How the Persecution Violates the Law and the Constitution of China (Part 3)
2.3 Violations of China's Procedural Law--Criminal Law Procedures
2.3.1 Article 3: "The public security organs are responsible for the investigation, detention, arrest, and preliminary hearing of criminal cases. The people's procuratorates are responsible for the inspection, issue of arrest, detection and lawsuit of accepted cases. Except as stated in special regulations of law, no other organizations, groups or individuals can exercise these rights. While filing lawsuits, the people's courts, the people's procuratorates and the public security organs must follow the pertinent regulations of this law and other laws."
This article stipulates that, except for the above three systems--- Public Security, Procuratorate, and Court in carrying out their individual functions according to the law, no other organizations or individuals, including the "610 Office" have the right to file a lawsuit or exercise the criminal procedure power.
2.3.2 Article 6: "While filing lawsuits, the people's courts, the people's procuratorates and the public security organs must rely on the masses and must take facts as the basis and the law as the criteria. All citizens are equal before the law, and no one may be shown privilege."
This article stipulates two basic principles in an open society: (1) Take facts as the basis and the law as the criteria; (2) All people are equal before the law. All people, whether they are President or average citizen, must respect the law and abide by the law. Any words and deeds beyond or against the law are illegal acts and should be brought to justice.
2.3.3 Article 11: "Except as stated in special regulations, the people's courts must put all cases on trial publicly. The defendant has the right to defense, and the court has the obligation to ensure the defendant's right to defense."
This is an important article guaranteeing the defendant may legally exercise his/her right to defense. And this article also stipulates that ensuring the defendant's right to defense is the obligation of the people's courts. Therefore, whether or not the defendant is a Falun Gong practitioner, he/she has the right to defense.
2.3.4 Article 12: "Without the judgment of the people's courts according to the law, no person can be declared guilty." This article is the concrete reflection of the principle "Presumption of Innocence". It means that, before the courts' judgment according to the law, a person is innocent, and he/she cannot be treated using punishing or abusive measures because of presumption of guilt.
2.3.5 Article 32: "The suspect or defendant, besides being able to plead for himself/herself, can entrust one or two people as the defender. The defender could be: (1) lawyer; (2) people's organization or people recommended by the workplace of the suspect or defendant; (3) guardian or relative of the suspect or defendant. A person who is in punishment or who has been deprived of freedom cannot be a defender."
The defendant can exercise his/her right to defense, and also can entrust a lawyer or special unit or relative to plead not guilty or less guilty. This is an important right, and nobody or organization can prevent or deprive it.
2.3.6 Article 58: "The term for which the suspect or defendant is released on bail until trial by the people's courts, the people's procuratorates and public security organs cannot be more than twelve months, and the term of surveillance cannot be more than six months. During the period of bail or surveillance, the detection, lawsuit and trial of cases cannot be interrupted. When the suspect or defendant is found not eligible for criminal responsibility or the term of bail or surveillance is over, the people and pertinent unit on bail or under surveillance should be notified in a timely manner."
Bail and surveillance are forced-measures to be used during the criminal detection. They are conditional and time-limited and cannot be used indefinitely or abused unconditionally.
2.3.7 Article 59: "Arrest of the suspect or defendant must be approved by the people's procuratorates or decided by the people's courts and executed by the public security organs."
This article strictly stipulates the legal procedure for arresting a person. That is, the decision of arresting a person can only be made by two organizations: the people's procuratorates or the people's courts. No other organizations or individuals have the right to make this decision. Only one organization may execute an arrest: the public security units. So the "610 Office", residents' committees, and workplace security sections have no right to exercise this authority.
2.3.8 Article 64: "When the public security organs detain a person, the detention warrant must be shown. After detaining, except in situations of hampering the detection or being unable to inform, the family or workplace of the detained people should be informed about the reason for detention or the place of detention within 24 hours."
Article 65: "the public security organs must interrogate the detained people within 24 hours. When found that he/she is not eligible to be detained, he/she should be released immediately with the release documentation. For those who may be subject to detention but without sufficient evidences, they can be released on bail or put under surveillance."
These two articles definitely stipulate how detention measures may be executed by the public security organs: (1) the detention warrant must be shown; without the detention warrant, any detention is regarded as illegal; (2) Within 24 hours, the family or workplace of the detained people should be informed; (3) the detained people should be interrogated within 24 hours; (4) While being released, the detained people should be given the release documentation. In Mainland China, the police have detained Falun Gong practitioners at will and at any time, without showing any warrant or proof. They do not inform the family or workplace of these detentions for a long time, and they do not give any release documentation when releasing them. All these are illegal acts.
