As the crackdown against dissidents continues, we still don’t know how Beijing decides the victims, timing, and type of detention.
Originally published in The Diplomat by Jerome A. Cohen
September 15, 2020
This week saw the detention in China of Geng Xiaonan, a well-known Beijing publisher and outspoken supporter of the famously harassed former Tsinghua University law professor Xu Zhangrun. Geng is reportedly destined for “very heavy” punishment, not the 15 day maximum in an unpleasant detention cell usually imposed for minor offenses not deemed sufficiently grave to constitute a “crime.” The initial “illegal activity” charge against her is vague enough to cover either her publishing business alone or her open support for Xu or, very likely, both. How long her husband, detained with her, will be held will depend on how important his interrogation seems to her case.
The ongoing repression of mainland Chinese protesters against injustice continues to raise many questions about the Communist Party’s punishment systems. Who gets detained? When? After what kinds of warnings and preliminary “education”? What type of detention is chosen and why? When, for example, does the Party select, for up to six months, the widely-feared incommunicado detention by a government “supervisory commission,” initially preempting not only the formal criminal process but the entire justice system?
When is the minor offenses law invoked, as recently in the case of Xu, who was detained for five days for supposedly “soliciting prostitution”? What determines whether someone originally detained by a “supervisory commission” or by police for a minor offense will subsequently be transferred to the formal criminal process for investigation of a “crime”? If the criminal process is selected, what determines whether the suspect will first be sent for investigation to the notorious special “residential surveillance at a designated location” (RSDL) because of ostensible suspicion that “national security” might be involved? What determines whether, when, and why the suspect will eventually be forwarded from RSDL to the regular criminal process for up to an additional 37 days of more conventional detention before a procurator (prosecutor) has to decide whether to approve formal “arrest” leading to months of further detention prior to indictment and eventual trial, conviction, and sentence?
At what point after “arrest” or indictment will the detainee finally have access to a lawyer and to what extent will this access be meaningful? Will the detainee’s family be allowed to retain the lawyer or, as often occurs, will the government only cooperate with lawyers whom it approves? What does “trial” amount to in such cases? In what circumstances and to what extent is a trial open to the public? What are the procedures for introducing evidence and the criteria for deciding guilt and sentencing? To what extent is the accused actually permitted to exercise the prescribed right to appeal conviction? What does “appeal” amount to? Who makes these judicial-type decisions and via what kinds of actual, not merely legislated, procedures? What roles does the Party apparatus play at various stages?
Who determines when and under what conditions the convicted person should be released? Why and how are many released convicts or suspects disappeared or at least visibly silenced (what I call the “non-release release” or NRR), while a few are allowed limited activity? What is the scope in practice of a criminal sentence to not only imprisonment but also post-imprisonment “deprivation of political rights,” which sounds misleadingly innocuous, especially in a dictatorship?
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