Recording & Review Pt. 2: The Demise of “Conditional Arrest”

In the first installment of the Recording & Review series, we presented a comprehensive introduction to the recording and review (R&R) [备案审查] process in the NPC Standing Committee (NPCSC). Beginning with this installment, we will examine cases where citizens and organizations successfully challenged the legality of normative documents using the R&R procedure. While these cases might not be new, a close examination of them will still offer us important insight into the R&R system—on how it actually operates and what its limitations are.

In July 2017, the Southern Metropolis reported that the Supreme People’s Procuratorate (SPP) had recently discontinued a controversial type of arrest after the NPCSC—more specifically its Legislative Affairs Commission (LAC)—reviewed its constitutionality and legality at the request of Mr. Miao Yongjun, an Inner Mongolian lawyer. Before recounting Mr. Miao’s encounter with the R&R system, we will first briefly introduce the now-abolished type of arrest invented by the SPP.

Arrest and “Conditional Arrest”

China’s Criminal Procedure Law (CPL) distinguishes between taking a suspect into criminal custody [刑事拘留] (which is akin to making an arrest in other countries) and formally arresting [逮捕] a suspect. The police may unilaterally place a suspect under criminal custody for up to 30 days (CPL art. 30). Continued detention of the suspect beyond that period (subject to other time limits under the CPL), however, is contingent upon a procuratorate’s approving the police’s request for arrest. If the procuratorate denies the request, the suspect must be released or subjected to other (theoretically) non-custodial measures.

CPL article 79, paragraph 1 stipulates that, as a general rule, a suspect may be arrested only when the following three conditions are met:

1. There is evidence proving the facts of a crime;
2. The possible sentence is fixed-term imprisonment [有期徒刑], indefinite imprisonment [无期徒刑], or the death penalty; and
3. Releasing the suspect on guarantee pending trial [取保候审] is insufficient to prevent the occurrence of several enumerated “social dangers” [社会危险性], including possible destruction of evidence.

But in 2006, the SPP devised an alternative type of arrest—the so-called “conditional arrest” [附条件逮捕]—in the Provisional Quality Standards for the Review of Arrests by the People’s Procuratorates (Standards) [人民检察院审查逮捕质量标准（试行）]. Under article 4 of the Standards, procuratorates may approve the arrest of suspects in “major cases” where—

1. the evidence is somewhat lacking but proves facts that “basically” [基本] constitute a crime;
2. the evidence necessary for conviction is considered obtainable after further investigation; and
3. there is indeed a need for arrest.

(The Standards were revised (and made permanent) in 2010. A set of substantively identical conditional-arrest provisions are found in article 13.)

Then in 2013, the SPP’s Investigation Oversight Department issued the Provisional Opinion on Applying “Conditional Arrest” in the People’s Procuratorates’ Work to Review Arrests (Opinion) [关于人民检察院审查逮捕工作中适用“附条件逮捕”的意见（试行）], setting forth more detailed procedures for applying “conditional arrest” and clarifying a few nebulous concepts including “major cases.” For conditional arrest to apply, the Opinion additionally requires that releasing a suspect on guarantee pending trial be insufficient to prevent the occurrence of social dangers—defined as the list in CPL article 79 plus situations where the suspect has intentionally committed a crime or is unidentified.

Underlying Criminal Case

The story began in March 2015, when Mr. Miao, who specializes in criminal defense, took on the representation of a Hohhot banker, who was first investigated for conducting illegal business operations [非法经营罪] in 2012. The same year the Hohhot Procuratorate denied the Hohhot police’s request for arrest because of insufficient evidence. Police investigation continued into 2013, and in May, the Procuratorate approved the conditional arrest of the banker, this time on a charge of contract fraud [合同诈骗罪]. In the next five months (the maximum period allowed for post-arrest investigation under the CPL), the Procuratorate twice returned the case to the police for supplementary investigation, again due to insufficient evidence. At the end of the five-month period, the evidence was still lacking, according to Mr. Miao, but the Procuratorate nonetheless indicted the banker.

