A reeducation through labor center in Guizhou Province. Photo: Southcn.com
In a previous post, Dui Hua published a translation of regulations issued by the Ministry of Public Security in 2002 that govern many of the procedures connected with reeducation through labor (RTL). Not long after those regulations were first introduced, the National People’s Congress announced plans to replace RTL with a system of “education and correction.” A new Public Security Administration Penalty Law gave new legal grounding to all administrative punishments available to the police (other than RTL, which is formally considered “compulsory education,” rather than a kind of punishment). At the time, it seemed that reform of RTL was imminent.
In apparent response to these legislative developments, the MPS introduced new RTL policies in 2005 (translated below) in the form of an Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation through Labor Review and Approval Work (hereafter, the “2005 Opinion”). Although many of these policies are exhortatory in nature and others concern institutional arrangements, this document also introduced several policy changes with important ramifications for those facing RTL.
First, a cap was placed on the length of time that a person could be sent to RTL. Though previous regulations allowed RTL to be imposed for between one and three years, with the possibility of an extension of up to one year, the 2005 Opinion states that most RTL decisions should henceforth fall in the range of one to one-and-a-half years, with a two year maximum for pickpocketing, drug use, and recalcitrant “cult” beliefs.
Second, earlier restrictions on eligibility for pre-decision hearings were loosened. The 2005 Opinion explicitly overruled the provision in the 2002 MPS regulations denying such hearings to individuals being sent to RTL in connection with “cult” activities or drug use, stipulating that hearings be available for all suspects except in cases involving state secrets or “simple cases” in which the suspect either admitted to an offense or did not contest the RTL decision.
Third, individuals facing RTL were given an explicit right to engage a lawyer to provide them with legal assistance during the period preceding the RTL decision. The 2005 Opinion stipulates that lawyers can apply to meet with suspects, review case files, and submit opinions to the RTL review-and-approval panel, either at the pre-decision hearing or in writing. A suspect’s access to a lawyer can be denied, however, if the case is deemed to involve state secrets.
Given the notoriously arbitrary way in which China’s state-secrecy provisions are applied—especially with respect to criminal investigation—this restriction on lawyers’ right to meet with suspects is cause for concern. Similar provisions in the 1996 Criminal Procedure Law (the likely model for the RTL rule in question) have been amended in the revised Criminal Procedure Law that took effect on January 1. If the RTL rules are revised to follow suit, it could mean restrictions for lawyers representing suspects charged with offenses under the category of “endangering state security”—a potentially broader category than that in the earlier state-secrets exemption.
Finally, new requirements were added to the system of non-custodial RTL. Each month, persons serving non-custodial RTL sentences would be required to attend a legal-education session and perform between 10 and 30 hours of community service. These elements resemble features of the community corrections system that has been proposed to replace RTL in the future.
It is not clear how consistently any of these new policies have been enforced. For example, records from Dui Hua’s database of prisoner information suggest that, since 2006, RTL management committees have continued to impose RTL sentences of more than two years, though there appear to be fewer of these longer sentences than before the 2005 Opinion.
Part of the reason why implementation may have been inconsistent is that the 2005 Opinion reflects internal policies with no formal normative status outside of the public security system. As such, their enforcement is largely reliant on the commitment of the public security system to regulate itself. Although individuals facing RTL may challenge RTL decisions in court through administrative litigation, it would be difficult, if not impossible, to use non-compliance with these policies as the basis for such a challenge. Instead, non-compliance with the 2005 Opinion could only really be pursued through administrative reconsideration—an administrative appeals process that does not involve court litigation and generally relies upon the police to police themselves.
Ministry of Public Security Notice: click to expand
Ministry of Public Security Notice on Issue of “Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work”
MPS Legal  No. 292
To the public security departments and bureaus of each province, autonomous region, and directly administered municipality and the Xinjiang Production and Construction Corps Public Security Bureau:
In order to implement law enforcement for the people and put into practice the spirit of the central legal institutional reform [agenda], standardize law-enforcement behavior, and promote fair law enforcement, the Ministry of Public Security (MPS) issued the MPS Notice Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work (MPS Notice  No. 58) on August 25, 2005. In order to ensure the correct and effective enforcement of that notice, the MPS enacted the Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work, which is hereby issued to you for your compliance and implementation. At an appropriate time in 2006, the MPS will arrange to inspect the implementation situation in each locale and promote effective enforcement experiences and methods through the use of on-site meetings, experience-exchange meetings, and other fora. Please report any problems encountered during [reeducation through labor] work to the MPS in a timely manner.
