Translated by Brynne Lawrence. Edited in English by Ava Collins.
(Beijing—Nov. 23, 2015) The defense attorney for Zhang Kai, a Beijing-based human rights lawyer who was detained in August, issued two letters on Nov. 11 to the Wenzhou Municipal People’s Procuratorate, demanding an investigation of the local public security bureau’s handling of Zhang Kai’s case.
Zhang Lei, who has served as Zhang Kai’s defense attorney since Oct. 14, cited various grievances against the Wenzhou Municipal Public Security Bureau, including continued refusals to let Zhang Kai meet with lawyers and the lack of information released regarding Zhang Kai’s whereabouts. Zhang Lei said that both he and Li Guisheng, another defense attorney working Zhang Kai’s case, requested meetings with their client multiple times but were refused. Zhang Lei’s letters can be read below.
Zhang Lei asked that the Wenzhou Municipal People’s Procuratorate investigate the actions of the public security bureau and hold them accountable to the law. According to Zhang Lei, on Oct. 26, the procuratorate said that they had orally asked the public security bureau to correct “all law-violating actions” regarding the lack of released information.
“It is the duty of the national law to supervise the departments of the people’s procuratorate to curb the occurrences of these types of circumstances,” Zhang Lei said.
In China, the people’s procuratorates are judicial bodies at the national, provincial, municipal and county levels, which operate independently of the people’s courts to oversee the handling of criminal cases, supervise the rulings and activities of courts, investigative bureaus, and prosecute cases that involve treason and threats to national security. The Wenzhou Municipal People’s Procuratorate is responsible for acting on complaints against the courts and public security of their area, including the Wenzhou Municipal Public Security Bureau.
Zhang Kai, a human rights lawyer representing various churches in demolition lawsuits, was originally detained in Wenzhou, Zhejiang, on Aug. 25 and extra-judicially sentenced to six months of “residential surveillance in a designated location.” This is the official term for a “black jail,” or a detention in an undisclosed location outside of established detention centers. Detainees in black jails, especially those whose lawyers are forbidden to meet with them, are often tortured.
China Aid often supports the legal defense of Chinese citizens in cases like this one, to encourage victims of religious freedom and human rights abuses. If you would like to show your support, please consider making a contribution here to the legal defense fund.
Wenzhou Municipal People’s Procuratorate
I, Zhang Lei, together with all the lawyers from the Tongling Zhenghan Law Firm in Beijing, are all Zhang Kai’s defense council. Zhang Kai was taken away by the Wenzhou Municipal Public Security Bureau and was afterwards placed under residential surveillance in a designated location, or a “black jail,” by this bureau for “gathering a crowd to disturb social order” and “stealing, spying, buying and illegally providing state secrets and intelligence to entities outside of China,” but this bureau has not notified Zhang Kai’s relatives about the designated location of this surveillance.
I began to serve as Zhang Kai’s defense lawyer on Oct. 14. On that day, I went to Wenzhou’s public security bureau to get information and legally request that the public security bureau inform the defense lawyers of the already-investigated, initial facts of Zhang Kai’s case, as is according to the law, but the Wenzhou Municipal Public Security Bureau employee responsible for receiving me as [Zhang Kai’s] lawyer clearly and directly refused to inform us about the case. For these law-violating actions, this lawyer and Zhang Kai’s other defense lawyer, Lawyer Li Guisheng, filed a lawsuit at the Wenzhou Municipal People’s Procuratorate. The Wenzhou Municipal People’s Procuratorate replied on Oct. 26 that they have already orally informed the Wenzhou Municipal Public Security Bureau to correct all law-violating actions, such as not having notified us.
On Nov. 4, I went again to the Wenzhou Municipal Public Security Bureau in order to understand everything legally related to the handling of Zhang Kai’s case and other cases and encourage this bureau to legally inform [us] of the already-investigated primary facts of Zhang Kai’s case. This [public security] bureau had already received Wenzhou Municipal People’s Procuratorate’s notice, urging them to correct the situation and was still persevering in illegal actions by directly and illegally refusing to give me, the defense lawyer, any details regarding Zhang Kai’s case.
Because of this, I have reason to believe that the criminal facts of Zhang Kai’s case and others’ cases simply do not exist. Wenzhou’s public security bureau simply did not investigate the facts behind [these] cases and have also not obtained factual evidence in the cases of Zhang Kai and others that confirms [the so-called “defendants”] committed these crimes. Therefore, the Wenzhou Municipal Public Security Bureau incorrectly investigated Zhang Kai and other people’s cases. Zhang Kai and other people simply should not to be investigated.
