Criminal FAQ

Once a case is filed, the investigating authority may use the full panoply of investigative techniques available. Among those techniques are what the Chinese Criminal Procedure Law refers to as "compulsory measures," which restrict the liberty of the "criminal suspect." The CPL considers these compulsory measures to be investigative techniques(CPL Article 82).

 

These "compulsory measures" can take several forms. Chinese law and practice appear to have a presumption in favor of restraining the liberty of anyone suspected of a crime, usually by detention, even before criminal charges are filed. The investigating authority—usually the police or,   when   the suspect is a government official, the appropriate investigatory section of the procuratorate—generally has the right to determine whether a suspect should be incarcerated or released Compelled appearance: The  first   "compulsory   measure" addressed by the CPL is a compelled appearance or ju chuan.  Once a case file is opened, the police may order the suspect to go to the police station for up to 12 hours of questioning. During this period, the suspect has no right to consult with anyone.After the initial police interrogation, the suspect should be notified of his right to contact a legal representative and/or a family member. If the suspect has a legal representative, the police have a duty to notify that representative. During this stage, the representative (who can be either an attorney or a lay representative) has a right to be present but may only advise the suspect generally about the case and his rights.

 

Prior to the 1997 reforms, the time limit for holding a suspect for interrogation was 24 hours. However, the police routinely initiated a new 24 hour period as soon as the previous one expired, rendering the time limit meaningless and permitting unlimited interrogation.13  One of the reforms introduced in 1997 provided that "a criminal shall not be detained under the disguise [sic] of successive summons or forced appearance"(CPL Article 92). Thus, under current law, if the police choose to hold a suspect  beyond  the  initial  twelve-hour period they must use another compulsory measure—ju liu, or detention.

 

Detention: Detention, governed by Article 61 of the CPL, provides that the police may detain a suspect if he or she:

1) is preparing to, in the process of, or discovered immediately after committing a crime;

2) is identified as having committed a crime by a victim or an eyewitness;

3) is found with criminal evidence on his/her person or residence;

4) attempts suicide or escape after committing a crime;

5) is likely to destroy or falsify evidence or tally confessions;

6) does  not  provide  true  name  and  address  and  identity  is unknown; and

7) is strongly suspected of committing crimes from one place to another, repeatedly, or in a gang.

 

By setting conditions that must be met before a suspect may be detained, the CPL gives the  impression that detention of criminal suspects is less than automatic in China. However, according to the Chinese criminal law experts I interviewed, an estimated 90 percent of suspects are detained during investigation.

 

The length of permissible investigatory detention is not easily gleaned from the CPL. According to CPL Article 69, the police must seek the procuratorate's approval of daibu (commonly translated as “formal arrest”) within three to seven days of the initial detention. But in major cases, this time limit may be extended to 30 days. The procurator then has seven days within which to render a decision. If approval is denied, the police may seek review but must release the detainee. Thus, the police, on their own authority and without any opportunity for review by an outside agency, can easily subject anyone to incarceration for up to 37 days.

 

According to criminal defense attorneys, the police sometimes extend the 30 detention period by initiating an investigation into a new offense once the initial 30 days is about to expire. Any investigation of a new offense triggers a new 30-day clock (CPL Article 128). There are also  questions  about how strictly  the  time  limits  that  do  exist  are enforced. Official Chinese news media have, in recent years, reported cases in which the police have violated the time limits for detention and have identified police compliance with the law as a serious issue that needs to be addressed.

 

Formal arrest: After the initial three to 37 day period of detention expires, the only way investigators can lawfully continue detaining a suspect is by obtaining permission to "formally arrest," the suspect. Technically, only the Chief Procurator can approve a formal arrest. In practice, however, each  procurator's office has a special section designated to handle daibu requests from investigators.

According to CPL Article 60, to approve a formal  arrest, the procuratorate must find that: 1) "there is evidence to support the facts of a crime;" 2) the "criminal suspect or defendant could be sentenced to a punishment of not less than imprisonment;" and 3) "such measures as allowing him to obtain a guarantor pending trial or placing him under residential surveillance would be insufficient to prevent the occurrence of danger to society."Exceptions are to be made for suspects or defendants who are seriously ill, pregnant, or nursing babies.

 

The time limits for holding a person in custody under formal arrest are governed by several different provisions of the Criminal Procedure Law. According to CPL Article 124, "the time limit for holding a suspect in custody during investigation shall not exceed two months" unless the case is complex, in which case the time period may be extended an additional month. Reading  this  provision  alone  might  ead one to conclude that  the absolute limit on investigatory  detention  is  three months, but that would be incorrect.

 

According to CPL Article 138, once the case is transferred from the police to the procuratorate for prosecution, the procuratorate has one month to decide whether to prosecute, a period that can be extended one-half m onth in a complex or major case. However, if the procuratorate cannot make a decision within this time, or if it decides that further investigation is warranted, it can send the case back to the police for further investigation. In that case, the police have up to an additional month to complete their investigation. If the procuratorate decides to bring  the case after the second presentation  by  the police, it is conceivable that four months will have passed by the time that decision has been made.

 

Even after the second presentation, the procuratorate may decide that further investigation is warranted, although it may not send the case back more than twice. Thus, a total of up to seven and a half months may pass before a decision to prosecute is made. A seven and a half month period of investigatory detention, during which time the suspect is held in custody, but not charged with a crime, is therefore permissible under Chinese law. Other measures: Bail and house arrest: The 1997 amendments to the Criminal Procedure Law allow for two other measures short of detention: release on bail and "residential surveillance." Within 24hours of detention, the police must notify the suspect’s family, lawyer, or representative. These representatives may then apply for bail or home detention on the suspect’s behalf.

 

The decision to allow a suspect out on bail or house arrest is made  by  the  investigating  agency,  typically  either  the  police  or  the procuratorate. The Chinese system of bail places a great deal of risk on the guarantor. If the suspect does not appear as required, the guarantor not only forfeits whatever property has been posted as security but may also be subject to arrest. A suspect may be on bail awaiting trial for up to 12 months or under house arrest for up to six months (CPL Article 58).

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