September 13, 2005
Implementation Opinion Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work
Further strengthening and improvement of reeducation through labor (RTL) review and approval work is an important measure in the MPS effort to put into practice the spirit of the central legal institutional reform [agenda] and a major act for fully raising the law-enforcement level of public security organs. In order to ensure the correct and effective implementation of the MPS Notice Regarding Further Strengthening and Improvement of Reeducation Through Labor Review and Approval Work (MPS Notice  No. 58, hereafter “the Notice”), the following implementation opinions are hereby offered in response to relevant problems:
I. Regarding the Legal Basis for Reeducation Through Labor
- The legal basis for RTL is the State Council Decision on the Issue of Reeducation Through Labor and the State Council Supplementary Regulations on Reeducation Through Labor, both approved by the National People’s Congress (NPC) Standing Committee; the Public Security Administration Penalty Regulations of the PRC, the Decision on Prohibition of Drugs, and the Decision on Strict Prohibition of Prostitution, passed by the NPC Standing Committee; the Trial Measures on Reeducation Through Labor, issued by the MPS under approval of the State Council; the MPS Regulations on the Handling of Reeducation Through Labor Cases by Public Security Organs (hereafter, “the Regulations”); etc. Public security organs in each locale shall review and approve RTL in strict accordance with the applicable targets and procedures as set out in the provisions of the aforementioned laws, administrative regulations, normative documents, and the Notice.
- According to Article 76 of the Public Security Administration Penalty Law of the PRC, compulsory education measures may be used in accordance with [the relevant] state regulations against those who “lure, shelter, or introduce another person to engage in prostitution”; “produce, transport, duplicate, sell, or lend pornographic materials including books, periodicals, pictures, movies, and audio-video products, or disseminate pornographic information by making use of computer information networks, telephones, or other means of communications”; or “provide conditions for gambling for the purpose of making profits, or participates in gambling with a relatively large amount of money” and who refuse to reform despite several attempts at admonition. Here, “compulsory education measures” means RTL; “in accordance with the relevant state regulations” means in accordance with the provisions of the aforementioned laws and administrative regulations; “refuse to reform despite several attempts at admonition” means again committing one of the three aforementioned acts, without warranting criminal punishment, after having been fined, given administrative detention, custody and education, or RTL in accordance with the law for the aforementioned acts. Since the implementation on March 1, 2006, of the Public Security Administration Penalty Law of the PRC, public security organs in all locales must operate strictly in accordance with the aforementioned provisions.
II. Regarding Making Full Use of RTL to Combat Unlawful Offenses in Accordance with the Law
- Public security organs at all levels must handle RTL cases in strict accordance with the law, making full, lawful use of RTL to combat unlawful offenses and protect social stability and public order while also firmly fostering consciousness of rule of law and human rights protection and earnestly preventing the negative consequences caused by improper use of RTL.
- With respect to those unlawful offenders who meet the criteria for RTL, especially those unlawful offenders who disrupt social order and affect the public’s sense of safety, public security organs must resolutely request and approve RTL in accordance with the law and must not simply issue public-security-administration penalties or fail to investigate and issue punishment in accordance with the law.
- The case-handling units of public security organs that are in charge of things such as public order, criminal investigation, and drug enforcement must firmly foster consciousness of the law, evidence, and procedure and make efforts when investigating and obtaining evidence to promptly collect and firm up evidence and accurately determine the facts and nature of the unlawful offense; legal-affairs units and RTL review-and-approval units must strengthen legal verification, follow strict review and approval procedure, and earnestly raise the quality of cases.
- Public security organs must not downgrade [cases] to RTL where, in accordance with the law, criminal responsibility ought to be pursued; must not upgrade [cases] to RTL where, in accordance with the law, they ought to be handled through public-security-administration penalties or other means; must not approve RTL where the facts are unclear or the evidence is insufficient; and must not use RTL to covertly extend the custody period when investigation of a suspected offender cannot be concluded within the statutory custody period.