Article 552 of the Criminal Procedure Regulations of the People’s Procuratorate (trial implementation) stipulates that: “The People’s Procuratorate shall implement supervision over the public security bureau department’s registration activities.” Article 564’s provisions state: “If the People’s Procuratorate conducts the supervision to the public security bureau legally…” After the first paragraph of Article 553, the provisions state: “[If] the involved party thinks the public security bureau filed a case when they should not and appeals to the People’s Procuratorate, the People’s Procuratorate should accept and inspect it…” Therefore, this lawyer currently proposes that the Wenzhou Municipal People’s Procuratorate investigate whether or not the Wenzhou Municipal Public Security Bureau filed Zhang Kai’s case when they should not have and if their action of inspection thoroughly [determined] whether or not legal supervision is lawful according to Articles 553, 555, and 565 of the Criminal Procedure Regulations of the People’s Procuratorate (trial implementation).
First of all, please inspect Wenzhou Municipal Public Security Bureau and see whether or not the filing of Zhang Kai’s case and the cases of others are “being used to carry out revenge, make false charges against, extort, blackmail, or other seeking of illegal benefits, etc. by unlawfully filing these cases.”
Second, please make sure that the Wenzhou Municipal Public Security Bureau’s investigative activities in regards to Zhang Kai and other cases are not situations of “false, misjudged legal cases of manufactured injustice.”
Zhang Kai’s defense lawyer, Zhang Lei
Nov. 11, 2015
Attached: Wenzhou Municipal People’s Procuratorate’s reply letter concerning Lawyer Li Guisheng and Zhang Lei’s lawsuits
Wenzhou Municipal People’s Procuratorate:
I, Zhang Lei, a lawyer from Beijing’s Tongling Zhenghan Lawyer Affairs firm, am Zhang Kai’s defense lawyer. Zhang Kai was taken away by Wenzhou Municipal Public Security Bureau on Aug. 25, 2015. Afterwards, this bureau placed him under “residence surveillance in a designated location” for “gathering a crowd to disturb social order” and “stealing, spying, buying and illegally providing state secrets and intelligence to entities outside of China” but did not notify Zhang Kai’s family of his current designated location.
I received Zhang Kai’s mother’s commission to serve as Zhang Kai’s defense attorney on Oct. 14, 2015. On the same day, I notified the Wenzhou Municipal Public Security Bureau and, at the same time, proposed to meet with Zhang Kai, but the Wenzhou Municipal Public Security Bureau receptionist refused, stating that meetings were prohibited, and, on Oct. 16, 2015, the Wenzhou Municipal Public Security Bureau distributed the “Prohibition of Meeting with Suspected Criminals Decision.” Prior [the distribution of this prohibition,] Zhang Kai’s other defense lawyer, Li Guisheng had already requested to meet with him three times, but he was prohibited from meeting Zhang Kai by Wenzhou Municipal Public Security Bureau three times.
Admittedly, the Criminal Procedure Law of the People’s Republic of China, Article 37, Paragraph 3 states: “[In the case of] danger to national security, the defense lawyer meeting with the suspect under imprisonment should get the permission of inspecting institute.” Paragraph 5 states: “A defense lawyer meeting or corresponding with a suspect or defendant under residence surveillance must apply for provisions [stated] in Paragraphs 1, 3, and 4.” It then follows that, under the Criminal Procedure Law of the People’s Republic of China, the assigned investigatory department’s investigation can [cast] concern over whether people involved in cases “endangering national security” have the right to meet with lawyers but this does not at all imply that the investigatory departments are able to abuse this power, and does not at all imply that “not being allowed to meet [with a lawyer]” is fair.
The Public Security Bureau Procedural Provisions for the Handling of Criminal Cases, Article 49, states: “For cases of endangering national security, the defense lawyer asking to meet with the suspect under imprisonment or residential surveillance during the inspection, should propose the application and should be permitted, with the exception of circumstances risking the obstruction of inspection or the leaking of state secrets. Relation to one of the following can be regarded as obstructing inspection: (i) destroying or forging evidence, witness interference or collusion; (ii) aiding the suspect in self-harm, suicide, or escape; (iii) aiding the escape of accomplices; and (iv) the suspect’s family members have been implicated in the crime…” According to these provisions, with the exception of four situations deemed to be “hindering investigations,” defense lawyers are encouraged to meet with the people involved, and the investigating departments should make licensing decisions.
