Refugee Review Tribunal AUSTRALIA RRT RESEARCH RESPONSE. Keywords: China Fujian Fuqing Detention centres Bail on medical grounds Christians

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1 Refugee Review Tribunal AUSTRALIA RRT RESEARCH RESPONSE Research Response Number: CHN34880 Country: China Date: 22 May 2009 Keywords: China Fujian Fuqing Detention centres Bail on medical grounds Christians This response was prepared by the Research & Information Services Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. This research response may not, under any circumstance, be cited in a decision or any other document. Anyone wishing to use this information may only cite the primary source material contained herein. Questions 1. Please provide information regarding the procedures by which a person may be released on bail from a detention centre on medical grounds. 2. Is a bail bond required? 3. What is the period of release? Is medical evidence required? 4. Please provide information on the persons who qualify for release on medical grounds. 5. What form does the release document take? 6. Please provide country information from 2007 to present on the situation of Christians in Fujian and Fuqing. RESPONSE 1. Please provide information regarding the procedures by which a person may be released on bail from a detention centre on medical grounds. 2. Is a bail bond required? 3. What is the period of release? Is medical evidence required? 4. Please provide information on the persons who qualify for release on medical grounds. 5. What form does the release document take? Release on bail from a detention centre on medical grounds: procedures, bond, and time limits. Regulations on detention and detention centres in China refer to the possibility of releasing on bail someone who is seriously ill under procedures relating to guarantor pending trial and bail pending trial. Article 3 of the Regulations of the People s Republic of China on

2 Arrest and Detention (1979) states that in the case of a seriously ill offender liable to arrest, an alternative measure may be used involving obtaining a guarantor pending trial or live at home under surveillance : When it is necessary to arrest an offender the principal facts of whose crime have already been clarified and who could be sentenced to a punishment of not less than imprisonment, he shall be immediately arrested by decision of a people s court or with the approval of a people s procuratorate. If an offender liable to arrest is gravely ill or is a woman who is pregnant or is breast-feeding her own child, an alternative measure may be adopted to allow the offender to obtain a guarantor pending trial or live at home under surveillance (Regulations of the People s Republic of China on Arrest and Detention. Promulgation and Effective date: 23 February 1979, LawInfoChina website Accessed 6 July 2007 Attachment 1). Detention centre regulations referred to by the Chinese government in a 1996 report, submitted to the United Nations Committee on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, stated that one whose illness is serious may be released on bail pending trial, in accordance with the law : 75. Article 26 of the Detention Centre Regulations stipulates: A detention centre shall be equipped with the necessary medical instruments and common pharmaceutical products. An inmate falling ill shall be given timely care; one in need of hospitalization shall be given prompt treatment by the local hospital; one whose illness is serious may be released on bail pending trial, in accordance with the law (United Nations Committee on Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1996, Second periodic reports of States parties due in 1993: China, CAT/C/20/Add.5, UNHCR website, 15 February ument Attachment 2). A number of reports on individual cases confirm that persons held in detention centers prior to trial in China can be released, or request release, on bail on medical grounds. These reports indicate that bail bond payments may be requested. In one case housing documents were left as a deposit because they [the family] could not pay the bail, which in the case of fellow detainees was 3,000 RMB. In another recent high-profile instance involving the detention of activist Hu Jia on charges of inciting subversion of state power, Jia s lawyer file[d] an application for Hu s release on bail pending the investigation which was refused, despite the fact that he was in poor health and suffers from a sever liver illness (Human Rights in China 2008, HRIC Action Bulletin: Activist Hu Jia Serving 3 ½-year Jail Sentence, 14 July Accessed 13 May 2009 Attachment 3; Qiang, L. 2005, Detained Yantai Workers Face Conviction, China Labour Watch website, 25 January Accessed 13 May 2009 Attachment 4; Empowerment and Rights Institute (EARI) (undated), Children and the Justice System Accessed 13 May 2009 Attachment 5).

