued Interim Provisions on 

Legal Representation in RTL Cases, which went into effect on April 

1, 2007, and provide that a suspect may retain a lawyer to contest 

the legality of the process, access the files relevant to his case, and 

present proof of his innocence.72 The Interim Provisions mirror 

some of the criminal procedure protections contained in the CPL,73

and could potentially be incorporated into the draft law now pending before the NPC.74 While greater access to legal representation 

is a positive sign, some in China maintain that the RTL system as 

a whole still contradicts provisions in the Chinese Constitution, 

CPL, and ICCPR.75

Illegal Extended Detention in the Criminal Process 

In cases that enter the formal criminal process in China, public 

security, procuratorate, and court (collectively referred to as 

gongjianfa) officials continue to illegally detain Chinese citizens for 

long periods of time before determining the outcome of their cases. 

The National People’s Congress (NPC) revised the Criminal Procedure Law (CPL) in 1996 to impose fixed deadlines for the resolution of each stage of the criminal process.76 In 2003, the Supreme 

People’s Court (SPC) took the lead by additionally issuing a notice 

to set time limits for the resolution of cases of extended detention 

in violation of the CPL.77 The Supreme People’s Procuratorate 

(SPP) soon followed by passing regulations to prohibit the abuse of 

legal procedures in order to disguise extended detention.78 The 

SPC and SPP then worked together with the Ministry of Public Security (MPS) to issue a joint Notice on the Strict Enforcement of 

the Criminal Procedure Law, and on the Conscientious Correction 

and Prevention of Extended Detention.79 The launch of such a 

major public campaign to eliminate illegal extended detention tacitly signaled acknowledgment by the central government of law enforcement abuses throughout the country. 

9

Extended detention contravenes international standards for the 

prompt judicial review of a criminal detention or arrest. The 

ICCPR provides that ‘‘[a]nyone arrested or detained on a criminal 

charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power,’’ and that ‘‘[a]nyone who 

is deprived of his liberty by arrest or detention shall be entitled to 

take proceedings before a court, in order that the court may decide 

without delay on the lawfulness of his detention and order his release if the detention is not lawful.’’ 80 In December 2004, the 

UNWGAD found that the CPL and related regulations on pretrial 

detention fail to meet these basic standards because: (1) Chinese 

suspects continue to be held for too long without judicial review; (2) 

procurators, who review arrest decisions, only examine case files 

and do not hold hearings; and (3) a procurator cannot be considered 

an independent adjudicator under applicable international standards.81

International scrutiny of this problem over the last few years has 

led to a dramatic decrease in the number of extended detention 

cases reported by the Chinese government. In 1998, Chinese 

procuratorates identified and called for the resolution of extended 

detention cases involving 70,992 individuals.82 A white paper on 

the status of human rights in 2003 noted that extended detention 

cases involving 25,736 individuals had been resolved that year, accounting for a nationwide effort that was ‘‘the most extensive in 

scope, the biggest in scale and the largest in number of people

involved in the nation’s judicial experience.’’ 83 By 2004, central 

government officials reported that there were no cases of extended 

detention among public security bureaus or procuratorates, and 

that Chinese courts had cleared extended detention cases involving 

just 2,432 individuals.84 In January 2006, the Chinese government 

told Manfred Nowak, UN Special Rapporteur on Torture, that serious cases of extended detention lasting more than three years had 

been eliminated, and that the number of individuals held beyond 

time limits was at an all-time low.85 This claim was repeated again 

in March 2007, when the SPP identified in its work report to the 

NPC an all-time low of just 233 individuals cleared from extended 

detention.86

The continued decrease in cases of extended detention depends 

heavily on continued central government efforts to increase transparency and hold local law enforcement officials strictly accountable to the CPL. In May 2006, the SPP explicitly acknowledged 

that illegal extended detentions remain problematic, and that Chinese authorities misuse provisions in the CPL to disguise this problem.87 Several months later, SPC President Xiao Yang echoed this 

acknowledgement and stated in an interview with the People’s 

Daily that ‘‘delayed justice is a form of injustice.’’ 88 In March 2007, 

the Standing Committee of the National People’s Congress 

(NPCSC) commented on the significance of oversight mechanisms 

in helping to tackle the problem of extended detention.89 SPP 

spokesman Dong Jianming has attributed the decrease in cases of 

extended detention to the NPCSC’s push—and the resulting joint 

effort among gongjianfa officials nationwide.90 Gongjianfa officials 

have continued to work together to finalize new regulations seeking 

to further address the problem.91 In addition, China’s unique sysVerDate 0ct 09 2002 11:04 Feb 01, 2008 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 U:\DOCS\40481.TXT DEIDRE
10

tem of ordinary citizens who function as ‘‘people’s supervisors’’

expanded its oversight powers in the last year, to guard against illegal extended detentions by all three institutions.92 This move 

holds great potential for enhanced public supervision of law enforcement agencies during the criminal process. 

Torture and Abuse in Custody 

Although illegal in China, torture and abuse by law enforcement 

officers remain widespread.93 In March 2006, Manfred Nowak, UN 

Special Rapporteur on Torture, reported that Falun Gong practitioners make up the overwhelming majority of victims of alleged 

torture, and that other targeted groups include Uighurs, Tibetans, 

human rights defenders, and political activists.94 Over three-quarters of all alleged acts of torture take place in venues where public 

security officials have chosen to confine criminal suspects.95 Fortyseven percent of alleged perpetrators are police or other public

security officials, while 53 percent are either staff members at correctional facilities or fellow prisoners acting at the instigation or 

acquiescence of staff members.96 Forms of torture and abuse cited 

in Nowak’s report include beating, electric shock, painful shackling 

of the limbs, denial of medical treatment and medication, and hard 

labor.97

Chinese media reports in 2005 about the wrongful conviction of 

She Xianglin, and in 2006 about the wrongful detentions and torture of four teenagers in Chaohu city, Anhui province, help to shed 

light on numerous institutional and legal factors that are to blame 

for the continuing problem of torture in China.98 In both cases, authorities relied heavily on confessions obtained during interrogation 

as evidence of alleged crimes. She Xianglin, who was originally convicted of murder after the disappearance of his wife in 1994, was 

ultimately released in April 2005 after 11 years in prison and his 

wife’s unexpected return to their village in Hubei province.99 The 

Chaohu teenagers, who ranged in age from 16 to 18, were released 

in January 2006 after more than three months in police custody 

and further investigative efforts leading to the arrests of four other 

suspects.100 Both cases reflect a number of institutional hurdles at 

the heart of the torture issue, including pressure on public security 

bureaus to meet quotas for cracking down on crime, inadequate 

training and investigative tools, and the lack of independence and 

oversight exercised by the procuracy and judiciary.101 They also 

spotlight continuing legal challenges, including a strong presumption of guilt in criminal cases, the abuse of administrative detention measures, the absence of lawyers at interrogations, the lack of 

a rule requiring the exclusion of illegally acquired evidence, failure 

by procuratorates to prosecute torture cases, and inadequate complaint mechanisms. 

Since releasing China’s Third Report on the Implementation of 

the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 2000,102 central government leaders have repeatedly emphasized their ongoing efforts 

to pass new laws and administrative regulations preventing, punishing, and compensating cases of torture by law enforcement

officers.103 For example, China’s Criminal Law provides for the 

punishment of judicial officers who coerce confessions under torture 

11

or acquire evidence through the use of force, and also imposes liability in particularly ‘‘serious’’ cases where police or other corrections officers have beaten or otherwise mistreated prisoners.104 In 

2003, the Ministry of Public Security (MPS) issued a new regulation to also prohibit the use of torture as an investigative tool in 

administrative cases.105 The following year, the Party,106 MPS,107

and Supreme People’s Procuratorate (SPP)108 each passed regulations to provide for Party or administrative sanction (including demerits, demotions, and dismissals) of officials who employ torture 

as an investigative tool to coerce confessions. The Ministry of Justice (MOJ) issued similar regulations in 2006 to provide for both 

administrative sanction and criminal investigation of prison and reeducation through labor (RTL) police who beat, or instigate others 

to beat, detainees.109 SPP regulations that went into effect on July 

26, 2006, provide detailed criteria for the criminal prosecution of 

police who abuse their power to hold individuals in custody beyond 

legal limits, coerce confessions under torture, acquire evidence 

through the use of force, mistreat prisoners, or retaliate against 

those who petition to, or file complaints against, the government.110

Despite international safeguards and recent domestic reforms designed to help guard against torture in China, one China scholar 

has noted that ‘‘persons acting in an official capacity who torture 

and ill-treat others in violation of the [CAT] generally do so with 

impunity.’’ 111Two months after Xinhua and Southern Metropolitan 

Daily reports revealed the extent to which the Chaohu teenagers 

had been tortured while in custody,112 two senior SPP officials 

called on local procuratorates to strengthen their supervision over 

criminal investigations, and to bring into line police who extract 

confessions through torture or who illegally gather evidence. Deputy Procurator-General Wang Zhenchuan acknowledged that almost all wrongful convictions in China involve police abuses during 

the investigative stage,113 and Chen Lianfu, head of the SPP office 

that investigates official misconduct and rights infringement, reported that systemic reforms still had to be implemented.114 Neither provided statistics to detail the number of officials who had 

been prosecuted for torture in recent years, but SPP work reports 

submitted to the National People’s Congress indicate that the number of officials investigated for civil rights abuses, including torture, totaled 1,983 in 2001, 1,408 in 2003, and 1,595 in 2004.115

This number dropped to 930 in 2006, the same year that the SPP 

released its regulations on filing rights abuse cases for prosecution.116 It is difficult to analyze how many Chinese officials go 

unpunished in any given year, particularly when the central government does not recognize the competence of the Committee 

against Torture to investigate allegations of systematic torture.117

According to Nowak, SPP figures ‘‘are clearly the tip of the iceberg 

in a country the size of China and demonstrate that most victims 

and their families are reluctant to file complaints for fear of reprisal or lack of confidence that their complaints will be addressed 

effectively.’’ 118

Law enforcement practices in China further provide for official 

impunity by failing to adequately criminalize non-state actors who 

commit torture and abuse at the behest of state actors. Nowak 

12

pointed out that this omission is one reason that the Chinese

definition of torture fails to correspond fully to the international 

standard as outlined in Article 1 of the CAT.119 The MOJ’s 2006 

regulations are illustrative of this point, and punish only prison 

and RTL police for beating, or instigating others to beat, detainees. 

They do not take into account the existing practice of ‘‘fanren 

guanli fanren,’’ whereby ‘‘cell bosses’’ take part in correctional facility administration by helping officials control and punish 

recalcitrants.120 Human Rights in China has noted that inmates 

who are assigned to supervise others ‘‘are widely known in the system as ‘second-rank cadres,’ or ‘the second government,’ indicating 

their power in the system.’’ 121 Imprisoned legal advocate Chen 

Guangcheng told his wife that on June 16, 2007, six other inmates 

at Linyi Prison pushed him to the floor, and hit and kicked him 

hard, at the instigation of prison guards after he refused to have 

his head shaved.122 There is no indication that any prison guards 

have been investigated as a result of this incident. In June 2005, 

when fellow detainees beat to death a 15-year-old at the instigation 

of a detention center superintendent in Jingdezhen city, Jiangxi 

province, the local procuratorate indicted the superintendent only 

for ‘‘abuse of power to accept bribes.’’ 123 A September 2004 article 

on the Web site of the Chinese People’s Political Consultative Conference disclosed that between 2003 and 2004, over 20 ‘‘prison 

bosses’’ had been investigated in Guangshan county, Henan province, alone. The article called for elimination of the practice of 

‘‘fanren guanli fanren.’’ 124

LAW ON THE BOOKS: JUDICIAL INSTITUTIONS AND CHALLENGES

Social Unrest and Coercive Use of Police Power 

The Chinese government maintains a vast network of people’s 

police, who are employed in state security bureaus, public security 

bureaus, prisons, reeducation through labor centers, 

procuratorates, and courts throughout the nation. Public security 

bureaus (PSBs) divide their police into separate categories of ‘‘administrative personnel’’ responsible for public security, transportation, residence and migration, border defense, customs and immigration, fire prevention, and management of information and Internet safety, and ‘‘criminal personnel’’ responsible for investigation of 

crimes. In addition, local PSBs employ personnel responsible for domestic security and protection (guobao), which sometimes has been 

used to justify the targeting and harassment of democracy activists, Falun Gong practitioners, and other dissidents.125 Official statistics recently disclosed that there were over 490,000 PSB police 

employed as police station personnel, 130,000 as community police 

officers, and 150,000 as criminal investigators as of early 2006.126

Communist Party leaders have leaned heavily on the powers of 

the police in order to quell social unrest during the past few years, 

but earlier this year, top Ministry of Public Security (MPS) officials 

acknowledged the risks inherent in such a tactic. The MPS reported a rise in ‘‘mass incidents,’’ defined to include public demonstrations, protests, and riots over unresolved claims,127 from 