2.3.9 Article 69: "If the public security organs think the detained people should be arrested, they should submit it to the people's procuratorates for approval within 3 days of detention. Under special circumstances, the time of submitting can be prolonged from one to four days. For likely suspects committing crimes on the run or committing crimes many times or committing crimes in a group, the time of submitting can be prolonged to 30 days."
Usually the duration of criminal detention is 3 days, and it may be up to 7 days under special circumstances. Adding 7 days for approval by the people's procuratorates, the total duration of detention is 14 days, and it cannot be more than 30 days. Criminal detention over 30 days becomes illegal detention. In Mainland China, many public security organs use criminal detention as a punitive measure, detaining Falun Gong practitioners for an extended term. This act is absolutely illegal.
2.3.10 Article 71: "When the public security organs arrest a person, the arrest warrant must be shown. After arresting, except in situations of hampering the detection or being unable to inform, the family or workplace of the arrested people should be informed about the reason for arrest or place of detention within 24 hours."
This article requires that the public security organs, when arresting a person, must show the arrest warrant, and must inform the family or workplace of the arrested people. When it is shown that he/she is not eligible to be arrested, he/she must be released immediately with the release documentation. The detention period after arresting is usually two months, and can be prolonged by one month. Under special circumstances, it can be prolonged by two months.
2.3.11 Article 75: "If the forced measures taken by the people's courts, the people's procuratorates or the public security organs surpass the prescription, the suspect or defendant and their legal agents or relatives or their lawyers and defenders have the right to require to terminate the forced measures. The people's courts, the people's procuratorates and the public security organs should release the suspect or defendant who undergoes extended forced measures, terminating them on bail or surveillance or changing the forced measures according to the law."
According to this article, the family and relatives of Falun Gong practitioners may submit and require termination of the forced measures, countering the extended detention by the units of public security, court, or procuratorate.
2.3.12 Article 91: "Interrogating the suspect must be performed by the detectives from the people's procuratorates or the public security organs. During the interrogation, there should be at least two detectives."
Article 92: " For the suspect not eligible to be detained or arrested, he/she may be interrogated at his/her residence or summoned to the appointed place for interrogation in the city or county where the suspect lives, but the people's procuratorate or the public security organs should show the testimonial. The longest time of submitting or detaining cannot surpass 12 hours. It is not allowed that the suspect be detained in the disguised form of summons."
In Mainland China, many public security organs and "610 Offices", in the form of summons and without any testimony, trick or abduct Falun Gong practitioners to the public security agencies, labor camps, or brainwashing classes for persecution.
2.3.13 Article 96: "From the day that the detection units interrogate the suspect or take forced measures, the suspect may entrust a lawyer to provide legal consultation and appeal or accuse for him/her. If the suspect is arrested, his/her lawyer can ask for release on bail for him/her until the trial. If the cases involve State's secrets, the lawyer entrusted by the suspect must be approved by the detection units."
This article definitely stipulates that any suspect has the right to entrust a lawyer. Falun Gong practitioners have the same right, and no units or individuals can deprive them of this right using any excuses.
2.3.14 Article 111: "While searching, the searchers must show the search warrant to the people being searched. While detaining or arresting, under critical situation, searching can be carried out without a search warrant."
Article 112: "While searching, the person being searched or his/her family or neighborhood or other people should be on the spot. Searching a woman's body should be performed by female personnel."
Article 113: "The results of the search should be recorded and signed or sealed by the searchers and the person being searched or his/her family or neighborhood or other witness. If the person being searched or his/her family has escaped or refuses to sign or seal, a note should be written and placed with the records."
The above three articles stipulate the legal regulations of searching actions: (1)The search warrant must be shown; (2) only under special situations may a search be conducted without a search warrant; (3) while searching, there should be a witness on the spot; (4) a woman's body should be searched by female personnel; (5) records are required. In Mainland China, there are many cases in which Falun Gong practitioners were searched without a search warrant, and there are many cases of practitioners being searched secretly without any records. All these are illegal acts.
2.3.15 Article 115: "Any confiscated articles or documents should be identified, numbered, and verified by the witness and the article holder on the spot, and the detailed list in duplicate is made and signed or sealed by the detectives, witness, and holder. One copy is kept with the holder and another copy kept for future reference."
In Mainland China, searching Falun Gong practitioners' homes has been a common occurrence, and many of the confiscated items or documents have not been recorded or made into a detailed list. All these are illegal acts.