3 A 2001 Amnesty International report indicated that Detainees, their near relatives or legal representatives now have the right to apply for it [bail]. The report also refers to the time limits in general for when the guarantor pending trial form of bail is used: In addition to detention (juliu), the CPL [Criminal Procedure Law] sets out two forms of pretrial restriction which the police may impose on their own authority, without charge or judicial review. These are: Supervised Residence (jianshi juzhu), comparable to detention, and Taking a Guarantee and Awaiting Trial (qubao houshen). These may be imposed on any criminal suspect (article 51) including those against whom there is insufficient evidence to justify arrest (article 65). They may also be imposed when pre-trial investigation by the police, procuratorate or the courts cannot be concluded within the legal time limits (article 74). Whereas the CPL stipulates time limits for Supervised Residence and Taking a Guarantee and Awaiting Trial of 6 and 12 months respectively, subsequent interpretations have extended the limits to 18 months and 3 years respectively. On paper, Supervised Residence may appear preferable to detention, but in practice it is being widely used as a means of detaining suspects incommunicado outside regular detention centres away from the oversight of existing supervisory mechanisms. Torture is frequently the result. Taking a Guarantee and Awaiting Trial, a form of bail, is the least restrictive of all pre-trial control measures. However, certain categories of suspect are excluded, including those suspected of crimes endangering national security. This includes the majority of prisoners of conscience and political prisoners known to Amnesty International. Detainees, their near relatives or legal representatives now have the right to apply for it. There is no appeal process if their request is rejected (Amnesty International 2001, People s Republic Of China Torture A Growing Scourge in China -Time for Action, 12 February, ASA 17/004/2001, Section 6.1 Attachment 6). Little information was found on the precise procedures surrounding the decision to adopt the alternative measure of allowing a seriously ill offender to obtain a guarantor pending trial. Several previous research responses provide information on the issuance of guarantor pending trial documents in normal circumstances (RRT Research & Information 2007, Research Response CHN32671, 4 December Attachment 7; RRT Country Research 2007, Research Response CHN31695, 22 May Attachment 8; RRT Country Research 2001, Research Response CHN14621, 15 May Attachment 9). The Criminal Procedure Law of the People s Republic of China stipulates procedures for release upon bail pending trial Article 56 states: Chapter VI Compulsory Measures Article 50 The people s court, the people s procuratorate and the public security organ may, in light of the circumstances of a case, issue a warrant to compel the appearance of the crime suspect or defendant, release him upon bail pending trial or subject him to residential surveillance. Article 51 Under any of the following circumstances, the people s court, the people s procuratorate and the public security organ may subject the crime suspect or defendant to release upon bail pending trial or to residential surveillance:

4 1. if he could be sentenced to punishment of control, criminal detention or could be subjected to accessory punishment separately; or 2. if a sentence at or above termed imprisonment could be meted out thereto and the adoption of the release upon bail pending trial or residential surveillance would not likely cause the occurrence of a social danger. The release upon bail pending trial and residential surveillance shall be executed by the public security organ. Article 52 Crime suspects and defendants already taken into custody, their legal representatives and near relatives shall have the right to apply for their release upon bail pending trial. Article 53 When a people s court, people s procuratorate and public security organ decide to grant the release upon bail pending trial to a crime suspect or defendant, they shall order him to provide a guarantor or deposit a security. Article 54 A guarantor must satisfy the following requirements: 1. being not related to the present case; 2. being capable of executing the obligation and responsibility under the guarantee; 3. enjoying political rights, and freedom of the person not being restricted; and 4. having a permanent domicile and regular income. Article 55 A guarantor must be under the following duties: 1. supervising the guaranteed in observing the provisions of Article 56 of this Law; 2. reporting without delay to the executing organ when he finds that the guaranteed is likely to commit or has already committed an act in violation of a provision of Article 56 of this Law. Where the guaranteed has an act in violation of a provision of Article 56 of this Law, but the guarantor fails to make a prompt report, a fine shall be imposed on the guarantor, if a crime is constituted, criminal responsibility shall be investigated according to law. Article 56 A crime suspect or defendant being released upon bail pending trial must observe the following provisions: 1. may not leave the city or county in which he resides without approval of the executing organ; 2. shall appear before the court whenever being summoned; 3. may not interrupt in any manner the witness to testify; and 4. may not destroy or falsify any evidence or collude to make confession tally If a crime suspect or defendant being released upon bail pending trial violates a provision of the preceding paragraph and has already deposited a security, the security shall be confiscated, and in light of different circumstances, he shall be instructed to write a statement of repentance, deposit a security or provide a guarantor again, or be subject to residential surveillance or be arrested. If the crime suspect or defendant did not violate the provisions of the preceding paragraph during the period of release upon bail pending trial, the security shall be returned when the period ends (Criminal Procedure Law of the People s Republic of China (Adopted: 1 July 1979 and Amended: 17 March 1996), United Nations High Commission for Refuges website