III. Regarding the Issue of Attorney Representation in RTL Cases
- In order to protect citizens’ lawful rights and interests, after the case-handling units of county-level public security organs or prefectural- or provincial-level public security organs have requested RTL, where the person suspected of an unlawful offense or his or her legal representative requests to appoint [the suspect’s] guardian, friend, or relative or to hire a lawyer to provide legal assistance on his or her behalf, the prefectural- or provincial-level public security organ shall give its approval. However, with respect to cases that involve state secrets, the public security organ, in line with the procedural provisions for handling criminal cases, shall refuse to give its approval and explain the reason. So-called “cases that involve state secrets” means cases in which the circumstances or nature of the case involve state secrets; cases cannot be treated as cases involving state secrets [only] because, during the process of the investigation, relevant documents or opinions about the handling of the case were required to be kept secret.
- A lawyer acting as representative may meet with and provide legal assistance to the person suspected of an unlawful offense as well as participate in proceedings such as hearings. Where a lawyer requests to meet with a person in custody on suspicion of an unlawful offense, public security organs, in line with the procedural provisions for handling criminal cases, must arrange a meeting within 48 hours.
- From the day a lawyer is named as representative, he or she may consult and excerpt from documents relating to the facts of the unlawful offense; other representatives may, with approval from a prefectural- or provincial-level public security organ, also consult and excerpt from the aforementioned documents or meet with the person suspected of an unlawful offense.
- Where there has been no application for a hearing, the public security organ must consider the opinions of the lawyer or other representative before convening the meeting [to review and approve the RTL case]. The public security organ shall accept lawful and reasonable opinions made by the representative; where opinions are not accepted, the public security organ must explain its reasoning in the RTL decision.
IV. Regarding the Issue of Fully Implementing the Hearing System
- Prior to issuing an RTL decision, except in cases involving state secrets or simple cases where the person suspected of an unlawful offense has admitted to the facts of the unlawful offense or does not contest the ruling, the public security organ must inform the person suspected of an unlawful offense that he or she has the right to apply for a hearing. The scope for hearings is no longer bound by the provisions of Article 25 of the Regulations which excludes cases involving “organizing or using a cult to undermine the implementation of national laws and [cases involving] smoking, ingesting, or injecting drugs.”
- Public security organs shall no longer arrange for hearings in simple cases where the person suspected of an unlawful offense has admitted to the facts of the unlawful offense or does not contest the ruling. So-called “simple cases” means cases where the facts of the case are clear, causality is certain, the number of people involved is relatively few, and it is not necessary to review the evidence from all sides, e.g., cases involving smoking, ingesting, or injecting drugs. So-called “does not contest the ruling” means that there is no difference of opinion with respect to the proposed RTL decision.
V. Regarding the Issue of Shortening the RTL Duration
- When deciding on the duration of RTL for a person who has committed an unlawful offense, generally limit [the duration] to the three levels of 1 year, 1 year and 3 months, and 1 year and 6 months. For those who commit pickpocketing; smoking, ingesting, or injecting drugs; or organizing or using a cult to undermine implementation of national laws and refuse to reform despite several attempts at admonition or prove difficult to reform through education, as well as persons who have committed an unlawful offense and meets the conditions for heavier punishment under Article 47 of the Regulations, it may be decided to impose RTL for 1 year and 9 months or 2 years.
- If, during the time that RTL is being served, a public security organ finds that the person upon whom RTL has been imposed has committed unlawful offenses for which criminal responsibility has not yet been pursued, it may decide to impose RTL in accordance with the law if [the circumstances] meet the criteria for RTL; however, the combination of the duration of the new RTL decision and the remaining duration generally must not exceed 2 years.
VI. Regarding the Issue of Expanding the Scope of Non-Custodial RTL
- In addition to the scope for applying non-custodial RTL set out in Articles 11 and 54 of the Regulations, a decision of non-custodial RTL may be issued at the same time that RTL is decided in accordance with the law for persons who show a sincere expression of regret and who will not endanger society if not sent to an [RTL] facility. However, under any of the circumstances set out in Article 55 of the Regulations, non-custodial RTL must not be [imposed]. So-called “sincere expression of regret” means things such as sufficient recognition that one’s actions have violated the law, a willingness to accept legal sanctions, a willingness to accept and obey monitoring and inspection by the relevant agencies, and an indication of active participation in public service. So-called “will not endanger society” means things such as the ability of a person sanctioned with RTL to obey the law and regulations and MPS regulations on oversight management while under non-custodial RTL and that he or she will not abscond or re-offend.
- Public security organs must not collect a non-custodial-RTL bond from a person on whom non-custodial RTL has been imposed.