58,000 in 2003 to 74,000 in 2004.128 This figure dropped to about 

27,500 in 2005, and 23,000 in 2006, 129 accompanied by an MPS 

13

denial of the existence of any inherent conflict between police and 

civilians.130 Notwithstanding the decrease in numbers and the accompanying MPS statement, there have been news reports of increasingly violent clashes between police and protesting villagers 

all over China. In December 2005, public security officials in 

Shanwei city, Guangdong province, brought in forces from the 

paramilitary People’s Armed Police (PAP) to handle a protest by 

local villagers.131 The PAP opened fire onto the crowd, and some 

estimates placed the resulting death count at up to 20 villagers. At 

a national public security meeting convened in April 2007 in Xi’an 

city, Shaanxi province, Vice Minister of Public Security Liu Jinguo 

emphasized the need to avoid police mishandling of demonstrations 

and protests, and warned that such mishandling could ‘‘aggravate 

the conflict and worsen the situation.’’ 132

A number of Chinese lawyers and former law enforcement officers agree that no inherent conflict exists between police and civilians, but they also warn that abuse of the coercive power of the

police may create new tensions. One commentator, who formerly 

taught at a public security vocational school in Zhejiang province, 

attributed clashes between police and civilians to the fact that 

‘‘Chinese police are policemen for the Party, not for the state.’’ 133

Another commentator, who served for 18 years as a former police 

officer in Jiangsu province, added that in carrying out their law enforcement duties, the police do not carry out the laws of the state: 

‘‘They carry out the law neither pursuant to the Police Law, nor 

pursuant to various [other] laws, but instead pursuant to the will 

of senior Party officials.’’ 134 He added that the ability of PSB police 

to simultaneously carry out both police and ‘‘non-police’’ (namely, 

administrative) functions has contributed to their loss of legitimacy 

in the eyes of the public. 

Party and central government statements confirm that Chinese 

police forces are in fact required to assist in the advancement of 

Party priorities. A 2003 resolution passed by the Communist Party 

Central Committee (CPCC) establishes that ‘‘public security work 

must proceed under the Party’s absolute leadership.’’ 135 At its 

sixth plenum in October 2006, the CPCC issued a communique ́ to 

announce that ‘‘the [Communist Party of China]’s role as the core 

leadership must be brought fully into play to build a harmonious 

socialist society.’’ 136 At the same plenum, the CPCC also passed a 

resolution calling on police and armed forces to further strengthen 

public security, state security, and national defense construction, in 

furtherance of a ‘‘harmonious society.’’ 137 The resolution specifically called on the MPS to reform community police affairs so that 

a ‘‘frontline platform’’ could be created to service the masses and 

safeguard stability. Later that month, Xinhua identified construction of this ‘‘frontline platform’’ as a significant part of Public Security Minister Zhou Yongkang’s 2006 plan to reorganize public

security agencies and send more police forces out into local communities and villages.138 At a press conference in November, the MPS 

reported that it had issued a new Resolution on Implementing a 

Strategy for Community and Village Police Affairs, and had already set up more than 30,000 new police stations and dispatched 

more than 70,000 police officers to watch over villages nationwide.139 One senior official defined the new strategy for community 

14

and village police affairs to be one that would allow public security 

agencies to ‘‘deeply integrate’’ into local communities, families, and 

schools, and ‘‘merge into one with the people,’’ 140 in the name of 

safeguarding public security and order, as mandated by the Party. 

Last year’s implementation of the Public Security Administration 

Punishment Law (PSAPL)141 helps expand the legal authority of 

PSB police to almost every realm of civilian life, creating new cause 

for concern about police abuses and domination over the general 

populace. [See Section II—Freedom of Expression for additional 

discussion of abuse of the PSAPL to exercise control over the sharing of information.] One month after the law went into effect, police 

reportedly filed over 35,000 cases, leading to the investigations of 

over 40,000 individuals, warnings or fines issued to over 16,000, 

and administrative detention of over 7,000 in Beijing alone.142 In 

a July 2006 article that asks ‘‘Why Some Police Resemble Crime 

Bosses,’’ a China Youth Daily journalist comments: ‘‘If detention 

and other criminal investigation measures are used in the administration of public security cases, while public security aspects of the 

[police] power are brought into criminal investigations, then objectively, this creates a self-perception among some police that they 

are boss.’’ 143 The article asserts that there is a certain pervasiveness to abuse of power by the police, and that it can best be blamed 

on their unchecked legal authority. In March 2007, a Shenzhen delegate to the National People’s Congress proposed revising the 

PSAPL to further expand the authority of the police to detain individuals for disruption of city management.144 Under his proposal, 

individuals would be at the mercy of the police for such minor offenses as running an unlicensed business or health clinic. Within 

months, the China Media Project, based across the border from 

Shenzhen in Hong Kong, questioned whether Chinese police aren’t 

already ‘‘over-reaching’’ in their application of the PSAPL.145

Supervision over China’s police forces has not improved in the 

last year, particularly when taking into account the concerns previously expressed by this Commission. The Commission noted in 

last year’s annual report: ‘‘The government does not encourage external supervision over police affairs or prosecution of police abuses 

by the procuratorate, as mandated by law.’’ 146 While the MPS continues to disclose the number of police officers who have been disciplined or even dismissed for improprieties, their sanctions are 

still decided and administered internally, by Party or MPS superiors.147 One prominent Beijing law professor argues that the increasingly vicious nature of the police is attributable to this lack 

of meaningful constraints either externally or internally.148 In February 2006, the Procuratorial Daily published an article that recognized the lack of power exercised by lawyers and courts during the 

investigative stage of the criminal process, and highlighted the urgency of greater procuratorate supervision as the only means for 

reining in the police.149

Access to Counsel and Right to Present a Defense 

Most Chinese defendants go through the criminal process and 

are tried without assistance from an attorney, despite guarantees 

under Article 14(3)(d) of the International Covenant on Civil and 

Political Rights (ICCPR).150 In 2006, domestic media sources reVerDate 0ct 09 2002 11:04 Feb 01, 2008 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 U:\DOCS\40481.TXT DEIDRE
15

ported the continuing growth of China’s legal profession to over 

150,000 attorneys and 12,000 law firms nationwide.151 The Chinese 

government requires that public security bureaus and 

procuratorates notify all criminal defendants of their right to apply 

for legal aid,152 and also mandates that all practicing attorneys undertake the duty of legal aid.153 Nonetheless, the number of criminal cases handled per lawyer in a city like Beijing, one of China’s 

most legally advanced locales, fell from 2.64 in 1994 to 0.78 in 

2004.154 The Commission noted in 2003 and 2004 that only one in 

three criminal defendants have access to legal counsel. This number fell to about 30 percent in 2005 and 2006, and has continued 

to drop.155 China’s legal system therefore makes possible, but does 

not guarantee, the fundamental right to legal assistance in defending oneself against the state.156

The ability to present a defense is further limited in China because of constraints on the role that criminal defense lawyers may 

play. Lawyers have long complained about the ‘‘three difficulties’’ 

that they face in criminal defense work: (1) the difficulty in obtaining permission to meet with a client, (2) the difficulty in accessing 

and reviewing the prosecution’s evidence, and (3) the difficulty in 

gathering evidence in support of the defense. The Commission has 

reported on multiple cases in which law enforcement officers 

abused their discretion to deny a defendant access to his lawyer, 

noting in particular abuse of the ‘‘state secrets’’ exception.157 [See 

Section II—Freedom of Expression for more information on abuse 

of ‘‘state secrets’’ law.] U.S. permanent resident Yang Jianli,158 democracy activist Xu Wanping,159 and freelance writer Yang 

Tongyan160 (who uses the pen name Yang Tianshui) were all denied access to their defense lawyers on the grounds that their cases 

involved state secrets. In addition, Chinese law authorizes law enforcement officials to obtain evidence from concerned parties, but 

provides that evidence involving state secrets ‘‘shall be kept confidential.’’ 161 This effectively shields public security and 

procuratorate authorities from having to turn over to the defense 

any evidence they deem to be classified. In 2004, the UN Working 

Group on Arbitrary Detention identified China’s use of the ‘‘state 

secrets’’ exception as one area of particular concern.162 In April 

2007, the All China Lawyers Association (ACLA) released its first 

draft proposal for a new revision of the Criminal Procedure Law, 

and took special note in its executive summary of the need to eliminate these ‘‘three difficulties’’ in criminal defense work.163

Chinese defendants remain vulnerable to official abuses and 

faced mounting challenges to the defense of their legally protected 

rights during the past two years, as lawyers in general were increasingly called upon to contribute to the Party’s efforts to build 

a ‘‘harmonious society.’’ This new role was first clarified in ACLA’s 

2006 guiding opinion, which the Commission analyzed as an effort 

to restrict and punish lawyers who choose to handle collective cases 

without authorization.164 In its December 2006 report on the effects of this guiding opinion, Human Rights Watch (HRW) asserted 

that the opinion ‘‘fundamentally harm[s] the entire profession by 

limiting its independence and legitimizing the interference of local 

governments in professional processes.’’ 165 HRW further noted, ‘‘It 

is not the role of lawyers to protect social and political stability,’’ 

16

but that instead, ‘‘[t]heir duty is to represent their clients in an 

ethical and professional manner.’’ 166 ACLA’s guiding opinion effectively calls on China’s legal profession to function in the interests 

of the Party and state, a demand that conflicts with a lawyer’s duty 

to his client in criminal cases. The opinion calls into question 

ACLA’s ability to operate as a self-governing professional association that works in the interests of Chinese lawyers, without external interference. In the wake of its issuance, a group of Beijing law 

professors and practicing lawyers held a seminar to voice their concerns. Renowned lawyer Zhang Sizhi, former ACLA president, criticized the guiding opinion as retrogressive and warned that it would 

set the country’s legal profession back several decades to the 

1980s.167

The foregoing problems are made worse by the fact that it is increasingly dangerous for Chinese defense lawyers to carry out their 

work, especially in high-profile or politically sensitive cases. Law 

enforcement officials sometimes resort to intimidating lawyers who 

defend these cases, charging or threatening to charge them with 

crimes such as ‘‘evidence fabrication’’ under Article 306 of the 

Criminal Law.168 Despite official recognition of the chilling effect 

that such tactics have had on criminal defense work,169 as well as 

indications that Article 306 would be repealed,170 this problem persists and has become more damaging to China’s legal system in the 

face of unchecked police power.171

In May 2007, the Network of Chinese Human Rights Defenders 

(CRD) published a report on ‘‘The Perils of Defending Rights’’ and 

included information on 20 ‘‘endangered defense lawyers.’’ 172 This 

list included all of the defense lawyers that the Commission reported on in 2006.173 The Hong Kong-based China Human Rights 

Lawyers Concern Group issued an open letter to President Hu 

Jintao and Premier Wen Jiabao, dated June 22, 2007, to demand 

an end to the crackdown on defense lawyers and human rights activists.174 The letter points to the ongoing harassment, targeting, 

and criminal cases of Gao Zhisheng, Chen Guangcheng, Yang 

Maodong (who uses the pen name Guo Feixiong), and Zheng 

Enchong as representative of that crackdown. In the weeks preceding publication of this report, authorities stepped up their campaign against those lawyers not already in official custody. Gao, 

who has been living on the outside since his three-year prison sentence was suspended in December 2006 for a period of five 

years,175 went missing immediately after an open letter that he 

sent to the U.S. Congress was made public at a Capitol Hill press 

conference on September 20, 2007.176 Zheng, who was released 

from prison in June 2006 and had his political rights reinstated in 

June 2007,177 was taken into custody for interrogation as recently 

as September 29, 2007, for his potential involvement in sending an 

open letter to the United Nations.178 Chen Guangcheng remains in 

prison, serving out his sentence of four years and three months for 

destruction of property and gathering crowds to disturb traffic 

order. As of the date of this report, Yang Maodong has been in detention for one year without any resolution to his criminal case.

17

Continued Crackdown on Rights Defenders 

The UN High Commissioner for Human Rights defines a ‘‘human rights 

defender’’ as someone who acts on behalf of individuals or groups to 

promote and protect civil and political rights, and to promote, protect, 

and realize economic, social, and cultural rights. This definition includes those who focus on good governance and advocate peacefully for 

an end to government abuses of power. 

