Wiretapping, email hacking, cell phone tracking, and secret videotaping are just a few of the cloak-and-dagger techniques long employed by police in the course of criminal investigations in China.
But now, for the first time, new rules say that police officers applying for permission to employ these so-called “technological investigation measures” will be subject to “rigorous” reviews, without saying by whom.
The stricter rules were written into an amendment to the Criminal Procedures Code that took effect January 1. Details were spelled out in complementary regulation documents recently released by the Ministry of Public Security, the Supreme People’s Procuratorate, and the People’s Supreme Court.
Still waiting to be answered, however, are questions about the amendment’s deeper impact. Will the rules put tighter controls on secret investigations by, for example, subjecting police to the rule of law and public scrutiny? Or has the amendment effectively given police more room to maneuver behind closed doors?
Offering a positive spin is Cheng Lei, a professor of criminal procedures at Beijing’s Renmin University.
Cheng says the public is justifiably skeptical about the amendment since police for a long time shrouded their investigations in “mysticism.” But the amendment, he said, effectively lifted the mystical veil by forcing police to conduct investigations within legal boundaries.
On the other hand, the amendment has raised questions about possible police abuse since it widened the scope of probes qualifying for secret investigations to include, for example, suspected bribery and other forms of official corruption.
Chen Ruihua, a law professor at Peking University, calls secret police investigations a potentially egregious violation of personal liberty and privacy unless controlled via judicial supervision. Even under the new amendment, though, police and prosecutors can launch a secret investigation without a judge’s permission, leaving the door open to potential power abuse.
Reining in Power
China’s police have used secret means to chase criminal leads for decades. And during the Cultural Revolution between 1966 and 1976, authorities abused the power to conduct undercover investigations, turning it into a political tool.
Probes were more closely coordinated inside legal parameters after the National Security Law took effect in 1993, and as a result of provisions in the People’s Police Law in place since 1995. These laws gave public security agencies the power to use technological sleuthing “in accord with relevant state regulations and after a rigorous approval process.”
But before the latest amendment took effect, there were no “relevant state regulations,” and thus no system or legal support for reviewing police applications for secret probes. These gaps left room for government agencies and the Communist Party to get involved in police investigations, said Cheng. Various national security organizations also have access to secret police work.
An effort to raise China’s secret investigation practices to international standards prompted a public security ministry regulation in 2000 that says evidence gathered in secrecy cannot be admitted in court. That rule complemented a 1998 regulation that said any information gathered secretly by police could not be shared with the public.
Rules designed to keep evidence collected during secret probes under wraps have been hard to enforce, however, especially since police have often shown such evidence to suspects during interrogations and asked, or forced, suspects to include secretly obtained information in his or her confession.
Moreover, these rules gave judges permission to access secretly obtained police information outside their public court procedures. This “out-of-court evidence” often influences a judge’s decision, even though it’s never mentioned as a factor when a judge issues a final decision. A defendant’s attorney may have no idea that such evidence even exists.
The guarantees of freedom and privacy written into China’s constitution sometimes take a back seat during a criminal investigation when law enforcement authorities cite national security concerns or other special circumstances.
And authorities have been known to overstep the bounds. Last October, for example the director of public security in the city of Taiyuan, Li Yali, tapped his agency’s power of secrecy to spare his son judicial discipline after he was arrested for drunk driving.
Li tapped the phones of police officers investigating his son’s case, as well as their family members. He also kept the media at bay and implemented Internet website controls. Li’s actions were eventually discovered and his membership in the party suspended for a year. He was also suspended from his job while officials considered a possible sacking.
Under the public security ministry’s rules complementing the latest amendment, secret investigations are permissible for a wide range of criminal probes. These include threats to national security and society, terrorist activities, organized crime, drug-related crimes, murder, manslaughter, rape, robbery, kidnapping, arson, and other forms of serious violence.
Suspected crimes involving gangs are covered, as are those tied to the illegal use of telecoms and computer networks, or the postal service.
Indeed, police can launch an undercover investigation if they deem an alleged crime “a major threat to society” that would likely lead to a minimum sentence of seven years in prison.
Local prosecutors can ask police to snap undercover photos or hack an email account, for example, but they are not allowed to personally conduct investigations. Even so, said Luo Meng, director of the Anti-Corruption Department at Beijing’s Haidian District Procuratorate, some prosecutors around the country have on staff undercover investigative teams. These teams have long been used, he said.
Prosecutors had tried to squeeze more power out of the legal process during talks leading to the amendment’s approval. The Supreme People’s Procuratorate, for example, advocated allowing prosecutors to call for undercover probes as well as carry them out. But the idea was rejected.
Cheng said prosecutors lost their bid for more power because the ability to conduct undercover investigations carries political risk. Wiretappings, for example, can be used for political purposes by a procuratorate that investigates crimes involving government officials.
Under the complementary regulations attached to the amendment by the Supreme People’s Procuratorate, undercover investigations can be conducted when the suspected crime involves at least 100,000 yuan, certain types of corruption, bribery, and civil rights violations.
Cheng said the rules drawn up by the supreme procuratorate and public security ministry marked in fact a significant step forward because they prove China’s investigative agencies are determined to exercise self-control.