TABLE OF CONTENTS I.INTRODUCTION 1 II.TAXES AND LEVIES IN RURAL AREAS 2 III.THE EVENTS THAT LEAD TO HU HAI'S ARREST 3

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1 TABLE OF CONTENTS I.INTRODUCTION 1 II.TAXES AND LEVIES IN RURAL AREAS 2 III.THE EVENTS THAT LEAD TO HU HAI'S ARREST 3 i.the 1990 local taxes in Liuzhuang township 3 ii.the peasants' petitions 4 iii.official investigations 5 IV.HU HAI'S ARREST AND TRIAL 6

2 PEOPLE'S REPUBLIC OF on behalf of Hu Hai A peasant sentenced to three years' imprisonment for using his constitutional right to make complaints I.INTRODUCTION Amnesty International is calling for the immediate and unconditional release of Hu Hai, a 58-year-old peasant from Liuzhuang township in Henan province, who is serving a term of three years' imprisonment on a charge of "disturbing social order". Amnesty International believes that Hu Hai is a prisoner of conscience detained for the peaceful exercise of his rights to freedom of expression and association. An open letter "to the People of the Whole Country", issued on 1 January 1992 in the name of "villagers and Communist Party members" of Liuzhuang township in Henan province, accused the Liuzhuang local authorities of having "illegally levied charges" in the area in According to this letter and other information received by Amnesty International, Hu Hai's involvement in the peasants' protests against the charges led to his arrest in May He was tried by a local court in Weihui city, Henan province, in November 1991 and given a three year prison term for "disturbing social order". His trial and the events which led to his arrest are described in detail in the following pages. While Amnesty International is not in a position to verify the validity of the peasants' claims about the local taxes, excessive local charges and arbitrary levies are known to be a common problem in rural areas. This has been acknowledged by official sources. The detailed documentation received by Amnesty International, including a record of the court verdict against Hu Hai, shows that Hu Hai was arbitrarily imprisoned for the peaceful exercise of fundamental human rights. Furthermore, it shows that Hu Hai was arrested because he had peacefully petitioned the authorities, a right guaranteed by Article 41 of the Constitution of the People's Republic of China. II.TAXES AND LEVIES IN RURAL AREAS In addition to income tax, which is paid to the state, Chinese peasants also have to pay local taxes or charges to the local authorities. These charges are calculated on the basis of the average net income left to peasants after they sell their fixed quota of grain to the state and pay income tax. During the late 1980s, the fiscal burden on peasants increased markedly for a variety of reasons, including overestimates of their income due to the increased prosperity brought to some by the economic reforms and the multiplication AI Index: ASA 17/38/92Amnesty International June 1992

3 of local charges and levies 1. Some of these charges and fees are sometimes imposed by local officials and administrators for their own benefit 2. The problem of excessive local charges and arbitrary levies on peasants has been officially acknowledged. It is known in China as the "Three Arbitraries" (san luan) - namely arbitrary charges (luan shoufei), arbitrary fines (luan fakuan) and arbitrary levies (luan tanpai). The collection of such charges and fees is officially defined as tanpai, "unwarranted apportionment of expenses", which can also be translated as "arbitrary levy". Specific examples of excessive charges on peasants have been given by official sources. For example, a survey conducted by the Shaanxi provincial authorities in 1990 found that the peasants of Weibin district, Baoji city, had to pay an average of yuan in local charges that year, which represented 20.4 percent of the per capita net income that year; the percentage in another poorer area in the north of Shaanxi province was even higher, reaching 31.6 percent of the per capita net income. 3 In an attempt to tackle the problem, the central authorities have issued regulations and directives aimed at controlling and limiting local charges and levies. In February 1990, the State Council (government) issued a document entitled Notice on Conscientiously Reducing the Financial Burden on Peasants (State Council Document No.12, 1990) 4, which stated that local charges should not generally exceed 5% of the previous year's average net income. In October 1990, the Central Committee of the Chinese Communist Party (CCP), together with the State Council, issued another document concerning the "Three Arbitraries". The document, entitled Decision on Firmly Banning Arbitrary Collection of Charges, Arbitrary Fines and all kinds of Arbitrary Levies (Central Document No.16, 1990) 5, stipulated among other things that local authorities should seek approval from authorities at a higher level before imposing certain local charges. III.THE EVENTS THAT LED TO HU HAI'S ARREST At his trial in November 1991, Hu Hai was accused of having played a leading role in petitions made by peasants between October 1990 and May 1991 against local charges imposed in 1990 by the Liuzhuang authorities. The peasants who took part in the petitions came from several villages under the Liuzhuang township administration, including Wangyanshitun village where Hu Hai lived. Liuzhuang is located in the north of Henan province, some 70 kilometres north of the provincial capital, Zhengzhou, and near Weihui city. It is an ordinary agricultural district in the central part of China. i.the 1990 local taxes in Liuzhuang township 1 See Edward Friedman, "Deng versus the Peasantry:Recollectivization in the Countryside", in Problems of Communism, September-October 1990, pp See Edward J.Epstein, "Corruption and Administrative Supervision", in China News Analysis, No.1457, 1 April 1992, p Wenhuibao, 16 February 1992, cited in "The Peasants are still the Most Oppressed" by Zhang Kai, October Review, 31 March 1992, pp Published in Guowuyuan Gongbao (State Council Bulletin), No.2, 1990, pp Published in Guowuyuan Gongbao, No.33, 1990, pp Amnesty International June 1992AI Index: ASA 17/38/92