In 2006–2007, local government officials in China continued to target for 

repression human rights defenders and others who turned to the law 

to defend their constitutionally protected rights. Harassment of the 

following high-profile lawyers and legal advocates intensified:

Chen Guangcheng 

Current location: Linyi Prison. 

Current status: Serving a sentence of four years and three months in 

prison for ‘‘intentional destruction of property’’ and ‘‘gathering people 

to disturb traffic order.’’ Reportedly beaten in June 2007 by fellow inmates, at the behest of prison guards. 

Profession and/or activity: Drew international attention in 2005 to population planning abuses in Linyi city, Shandong province. Issued a report that documented the extensive use of violence by local officials in 

order to implement population planning policies, and assisted in a 

lawsuit that sought to challenge those abuses. 

Associations:

• Yuan Weijing (Chen’s wife and the mother of their two small 

children): Under house arrest from November 28, 2006 to May 27, 

2007. Prevented from meeting with U.S. Embassy officials in 

July, and from leaving the country to receive an award on her 

husband’s behalf in August. 

• Hu Jia, Zeng Jinyan (activist couple who have befriended and 

spoken out on behalf of Chen and his wife): Prevented from leaving the country for travels in May 2007. Reportedly under house 

arrest, under suspicion of endangering state security.

Gao Zhisheng 

Current location: Unknown. 

Current status: Released from official custody on December 22, 2006 to 

serve a three-year prison sentence, suspended for five years, for the 

crime of ‘‘inciting subversion of state power.’’ Went missing immediately after his open letter to the U.S. Congress was made public at a 

press conference on Capitol Hill on September 20, 2007. 

Profession and/or activity: Founder of the Beijing Shengzhi Law Firm 

and criminal defense lawyer who has represented numerous activists, 

religious leaders, and writers. Law firm was shut down in November 

2005, several weeks after he issued an open letter to President Hu 

Jintao and Premier Wen Jiabao to expose reports of widespread torture against Falun Gong practitioners. 

Associations: 

Geng He (Gao’s wife and the mother of their two children): Under 

constant police surveillance since August 2006, and reportedly 

beaten by plainclothes police officers in late-November. 

18

Continued Crackdown on Rights Defenders 

Li Heping (Gao’s friend and fellow Beijing lawyer and rights defender): Reportedly beaten on September 29, 2007 and told to 

leave Beijing immediately. Returned home to discover that some 

of his legal files and his license to practice law were missing. 

Guo Feixiong (Gao’s colleague at the Beijing Shengzhi Law Firm): 

See below.

Yang Maodong (pen name: Guo Feixiong) 

Current location: Guangzhou No. 3 Detention Center. 

Current status: In official custody since September 14, 2006, transferred 

back and forth between Shenyang city, in Liaoning province, and 

Guangzhou city, in Guangdong province. Reportedly tortured while in 

detention in Shenyang. Ultimately put on trial on July 9, 2007 for ‘‘illegal operation of a business,’’ in connection with a book that he edited about a political scandal in Shenyang. Still awaiting final judgment 

on his case. 

Profession and/or activity: Previously detained for three months in late 

2005, after he advised villagers in Taishi, Guangdong, on their recall 

campaign against an allegedly corrupt village committee head.

Zheng Enchong 

Current location: Shanghai. 

Current status: Released from Tilanqiao Prison in Shanghai municipality on June 5, 2006, upon expiration of a three-year prison sentence for ‘‘illegally providing state secrets to entities outside of China.’’ 

Passport application denied; prevented from visiting Hong Kong in 

August 2007. Taken into custody for interrogation as recently as September 29, 2007, for alleged involvement in putting together an open 

letter to the United Nations. 

Profession and/or activity: Criminal defense lawyer whose license to 

practice law was revoked in 2001, after he advised more than 500 

households displaced by Shanghai’s urban redevelopment projects. 

Associations: 

Guo Guoting (one of Zheng’s criminal defense lawyers): License to 

practice law revoked in early 2005. Placed under house arrest for 

‘‘adopting positions and making statements contrary to the law 

and the Constitution.’’ Ultimately forced into exile. 

Fairness of Criminal Trials 

Over the past few years, Chinese courts have maintained a consistent conviction rate above 99 percent,179 due in part to the lack 

of fairness of criminal trials and the routine failure to comply with 

standards set forth under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).180 China’s criminal 

justice system is strongly biased toward a presumption of guilt, 

particularly in cases that are high-profile or politically sensitive.181

Trial courts are required by law to conduct their proceedings in 

public, but can also resort to the ‘‘state secrets’’ exception and conduct politically charged trials as they see fit,182 behind closed doors 

and thus shielded from public scrutiny. Court officials have in the 

19

past also denied requests by U.S. embassy and consular officers to 

attend the criminal trials of certain political, legal, and religious 

activists, including the August 2003 trial of U.S. permanent resident Yang Jianli and the November 2005 trial of Protestant house 

church leader Cai Zhuohua. Yang was released on April 27, 2007, 

after serving a five-year prison sentence for alleged espionage and 

illegal border crossing.183 Cai was released on September 10, 2007, 

upon the completion of his three-year prison sentence for printing 

and giving away Bibles and other religious literature without government permission.184 In June 2007, the Supreme People’s Court 

(SPC) issued several opinions aimed at improving trial adjudication 

throughout China, and called on local courts to carry out trial proceedings lawfully, promptly, and transparently.185 Nonetheless, the 

opinions keep intact the ‘‘state secrets’’ exception. 

Chinese courts rely heavily on the defendant’s confession and on 

pretrial witness statements to judge guilt or innocence, even 

though provisions in the Criminal Procedure Law (CPL) explicitly 

prohibit this.186 In 2005 and 2006, the Commission reported on 

several wrongful convictions that had been decided on the basis of 

confessions and pretrial statements only, and were later reversed.187 In the wake of She Xianglin’s wrongful conviction, a 

Xinhua article provided the following quote from his lawyer: 

‘‘Throughout the case, with the exception of She Xianglin’s own 

confession, there was neither any evidence nor witnesses to prove 

that [Mr.] She had killed someone.’’ 188 Illegally obtained evidence, 

such as a confession coerced under torture, is not currently excludable under the CPL, and about 95 percent of witnesses fail to

appear in court to corroborate their pretrial statements. In the executive summary to its draft proposal for a new CPL, the All China 

Lawyers Association (ACLA) emphasized the adversarial nature of 

the criminal justice system, and urged a greater balance between 

what the prosecution and defense are allowed to present as evidence in support of their case.189 ACLA’s proposal insists that the 

CPL be revised to clarify the procedures for excluding illegally obtained evidence. In addition, it urges that courts be granted the 

legal authority to subpoena witnesses, noting that without this authority, a criminal defendant is deprived of his ability to confront 

witnesses and therefore present a proper defense. 

The SPC made criminal justice reform one of its top priorities for 

the 2004 to 2008 period, but court reforms must proceed in the 

larger context of a biased judiciary in China. The SPC’s most recent five-year court reform program provides that greater procedural protections be afforded to criminal defendants facing the 

death penalty, and that officials reject the use of illegally obtained 

evidence and adopt the principle of a presumption of innocence.190

The program also addresses some of the institutional problems facing the judiciary generally, but it does not change basic Party control over the courts. In fact, the program makes clear that courts 

are also expected to strive toward the Party’s ultimate goal of 

building a ‘‘harmonious society.’’ Numerous structural constraints 

and internal practices therefore continue to limit the independence 

of Chinese courts and judges. In the Xinhua article on She 

Xianglin’s case, one judge commented that the court responsibility 

system for wrongly decided cases, which has been used to discipline 

20

judges for cases overturned or altered on appeal, in fact increases 

the pressure felt by judges and causes them to decide cases in a 

way that takes into account various external factors.191 Moreover, 

senior court officials and Party political-legal committees continue 

to influence judicial decisionmaking, particularly in sensitive or important criminal cases.192 At present, the Chinese judiciary is 

therefore restricted in its ability to function as a transparent, impartial, and independent part of the legal system, and therefore, as 

a body capable of ensuring the full protection of defendants’ rights. 

Death Penalty Review and Regulations Against Organ Harvesting 

Chinese criminal law includes 68 capital offenses, over half of 

which are nonviolent crimes such as tax evasion, bribery, and embezzlement.193 In recent years, China’s central government leadership has adopted an ‘‘execute fewer, execute cautiously’’ policy, but 

the government publishes no official statistics on the number of 

executions and reportedly considers this figure a state secret.194

Some Chinese sources estimate that the annual number of executions in China ranges from 8,000 to 10,000.195 The Dui Hua Foundation, which researches and seeks to curb political imprisonment, 

estimates that China executed about 100,000 individuals during 

the past decade, accounting for more than 95 percent of all executions worldwide.196 According to Dui Hua, since the late 1990s 

there has been a significant rise in the executions of those found 

guilty of membership in ‘‘splittist, terrorist organizations’’ in the 

Xinjiang Uighur Autonomous Region.197 In addition, since the 

1980s, numerous credible foreign media sources have reported on 

the practice of state-sanctioned removal and sale of the internal organs of executed prisoners.198 One Chinese magazine disclosed in 

late-2005 that over 95 percent of organs transplanted in China 

comes from executed prisoners, and cited to Vice Minister of Health 

Huang Jiefu as the first official to publicly acknowledge that the 

majority of those organs originate from such prisoners.199

The leaders of China’s highest court have reasserted their legal 

authority to review all death penalty cases in an effort to limit the 

use of death sentences, and to prevent miscarriages of justice that 

undermine China’s criminal justice system. Xinhua reported earlier 

this year: ‘‘On Jan. 1, 2007, the Supreme People’s Court (SPC) retrieved the right to review all death penalty decisions made by 

lower courts, ending its 24-year absence in approving China’s execution verdicts.’’ 200 Since January, SPC officials have heralded 

death penalty reform as a success, citing to the fact that the number of death penalty sentences imposed in 2006 reached a decadelong record low,201 and that during the first five months of 2007, 

the number of death sentences imposed by courts in Beijing 

dropped 10 percent from the same period last year.202 In early September, the China Daily reported that the downward trend had 

continued, and quoted one SPC vice president as saying that ‘‘[the 

SPC] is handing down a very small number of death sentences for 

economic crimes now, just a few a year. And much fewer for crimes 

of bribery.’’ 203 A week later, domestic news media reported that 

the SPC had issued a new decision on adjudication of criminal 

cases, which called for ‘‘strict control and cautious application of 

the death penalty’’ 204 (code words for the government’s continuing 

21

promise to limit the use of death penalty to only the most serious 

criminal cases). 

The SPC first began considering death penalty reform in 1996, 

when the Criminal Procedure Law was revised, but pressure to accelerate reforms increased only after 2000, in response to domestic 

media coverage about a number of wrongful convictions that had 

led to unjustified executions.205 For example: In early 2005, a rape 

and murder suspect arrested by police confessed that he had committed the crime that had resulted in the 1995 execution of Hebei 

farmer Nie Shubin.206 In January 2007, the Hunan provincial high 

court acknowledged that the 1999 execution of local farmer Teng 

Xingshan was for the alleged murder of a woman who was in fact 

still alive.207 Over the past few years, the SPC has convened a 

number of seminars and training sessions to help lower-level courts 

draw lessons from judgments made in error.208 Last year, the Commission reported that the Chinese judiciary made reform of the 

death penalty review process a top priority in 2006, introducing 

new appellate court procedures for hearing death penalty cases.209

At the same time, the Commission also noticed that the SPC had 

not yet issued a judicial interpretation to help settle unresolved 

issues in the death penalty review process and further clarify its 

own procedures. 

SPC reform efforts during the past year have helped to clarify a 

new review process by which errors will better be detected, but reforms do not address continuing concerns about the use of illegally 

obtained evidence or the lack of judicial independence generally.210

The SPC’s five-year court reform program effectively creates a 

three-step process in death penalty cases that is not available in 

ordinary criminal cases.211 Beginning in 2006, provincial-level high 

courts are to focus solely on appeals from lower-level courts.212 As 

of January 1, 2007, pursuant to an amendment to the Organic Law 

of the People’s Courts, death penalty sentences are then submitted 

to the SPC for review and approval.213 This extra step is designed 

to provide an extra guarantee of impartiality, but an SPC decision 

issued in December 2006 indicates that death sentences subject to 

immediate execution (sometimes imposed because the case has 

been accelerated due to intense external pressures) still remain 

within the jurisdiction of provincial-level high courts only.214 The 

SPC has more recently taken the lead in issuing, together with the 

Supreme People’s Procuratorate, Ministry of Public Security, and 

Ministry of Justice, a joint opinion on the entire process for handling death penalty cases.215 While this may be a positive step toward providing greater clarity and transparency throughout the 

criminal process, the joint opinion still does not provide for the excludability of illegally obtained evidence and repeats the standard 

practice that such evidence cannot form the basis for a verdict.216

Furthermore, the joint opinion emphasizes the relevance and ultimate decisionmaking power of adjudication committees at the trial 

and appellate court levels, and provides for

active participation by the procuratorate, but not by defense counsel, 

throughout all stages of the case.217

Interestingly, the new joint opinion also grants a criminal defendant the opportunity to meet with his family prior to execution,218 and prohibits ‘‘humiliation’’ of a corpse,219 provisions that 

22

hint at the need for greater respect for the sanctity of the deceased. 