- For persons serving non-custodial RTL, the public security police station in their place of residence shall, together with their family, school, work unit, neighborhood (village) committee, etc., carry out oversight and help-and-education, and arrange for them to go once a month to the local township, town, or subdistrict [government office], police station, or neighborhood (village) committee to study relevant details of the criminal law, public security administration penalty law, legal knowledge about RTL, and MPS regulations regarding oversight and management and, according to the different circumstances of each individual serving non-custodial RTL, arrange for him or her to perform 10 to 30 hours of public service per month in local old-age homes, orphanages, or other welfare organizations to help him or her turn over a new leaf as soon as possible.
VII. Regarding Strengthening Oversight Work
- As a member of the RTL management committee, the public security organ must actively accept the guidance and oversight of the RTL management committees at the same or superior administrative levels; periodically (at least once at mid-year and once at year-end) report on its work to the RTL management committee at the same administrative level; and request that the RTL management committee at its own administrative level review and decide on major matters such as annual RTL work arrangements, policy demarcations, and funding; coordinate the resolution of problems associated with RTL approval and implementation; and study and make decisions about major influential or complex and difficult RTL cases occurring in its own region or nationwide.
- Where the organization of the RTL management committee at the same administrative level is not robust or personnel arrangements have not been made in a timely manner, a public security organ must take the initiative to request that the people’s government at that administrative level strengthen the organization, make immediate personnel arrangements, and increase the number of member units.
- Public security organs in all locales must consciously accept the oversight of the people’s procuratorate, the people’s court, and the people. Where, through inspections or in handling letters and visits from the public, the people’s procuratorate [office] stationed in the [RTL] facility discovers that a public security organ has made an unlawful RTL decision and provides a recommendation to the public security organ for how to remedy the problem, the public security organ shall promptly conduct an examination in accordance with the law. If the examination finds that there were in fact errors, remediation must be carried out in a timely manner in accordance with the law.
- Provincial-level public security organs must conscientiously carry out work on administrative reconsideration of RTL and actively promote a system to openly solicit opinions regarding RTL-reconsideration cases. In administrative litigation regarding RTL, a responsible person of the public security organ that issued the RTL decision [in question] must appear in court to respond to the litigation.
- Public security organs must resolutely enforce all legally effective administrative reconsideration decisions, administrative litigation verdicts, and compensation decisions related to RTL. After a public security organ has been found liable for payment of state compensation in accordance with the law, it shall order leaders or police officers whose intentional [acts] or gross negligence [were responsible] to pay some or all of the compensation amount.
- Public security organs must, in strict accordance with the requirements of the Regulations, strengthen internal law-enforcement oversight, earnestly place the handling of RTL cases within the scope of law-enforcement quality performance appraisals, and strengthen inspection of law-enforcement. Where it is discovered in the course of law-enforcement oversight that an excessively broad scope of targets has been applied or the review and approval of RTL has violated procedure, remediation must be conscientiously carried out in accordance with the law and responsibility for the mistakes pursued from the relevant leaders and police officers in accordance with regulations.
VIII. Regarding the Issue of Strengthening Work Guarantees
- Public security organs at all administrative levels must fully understand the major significance of strengthening and improving RTL review and approval work and earnestly carry out related work. Public security organs at the prefectural level and above must set up RTL review and approval offices before the end of 2005 and provide appropriate personnel to carry out review and approval work, as well as a full-strength leadership group. In order to meet the needs of carrying out obligations in accordance with the law, the RTL review-and-approval office shall set up at least one [review and approval] panel. Where there are a great number of cases for review and approval, panels may be set up based on the average annual standard of one per 300 cases reviewed.
- Public security organs must include operational RTL funding and equipment and funding for RTL review and approval personnel in the budget for the public security organ at that administrative level under separate line items. The RTL review and approval office must be provided with the vehicles, communication tools, computers, audiovisual recording equipment, and other equipment necessary for handling cases and office work, and a sufficient number of hearing rooms should be established based on the work situation.
- Public security authorities must strengthen operational training for RTL review and approval personnel in order to continually raise their professional quality and law-enforcement capacity
- In order to ensure the smooth introduction and actual effectiveness of improvement measures, the RTL review and approval office must actively report on its work to the RTL management committee at its own administrative level, highlighting analysis of new circumstances and new problems encountered during review and approval work by promptly summarizing practical experience, reviewing real effectiveness, and adjusting improvement measures to ensure work yields practical effectiveness.
December 12, 2005
Click on icon to expand