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HRIC Law Note: Five Detained Women Released On “Guarantee Pending Further Investigation”

April 13, 2015

After 37 days of detention, Wang Man (王曼), Wei Tingting (韦婷婷) and Zheng Churan (郑楚然), Li Tingting (李婷婷), and Wu Rongrong (武嶸嶸) were released in a procedural step known as “release on guarantee pending further investigation,” or,  qubao houshen (取保候审). Unfortunately, instead of a full release, the women are still considered “criminal suspects,” and their status involves a host of restrictions and conditions including on:

  • freedom of movement,
  • communications, and
  • possible summons for further interrogation.

The authorities should unconditionally release the five. The “release on guarantee pending further investigation”’ is a legal sword of Damocles hanging over the five activists with the potential to serve the authorities’ purpose to further chill citizen activism. As the Chinese government seeks to undertake formal legal measures to address domestic violence, attempts to curtail citizen actions can only undermine its efforts to tackle the serious social problems facing China.

Overview of “Release on Guarantee Pending Further Investigation”*

  • The measure known as “release on guarantee pending further investigation” forms part of a suite of “compulsory measures” contained in Chapter VI of the Criminal Procedure Law of the People’s Republic of China (1979, amended 1996 and 2012), and Chapter VI, Section II of the Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (Revised in 2012). (Bilingual link here: MPS Regs)
  • No need for the procuratorate to be involved: Essentially, “release on guarantee pending further investigation”  is available to the public security bureau (PSB), the courts, and the procuratorate.
  • Time limit = 12 months:  The period for “release on guarantee pending further investigation” cannot exceed twelve months. However, failure to comply with the restrictions may trigger legal consequences.
  • It can be used when the maximum period allowed for detention time expires and the PSB wants to keep investigating: The PSB may use “release on guarantee pending further investigation” when “the time limit for detention has expired, but the case is not concluded yet and continued investigation is needed.” (See MPS Regs Art 77(4)).
  • There should be a physical document: the PSB drafts the document for “release on guarantee pending further investigation,” gets it approved (internal approval only is needed), reads it aloud to the suspect and then the suspect signs it and gives fingerprints. (See MPS Regs Art 79).
  • You either pay money or post a guarantor: you don’t have to do both, but must do one or the other. (See MPS Regs Art 80).
  • There are many conditions attached: Two sets of conditions apply to persons subject to “release on guarantee pending further investigation.”  Mandatory conditions and optional conditions (see Arts 85 & 86 of the MPS Regs):
Mandatory Optional

(1) not to leave city or county where s/he resides without PSB permission;

(1) not to enter certain places related to the alleged criminal activities committed by the suspect;

(2) to report any changes to their address, employer, and contact information to the public security bureau within 24 hours after change takes place;

(2) not to meet or correspond, by any means, with witnesses, victims or his or her immediate family members, co-offenders, or other certain persons related to the case;

(3) to appear before PSB without delay when summoned for interrogation;

(3) not to engage in certain activities related to the alleged criminal activities committed by the person released on guarantee;

(4) not to interfere, though any means, with a witness's plan to give testimony;

(4) to surrender exit-entry documents, such as their passport, as well as their driver’s license to the enforcement agency.

(5) not to destroy or falsify evidence, or to collude with other co-participants regarding confessions.

 

 


*This is a general legal note, and is not intended to provide legal advice in an individual case.

Further resources on Chinese Criminal Procedure Law can be found here:

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