Financial Times, 13 March 2012
By Jamil Anderlini

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Dissidents and foreign businesspeople will be far more likely to be secretly detained in China if new provisions in criminal procedure law are adopted as expected, human rights groups warned on Tuesday.

The first revision to China’s criminal procedure law since 1996 would make it legal for police to detain suspects secretly and outside the formal detention system for up to six months if they have been accused of crimes related to terrorism, national security or “major bribery”.

The revised law is expected to be approved by China’s rubber stamp parliament, the National People’s Congress, on Wednesday.

“This law reflects the rising influence of the security apparatus in China as it gives police and state security agents sweeping powers to detain people for up to six months wherever they please,” said Nicholas Bequelin, a senior researcher at Human Rights Watch. “This will be the new regime for dissidents but it also has major implications for foreign businesspeople who fall foul of powerful interest groups.”

The Chinese government has heralded the revised law as a great leap in the protection of human rights. And it includes a number of provisions that could strengthen procedural protections for ordinary criminal suspects, especially juvenile and mentally ill defendants, if they are actually implemented.

But the most common charges laid against foreign businesspeople in China are bribery and theft of “state secrets”, an ill-defined catch-all phrase that is sometimes applied to publicly available documents and ordinary paperwork from state-owned enterprises. Stealing or revealing state secrets constitutes a national security crime.

The arrest and sentencing in 2010 of Rio Tinto executive and Australian citizen Stern Hu involved state secrets charges related to iron ore sales contracts.

The same year, naturalised American citizen Xue Feng was sentenced to eight years’ imprisonment for “gathering intelligence” and “unlawfully sending state secrets abroad” after helping his US employer buy a commercial database on Chinese oil resources.

Before his sentence, Mr Xue, a University of Chicago PhD in geology, was held for months in secret detention facilities by the Ministry of State Security, an institution modelled on the Soviet KGB. He was tortured and denied access to a lawyer for more than a year and his eventual trial was a “farce” by international standards, according to Professor Jerome Cohen, a prominent human rights lawyer who worked on the case.

Once the newly revised legislation is passed, such detentions will be formally enshrined in Chinese law.

Even though incommunicado detention in undisclosed locations for up to six months will be legalised and so theoretically might be challenged in court, rights groups say the ability for families and suspects do so will be severely curtailed.

China’s court system is controlled directly by the Communist party, there are no independent judicial bodies to appeal to and detained suspects will not be able to contact family, lawyers or others who could appeal their case.

It will be tempered only by a clause that requires police to notify family members of the detention, but not the location, within 24 hours unless this is “impossible” – something they can easily argue if the person’s family lives overseas.

Political dissidents and activists are frequently convicted and given lengthy jail terms for “inciting subversion”, placing them in a category of “criminals” who police will be allowed to detain in undisclosed locations for up to six months without access to lawyers or any other visitors.

Many government critics, including the artist Ai Weiwei, Nobel Peace Prize laureate Liu Xiaobo and human rights lawyer Gao Zhisheng, have been “disappeared” by police and state security agents in recent years and held incommunicado in secret detention centres.

“Criminal suspects in China are always at great risk of torture,” said Catherine Baber, deputy director of Asia Pacific for Amnesty International. “Holding them outside formal places of detention puts them in even greater danger.”

http://www.ft.com/cms/s/0/ee2bf9e0-6cf7-11e1-ab1a-00144feab49a.html#axzz1p0qNKd7Q