In this [legal] case, this lawyer requested to meet with Zhang Kai and there is no situation that would “hinder investigation:”
First, this lawyer cannot and does not have the power to destroy or forge the evidence in the case of Zhang Kai and the other cases. It is impossible and improbable that I would interfere with the witness’s testifying or fabricate a story. If lawyers are all considered potential suspects of obstructing witnesses, that will be [used] to prevent all lawyers from participating in all “endangering national security” cases. But currently, Criminal Procedure Law does not have provisions preventing lawyers from participating in “endangering national security” cases.
Second, the inability of this lawyer to meet with Zhang Kai may lead Zhang Kai to self-harm, commit suicide, or flee. A lawyer meeting with Zhang Kai can only help him feel his legal rights have been safeguarded, can only help him believe the investigation department has not stripped him of his legal rights, can only increase his faith [in the legal system], rather than leading him to self-harm or commit suicide. On the contrary, if he is not allowed to meet with a lawyer for a prolonged period of time, it might lead to his mood becoming unstable, so much so that it could lead to his resistance and trigger him using every method to fight for his rights to a lawsuit. As for escaping, I believe the actuator of “residential surveillance,” the Wenzhou Municipal Public Security Bureau, has carried out long-term, close “surveillance” of him with no risk of “escape.” Beyond this, I think that before the investigatory department makes a clear decision [in his case], Zhang Kai would refuse to be released even if invited, not to mention an “escape.”
Third, [these cases regarding] Zhang Kai and the other people are one case. The Wenzhou Municipal Public Security Bureau and subordinate security bureaus detained 15 people in Wenzhou in one fell swoop. There crimes were “gathering a crowd to disturb social order” and “stealing, spying, buying and illegally providing state secrets and intelligence to entities outside of China.” It has already been more than two months with no other arrest operations. If there are no other fish that have slipped from the net [Editor’s note: This Chinese idiom means that there are no other so-called “criminals” to be caught.], it would be impossible for a lawyer meeting with Zhang Kai to lead to “the escape of accomplices or hindering investigation.”
Fourth, Zhang Kai’s mother lives far away in Inner Mongolia. Zhang Kai’s wife and sister both have their own jobs unrelated to Zhang Kai’s previous jobs. It is impossible for them to have any connection to Zhang Kai’s case. After more than two months’ time of carrying out forcible measures against Zhang Kai, the investigatory department did not give any legal documents to Zhang Kai’s family or carry out any interrogation or inquiry.
As for “the possibility of divulging state secrets,” that cannot be a reason for forbidding defense lawyers to meet with Zhang Kai, either. Because, if this case is said to be a matter of “national security,” it is not possible for secrets to be divulged because of meetings with a lawyer. Like the investigation personnel, lawyers also participate in criminal lawsuits for many of the same reasons, but they discover that related situations will inevitably fulfill their duties. In regards to urging lawyers to protect secrets, they have pertinent stipulations, such as the Law of the People’s Republic of China for Guarding State Secrets, the Criminal Procedure Law of the People’s Republic of China, the Law of the People’s Republic of China for Lawyers. If defense lawyers have violated these legal stipulations, they will be responsible for their conduct, but this cannot be the reason for the inspecting institute to forbid the lawyers to meet with the party, because they have the same reasoning. When investigation personnel handled the case’s processes, they are also certainly informed of relevant “state secrets.” So long as the secrets are known, they can be “leaked,” but this possibility would not become a reason for the investigation personnel to not investigate a case. For the same reason, if definite evidence hasn’t been made known that indicates that a defense lawyer might “divulge state secrets,” one absolutely must not abuse these grounds by not permitting lawyers to meet [with clients].
Our nation’s Criminal Procedure Law is unceasingly modified in an attempt to improve it and has many people investing meticulous care [into its revisions]. Achieving these improvements is extremely difficult. This is the general trend: the Criminal Procedure Law of the People’s Republic of China has still had some improvement in regards to safeguarding human rights, but that little improvement came only because many people invested a great amount of energy. However, it is completely possible that the investigatory department, by their practiced abuse of a clause, will make a “human rights black hole” and allow these improvements to be eclipsed. The judicial idea of safeguarding human rights will be dimmed by dense shadows, so much so that it causes the person involved [in a case]’s legally-stipulated and ensured right to a lawsuit to become completely devoid of meaning. It is the duty of the national law to supervise the departments of the People’s Procuratorate to curb the occurrences of circumstances like these.
Therefore, I hope you recognize the value of these points and are moved to a timely response.
Zhang Kai’s defense lawyer, Zhang Lei
Attached: The decision statement from the Wenzhou Municipal Public Security Bureau forbidding me to meet with Zhang Kai