2.3.16 Article 120: "After the expert witness performs the identification, he/she should write a statement of conclusion and sign it. A contentious medical identification of personal injury needs to be identified again. The identification of mental disease is performed in the hospital appointed by the provincial people's government. After the expert witness performs the identification, he/she should write a statement of conclusion and sign it using the seal of the hospital. If the expert witness intentionally makes false identification, he/she should bear the legal responsibility."
In Mainland China, many public security staff, judicial staff and medical staff are completely lacking in conscience and intentionally treat healthy Falun Gong practitioners as mental patients. They forcibly inject drugs that damage the central nervous system, or they put the drugs into food or drink and deceive Falun Gong practitioners into consuming them, or they forcibly hold Falun Gong practitioners in the mental hospital and perform so called "medical treatment". All the people participating in these procedures should bear the legal responsibility.
2.4 Violations of China's Administrative Regulations--Regulations Governing Punishments Administered in Public Security Bureaus
"Regulations Governing Punishments Administered in Public Security Bureau of the People's Republic of China" was issued and put into effect on January 1, 2000. It covers disturbing social order, impairing public security, infringing a citizen's right of personal freedom, and infringing public property. If an act is not eligible for criminal punishment, it should be addressed using Regulations Governing Punishments Administered in Public Security Bureaus.
2.4.1 Article 6: "There are three kinds of punishments with regard to violating public security:
(2) Fine: over 1 yuan, under 200 yuan. (Yuan is the Chinese currency; 500 Yuan is equal to the average monthly income of an urban worker in China) Other rules in article 30, article 31, and article 32 should be in accordance with pertinent regulation.
(3) Detention: over 1 day, under 15 days."
The detention mentioned here is different from the forced measures in the Criminal Procedure Law--criminal detention. The detention mentioned in this article is a kind of administrative punishment, and it can be called administrative detention, with the longest term of 15 days. However the criminal detention is a kind of forced measure but not punishment, with the longest term of 30 days. The administrative punishment stipulated here is not more than 200 yuan. But in Mainland China, the fines imposed on Falun Gong practitioners often amount to thousands of yuan.
2.4.2 Article 33: "The punishments with regard to violating public security are adjudicated by the county or city public security bureau, public security sub-bureau or the public security organs equal to county level. Warnings or fines under 50 yuan may be adjudicated by the police stations; in the countryside, for places without a police station, the public security organs may entrust township governments to adjudicate it."
Article 34: "The adjudication should be made into a document and declared to the person concerned. The adjudication document is made in triplicate. One copy is kept with the adjudicator, one copy is kept at the adjudicator's workplace and one copy is submitted to the adjudicator's resident police station. The workplace and resident police station should assist to execute the adjudication."
Article 36: "After the public security organs or the public security personnel receive the fine, they should give a receipt to the person fined."
The above articles definitely stipulate the punishments for violating public security. But in Mainland China, many public security personnel fine Falun Gong practitioners without filling out adjudication documents and without issuing receipts. Excessive fines are often imposed, as high as three thousand to five thousand yuan.
2.4.3 Article 41: "When the public security personnel carry out this regulation, they should strictly uphold the law and discipline and justly execute the law. It is not allowed to beat, abuse, or insult the people violating public security. The public security personnel violating the regulation would be given administrative punishment; for the personnel whose actions constitute crimes, the legal responsibility should be pursued."
This article states the requirements for the public security personnel who execute this regulation; when violated, any person can accuse the pertinent public security personnel according to the law and bring them to justice.
2.5 Violations of Other Administrative Regulations---Procedures for Carrying out Re-education Through Labor
"Procedures for Carrying out Re-education Through Labor"(called "Procedures" for short) was issued and adopted on January 21,1982. Article 2 in Procedures stipulates: "Labor reeducation is an administrative measure to forcibly reform the people who are educated through hard labor and a method to deal with the internal conflicts between people." Because "Procedures" was drawn up earlier, it conflicts with the current legal system. (1) It not only violates the pertinent regulations of the Chinese Constitution, but also goes against other pertinent laws. For example: in the Legislative Laws of the Peoples' Republic of China, adopted on October 1,1996, article 8 stipulates: "the deprivation of people's political rights, the forced measures of infringing people's freedom and the matters of punishments must be made into laws." It is obvious that, because Procedures is violating the regulations of the Chinese Constitution and the law, it is no longer enforceable. In spite of this, it was never abolished and is still widely used under the state of conflicting with current law. (2) "Procedures" is incompatible with a fair and open society. In the aspects of depriving and infringing people's freedom, labor reeducation actually takes over some punishments. However, the people who are educated have no opportunity for defense and no chance to win a lawsuit over the labor reeducation adjudication. And it lacks the necessary supervising mechanism. (3) The adjudication of labor reeducation does not follow legal procedures or accord with the principles of justice. This adjudication is an administrative procedure rectified by the labor reeducation management committee, and it lacks justice. (4) The term for labor reeducation is too long, lasting from one to three years, and sometimes with an extension of one year.