5 =criminal%20procedure%20china Accessed 29 November 2007 Attachment 10). Articles of the Criminal Procedure Law of the People s Republic of China do describe procedures in the separate circumstances of parole for the purpose of medical treatment for a criminal offender who is sentenced to fixed-term imprisonment or criminal detention. The procedures in this situation do involve a hospital designated by the people s government at the provincial level [issuing] a documentary certificate : Article 214 Under any of the following circumstances, a criminal offender who is sentenced to fixed-term imprisonment or criminal detention may be permitted to temporarily serve his sentence outside prison: 1. if the criminal offender is seriously ill and needs to be released on parole for the purpose of medical treatment; or 2. if the criminal offender is a pregnant woman or a woman who is breast-feeding her own baby. A criminal offender applying to be released on parole for medical treatment who may endanger the society or may injure or disable himself may not be released on parole for medical treatment. If a criminal offender is really seriously ill and must be released on parole for medical treatment, a hospital designated by the people s government at the provincial level shall issue a documentary certificate, and the matter shall be examined and approved according to procedures laid down by the law. If a criminal offender released on parole for medical treatment is found as not conforming to the requirements for release on parole for medical treatment or he has seriously violated a provision on release on parole for medical treatment, he must be taken back into prison without delay. With respect to a criminal offender who was sentenced to fixed-term imprisonment or criminal detention, if he could not look after himself in daily life and if the application of serving his sentence outside prison would not endanger the society, he may be permitted to temporarily serve his sentence outside prison. With respect to a criminal offender temporarily serving his sentence outside prison, the public security organ in the place where he lives shall execute the sentence, and the executing organ shall exercise strict control and supervision over him, and the local grassroots organization or the unit to which he belonged shall assist in such supervision. Article 215 The organ which has approved the temporary service of sentence outside prison shall send a copy of its decision on the approval to the people s procuratorate. If the people s procuratorate considers the temporary service of sentence outside prison as inappropriate, it shall, within one month from the day on which the notification is received, deliver its opinion in writing to the organ which has approved the temporary service of sentence outside prison, and the latter shall, upon receiving such a written opinion from the people s procuratorate and without any delay, examine and verify again the decision it made.

6 Article 216 After the circumstance for which a criminal offender was permitted to temporarily serve his sentence outside prison has disappeared and if the length of his sentence has not yet expired, the criminal offender shall be taken back into prison without any delay. If a criminal offender died during the period of his temporary service of sentence outside prison, the prison shall be informed thereof without any delay (Criminal Procedure Law of the People s Republic of China (Adopted 1 July 1979 and Amended 17 March 1996), United Nations High Commission for Refuges website =criminal%20procedure%20china Accessed 29 November 2007 Attachment 10). For more information on the conditions required to be met for the medical parole of prisoners, including some of the articles from the Measure on Implementing Medical Parole for Prisoners (1990), see: The Dui Hua Foundation 2002, Newsletter of the Dui Hua Foundation, Issue 7, Spring, pp Accessed 22 May 2009 Attachment 19; and Amnesty International 2001, People s Republic Of China Torture A Growing Scourge in China -Time for Action, 12 February, ASA 17/004/2001, Section 6.2 Attachment 6. Form of release document: No examples were found of the form of the release document used specifically in cases of release on bail on medical grounds. The China Aid Association (CAA) website provides two examples of Public Security Administrative Court Statements involving bail pending trial. Both refer to the same individual, Xiao Yu, and are dated 11 April The first is titled a Release Certificate : Release Certificate Shou Kan Shi Zi (2008) No This is to certify that Xiao Yu (gender: female; age: 49; residence: Group 3, Bameng Village, Qu County, Sichuan Province) was arrested/detained on March 30, 2008 for organizing or utilizing superstitious sects or secret societies to undermine the implementation of law. She is now released on bail pending trial. Pursuant to Article of the Procedural Law of the People s Republic of China, it is decided by Qu County Public Security Bureau that she be released. April 11, 2008 This copy is to be handed over to the released person ( Press Releases Public Security Administrative Court Statements 2008, China Aid Association website, 7 July 784f1a318262c644566ceaf41caa7 Accessed 19 May 2009 Attachment 11). The second is titled a Decision Statement of Bail Pending Trial : Qu County Public Security Bureau Decision Statement of Bail Pending Trial Qu Gong Xing Bao Zi [2008] No. 60 April 11, 2008