In 2006, reports from overseas medical and legal experts condemned the government’s continuing practice of harvesting organs 

from executed prisoners without their consent.220 In January 2007, 

David Kilgour, a member of the Canadian parliament, and David 

Matas, a Canadian lawyer, released a revised version of their 2006 

report and explained that the revised report ‘‘presents, we believe, 

an even more compelling case for our conclusions than the first 

version did.’’ 221

Although Vice Minister Huang Jiefu and spokesmen for both the 

Ministry of Health and the Ministry of Foreign Affairs have said 

that organ transplants are strictly regulated, and that donations 

must be accompanied by the written consent of the donor or donor’s 

family members,222 1984 provisions governing the use of corpses or 

organs from executed prisoners say that a corpse or organ belonging to an executed prisoner may also be used if no one has retrieved the prisoner’s corpse for burial.223 According to Caijing 

Magazine, ‘‘in several cases, local courts have sold organs from 

prisoners’ cadavers without informing their families.’’ 224 In March 

2007, the State Council passed new Regulations on Human Organ 

Transplants that prohibit the purchase and sale of human organs 

and explain what type of consent is needed for the donation of organs.225 The new regulations specifically omit any mention of the 

use of executed prisoners’ organs and leave intact the 1984 provisions. After several years of discussions between the World Medical 

Association andthe Chinese Medical Association, Chinese medical 

authorities agreed in theory at an October 5, 2007, meeting in Copenhagen that they would not transplant organs from prisoners or 

others in official custody, except into members of the prisoner’s immediate family.226

Significant Death Penalty Procedural Reforms

(in chronological order, since October 2005) 

Second Five-Year Reform Program for the People’s Courts (2004–

2008) [Renmin fayuan di er ge wu nian gaige gangyao (2004–2008)] 

• Issued on October 26, 2005 by the Supreme People’s Court. 

• Establishes criminal law reform, including reform of the death 

penalty review process, as one of the top priorities for judicial authorities during the 2004–2008 period.

Circular on Further Improving Court Hearing Work in Death 

Penalty Appeal Cases [Guanyu jinyibu zuo hao sixing ershen anjian 

kaiting shenli gongzuo de tongzhi] 

• Issued on December 7, 2005 by the Supreme People’s Court. 

• Calls on provincial-level high courts to act as appellate bodies in 

death penalty cases, and establishes guidelines for how they 

should change their current practices.

Trial Provisions on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeal Cases [Guanyu sixing di er shen 

anjian kaiting shenli chengxu ruogan wenti de guiding] 

• Jointly issued on September 21, 2006 by the Supreme People’s 

Court and Supreme People’s Procuratorate. 

23

Significant Death Penalty Procedural Reforms

(in chronological order, since October 2005) 

• Establishes concrete guidelines for the handling of death penalty 

appeals by procuratorates and provincial-level high courts.

Decision on Amending the ‘‘Organic Law of the People’s Courts’’ 

[Guanyu xiugai ‘‘Zhonghua Renmin Gongheguo renmin fayuan 

zuzhifa’’ de jueding] 

• Passed on October 31, 2006 by the National People’s Congress 

Standing Committee. 

• Codifies into law the requirement that all death penalty sentences 

must be reviewed and approved by the Supreme People’s Court.

Decision on Issues Relating to Consolidated Review of Death 

Penalty Cases [Guanyu tongyi xingshi sixing anjian hezhun quan 

youguan wenti de jueding] 

• Issued on December 28, 2006 by the Supreme People’s Court. 

• Provides guidance on which death penalty cases will continue to 

be reviewed by provincial-level high courts, and which cases 

should be submitted to the Supreme People’s Court for review.

Provisions on Some Issues Regarding Review of Death Penalty 

Cases [Guanyu fuhe sixing anjian ruogan wenti de guiding] 

• Issued on January 22, 2007 by the Supreme People’s Court. 

• Provides guidance to all courts on when and how to review and 

approve a death sentence.

Decision on Further Strengthening Criminal Adjudication Work 

[Guanyu jinyibu jiaqiang xingshi shenpan gongzuo de jueding] 

• Issued in September 2007 by the Supreme People’s Court. 

• Retains the death penalty, but calls for limiting its use to only the 

most serious criminal cases. 

24

Endnotes 

1See 22 U.S.C. δ6912(a)(5). 2See 22 U.S.C. δ6912(b). 3The UN Working Group on Arbitrary Detention (UNWGAD) visited China from September 

18–30, 2004, and the UN Special Rapporteur on Torture visited from November 20 to December 

2, 2005. For findings from those visits, see UN Working Group on Arbitrary Detention, Report 

of the Working Group on Arbitrary Detention, Mission to China, Addendum, 29 December 04 

[hereinafter UNWGAD Report]; Manfred Nowak, Report of the Special Rapporteur on Torture 

and Other Cruel, Inhuman or Degrading Treatment or Punishment, Mission to China, Advance 

Edited Version, 10 March 06 [hereinafter Nowak Report]. 4These include the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the 

Child; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 

or Punishment. PRC Aide Memoire, reprinted in United Nations (Online), 13 April 06. 5 Ibid. 

6See Wang Xinyou, ‘‘International Association of Anti-Corruption Authorities Formally Established; Jia Chunwang Elected First Chair’’ [Guoji Fantanju Lianhehui zhengshi chengli; Jia 

Chunwang dangxuan shouren zhuxi], Procuratorial Daily (Online), 26 October 06; World Health 

Organization (Online), ‘‘Dr. Margaret Chan to be WHO’s next Director-General,’’ 9 November 

06. 7See, e.g., Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 48, arts. 5, 9–11, 14 [hereinafter UDHR]; International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A 

(XXI) of 16 December 66, entry into force 23 March 76, arts. 7, 9, 14 [hereinafter ICCPR]. 8 UN Commissioner for Human Rights, Fact Sheet #26, the Working Group on Arbitrary Detention. Examples of the first category include individuals who are kept in detention after the 

completion of their prison sentences or despite an amnesty law applicable to them, or in violation of domestic law or relevant international instruments. The rights and freedoms protected 

under the second category include those in Articles 7, 10, 13, 14, 18, 19, and 21 of the UDHR, 

and in Articles 12, 18, 19, 21, 22, 25, 26, and 27 of the ICCPR. 9 ICCPR, arts. 9(1) and 9(2). 

10PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25 December 99, 31 August 

01, 29 December 01, 28 December 02, 28 February 05, 29 June 06, art. 2. 11 Nowak Report, para. 60. 12The 61st session of the UN Commission on Human Rights was held in Geneva from March 

14 to April 22, 2005. 13See A Global Review of Human Rights: Examining the State Department’s 2004 Annual Report, Hearing of the Subcommittee on Africa, Global Human Rights, and International Operations, House Committee on International Relations, 17 March 05, Oral Statement of Michael 

Kozak, Assistant Secretary of State for Democracy, Human Rights, and Labor, US Department 

of State, 40. Kozak, then-Acting Assistant Secretary of State for the Bureau of Democracy, 

Human Rights and Labor, noted in his testimony that the Administration’s decision on whether 

it would introduce a resolution condemning China’s human rights practices in any given year 

depended on what concrete steps the Chinese government had taken to improve human rights 

that year. 14 Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices—2006, China (includes Tibet, Hong Kong, and Macau), 6 

March 07, sec. 1.e. As of September 2007, the Commission’s Political Prisoner Database contained only 87 records of prisoners still believed to be in detention or serving sentences connected to counterrevolutionary activity. 15See Dui Hua Foundation (Online), ‘‘Long-Serving June 4 Prisoner Set for Release,’’ 29 August 07. 16See Jim Yardley, ‘‘Man Freed After Years in Jail for Mao Insult,’’ New York Times (Online), 

23 February 06; Dui Hua Dialogue, ‘‘Sentence Reduction for Yu Dongyue,’’ Summer 05, 6. 17See Dui Hua Dialogue, ‘‘Official Responses Reveal Many Sentence Adjustments,’’ Fall 06, 

6. 18See UN Commission on Human Rights (Online), Opinions adopted by the Working Group 

on Arbitrary Detention, Decision No. 8/2000, 9 November 00, 70. In the opinion that it adopted, 

the UNWGAD declared Jigme Gyatso’s detention to be arbitrary and in contravention of articles 

19 and 20 of the UDHR and articles 19 and 22 of the UDHR. 19State Council Information Office, White Paper on Human Rights in China, PRC Central 

Government (Online), November 91. 20The Commission’s Political Prisoner Database contained approximately 4,060 individual 

case records of political and religious imprisonment in China, as of September 2007. See supra, 

‘‘Political Prisoner Database,’’ and accompanying notes. Thousands of political prisoners are detained in China’s reeducation through labor system. See infra, ‘‘Detention Outside the Criminal 

Process,’’ and accompanying notes. 21 Crimes that ‘‘disturb public order’’ are listed in Part 2, Chapter 6, Section 1, of the Criminal 

Law, and include ‘‘assault[ing] a State organ, making it impossible for the State organ to conduct its work’’ (Article 290), gathering people to block traffic (Article 291), and the use of heretical sects to undermine implementation of the law (Article 300), among others. Although the 

1997 revision of the Criminal Law eliminated all counterrevolutionary crimes, it added a new 

category of crimes ‘‘endangering state security.’’ Crimes that ‘‘endanger state security’’ are listed 

in Part 2, Chapter 1, and include ‘‘inciting splittism’’ or ‘‘splittism’’ (Article 103), ‘‘inciting subVerDate 0ct 09 2002 11:04 Feb 01, 2008 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 U:\DOCS\40481.TXT DEIDRE
25

version’’ or ‘‘subversion’’ (Article 105), and ‘‘illegally providing state secrets to entities outside 

of China’’ (Article 111), among others. 22See, e.g., CECC, 2003 Annual Report, 2 October 03, 15–16; CECC, 2004 Annual Report, 5 

October 04, 13–14; CECC, 2005 Annual Report, 11 October 05, 25–26; CECC, 2006 Annual Report, 20 September 06, 47–48. 23 UNWGAD Report, para. 23. 24 Nowak Report, para. 35. 25 Ibid., para. 34. 26 UDHR, art. 10 and 11(1); ICCPR, arts. 14(1) and 14(2). 27PRC Criminal Procedure Law [hereinafter CPL], enacted 1 January 79, amended 17 March 

96, art. 64 (establishing an exception to this requirement ‘‘in circumstances where such notification would hinder the investigation or there is no way of notifying them’’). The maximum period 

of detention prior to approval of a formal arrest is 37 days after taking into account extensions 

permitted by law. Ibid., art. 69. 28See CECC, 2003 Annual Report, 18; CECC, 2004 Annual Report, 16; CECC, 2005 Annual 

Report, 25; CECC, 2006 Annual Report, 47. 29 Human Rights in China (Online), ‘‘News Wrap-up: Crackdowns on Petitioners Continue,’’ 

9 March 07; ‘‘Cat-and-mouse game begins for petitioners,’’ South China Morning Post (Online), 

2 March 07. 30 ‘‘Ministry of Public Security Announces the Status of Preventing Major Public Security Disasters and Accidents, Ensuring Public Security Supervision’’ [Gonganbu tongbao yufang zhongda 

zhi’an zaihai shigu, baozhang gonggong anquan ducha qingkuang], China News Net (Online), 

2 March 06. 31 Human Rights Watch (Online), ‘‘Largest ‘Clean-up’ of Protestors and Rights Activists in 

Years,’’ 14 March 07. 32See Human Rights Watch (Online), ‘‘China: Beijing Petitioners’ Village Faces Demolition,’’ 

6 September 07; Mark Magnier, ‘‘Beijing evicting disgruntled citizens from ‘petitioners village,’’’ 

Los Angeles Times (Online), 18 September 07. 33 Human Rights Watch, ‘‘China: Beijing Petitioners’ Village Faces Demolition.’’ 34The U.S. State Department characterized house arrest as a ‘‘nonjudicial punishment and 

control measure’’ that can sometimes include ‘‘complete isolation in one’s own home or another 

location under lock and guard.’’ U.S. Department of State, Country Reports on Human Rights 