4 In 1990, the authorities of Liuzhuang township had reportedly calculated that the 1989 average net income in the area - which was to determine the amount of the 1990 charges - was about 840 yuan, whereas according to the peasants the real income was around 400 yuan only. The peasants' income was apparently further reduced in 1990 because the area had suffered a serious natural disaster that year. The Liuzhuang authorities, however, did not take this into account when they fixed the amount of local charges. Nor did they apparently respect the 5% limit on such charges recommended by State Council Document No.12, During the summer of 1990, the Liuzhuang authorities reportedly imposed a local charge of about 68 yuan per person. This was apparently directly deducted from the proceeds of the peasants' sale of their fixed quota of wheat to the state, after income tax (to the state) had been deducted. This amount - 68 yuan - in itself represented more than the 5% limit recommended by the government. Despite this, on 22 October 1990 the local authorities decided to impose two further charges: one of 20 yuan for an "education fund" and one of over 8 yuan for a "water conservancy fund". The Liuzhuang authorities reportedly did not seek prior approval from authorities at a higher level before imposing these charges, in contravention of Central Document No.16, 1990, which requires such approval and also indicates that the raising of such funds should be voluntary. These additional charges were bringing the total amount the peasants were asked to pay for 1990 to over 96 yuan, which represented more than 11% of the 1989 officially estimated average income and more than 24% of what the peasants estimated to be the real average income. Anticipating some resistance, the local authorities reportedly issued threats to force the peasants to pay the two new charges. Announcements were reportedly made in schools that children would not be allowed to attend school unless they brought receipts proving that the head of their family had paid all the local charges. Warnings were broadcast over the villages' loudspeaker systems to the effect that those peasants who could not afford to pay should borrow the money; those who did not pay would have their personal possessions taken way; those who resisted to the last would be taken to the police station, the land contracted to them by the state would be taken back and their residence permits cancelled. It is also alleged that the local authorities subsequently misused some of the tax money collected, buying two new cars which were registered with two loss-making factories in the area. ii.the peasants' petitions At the end of October 1990, the peasants heard through Hu Hai's son of the government regulations limiting local charges and levies. They decided to petition the higher authorities against the charges. The right to petition is guaranteed by Article 41 of the Chinese Constitution, which reads as follows: "Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty; but fabrication or distortion of facts for the purpose of libel or frame-up is prohibited. "The state organ concerned must deal with complaints, charges or exposures made by citizens in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them. AI Index: ASA 17/38/92Amnesty International June 1992

5 "Citizens who have suffered losses through infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law." The peasants elected some 40 representatives, including Hu Hai, to present their complaints. From November 1990 to May 1991, groups of peasants from Liuzhuang visited various provincial and central government departments, presenting petitions and demanding that the Liuzhuang authorities' decision on the charges be rescinded. One of the peasants' approaches - which was later cited at Hu Hai's trial - took place on 3 November 1990 when a group of peasants from Liuzhuang township went to the provincial capital, Zhengzhou, to present an appeal to the provincial Agricultural Financial Committee. Hu Hai was later accused at his trial of having organised and led this group, and of having verbally attacked the provincial government, though he denied having gone to Zhengzhou on that day. Another of the peasants' visits to Zhengzhou to petition the provincial authorities took place in early May 1991, after a provincial investigation team, which had gone to Liuzhuang township in March, produced a report unfavourable to the peasants' petitions. iii.official investigations In March 1991, the Henan provincial government sent an investigation team to Liuzhuang township. The team reportedly refused, on its arrival, to meet the group of peasants' representatives who had complained to the provincial authorities, and did not make its report public to the peasants before leaving the area. The investigation team's report, issued later, apparently concluded that the levy of charges by the Liuzhuang authorities was not illegal and that it did not belong to the "Three Arbitraries" defined in Central Document No.16, The provincial investigation team, however, admitted that the Liuzhuang CCP Committee and government had adopted measures to collect funds "by force" - which contradicts government policies. The peasants were not satisfied with the results of the provincial investigation. On 7 May 1991, a group of peasants from three villages in Liuzhuang township went to Zhengzhou to appeal to the provincial government to look again into the matter. The group merely stood outside the gate of the provincial government building and did not cause any disturbances. Following further complaints by Hu Hai's son, in August 1991, the State Council (central government) formed its own investigation team comprising members from various government departments, which carried out investigations in Henan province in August and September The State Council investigation team reportedly concluded that the collection of funds by the Liuzhuang authorities was not illegal, though it apparently acknowledged that correct approval procedures had not been followed and that coercive measures had been used by the local authorities to collect the money; on this point, however, it reportedly commented that "voluntary and by force means the same thing". This thus settled the matter in favour of the Liuzhuang authorities and appears to have sealed Hu Hai's fate. IV.HU HAI'S ARREST AND TRIAL On 15 May 1991, eight days after the peasants' last appeal to the provincial government, Hu Hai was Amnesty International June 1992AI Index: ASA 17/38/92