7 Criminal suspect: Xiao Yu. Gender: female. Age: 50. Residential address: Group 3, Bameng Village, Tianxing Township, Qu County. Work unit and occupation: farming. Xiao Yu whom this bureau is investigating is suspected of utilizing a cult organization in undermining the law of the state and the implementation of the administrative regulations. As the criminal suspect may be sentenced to punishment beyond fixed-term imprisonment, bail pending trial may not endanger the society. Pursuant to Article of the Procedural Law of the People s Republic of China, it is decided that she be placed on bail pending trial. The term starts from April 12, The criminal suspect should receive the supervision of the guarantor and pay the bail. During the period of bail pending trial, the person who is on bail pending trial should abide by the following stipulations: 1. She must not leave the city or county town of her residence without prior approval from the executing agency. 2. She must be present in time when summoned. 3. She must not disrupt witnesses in any way from presenting their testimonies. 4. She must not destroy or forge evidence or collude with other people to unify their confessions. Should the criminal suspect violate the above stipulations during the period of bail pending trial, the bail shall be confiscated. Depending on specific situations, the criminal suspect shall be ordered to sign a statement of repentance and pay again the bail, find a guarantor or be placed under supervised residence and they shall be arrested. Qu County Public Security Bureau ( Press Releases Public Security Administrative Court Statements 2008, China Aid Association website, 7 July 784f1a318262c644566ceaf41caa7 Accessed 19 May 2009 Attachment 11). In November 2008, the Research & Information Service (Melbourne) sought the opinion of Sarah Biddulph on three detention documents: a release certificate, checklist for items seized, and notice to family member of detainee (RRT Research and Information 2008, Research Response CHN33873, 11 November Attachment 12). Biddulph advice to the Tribunal on the genuinessness of these documents is inconclusive and includes the following: I have recently acquired a book of standard form documents relating to criminal procedure and have scanned and attached the documents which appear to be relevant to your inquiry- the book was originally published in 2003 and reproduced in The book is a useful reference but I cannot guarantee that it contains a complete set of documents, which might explain why I could not find equivalent document of notification to family members (Biddulph, Dr. Sarah, 2008, to RRT Research & Information: Request for assistance from the Refugee Review Tribunal, Melbourne (RRT re: CHN33873), 11 November Attachment 13). In a seminar presentation to the MRT-RRT in Melbourne in August 2008 on Administrative and Criminal Detention in China, Dr. Biddulph does refer in passing to guarantor certificate (p.4)/obtaining a guarantor (p.16) but without providing specific advice on procedures related to it, or the documents or release documents used in such cases (Biddulph, Dr. Sarah 2008, Administrative And Criminal Detention In China, Seminar Presentation And Discussion for the Migration Review Tribunal Refugee Review Tribunal, 6 August Attachment 14).