There is not much detail on subsequent development of this case. What can be gleaned from media reports is that after four hearings in the Hohhot Intermediate People’s Court and the Inner Mongolia High People’s Court, the banker was convicted of fraud [诈骗罪] and sentenced to indefinite imprisonment. The High Court had remanded the case once because of insufficient evidence but ultimately affirmed the Intermediate Court’s verdict. (Whether this result was a seeming miscarriage of justice is beyond the scope of our discussion here. We should also note that Mr. Miao later also represented the banker in a freedom-of-information suit against the public security bureau and municipal government of Hohhot, requesting disclosure of documents related to the fraud case, including any record of interference by government officials. The banker again lost both trial and appeal.)

While the fraud case was still pending, Mr. Miao argued to prosecutors and judges that the SPP lacked authority to permit conditional arrests but was reportedly mocked for this claim. Convinced that the SPP had overstepped its authority, he mailed an R&R request to the LAC in September 2016 (after he was not allowed to deliver the request in person), raising a trio of objections to the SPP’s conditional-arrest rules.

Illegal Conditions

Mr. Miao argued that the conditional-arrest rules (1) were inconsistent with CPL article 79; (2) exceeded the SPP’s authority under the Legislation Law; and (3) violated the Constitution (presumably article 37, paragraph 3, which prohibits “unlawful detention” and “unlawful deprivation or restriction of citizens’ freedom of the person by other means”). He did not elaborate on these arguments in press interviews; the following is what we think his reasoning would look like.

First, because the three requirements under CPL article 79 must all be satisfied for the procuratorates to approve arrests, any set of different requirements—such as those allowed by the Standards and Opinion—necessarily conflicts with the CPL. And because the Standards and the Opinion are inferior in force to the CPL, which is a national law, they are void. Second, under article 8 of the Legislation Law, only national law may make provisions for “compulsory measures that restrict freedom of the person.” Because conditional arrest is undoubtedly a “compulsory measure that restricts freedom of the person,” and because neither the Standards nor the Opinion is a national law, the SPP was without authority to promulgate the conditional-arrest rules. Lastly, given these rules violate both the CPL and the Legislation Law, any conditional arrest was “unlawful detention” in violation of article 37 of the Constitution.

The LAC’s Office for Recording and Reviewing Regulations—after asking for the SPP’s and the LAC’s Criminal Law Office’s views on Mr. Miao’s request—decided against the SPP on the ground that the conditional-arrest rules were inconsistent with the CPL; it did not reach his arguments under the Legislation Law and the Constitution. The SPP’s Investigation Oversight Department subsequently issued a notice on April 28, 2017, rescinding the Opinion and ordering its local counterparts to stop applying conditional arrests. The SPP also reportedly notified the LAC that it would revise the Standards at some later time.

Final Thoughts

The abolition of conditional arrest was a hard-won, well-deserved victory for Mr. Miao. But not everyone ended up with a happy ending. His client, the banker, is still serving her indefinite prison term. Setting aside the question whether she was wrongfully convicted, she was at least illegally detained for several years. Yet under Chinese law she cannot sue the Hohhot government for deprivation of her constitutional rights. Moreover, because she was eventually convicted, she is not entitled to state compensation either (see State Compensation Law art. 17). Had the R&R system been reformed, as some recommended, to allow her to request review of the SPP’s rules as part of the criminal proceedings, she would have at least enjoyed a longer period of personal freedom before reporting to prison again.

In addition, the relatively obvious inconsistency between the SPP’s rules and the CPL raises the question why the LAC failed to catch it when the Standards and the Opinion were first sent for recording. The answer is simple: they were not recorded with the NPCSC at all, because they were classified as judicial normative documents [司法规范性文件] not subject to recording—as opposed to judicial interpretations [司法解释]. That countless normative documents are still not subject to recording is one of the flaws of the current R&R system that we highlighted in the first part of this series. This case demonstrates the type of grave consequence that can flow from the limited scope of the R&R scheme.

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In future installments of this series, we will continue looking at R&R cases that were disclosed in 2017, while giving priority to any new case that might be released in 2018. Stay tuned.

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