Practices—2006, China, sec. 1.d. 35 Human Rights Watch, ‘‘Largest ‘Clean-up’ of Protestors and Rights Activists in Years.’’ 36 ‘‘Population Planning Official Confirms Abuses in Linyi City, Shandong Province,’’ CECC 

China Human Rights and Rule of Law Update, October 2005, 2; Philip P. Pan, ‘‘Rural Activist 

Seized in Beijing,’’ Washington Post (Online), 7 September 05. For a summary and the ultimate 

outcome of Chen’s case, see CECC, 2006 Annual Report, 49. 37 Chinese Human Rights Defenders (Online), ‘‘Activist Chen Guangcheng’s House Arrest Exceeds Legal Limits, with Domestic Remedies Ineffective, CRD Submits Case to UN,’’ 9 March 

06. 38 Hu Jia, ‘‘After Serious Negotiations with Yuan Weijing, Police Are Forced to Formally Release Her From House Arrest’’ [Zai Yuan Weijing yanzheng jiaoshe xia jingfang beipo zhengshi 

jiechu dui ta de ‘‘jianshijuzhu’’], reprinted in Chinese Human Rights Defenders (Online), 29 May 

07. 39 Hu Jia, ‘‘Yuan Weijing Barred From Meeting U.S. Embassy Human Rights Officer’’ [Yuan 

Weijing huijian Meiguo shiguan renquan guanyuan shouzu], reprinted in Chinese Human 

Rights Defenders (Online), 6 July 07; Maureen Fan, ‘‘Wife of Chinese Activist Detained at Beijing Airport,’’ Washington Post (Online), 25 August 07. 40Wu Yihuo and Hong Jun, ‘‘Too Few Administrative Law Enforcement Cases Transferred to 

Judicial Organs—Relevant Anhui Research Reveals Information: Three Major Factors Influence 

Effective Links Between Administrative Law Enforcement and Criminal Law Enforcement’’ 

[Xingzheng zhifa anjian yisong sifa jiguan taishao, Anhui youguan yanjiuban touchu xinxi: san 

da yinsu yingxiang xingzheng zhifa yu xingshi zhifa youxiao xianjie], Procuratorial Daily (Online), 31 January 05; Protection of Human Rights in the Context of Punishment of Minor Crimes 

in China, Staff Roundtable of the Congressional-Executive Commission on China, 26 July 02, 

Testimony of Dr. Veron Mei-ying Hung, Associate, China Program, Carnegie Endowment for 

International Peace. 41 Various analysts estimate that between 2 percent and 10 percent of those sentenced to reeducation through labor are political detainees. Veron Mei-Ying Hung, ‘‘Reassessing Reeducation 

Through Labor,’’ 2 China Rights Forum 35 (2003); Randall Peerenboom, ‘‘Out of the Frying Pan 

and Into the Fire,’’ 98 Northwestern University Law Review 991, 1000–01 and accompanying 

notes (2004); Jim Yardley, ‘‘Issue in China: Many in Jails Without Trial,’’ New York Times (Online), 9 May 05. 42PRC Administrative Punishment Law, enacted 17 March 96, art. 8(6). 43For more information about the passage and effect of the Public Security Administration 

Punishment Law, see CECC, 2006 Annual Report, 51–52. 44PRC Public Security Administration Punishment Law, enacted 28 August 05, art. 27(2). 45 According to attorney Li Baiguang, at least 60 people were attending a worship service at 

a house church in Bukou district, Wendeng city, on June 11, 2006, when 50 public security officials from several different precincts and departments arrived. These authorities blocked the 

exits and ordered worshippers into police vehicles. Thirty-one of the worshipers were driven to 

the Bukou police station for interrogation, and all but Tian Yinghua, Wang Qiu, and Jiang Rong 

were released following interrogation. Li noted that officials from the Wendeng Religious Affairs 

Office had been to the house church in April 2006, and had told worshipers there that any religious gathering that exceeded 30 people or included non-family members was an ‘‘illegal gathering.’’ See Li Baiguang, ‘‘Shandong Wendeng: Threatening to Confiscate House Where Christians Gathered’’ [Shandong Wendeng: weixie yao moshou Jiditu jihui de fangzi], reprinted in 

26

China Aid Association (Online), 27 July 06; China Aid Association (Online), ‘‘House Church 

Christians Take Legal Action, File Lawsuit Against Local Public Security Bureau for Illegal [Administrative] Detention’’ [Shandong Wendeng jiating jiaohui Jidutu caiqu falu ̈ xingdong, qisu 

dangdi gongan jiguan feifa jujin], 25 October 06. 46 According to an application for administrative reconsideration filed with the Wendeng city 

government by Li on June 30, 2006, the Wendeng Public Security Bureau’s decision to place 

Tian, Wang, and Jiang in administrative detention illegally interfered with their constitutionally 

and legally protected right to freedom of religious belief. On September 28, the government rejected this application. On October 12, Li proceeded to file with the Wendeng Intermediate People’s Court an administrative complaint that set forth arguments similar to the ones in his earlier application. See Application for Administrative Reconsideration Filed by Li Baiguang with 

the People’s Government of Wendeng City, Shandong Province, on Behalf of Tian Yinghua, 

Wang Qiu, and Jiang Rong [Xingzheng fuyi shenqingshu], 30 June 06, reprinted in China Aid 

Association (Online), 27 July 06; Administrative Complaint Filed by Li Baiguang with the People’s Court of Wendeng City, Shandong Province, on Behalf of Tian Yinghua [Xingzheng qisu 

zhuang], 12 October 06, reprinted in Boxun, 26 October 06. 47 China Aid Association (Online), ‘‘Xinjiang Arrests Another Female Christian Preacher; 

Shandong Christians File Administrative Lawsuit Against Public Security Agency’’ [Xinjiang 

you daibu yi ming nu ̈ jidu tu chuandao ren; Shandong jidu tu dui gongan jiguan tiqi xingzheng 

susong], 15 November 06. 48Trial Measures on Reeducation Through Labor [Laodong jiaoyang shixing banfa], issued 21 

January 82, arts. 13, 58(10); Provisions on Public Security Agencies’ Handling of Reeducation 

Through Labor Cases [Gongan jiguan banli laodong jiaoyang anjian guiding], issued 12 April 

02, art. 44. 49See Trial Measures on Reeducation Through Labor, art. 10; Provisions on Public Security 

Agencies’ Handling of Reeducation Through Labor Cases, art. 9; These crimes are not serious 

enough to warrant punishment under the Criminal Law, but are too serious to fall under the 

PSAPL. See Protection of Human Rights in the Context of Punishment of Minor Crimes in 

China, Testimony of Dr. Veron Mei-ying Hung. 50 A recent China Daily article notes that the original purpose of the reeducation through 

labor system was to ‘‘punish dissent.’’ Wu Jiao, ‘‘New law to abolish laojiao system,’’ China Daily 

(Online), 1 March 07. 51Gao Yifei, ‘‘Why NPC Delegates Propose Reforming the Reeducation Through Labor System’’ 

[Renmin daibiao weihe tiyi gaige laojiao zhidu], Boxun (Online), 29 April 06. 52 Nowak Report, para. 33; Bureau of Democracy, Human Rights, and Labor, U.S. Department 

of State, Country Reports on Human Rights Practices—2005, China (includes Tibet, Hong Kong, 

and Macau), sec. 1.d. 53See PRC Criminal Law, ch. 3, sec. 1–3. 54Wu, ‘‘New law to abolish laojiao system.’’ 55 UNWGAD Report, paras. 56, 73. Individuals can appeal under the ALL for a reduction in, 

or suspension of, a RTL sentence, but these appeals are rarely successful. U.S. Department of 

State, Country Reports on Human Rights Practices—2005, China, sec. 1.d; Hung, ‘‘Reassessing 

Reeducation Through Labor,’’ 37–38. 56See Protection of Human Rights in the Context of Punishment of Minor Crimes in China, 

Testimony of Dr. Veron Mei-ying Hung (‘‘Unfortunately, the courts’ role in reviewing the legality 

of administrative sanctions such as [RTL] has been limited by aggrieved parties’ fear of suing 

administrative organs and limited access to lawyers as well as administrative organs’ interference with the process.’’) 57See After the Detention and Death of Sun Zhigang, Staff Roundtable of the CongressionalExecutive Commission on China, 27 October 03, Testimony of Dr. James D. Seymour, Senior 

Research Scholar, Weatherhead East Asian Institute, Columbia University; Protection of Human 

Rights in the Context of Punishment of Minor Crimes in China, Testimony of Dr. Veron Meiying Hung; Peerenboom, ‘‘Out of the Frying Pan and into the Fire,’’ 999. 58See U.S. Department of State, Country Reports on Human Rights Practices—2006, China, 

sec. 1.d. This number exceeds Professor James Seymour’s estimate of 400,000 individuals held 

in RTL centers 20 years ago. After the Detention and Death of Sun Zhigang, Testimony of Dr. 

James D. Seymour. 59Freedom House (Online), 2005 China Country Report. In its December 2004 report, the 

UNWGAD found: 

‘‘The operation of the laws governing decisionmaking on placement in a [reeducation] through 

[labor] camp is, however, highly problematic. From reliable sources, including interviews with 

persons affected, it is clear that in the overwhelming majority of cases, a decision on placement 

in a [reeducation] center is not taken within a formal procedure provided by law. The commission vested with power to take this decision in practice never or seldom meets, the person affected does not appear before it and is not heard, no public and adversarial procedure is conducted, no formal and reasoned decision on placement is taken (or issued for the person affected). Thus, the decisionmaking process completely lacks transparency. In addition, recourse 

against decisions are [sic] often considered after the term in a center has been served.’’ 

UNWGAD Report, para. 58. 60 Under Chinese law, punishments that involve a restriction on personal liberty may only be 

established by national law. PRC Legislation Law, enacted 15 March 00, art. 8(v); PRC Administrative Punishment Law, arts. 9, 10. 61 CPL, art. 12. 62PRC Constitution, art. 37. 63 Nowak Report, para. 63; State Council Decision on the Question of Reeducation Through 

Labor [Guowuyuan guanyu laodong jiaoyang wenti de jueding], issued 3 Aug 57, para. 2; ‘‘Last 

year’s rate of resettling those released from prison or reeducation through labor near 90 percent’’ 

27

[Xingshi jiejiao renyuan qunian anzhilu ̈jin jiucheng], China Legal Publicity (Online), 3 March 

06; Yardley, ‘‘Issue in China: Many in Jails Without Trial.’’ 64 Nowak Report, para. 62. 65 Ibid., para. 64. Article 10(3) of the ICCPR provides that, ‘‘The penitentiary system shall 

comprise treatment of prisoners the essential aim of which shall be their reformation and social 

rehabilitation.’’ In response to characterization of forced reeducation as a form of inhuman or 

degrading treatment, Chinese authorities have maintained that RTL helps transition detainees 

back into society. 66 UNWGAD Report, paras. 16, 45; ICCPR, arts. 9, 14. 67 In 2003, 127 NPC delegates raised the issue of reforming RTL. At the 2004 NPC plenary 

session, this number increased to 420, or approximately one-tenth of the entire NPC body. NPC 

delegates at the 2005 plenary session submitted six motions to expedite RTL reform, and in January 2006, the NPCSC added the draft law for reforming RTL to its legislative plan for 2006. 