In fact, it is no different from fixed-term imprisonment when it comes to depriving people of their freedom. Actually it is more severe than the surveillance or detention stipulated in Criminal Laws.
When the Jiang faction began to persecute Falun Gong, not only did they widely use this administrative regulation that should be abolished, but they also violated the "Procedures" themselves and brutally persecuted Falun Gong practitioners.
2.5.1 Article 10: "The following people are taken to labor reeducation:
(1) Minor criminals. Those being anti-revolutionary, anti-communist party, anti-socialist members whose crimes are not cause for criminal prosecution.
(2) Those involved in murdering, robbing, raping, or committing arson in groups, but whose crimes are not cause for criminal prosecution.
(3) Those who have committed crimes of immoral behavior, prostitution, stealing, or fraud that are not severe enough for criminal prosecution, and who did not correct themselves even after being persuaded many times.
(4) Those involved in fighting in groups, instigating violence, making trouble that disturbs the stability of society, but who's actions are not cause for criminal prosecution.
(5) Those who are employable but refuse to work for a long time, or damage the work rules and thus disturb production, work, education or scientific research, and do not listen to persuasion or cannot be stopped;
(6) Those who instigate others to break laws or commit crimes, but whose crimes are not serious enough for criminal prosecution."
The above six articles indicate that the Jiang faction's persecution of Falun Gong practitioners using labor reeducation is definitely violating "Procedures."
2.5.2 Article 19: " ...... permit them to put forward improved proposals to the management, education, production, life etc, and permit them to write to the government organs and leaders to appeal for themselves; permit them to make public others' illegal acts. The labor reeducation camp cannot check and withhold the letters of their appeal or accusation."
In Mainland China, the guards in the labor camps knowingly violate the law, strictly controlling Falun Gong practitioners, strictly forbidding them contact with the outside, willfully checking and withholding Falun Gong practitioners' letters, not allowing them to exercise their legal right entrusted by the law, suppressing their legal acts of appealing and accusing.
2.5.3 Article 32: "Education time not less than three hours, and labor time not more than six hours."
In Mainland China, the guards in the labor camp force Falun Gong practitioners to work overtime, sometimes as long as 15 or 16 hours a day, using them as slave labor.
2.5.4 Article 45: "the labor reeducation camp should pay the reeducated people according to their productive type, technical level, quantity, quality."
In Mainland China this article performs practically no function.
2.5.5 Article 47: " ...... within the regulated ranges, try to adjust and improve and guarantee their diet to meet the standard, providing warm and hygienic meals."
Article 48: "The dorms of the reeducated people should be bright and air-circulated. The space area for each person should be no less than 30 square meters. Establish a hygienic system, and periodically compare and assess. The reeducated people should periodically cut hair, take showers, do laundry, and periodically clean and sweep away all bugs and always keep the rooms neat. Pay attention to the renovation and environment of labor reeducation camp. Pay attention to the balance between work and rest and guarantee the reeducated people eight hours of sleep every day."
In Mainland China, the guards in the labor camps persecute Falun Gong practitioners by making them eat poor-quality food, do hard work, sometimes forcing them to sleep on the cold ground, and they deprive Falun Gong practitioners of sleep for long periods of time, using deprivation of sleep as a cruel physical torture.
2.5.6 Article 52: "Do not check the letters of the reeducated people. Do not audit while meeting with family. If the family cannot return home on the same day, board and lodging should be arranged. If permissible, a couple can live together."
Article 53: "The reeducated people's meeting and communication with a relative should be approved by the labor reeducation camp."
Article 54: "The clothes and food sent by the reeducated people's family shouldn't be withheld."
Many of the above democratic and basic rights that Falun Gong practitioners should enjoy have been deprived by the guards in the labor camps. Their letters are withheld. Their meetings with family are audited. Falun Gong practitioners are not allowed to expose the torture situations happening in the labor camp. Most of the clothes and food sent by their families are withheld by the guards in the labor camps.