Jiangsu woman submits administrative reconsideration application concerning Christmas-time detention

Application for Administrative Reconsideration

Requests in the reconsideration:
I request that you confirm the Decision Statement for Administrative Penalty coded Xu Gong (Cheng) Xing Fa Jue Zi (2013) 2663 issued on December 23, 2013 by the respondent violates the law and repeal this Decision Statement for Administrative Penalty in accordance with the law.

Facts and reasons:
On the afternoon of Dec. 23, 2013, several dozens of Christian believers, including Zhang Xiaofang and Xie Jinchan, held Christmas activities in front of the Real Estate Sale Building of Daming Institution in Xucheng Town of Xuyi County. The activities lasted about an hour. At first, the respondent sent out two plain-clothed agents as scouts at the scene. Then, the respondent sent more than 10 police officers to the scene of the activities. Without showing any legal documentation for the law enforcement, they ordered the applicant and all other believers to immediately stop the activities. After that, the police officers sent out by the respondent ripped an airbrush painting of a cross at the scene and forcibly took 12 believers, including the applicant, to the local police station for interrogation. During this process, the law enforcement officers of the respondent still didn’t show any legal documentation. On the night of the same day, the law enforcement officers of the respondent escorted the applicant to a police vehicle and took her to Huai’an Municipal Detention Center. While they were on their way there, the police officer sent out by the respondent told the applicant that the respondent had decided to impose an administrative penalty of five days of detention on the applicant. The reason they listed for this in the Decision Statement for Penalty is: the applicant engaged in “illegal organizational activities.”

The applicant thinks that the above concrete administrative act performed by the respondent has violated the following substantive law and procedural law and therefore is an illegal and invalid concrete administrative act and should be repealed:

I. It is stipulated in Article 36 of the Constitution of the People’s Republic of China that: “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.” When the respondent made the decision of imposing a 5-day administrative detention on the applicant on the reasons of “failing to register,” “preaching the Gospel on Christmas Day” and “engaging in illegal organizational activities,” he violated Article 36 of the Chinese Constitution, intervened in and violated the applicant’s freedom of religious belief, and what he did is an illegal administrative act.

II. Article 3 of the Law of the People’s Republic of China on Administrative Penalty states: “Where administrative penalty needs to be imposed on citizens, legal persons or other organizations for their violations of the order of administration, it shall be prescribed by laws, rules or regulations pursuant to this Law and imposed by administrative organs in compliance with the procedure prescribed by this Law. Administrative penalty that is not imposed in accordance with law or in compliance with legal procedures shall be invalid.” Also, Article 40 of “Stipulations on the Procedure of Handling Administrative Cases by the Public Security Organs” states: “When conducting an investigation and gathering evidence, there shall be no less than two officers of the People’s Police and they must show their identity in the law enforcement.” When the respondent conducted an investigation on the applicant, he failed to show the identification documentation which indicates their identity in the law enforcement. The applicant has never known the real identity of the law enforcement officers. From this, we can see that the respondent violated the legal procedure while conducting an investigation and gathering evidence.

III. Article 6 of the Law of the People’s Republic of China on Administrative Penalty states: “Citizens, legal persons and other organizations on whom administrative penalty is imposed by administration organs shall have the right to state their cases and the right to defend themselves.” Before the respondent made the administrative decision on the applicant, he failed to notify the applicant the facts and reasons why she is suspected of having violated the law. He also failed to let the applicant state her case and defend herself. It was not until midnight while they were bringing the applicant to the detention center that they notified her of their decision of a five-day detention as an administrative penalty.

The concrete administrative act of the respondent violated Article 94 of the Law on Penalties for Administration of Public Security and Article 31 of the Law on Administrative Penalty (Before deciding to impose administrative penalties, administrative organs shall notify the parties of the facts, grounds and basis according to which the administrative penalties are to be decided on and shall notify the parties of the rights that they enjoy in accordance with law,) Article 32 of the Law on Administrative Penalty (The parties shall have the right to state their cases and to defend themselves. Administrative organs shall fully heed the opinions of the parties and shall reexamine the facts, grounds and evidence put forward by the parties; if the facts, grounds and evidence put forward by the parties are established, the administrative organs shall accept them,) and Item 4, Clause 1, Article 35 of “Stipulations on the Procedure of Handling Administrative Cases by the Public Security Organs” (Fully listen to the statement and defense of the actor of the violation of the law. If the facts, reasons or evidence submitted by the actor of the violation of the law are tenable, they shall be accepted.)