Gao, ‘‘Why NPC Delegates Propose Reforming the Reeducation Through Labor System.’’ 68Liao Weihua, ‘‘Reeducation Through Labor System Faces Change; Law on Correction of Unlawful Acts To Be Formulated’’ [Laojiaozhi mianlin biangai jiang zhiding weifa xingwei 

jiaozhifa], Beijing News, reprinted in Xinhua (Online), 2 March 05. 69 ‘‘Reeducation Through Labor ‘Changes Names’’’ [Laojiao ‘‘gengming’’], China Business View 

(Online), 4 March 05. 70Wu, ‘‘New law to abolish laojiao system’’ (summarizing comments by Wang Gongyi, Deputy 

Director of the Institute of Justice Research, a research center affiliated with the Ministry of 

Justice). 71See Qin Liwen, ‘‘Chongqing Implements ‘Interim Provisions on Legal Representation in Reeducation Through Labor Cases’’’ [Chongqing shishi ‘‘Lu ̈ shi daili laodong jiaoyang anjian 

zanxing guiding’’], Legal Daily, reprinted in Procuratorial Daily (Online), 3 April 07; Irene 

Wang, ‘‘Lawyers win role for people facing labour-camp cases,’’ South China Morning Post (Online), 4 April 07. 72See Chongqing Municipal Public Security Bureau, Chongqing Municipal Justice Bureau Circular on Issuing Interim Provisions on Legal Representation in Reeducation Through Labor 

Cases [Chongqing shi gonganju, Chongqing shi sifaju guanyu yinfa lu ̈ shi daili laodong jiaoyang 

anjian zanxing guiding de tongzhi], issued 16 March 07, arts. 2, 9–10. 73See CPL, arts. 32–41. 74See Wu, ‘‘New law to abolish laojiao system’’ (quoting Wang Gongyi as saying that ‘‘[the 

Chongqing regulation] allows people to defend themselves, a right enshrined in the constitution’’ 

and therefore ‘‘works as a good example for national legislation’’). The article notes that the 

Chongqing Justice Bureau obtained approval for its initiative from the Ministry of Justice and 

the Ministry of Public Security. In May, Shandong province adopted measures providing for 

similar procedural protections in RTL cases. See Trial Measures on Legal Representation in Reeducation Through Labor Cases [Lu ̈ shi daili laodong jiaoyang anjian shixing banfa], issued 25 

May 07. 75See Wu, ‘‘New law to abolish laojiao system;’’ Hai Tao, ‘‘Chongqing Permits Legal Representation in Reeducation Through Labor Cases’’ [Zhongguo Chongqing yunxu lu ̈ shi daili laodong 

jiaoyang an], Voice of America (Online), 4 April 07. 76See, e.g., CPL, arts. 92 (on interrogation by summons), 64 (on notification of the reasons 

for detention), 69 (on approval of arrest), 124–128 (on release pending trial), and 168 (on pronouncement of a court judgment). 77See Supreme People’s Court Notice on Issues Related to Clearing Cases of Extended Detention [Zuigao renmin fayuan guanyu qingli chaoqi jiya anjian youguan wenti de tongzhi], issued 

29 July 03. 78See Several Provisions from the Supreme People’s Procuratorate Regarding the Prevention 

and Correction of Extended Detention in Procuratorial Work [Zuigao renmin jianchayuan 

guanyu zai jiancha gongzuo zhong fangzhi he jiuzheng chaoqi jiya de ruogan guiding], issued 

24 September 03, para. 1. 79Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security 

Notice on the Strict Enforcement of the Criminal Procedure Law, and on the Conscientious Correction and Prevention of Extended Detention [Zuigao renmin fayuan, zuigao renmin 

jianchayuan, gonganbu guanyu yange zhixing xingshi susongfa, qieshi jiufang chaoqi jiya de 

tongzhi], issued 11 November 03. 80 ICCPR, arts. 9(3) and 9(4). 81 UNWGAD Report, para. 32. 82See State Council Information Office, White Paper on Fifty Years of Progress in China’s 

Human Rights, PRC Central Government (Online), June 00. 83See State Council Information Office, White Paper on China’s Progress in Human Rights: 

2003, PRC Central Government (Online), March 04. 84See State Council Information Office, White Paper on China’s Progress in Human Rights 

in 2004, PRC Central Government (Online), April 05. 85 Nowak Report, note 34. 86See Supreme People’s Procuratorate Work Report [Zuigao renmin jianchayuan gongzuo 

baogao] [hereinafter SPP Work Report], 13 March 07. 87 ‘‘Consolidated Work of Correcting Extended Detention Has Been Effective; 96.2 Percent 

Drop in New Cases of Extended Detention Throughout the Nation Last Year’’[Jiuzheng chaoqi 

jiya gonggu gongzuo qunian xin fasheng chaoqi jiya xiajiang 96.2%], Procuratorial Daily (Online), 21 May 06; ‘‘Supreme People’s Procuratorate Recognizes Continuing Problem of Extended 

Detention,’’ CECC China Human Rights and Rule of Law Update, July 2006, 11–12. 88Wu Jing, ‘‘Supreme People’s Court President Xiao Yang: Delayed Justice Is In Fact Injustice’’ [Zuigao renmin fayuan yuanzhang Xiao Yang: chidao de gongzheng jiushi bu gongzheng] 

Defense Lawyer Net, 3 August 06. 

28

89See National People’s Congress Standing Committee Work Report [Quanguo Renmin 

Daibiao Dahui changwu weiyuanhui gongzuo baogao], 20 March 07. 90See Han Jinghong, ‘‘Supreme People’s Procuratorate: In 2006, Phenomenon of Extended Detention Fell To Historical Low’’ [Zuigaojian 06 nian chaoqi jiya xianxiang yi jiangdao lishi 

zuididian], China News Net, reprinted in China Court Net, 14 March 07. 91 ‘‘Consolidated Work of Correcting Extended Detention Has Been Effective; 96.2 Percent 

Drop in New Cases of Extended Detention Throughout the Nation Last Year,’’ Procuratorial 

Daily; ‘‘Supreme People’s Procuratorate Recognizes Continuing Problem of Extended Detention,’’ 

CECC China Human Rights and Rule of Law Update, July 2006, 11–12. In 2003, the SPP 

passed regulations that prohibit the abuse of legal procedures to disguise the extended detention 

of a criminal suspect. Several Provisions from the Supreme People’s Procuratorate Regarding 

the Prevention and Correction of Extended Detention in Procuratorial Work, para. 1. 92 In 2003, people’s supervisors were given administrative authority to challenge only 

procuratorate actions in violation of Chinese law. See Supreme People’s Procuratorate Trial Provisions on Implementation of the System of People’s Supervisors [Guanyu shixing renmin 

jianduyuan zhidu de guiding (shixing)], issued 2 September 03, amended 5 July 04. There are 

some limitations on who may qualify to serve as a ‘‘people’s supervisor,’’ including a minimum 

age of 23 years and formal recommendation and appointment upon evaluation. Ibid., arts. 5(3) 

and 8. As of late 2006, 86% of the nation’s procuratorates had instituted this system. See Nationwide Cases of Extended Detention Fall to Historical Low [Quanguo chaoqi jiya an jiangdao 

lishi zuidi], Beijing Youth Daily, reprinted in Xinhua (Online), 25 April 07. 93 Nowak Report, para. 45; UN High Commissioner for Human Rights (Online), ‘‘Human 

Rights Council Discusses Reports on Torture, Arbitrary Detention and Independence of Judges 

and Lawyers,’’ 19 September 06. 94 Nowak Report, para. 42. 95 Ibid., para. 43. These include police stations, pretrial detention centers, RTL centers, and 

‘‘ankang’’ hospitals for the psychiatric commitment of criminal offenders. 96 Ibid., para. 44. 97 Ibid., para. 45. 98See also ibid., paras. 53–57. 99For more information about his case, see 2005 Annual Report, 24; CECC, 2006 Annual Report, 57. 100For more information about their case, see ‘‘Detention, Torture of Anhui Teens Reflect Continuing Criminal Procedure Violations,’’ CECC China Human Rights and Rule of Law Update, 

October 2006, 2. 101For additional discussion of these topics, see ‘‘Law on the Books: Judicial Institutions and 

Challenges,’’ infra. 102See Ministry of Foreign Affairs (Online), ‘‘Third Report on the Implementation of the Convention against Torture and Others,’’ 15 November 00. The Chinese government ratified the 

CAT in 1988. Article 19 of the CAT requires that state parties report to the Committee against 

Torture within one year of ratification and once every four years thereafter. The due date for 

the Chinese government’s latest report was November 2, 2005. 103 ‘‘Foreign Ministry Spokesman Qin Gang’s Press Conference on 6 December 2005,’’ Ministry 

of Foreign Affairs (Online), 7 December 05. 104PRC Criminal Law, arts. 247, 248. A ‘‘judicial officer’’ is defined as one who ‘‘exercises the 

functions of investigation, prosecution, adjudication, and supervision and control.’’ Ibid., art. 94. 

The Special Rapporteur on Torture notes that the Supreme People’s Procuratorate, which directly handles all investigations of torture, restricts application of both Articles 247 and 248 so 

that law enforcement officials are prohibited from acting, or punishable for abuses, in just a 

small number of enumerated cases. Nowak Report, para. 16. New regulations effective July 2006 

expand the number of punishable scenarios from five to eight (in cases of coercing a confession 

under torture) and from five to seven (in cases of acquiring evidence through the use of force 

and prisoner maltreatment). Supreme People’s Procuratorate Provisions on the Criteria for Filing Dereliction of Duty and Rights Infringement Criminal Cases, sec. II, paras. 3–5. 105See Provisions on the Procedures for Public Security Agency Handling of Administrative 

Cases, [Gongan jiguan banli xingzheng anjian chengxu guiding], issued 26 August 03, art. 26 

(stating that illegally acquired evidence may not form the basis of a determination in any administrative case). New provisions went into effect on August 24, 2006, and supercede the 2003 

provisions. See Ministry of Public Security, Provisions on the Procedures for Public Security 

Agency Handling of Administrative Cases [Gongan jiguan banli xingzheng anjian chengxu guiding], issued 29 March 06. The Ministry of Public Security has explained that the 2006 revision 

establishes stricter procedural rules consistent with the new Public Security Administration 

Punishment Law. See ‘‘MPS Revises Internal Procedures To Conform With Public Security Administration Law,’’ CECC China Human Rights and Rule of Law Update, November 2006, 10–

11. 106 Communist Party of the People’s Republic of China, Regulations on Disciplinary Actions 

[Zhongguo Gongchandang jilu ̈ chufen tiaoli], issued 18 February 04. 107Provisions on Public Security Use of Continuing Interrogation [Gongan jiguan shiyong jixu 

panwen guiding], issued 12 July 04, arts. 1, 18–19. 108Trial Regulations on Disciplinary Sanctions Against Procuratorate Personnel [Jiancha 

renyuan jilu ̈ chufen tiaoli (shixing)], issued 1 June 04, art. 47. 109 ‘‘Ministry of Justice Issues Prohibitions to Restrain Prison and RETL Police Abuses,’’ 

CECC China Human Rights and Rule of Law Update, April 2006, 4. 110See Supreme People’s Procuratorate Provisions on the Criteria for Filing Cases of Dereliction of Duty Infringing Upon Rights [Zuigao renmin jianchayuan guanyu duzhi qinquan fanzui 

anjian li’an biaozhun de guiding], issued 29 December 05, sec. 2. For additional information 

about these regulations, see CECC, 2006 Annual Report, 46. 

29

111 Human Rights in China, ‘‘Impunity for Torturers Continues Despite Changes in the Law,’’ 

April 00, 3. See also Professor Peter T. Burns, ‘‘China and the Convention against Torture,’’ The 

Canada China Procuratorate Reform Cooperation Programme Lecture Series I, Xi’an and 

Lanzhou, China (August 2005) (stating that ‘‘[t]he whole premise of the Torture Convention is 

that torturers are not to enjoy impunity’’ and that ‘‘they must be investigated, arrested and tried 

for their crimes’’). The prohibition against torture is also included in Article 5 of the UDHR. 112See ‘‘Miscarriage of Justice in Chaohu, Anhui: Three Policemen Investigated for Suspected 

Involvement in Coercing Confessions Under Torture’’ [Anhui Chaohu yuan’an: san xingjing 

shexian xingxun bigong bei li’an zhencha], Xinhua (Online), 12 September 06; ‘‘Anhui: Four Students Falsely Accused of Murder, Detained For 3 Months During Which They Suffered Extensive Torture in Succession [Anhui: si xuesheng beiwu sharen jiya 3 ge yue; qijian zaoshou 

‘‘chelunzhan’’ shoujin zhemo], Southern Metropolitan Daily, reprinted in Southern Daily (Online), 12 September 06. 113 ‘‘Symposium on Illegal Evidence Gathering and Wrongful Conviction’’ Convenes; 

Procuratorates To Further Standardize Evidence Gathering Work’’ [‘‘Feifa quzheng yu xingshi 

cuo’an’’ yantaohui zhaokai; jiancha jiguan jinyibu guifan quzheng gongzuo], Legal Daily (Online), 18 November 06. 114 ‘‘Supreme People’s Procuratorate Says It Will Strengthen Implementation of the Existing 

System To Bring Under Control the Use of Illegal Evidence Gathering’’ [Zuigaojian biaoshi jiang 

qianghua zhixing xian you zhidu zhili feifa quzheng], Xinhua (Online), 19 November 06. 115See SPP Work Report, 11 March 02; SPP Work Report, 10 March 04; SPP Work Report, 