8 6. Please provide country information from 2007 to present on the situation of Christians in Fujian and Fuqing. No substantially new information dated to was found on the treatment and situation of underground Christians in Fujian/Fuqing. The most current reports are provided in September 2008 Research Response CHN33721 (RRT Research & Information 2008, Research Response CHN33721, 22 September Attachment 15). Some recent information on other Christians, namely Catholics and Local Church/Shouters in Fujian is available. A November 2008 report by the Country Research Section of the Department of Immigration and Citizenship (DIAC), China s Protestants and Catholics, provides a positive description of the level of tolerance shown toward Christians in Fujian, excepting those groups labeled cults such as Shouters and Eastern Lighting (DIAC Country Research Section 2008, China s Protestants and Catholics, November, pp Attachment 16). The most recent reference to Christians in Fujian in this DIAC paper is to an August 2008 report by UCAN (Union of Catholic Asian News) on the situation of Catholics in the lead up to the Olympics. This indicated that local officials have not imposed restrictions or given warnings to underground communities in Fujian but that priests there are conscious of not organizing large-scale activities during this sensitive time (DIAC Country Research Section 2008, China s Protestants and Catholics, November, p. 46 Attachment 16; Restrictions placed on underground priests as Olympics loom, 2008, Union of Catholic Asian News (UCAN News) website, 7 August Accessed 17 February 2009 Attachment 17). On 9 February 2009, Philip Yee provided updated advice on the situation of the Local Church ( Shouters ) in Fujian in Research Response CHN34321: As we understand it, the local churches in China are viewed differently in each province. Certain provinces allow the local churches to register with the authorities and once they have done so, they are allowed to worship. However, in other provinces, including Fujian province, the local churches are regarded as illegal gatherings, however as we understand from some members who come from this province, there is not much arrests as before. There is now more dialogue between members of the local church and the authorities. The same situation applies, as far as we understand from speaking to members who come from Fuqing city, that while the authorities do not recongise the local churches, there is not much arrests as before (Yee, P. 2009, to RRT Research & Information Re: Request for information from the Refugee Review Tribunal, Sydney, 9 February Attachment 18). List of Sources Consulted Internet Sources: United Nations (UN) UNHCR website Non-Government Organisations Human Rights in China website China Labour Watch website Empowerment and Rights Institute (EARI) website

9 China Aid Association website Search Engines Google search engine Databases: FACTIVA (news database) BACIS (DIAC Country Information database) REFINFO (IRBDC (Canada) Country Information database) ISYS (RRT Research & Information database, including Amnesty International, Human Rights Watch, US Department of State Reports) RRT Library Catalogue List of Attachments 1. Regulations of the People s Republic of China on Arrest and Detention, Promulgation and Effective Date: 23 February 1979, LawInfoChina website Accessed 6 July United Nations Committee on Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1996, Second periodic reports of States parties due in 1993: China, CAT/C/20/Add.5, UNHCR website, 15 February Opendocument. 3. Human Rights in China 2008, HRIC Action Bulletin: Activist Hu Jia Serving 3 ½- year Jail Sentence, 14 July Accessed 13 May Qiang, L. 2005, Detained Yantai Workers Face Conviction, China Labour Watch website, 25 January Accessed 13 May Empowerment and Rights Institute (EARI) (undated), Children and the Justice System Accessed 13 May Amnesty International 2001, People s Republic Of China Torture A Growing Scourge in China -Time for Action, 12 February, ASA 17/004/ RRT Research & Information 2007, Research Response CHN32671, 4 December. 8. RRT Country Research 2007, Research Response CHN31695, 22 May. 9. RRT Country Research 2001, Research Response CHN14621, 15 May.) 10. Criminal Procedure Law of the People s Republic of China (Adopted 1 July 1979 and Amended 17 March 1996), United Nations High Commission for Refuges website

10 bin/texis/vtx/refworld/rwmain?page=search&docid=3ddbcd4e7&skip=&am p;query=criminal%20procedure%20china Accessed 29 November Press Releases Public Security Administrative Court Statements 2008, China Aid Association website, 7 July nc=665784f1a318262c644566ceaf41caa7 Accessed 19 May RRT Research and Information 2008, Research Response CHN33873, 11 November. 13. Biddulph, Dr. Sarah 2008, to RRT Research & Information: Request for assistance from the Refugee Review Tribunal, Melbourne (RRT re: CHN33873), 11 November. 14. Biddulph, Dr. Sarah 2008, Administrative and Criminal Detention in China, Seminar Presentation and Discussion for the Migration Review Tribunal Refugee Review Tribunal, 6 August. 15. RRT Research & Information 2008, Research Response CHN33721, 22 September. 16. DIAC Country Research Section 2008, China s Protestants and Catholics, November. 17. Restrictions placed on underground priests as Olympics loom 2008, Union of Catholic Asian News (UCAN News) website, 7 August Accessed 17 February Yee, P. 2009, to RRT Research & Information Re: Request for information from the Refugee Review Tribunal, Sydney, 9 February. 19. The Dui Hua Foundation 2002, Newsletter of the Dui Hua Foundation, Issue 7, Spring, - Accessed 22 May 2009.