IV. Item 5, Clause 1, Article 43 of “Stipulations on the Procedure of Handling Administrative Cases by the Public Security Organs” states: “When implementing administrative compulsory measures restricting the personal freedom of a citizen, one should notify, on the spot, the family members of the citizen of the Public Security organ, reasons, locations and duration of the compulsory measures. Where there is no way for one to notify in such a way, he or she should notify the family members immediately after implementing compulsory measures by way of telephone, text message, fax or other ways of communication. If the identity of the person under restriction cannot be determined or she or he refuses to provide the contact information of his family members or where it is impossible to notify the family members due to natural disasters or any other types of force majeure, then it is okay not to notify. The circumstances of notifying the family members or the reasons why it is impossible to notify the family members should be noted in the written record of interrogation.”

After the applicant was taken to Huai’an Municipal Detention Center to enforce the penalty of detention, the respondent failed to notify the family members of the applicant, in accordance with the law, the fact that the applicant had been placed under an administrative detention. The family members of the applicant were not notified even after the applicant finished serving the administrative detention and came back home. This proves that the concrete administrative act of the respondent violated Article 97 of the Law on Penalties for Administration of Public Security (The public security organ shall announce the written decision of public security punishment to the person to be punished and shall deliver it to him on the spot. Where it is impossible to deliver to him the written decision on the spot, the written decision shall be served to him within two days. Where it is decided to give him an administrative punishment, the public security organ that makes the decision shall inform a family member of the person to be punished.)

In summary of the above, the concrete administrative act of the respondent violates China’s Constitution, the Law on Administrative Penalty, the Law on Penalties for Administration of Public Security, Stipulations on the Procedure of Handling Administrative Cases by the Public Security Organs and other relevant provisions in the laws and regulations. It is a serious violation of both the substantive law and the procedural law. Therefore, this concrete administrative act is illegal and invalid and should be repealed in accordance with the law.

Hereby I submit my administrative reconsideration in accordance with the law and the Law of the People’s Republic of China on Administrative Reconsideration, requesting that Xuyi County People’s Government confirm in accordance with the law that the concrete administrative act of the respondent violates the law and should be repealed in accordance with the law.

To:

Xuyi County People’s Government of Jiangsu Province.

Applicant (signature): ________________

Three appendixes:1. A photocopy of this “Application for Administrative Reconsideration.”
2. A photocopy of the Decision Statement for Administrative Penalty coded Xu Gong (Cheng) Xing Fa Jue Zi (2013) 2663 issued on December 23, 2013 by the respondent.
3. A photocopy of the resident identification card of the applicant.

The person receiving the penalty: Li Guangfang. She is a female born on July 2, 1969 and her residential identification card number is 320830196907021023. She resides at 14-3, Taohuayuan Residential Complex, Huxuan Road, Xucheng Town, Xuyi County, Huai’an City, Jiangsu Province.

It has been determined through investigation that: on the afternoon of December 23, 2013, Li Guangfang, the actor of the violation of the law, organized several dozens of people, including Zhang Xiaofang and Xie Jinchan, in violating the state regulations in front of the Real Estate Sale Building of Daming Institution of Xucheng Town, Xuyi County. Without registration, they engaged in an organizational activity in the form of “Preaching the Gospel on Christmas Day.” They were caught on the spot.

The above facts are proven to be true by the statements of the client, testimonies from the witnesses and other pieces of evidence.

Pursuant to Item 1, Clause 1 of Article 54 of the Law on Penalties for Administration of Public Security, it is now decided: Li Guangfang shall be placed under a 5-day administrative detention.

Methods of enforcement and duration: After this decision statement is delivered, she shall be delivered to Huai’an Municipal Detention Center by Xuyi County Public Security Bureau for the enforcement of the detention.

If there is an objection to this decision, one can apply for an administrative reconsideration within 60 days from the date of receiving this decision statement at Huai’an Municipal Public Security Bureau or Xuyi County People’s Government or she or he can submit an administrative lawsuit within three months in accordance with the law at Xuyi County People’s Court.

Attached: 0 copies of the list.

Date: December 23, 2013

Seal: Xuyi County Public Security Bureau

This decision statement of administrative penalty has been read to me and has been delivered.

—The person receiving the penalty.

This decision statement exists in three copies. The person receiving the penalty and the enforcement work unit each holds one copy and one copy is for filing. If there is a victim in the public security case, a photocopy shall be delivered to the victim.

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