9 March 05. 116See SPP Work Report, 13 March 07. 117Office of the UN High Commissioner for Human Rights (Online), Declaration and Reservations to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment, 23 April 04. By contrast, the United States has declared that it recognizes the competence of the Committee against Torture. 118 UN High Commissioner for Human Rights, ‘‘Human Rights Council Discusses Reports on 

Torture, Arbitrary Detention and Independece of Judges and Lawyers.’’ 119 Nowak Report, para. 17. 120 Burns, ‘‘China and the Convention against Torture,’’ 8. 121 Human Rights in China, ‘‘Impunity for Torturers,’’ 16. 122See Amnesty International (Online), ‘‘China: Torture/Medical concern/Prisoner of conscience, Chen Guangcheng (m),’’ 21 June 07. 123See Li Qing and Huang Hui, ‘‘Jingdezhen No. 2 Detention Center Superintendent Prosecuted’’ [Jingde zhen di er kanshousuo zhidaoyuan bei qisu], China Legal Publicity (Online), 4 

June 05. 124See ‘‘No Tolerance For Further Aggression By Prison Bosses’’ [Bu rong laotou yuba zai 

xiaozhang], Chinese People’s Political Consultative Conference (Online), 13 September 04. 125See Ya Wei, ‘‘Critique: Malpractice and Reform in China’s Police System’’ [Pingxi: 

Zhongguo jingcha zhidu de bibing he gaige], Voice of America (Online), 1 September 06. 126See ‘‘Nation Altogether Has 52,000 Police Stations, 490,000 People’s Police’’ [Quanguo you 

paichusuo 5.2 wan minjing 49 wan], Legal Daily (Online), 8 February 06; ‘‘Report Concerning 

Public Security Reform (Part 6): Of 770,000 Communities Nationwide, 80 Percent Have Constructed Police Affairs Offices’’ [Quanguo 7.7 wan ge shiqu bacheng jian you jingwushi—

guangzhu gongan gaige baodao zhi liu], Legal Daily (Online), 10 April 06; ‘‘Report Concerning 

Public Security Reform (Part 5): 150,000 Criminal Police Pursue 652 Fugitives Each Day Online 

[15 wan xingjing meitian wang shang zhuitao 652 ren—guangzhu gongan gaige baodao zhi wu], 

Legal Daily (Online), 6 April 06. 127 ‘‘Clear Drop in Number of Rural Mass Incidents in 2006, Compared With 2005’’ [2006 nian 

he 2005 nian xiangbi nongcun quntixing shijian shuliang mingxian xiajiang], PRC Central Government (Online), 30 January 07. 128 CECC, 2005 Annual Report, 10. 129Ministry of Public Security (Online), ‘‘Liu Jinguo Calls for Strengthening Public Security’s 

Grassroots, Fundamentals Work, and Wholeheartedly Safeguarding Social Stability’’ [Liu Jinguo 

zhichu jiaqiang gongan jiceng jichu gongzuo, quanli weihu shehui wending], 18 April 07; Zhao 

Huanxin, ‘‘Farmers’ protests drop 20% last year,’’ China Daily (Online), 31 January 07. 130Ministry of Public Security (Online), ‘‘Ministry of Public Security Announces First Quarter 

2006 Nationwide Public Security Situation (Direct Feed Transcript)’’ [Gonganbu tongbao 2006 

nian di yi jidu quanguo shehui zhi’an xingshi (tuwen zhibo)], 11 April 06. 131For more information, see CECC, 2006 Annual Report, 45; ‘‘Power Plant Construction Continues After Government Suppresses Villager Protests in Shanwei,’’ CECC China Human Rights 

and Rule of Law Update, January 2006, 4–5. 132Ministry of Public Security, ‘‘Liu Jinguo Calls for Strengthening Public Security’s Grassroots, Fundamentals Work, and Wholeheartedly Safeguarding Social Stability.’’ 133 Ya, ‘‘Critique: Malpractice and Reform in China’s Police System.’’ 134 Ibid. 135 Communist Party Central Committee Resolution on Further Strengthening and Improving 

Public Security Work [Zhong Gong Zhongyang guanyu jinyibu jiaqiang he gaijin gongan gongzuo 

de jueding], issued November 03. 136 Communique ́ of the Sixth Plenum of the Sixteenth Communist Party Central Committee 

[Zhongguo Gongchandang di shiliu jie Zhongyang Weiyuanhui di liu ci quanti huiyi gongbao], 

issued 11 October 06, reprinted in Xinhua (Online). 137 Communist Party Central Committee Resolution on Major Issues Regarding the Building 

of a Harmonious Socialist Society [Zhong Gong Zhongyang guanyu goujian shehuizhuyi hexie 

shehui ruogan zhongda wenti de jueding], issued 11 October 06, reprinted in Xinhua (Online). 

30

138Decoding the Resolution of the Sixth Plenum of the Sixteenth Communist Party Central 

Committee: 10 Major Keywords [Jiedu shiliu jie liu Zhong quanhui ‘‘jueding’’ shi da guanjianci], 

Xinhua, reprinted in People’s Daily (Online), 28 October 06. 139Ministry of Public Security (Online), ‘‘Ministry of Public Security Convenes Press Conference To Announce Public Security Situation and Status of Implementation of Community and 

Village Police Affairs Strategy’’ [Gonganbu zhaokai xinwen fabuhui tongbao shehui zhi’an 

xingshi ji shishi shequ he nongcun jingwu zhanlu ̈ e qingkuang], 14 November 06. 140Wang Doudou, ‘‘Civilians are Most Important Backers of Public Security: Decoding Community and Village Police Affairs Strategy’’ [Baixing shi gongan zuida kaoshan: jiedu shequ he 

nongcun jingwu zhanlu ̈ e], Legal Daily (Online), 14 November 06. 141See supra, ‘‘Detention Outside the Criminal Process,’’ and accompanying notes. 142 ‘‘Beijing Police Will Establish a Public Security Violation Blacklist; Those Who Have Been 

Punished Will Leave Behind a Record’’ [Beijing jingfang jiang jian zhi’an weifa heimingdan; 

shou chufa zhe jiang liu andi], Legal Evening News, reprinted in Procuratorial Daily (Online), 

13 April 06. 143Li Jian, ‘‘Why Some Police Resemble Crime Bosses’’ [Weishenme youde jingcha xiang 

‘‘heilaoda’’], China Youth Daily (Online), 13 July 06. 144 ‘‘Zhang Yuqing: Increase Police Types To Take Over City Management and Carry Out Administration of Urban Order’’ [Zhang Yuqing: zengjia jing zhong jieti chengguan jinxing 

chengshi zhixu guanli], Yancheng Evening Post (Online), 12 March 07. 145David Bandurski, ‘‘Are police over-reaching in their application of China’s new law on management of public security?’’ China Media Project (Online), 27 July 07. 146 CECC, 2006 Annual Report, 46. 147See, e.g., ‘‘Ministry of Public Security Decides To Implement Resident [Police] Inspection 

Commissioner System; Residence Period 3 Years’’ [Gonganbu jueding shixing paizhu ducha 

zhuanyuan zhidu; paizhu shijian 3 nian], Public Security Daily, reprinted in Xinhua (Online), 

11 May 06; Ministry of Public Security Implements Resident [Police] Inspection Commissioner 

System [Gonganbu shixing paizhu ducha zhuanyuan zhidu], Legal Daily (Online), 11 Mary 06. 148See Dan Shibing, ‘‘Punish Thuggish Airs of Police [Zhizhi jingcha piqi],’’ Baixing Magazine 

(Online), 2006. 149See Wu Junyi, ‘‘My View on the New Restrictive Relationship Between Police and 

Procuratorate’’ [Xinxing de jing, jian zhiyue guanxi zhi wojian], Procuratorial Daily (Online), 5 

February 06. 150 Article 14(3)(d) of the ICCPR states that any individual charged with a crime is entitled: 

‘‘[t]o defend himself in person or through legal assistance of his own choosing; to be informed, 

if he does not have legal assistance, of this right; and to have legal assistance assigned to him, 

in any case where the interests of justice so require, and without payment by him in any such 

case if he does not have sufficient means to pay for it.’’ 151See, e.g., ‘‘Lawyers Nationwide Total Over 150,000’’ [Quanguo lu ̈ shi yi da 15 wan yu ren], 

Legal Daily (Online), 11 July 06 (noting that this number includes over 7,000 part-time lawyers 

and 31,957 paralegals). 152 ‘‘Central Government Expands Provision of Legal Aid in Criminal Cases,’’ CECC China 

Human Rights and Rule of Law Update, December 2005, 5–6; Provisions on Legal Aid Work 

in Criminal Litigation [Guanyu xingshi susong falu ̈ yuanzhu gongzuo de guiding], issued 28 September 05, art. 4. 153PRC Lawyers Law, enacted 15 May 96, art. 42. 154See Jian Fa, ‘‘Independence Called for Lawyers,’’ Beijing Review (Online), 2 April 04 (citing 

to a report from the Fifth National Lawyers Convention). 155See CECC, 2006 Annual Report, 55. 156Pro bono legal defense is guaranteed only to certain, limited categories of defendants, including minors, those who face a possible death sentence, and those who are blind, deaf, or 

mute. CPL, arts. 33, 34; Regulations on Legal Aid [Falu ̈ yuanzhu tiaoli], issued 16 July 03, art. 

12. 157 In cases involving ‘‘state secrets,’’ a criminal suspect must first obtain the approval of the 

investigating agency before he can appoint a lawyer; the lawyer must obtain similar approval 

before he can meet with his client. See CPL, art. 96. 158See CECC, 2003 Annual Report, 19–20. 159See CECC, 2006 Annual Report, 55. 160See ibid., 56. 161 CPL, art. 45. 162 UNWGAD Report. 163See ‘‘First Issuance of a ‘Lawyers Proposed Draft and Arguments for Another Revision of 

the Criminal Procedure Law’’’ [‘‘Xingshi Susongfa zai xiugai lu ̈ shi jianyi gao yu lunzheng’’ 

shoufa], Defense Lawyer Net, 20 April 07. 164See CECC, 2006 Annual Report, 56. 165 Human Rights Watch, ‘‘A Great Danger for Lawyers: New Regulatory Curbs on Lawyers 

Representing Protestors,’’ December 06, 7. 166 Ibid. 167 ‘‘Legal Community Denounces All China Lawyers Association For Harming the Legal 

Rights of the Masses’’ [Fajie chi lu ̈ xie qianghai dazhong falu ̈ quanli], Ming Pao Daily (Online), 

15 June 06. 168 UNWGAD Report, para. 38. See also ‘‘Defense Lawyers Turned Defendants: Zhang 

Jianzhong and the Criminal Prosecution of Defense Lawyers in China,’’ Congressional-Executive 

Commission on China, 27 May 03. 169 ‘‘NPC Delegate Zhang Yan Proposes Elimination of Criminal Law Article 306’’ [Zhang Yan 

daibiao jianyi feichu xingfa di san bai ling liu tiao], Legal Daily (Online), 9 March 06. 