6 placed under house arrest in Wangyanshitun, one of the villages under Liuzhuang township. He was formally arrested on 28 May 1991 for "disturbing social order". The local public security authorities reportedly held three "public arrest rallies" and paraded Hu Hai, tied up, in public though the streets - ignoring government directives which prohibit the parading of prisoners in public. On 6 November 1991, Hu Hai was brought to trial before the Weihui city People's Court. The hearing was open to the public and started at about 9.00 in the morning. A report on the hearing received by Amnesty International is summarized below. Shortly after the hearing started, the judge, Zhang Jihong, following prescribed procedures, asked Hu Hai whether he had applied for anyone to be "discharged from the case" (huibi) 6. Hu Hai said he had applied for Zhang Jihong himself to be "discharged" and gave the judge the following explanation: "When you brought me before the court [prior to the trial], you threatened me, saying: `even if your son was the provincial governor, I would still smash you this time!' You also forced me to put my thumb-print on a document that I had not had a look at. I want you to step aside and have someone else try the case." The judge, however, ignored the application and carried on presiding at the trial. The prosecution speech was made by Cui Juming, head of the Prosecution Section of Weihui City Procuratorate, who started his statement by saying that Hu Hai had "always been dissatisfied with the [Chinese Communist] Party and opposed to the socialist system". Referring to the "raising of funds" for education and water conservancy by the Liuzhuang authorities in 1990, he accused Hu Hai of "having gone round contacting and inciting people, claiming that the fundraising was arbitrary levy (tanpai)" and encouraging people to sign petitions and to go to the provincial capital and Beijing to complain. According to the prosecutor, on 3 November 1990, while petitioning, Hu Hai and others had "attacked" [made charges against] the provincial Party and Government; on 20 March 1991, when the Henan provincial investigation team produced its conclusion on the petition, Hu Hai still would not stop and went to several villages contacting people and agitating; on 7 and 8 May 1991 he incited more than 40 people "who were not clear as to the true state of affairs" to go and petition the provincial Government, twice "attacking" the provincial Government in the process and "disrupting the normal work order" of the provincial Party Committee and Government. The prosecutor cited as evidence the testimonies of witnesses and of the security units of the provincial Party Committee and Government. He concluded that Hu Hai's actions - "inciting the masses, unreasonably causing trouble, organising others to complain to the authorities and seriously disrupting the normal order of government work" - constituted the crime of "disturbing social order", punishable under the provisions of Article 158 of the Criminal Law. Hu Hai's defence was presented by Cai Zhihua, a lawyer from Beijing No.4 Lawyers Office. He pleaded not guilty and pointed out inconsistencies in the prosecution case, raising particularly the following points: 1.The so-called raising of funds for education and water conservancy by the Liuzhuang authorities in 1990 did contravene State Council Document No.12, 1990 and Central Document No.16, 1990, and constituted "arbitrary levy" (tanpai) because: first, it did not go through the proper approval process [which these documents require]; second, it exceeded the peasants' ability to pay [which is against government's policies]; third, it had used coercive measures to force the peasants to pay [which is 6. According to the law, defendants have the right to apply for the discharge of court personnel or other parties involved in their trial whom they believe are prejudiced or have a vested interest in the case. AI Index: ASA 17/38/92Amnesty International June 1992