31

170 Xiao Yang, ‘‘Scrapping Article 306 Would Make Law Fairer,’’ China Daily, 12 April 04; 

‘‘Several Problems in the Reform of Judicial Administration’’ [Sifa xingzheng gaige de ruogan 

falu ̈ wenti], Legal Daily, 12 August 04. 171See supra, ‘‘Social Unrest and Coercive Use of Police Power,’’ and accompanying notes. 172See Chinese Human Rights Defenders (Online), ‘‘The Perils of Defending Rights: A Report 

on the Situation of Human Rights Defenders in China (2006),’’ 4 May 07, pt. I(2)(c). 173See CECC, 2006 Annual Report, 57. 174See China Human Rights Lawyers Concern Group, ‘‘Deeply Concerned About the Recent 

Incidents of Beating and Detention of Mainland Human Rights Lawyers,’’ 22 June 07. 175 Under China’s Criminal Law, a court may suspend a prisoner’s sentence and allow that 

prisoner to serve the period of suspension on the outside, subject to observation and other restrictions imposed by a public security organ. See PRC Criminal Law, arts. 72–77. 176See China Human Rights Lawyers Concern Group (Online), ‘‘Demand Immediate Release 

of Beijing Human Rights Lawyer Gao Zhisheng,’’ 27 September 07. For more information about 

Gao’s open letter, which called on the Congress to take action against the Chinese government’s 

human rights abuses, see Human Rights Torch Relay (Online), ‘‘Gao Zhisheng’s letter to the 

Senate and the Congress of the United States,’’ 12 September 07; Bill Gertz, ‘‘Chinese dissident 

urges boycott of Olympics,’’ Washington Times (Online), 21 September 07. 177 Under China’s Criminal Law, a court may impose a supplementary punishment of ‘‘deprivation of political rights’’ (in addition to fixed-term imprisonment). A term of deprivation of political rights is typically counted beginning on the date that a prisoner has completed his sentence. See PRC Criminal Law, arts. 54–55, 58. 178Fang Yuan, ‘‘Status of Shanghai Lawyer Zheng Enchong’s Summons for Interrogation, Petitioners’ House Arrest’’ [Shanghai lu ̈ shi Zheng Enchong bei chuanxun ji rangmin bei ruanjin 

qingkuang], Radio Free Asia (Online), 1 October 07. 179The number of criminal defendants who have been found guilty is actually on the rise, 

while the number found not guilty continues to drop. In 2006, Chinese trial courts found 889,042 

defendants guilty of crimes and 1,713 not guilty. Supreme People’s Court Work Report [Zuigao 

renmin fayuan gongzuo baogao][hereinafter SPC Work Report], 21 March 07. Those numbers 

were 844,717 guilty, 2,162 not guilty in 2005; and 767,951 guilty, 2,996 not guilty in 2004. See 

SPC Work Report, 20 March 06. 180 Article 14(3)(d) of the ICCPR states that: ‘‘In the determination of any criminal charge 

against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a 

fair and public hearing by a competent, independent and impartial tribunal established by law.’’ 181See supra, ‘‘Political Crimes,’’ and accompanying notes. 182See CPL, art. 152. 183For more information, see http://www.yangjianli.com. 184See ‘‘China Frees Protestant Pastor After Three Years,’’ Agence France-Presse (Online), 17 

September 07; China Aid Association (Online), ‘‘Renowned Beijing Church Leader Cai Zhuohua 

Released after Three Years Imprisonment for distributing Bibles; Forced Labor for Olympics 

Products Imposed,’’ 14 September 07, for confirmation of Cai’s release. See CECC, 2006 Annual 

Report, 38; ‘‘Beijing Court Jails House Church Minister for Giving Away Bibles,’’ CECC Human 

Rights and Rule of Law Update, December 2005, 1–2 for information about Cai’s case. 185Supreme People’s Court, Several Opinions on Strengthening the Open Adjudication Work 

of the People’s Courts [Guanyu jiaqiang renmin fayuan shenpan gongkai gongzuo de ruogan 

yijian], issued 4 June 07. 186 Responses provided during interrogation may later be used as evidence at trial, but a court 

cannot convict and sentence a defendant ‘‘if there is only his statement but no evidence.’’ CPL, 

arts. 46, 93. 187See CECC, 2005 Annual Report, 24 (on the wrongful convictions of She Xianglin and Nie 

Shubin); CECC, 2006 Annual Report, 57–58 (on the wrongful conviction of a Chongqing man 

for robbery). 188 ‘‘Behind the Scenes of a Wrongful Conviction: Judicial Games’’ [Cuo’an muhou de sifa 

youxi], Xinhua (Online), 14 April 05. 189See ‘‘First Issuance of a ‘Lawyers Proposed Draft and Arguments for Another Revision of 

the Criminal Procedure Law,’’’ Defense Lawyer Net. 190See ‘‘Supreme People’s Court Maps Future Judicial Reforms in Five Year Reform Program,’’ CECC Human Rights and Rule of Law Update, February 2006, 7–9; Supreme People’s 

Court, Second Five-Year Reform Program for the People’s Courts (2004–2008)[Renmin fayuan 

di er ge wu nian gaige gangyao (2004–2008)], issued 26 October 05. 191 ‘‘Behind the Scenes of a Wrongful Conviction: Judicial Games,’’ Xinhua. 192 CECC Staff Interviews; Veron Mei-Ying Hung, ‘‘Judicial Reform in China: Lessons from 

Shanghai,’’ 58 Carnegie Papers 10–11 (April 2005). 193 Chinese sources note that the number of crimes punishable by death increased from 28 

under the 1979 Criminal Law to 68 (approximately one-quarter of the total number of crimes) 

under the 1997 Criminal Law. Xiong Qiuhong, ‘‘Discussing the Defense of Death Penalty Cases’’ 

[Lun sixing anjian zhong de bianhu], Justice of China (Online), 20 July 04; Lin Tao, ‘‘Study on 

the Issues in Hearing and Reviewing Death Penalty Cases’’ [‘‘Sixing’’ anjian de shenli yiji fuhe 

zhong de wenti yanjiu], China Legal Publicity (Online), 10 January 06. At least one scholar has 

characterized 44 (approximately 65 percent) of the crimes punishable by death as nonviolent 

crimes. Jiang Anjie, ‘‘Compilation of Viewpoints from the First Period Forum ‘Concerning Death 

Penalty Reform’’’ [‘‘Guanzhu sixing gaige’’ shouqi luntan guandian huicui], China Legal Publicity 

(Online), 29 December 05 (quoting Professor Gao Mingxuan, Renmin University). See also 

‘‘Death Penalty Developments in 2005,’’ Amnesty International (Online), 20 April 06; ‘‘China to 

Open More Death Penalty Cases to Public,’’ Reuters, reprinted in China Daily (Online), 27 February 06. 194 ‘‘PRC Foreign Ministry Spokesman Defends Keeping PRC Execution Statistics Secret,’’ 

Agence France-Presse, 5 February 04 (Open Source Center, 5 February 04). 

32

195Liu Renwen, a scholar at the Law Institute of the Chinese Academy of Social Sciences, estimates that China carried out about 8,000 executions in 2005. Geoffrey York, ‘‘China’s Secret 

Execution Rate Revealed,’’ The Globe and Mail (Online), 28 February 06; Antoaneta Bezlova, 

‘‘China to ‘Kill Fewer, Kill Carefully,’’’ Asia Times (Online), 31 March 06. In March 2004, an 

NPC delegate suggested that Chinese courts issue death sentences for immediate execution in 

‘‘nearly 10,000 cases per year.’’ ‘‘41 Representatives Jointly Sign Proposal for the Supreme People’s Court to Take Back the Power of Death Penalty Approval’’ [41 daibiao lianming jianyi, 

zuigao renmin fayuan shouhui sixing hezhun quan], China Youth Daily, reprinted in People’s 

Daily (Online), 10 March 04. 196 ‘‘China urged to cut back executions before Olympics (John Kamm),’’ Agence France-Presse, 

reprinted in Yahoo (Online), 9 June 07. 197Dui Hua Foundation (Online), ‘‘Death Penalty Reform Should Bring Drop in Chinese Executions,’’ Winter 07. 198See CECC, 2003 Annual Report, 21; CECC, 2004 Annual Report, 20. 199 ‘‘Organ Transplants: A Zone of Accelerated Regulation’’ [Qiguan yizhi: jiakuai guizhi de 

didai], Caijing Magazine (Online), 28 November 05. In late-2006, Vice Minister Huan reported 

this information, stating: ‘‘Apart from a small portion of traffic victims, most of the organs from 

cadavers are from executed prisoners.’’ Qiu Quanlin and Zhang Feng, ‘‘In organ donations, charity begins with body,’’ China Daily (Online), 16 November 06. 200 ‘‘Court hails penalty review a success,’’ Xinhua, reprinted in China Daily (Online), 10 June 

07. 201 ‘‘Least number of death sentences meted out in ’07,’’ Xinhua (Online), 16 March 07. 202 Xie Chuanjiao, ‘‘Fewer executions after legal reform,’’ China Daily (Online), 8 June 07. 203 Xie Chuanjiao, ‘‘Capital punishment decreases nationwide,’’ China Daily (Online), 5 September 07. 204Wu Jing, ‘‘Supreme People’s Court Demands Strengthening of Criminal Adjudication’’ 

[Zuigao renmin fayuan yaoqiu jiaqiang xingshi shenpan], People’s Daily (Online), 14 September 

07. 205Feng Jianhua, ‘‘Taking Back the Power,’’ Beijing Review (Online), 5 February 07. 206 Ibid. 207Liu Li, ‘‘In matter of life and death, extra caution,’’ China Daily (Online), 2 November 06. 208See ‘‘China’s Supreme Court to Reclaim Death Penalty Review Right from Lower Tribunals,’’ Xinhua, reprinted in People’s Daily (Online), 26 October 05; Song Wei, ‘‘610 Death Penalty 

Judges Congregate in Beijing for Rotational Training, Consolidating the Measure of Death Penalty Standards’’ [610 ming sixing faguan Beijing jizhong lunxun; tongyi sixing biaozhun chidu], 

Democracy & Law Times [Minzhu yu fazhi shibao], reprinted in Defense Lawyer Net, 13 November 06. 209 CECC, 2006 Annual Report, 58–59. 210See supra, ‘‘Fairness of Criminal Trials,’’ and accompanying notes. 211For additional information on the reform program’s specific provisions related to death penalty reform, see CECC, 2006 Annual Report, 58–59. 212 In September 2006, the SPC and Supreme People’s Procuratorate jointly issued a judicial 

interpretation to provide guidance on when and how to conduct an appeals hearing in a death 

penalty case. See Supreme People’s Court and Supreme People’s Procuratorate, Trial Provisions 

on Several Issues Regarding Court Hearing Procedures in Death Penalty Appeals Cases 

[Guanyu sixing di er shen anjian kaiting shenli chengxu ruogan wenti de guiding], issued 21 

September 06. Nonetheless, an SPC Vice President noted in July 2007 that provincial-level high 

courts continue to apply uneven standards during such hearings. See Xie Chuanjiao, ‘‘Supreme 

court targets ‘judicial injustice,’’’ China Daily (Online) 5 July 07. 213 Article 13 of the PRC Organic Law of the People’s Courts was amended on October 31, 

2006, to read: ‘‘Death penalty sentences, with the exception of those decided by the Supreme 

People’s Courts, shall be submitted to the Supreme People’s Court for review and approval.’’ National People’s Congress Standing Committee, Decision on Amending the ‘‘Organic Law of the 

People’s Courts’’ [Guanyu xiugai ‘‘Zhonghua Renmin Gongheguo renmin fayuan zuzhifa’’ de 

jueding], issued 31 October 06. In January 2007, the SPC issued a judicial interpretation to provide guidance on when and how to review and approve a death sentence. See Supreme People’s 

Court, Provisions on Some Issues Regarding Review of Death Penalty Cases [Zuigao renmin 

fayuan guanyu fuhe sixing anjian ruogan wenti de guiding], issued 22 January 07. 214Supreme People’s Court, Decision on Issues Relating to Consolidated Review of Death Penalty Cases [Guanyu tongyi xingshi sixing anjian hezhun quan youguan wenti de jueding], issued 

28 December 06. 215See Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, 

Ministry of Justice, Opinion on Further Handling Cases in Strict Accordance with Law, to Ensure the Quality of Death Penalty Case Handling [Guanyu jinyibu yange yifa ban an quebao 

banli sixing anjian zhiliang de yijian], issued 9 March 07. 216 Ibid., Items 6 and 13. 217See, e.g., ibid., Item 34. 218 Ibid., Item 45. 219 Ibid., Item 48. 220 ‘‘British Transplantation Society Criticizes the Alleged Use of Organs Without Consent 

from Prisoners Executed in the People’s Republic of China,’’ The British Transplantation Society 

(Online), 19 April 06; David Matas and David Kilgour, Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China, 6 July 06, available at ‘‘Report Into Allegations 

of Organ Harvesting of Falun Gong Practitioners in China,’’ Epoch Times (Online), 7 July 06. 221David Matas and David Kilgour, Revised Report into Allegations of Organ Harvesting of 

Falun Gong Practitioners in China, 31 January 07, available at http://

organharvestinvestigation.net/. 

33

222See, e.g., Ministry of Foreign Affairs (Online), ‘‘September 28, 2006, Routine Press Conference Q&A With Foreign Ministry Spokesman Qin Gang’’ [2006 nian 9 yue 28 ri Waijiaobu 

fayanren Qin Gang zai lixing jizhehui shang da jizhe wen], 28 September 06; Qiu and Zhang, 

‘‘In organ donations, charity begins with body.’’ 223Temporary Provisions Regarding the Use of Corpses or Organs from Executed Prisoners 

[Guanyu liyong sixing zuifan shiti qiguan de zanxing guiding], issued 9 October 84, para. 3. 224 Ji Minhua and Zhang Yingguang, ‘‘Beijing Mulls New Law on Transplants of Deathrow 

Inmate Organs,’’ Caijing Magazine (Online), 28 November 05. 225State Council, Regulations on Human Organ Transplants [Renti qiguan yizhi tiaoli], issued 

21 March 07. 226 ‘‘China Agrees Not To Take Inmates’ Organs,’’ Associated Press (Online), 5 October 07.

Æ