7 prohibited]. The lawyer pointed out that the provincial and State Council investigation reports had admitted most of these points, but the pity was, he said, that they had failed to concede that the raising of funds constituted "arbitrary levy" and was basically illegal. He then called on the court to correctly apply the laws and rule on the illegal nature of the raising of the funds in question. 2.There was no basis for the prosecution's accusation that, on 3 November 1990, Hu Hai had, together with other peasants, petitioned higher authorities and "attacked" the provincial Party Committee. The defence lawyer presented statements from peasants who did go to the provincial capital, Zhengzhou, on that day and who said they did not see Hu Hai go. Furthermore, Hu Hai denied going to Zhengzhou on that day. The lawyer also challenged the prosecution's assertion that Hu Hai had "incited" some 40 people to go to Zhengzhou on 7 and 8 May 1991 and "twice attacked" the provincial government. He cited the statements of peasants who did go to Zhengzhou on those dates and stated they did not "attack" the provincial government. He also pointed out that the statement made in the provincial Government Security unit's testimony - which was presented as evidence by the prosecution - was insufficient to conclude that the peasants had "attacked" the provincial government, and furthermore that it was not admissible evidence under the provisions of the Criminal Procedure Law and thus had no validity. 3.The petitioning activities of Hu Hai and other peasants did not constitute "disturbing social order" since the right to make such complaints is guaranteed by Article 41 of the Constitution. The lawyer argued again the arbitrary nature of the levies made by the local authorities and the legitimacy of the peasants' complaints. He then stated: "If, as the prosecution suggest, Hu Hai and others' complaints and the consequent investigation of the problems by the relevant government departments mean that Hu Hai disturbed work order in those departments, then in what sense can the People's Government be called the "People's" Government? [...] And if Hu Hai and others had attacked the provincial authorities and seriously disturbed the order of work in the provincial Government and Party offices, why were they not dealt with according to the law at the time? Why is the judiciary of Weihui city taking measures now?" Following the defence statement, there were several rounds of discussion between the prosecutor and defence lawyer about the legitimacy of the charge. The judge finally pronounced the session closed at midday. The trial had lasted about three hours. Three days later, Judge Zhang Jihong announced the verdict: Hu Hai had been found guilty of the crime of "disturbing social order" and sentenced to three years' imprisonment plus deprivation of political rights for one additional year 7. The written court verdict on his case, dated 6 November 1991, added that he was found "moreover, to have had a bad attitude in prison as to confessing his crime". The sentence against him was imposed under Articles 158, 52 and 51 of the Criminal Law. The written verdict specified that, if he did not accept the judgement, Hu Hai could appeal to a higher court within ten days of receiving a copy of the verdict. Hu Hai did not accept the verdict and appealed to the Intermediate People's Court of Xinxiang city, Henan province, on the grounds that he was innocent. On 9 December 1991, the Xinxiang Intermediate People's Court rejected the appeal and upheld the original sentence. This decision was communicated to Hu Hai on 7 Deprivation of political rights is frequently imposed as a supplementary punishment to a term of imprisonment for people convicted of "counter-revolutionary" offences or of having "seriously undermined social order". It starts on the day that the term of imprisonment expires and means being subjected to restrictions and denied fundamental rights, such as freedom of speech, association and demonstration. Amnesty International June 1992AI Index: ASA 17/38/92

8 28 December It is reported that Judge Zhang Jihong said to Hu Hai at the time: "If you accept this decision, put your personal seal on this paper. If you want to take legal action again, you will be tied up again!" Hu Hai said: "I want to appeal again"; he was quickly tied up. Hu Hai is now serving his sentence. The place where he is detained is not known. In summer and autumn 1991, the Liuzhuang authorities reportedly ordered peasants in Liuzhuang to pay 93 yuan per capita in charges for 1991, again exceeding the government recommended limit. They reportedly removed property from the homes of peasants who could not pay and allegedly used some of the money to send bribes to their superiors. When a wallposter complaining about this was discovered, the authorities reportedly made all the villagers write set phrases for a handwriting test in order to discover the culprit. In summer 1991, Hu Hai's son was dismissed from his job in the provincial administration for having advised the Liuzhuang peasants as to their legal rights. In the autumn of 1991, a peasant from Wangyanshitun village was overheard by the Socialist Education Group saying something critical of the village Party Secretary and was placed in detention for 15 days. Shortly after, Hu Hai was tried and sentenced. It is reported that the peasants of Liuzhuang township have now stopped making complaints. AI Index: ASA 17/38/92Amnesty International June 1992

Introduction to the Main Amendments made to the Criminal Procedure Law of the PRC 1996 Professor Fan Chongyi China University of Politics and Law

Introduction to the Main Amendments made to the Criminal Procedure Law of the PRC 1996 Professor Fan Chongyi China University of Politics and Law The Criminal Procedure Law of the PRC was passed at the