In order to better expand this article, I need to popularize the basic knowledge about criminal cases and public security cases in China:
The police agency in China is called the public security organ, and its internal classification is like this: provincelevel – the Provincial Public Security Department (PSD), city (county, district) level – the Municipal Public Security Bureau (PSB) and the District Branch of the Public Security Bureau. A police station that we usually face in our lives is a branch agency of the Public Security Bureau allocated at various communities within the territory of the Public Security Bureau. In other words, it means that the Public Security Bureau sets up police stations at the points where residents gathering to exercise its For example, there is the Shanghai Public Security Bureau in city level. Below it, there is the Pudong Branch of the Shanghai Public Security Bureau, which is in charge of Pudong District, Shanghai. Under it, there are several police stations set in the few community areas within Pudong District. This is because Pudong District is very large and in order to maintain public order and quickly deal with criminal cases, the Pudong Branch of Public Security has set up police stations in every community, e.g. Beicai Police Station, Chuansha Police Station, etc.
Under normal circumstances, only public security organs (PSD, PSB, Police Station)hasthe right to take coercive measures that restrict personal freedom of residents, such as detention. Of course, national security agencies and even courts and prosecutors have this right, but ordinary people are unlikely to encounter it.
Similarly, under normal circumstances, the most dealings with residents are the police station where you live, whether it is you to report the crime, or it is it to investigate you, or to take coercive measures overyou.
Under normal circumstances, there are two basic legal grounds for restricting personal freedom, one is the Public Security PenaltyLaw and the other is the Criminal Procedural Law.
The Public Security Penalty Law is the management and punishment provisions for minor public security violations. Such cases usually involve violations of the law but have not yet constituted a criminal offense. For example, afighting behavior that does not cause serious harm, e. the other party only suffers a slight bodily injury or slight property damage, other than a minor injury or a severe injury, or had caused serious damage to public order, at this time, the offender will only be punished in accordance with the Public Security Penalty Law. The usual penalty methods are warnings and fines. The more serious is detention. The detention time usually last from 5 days up to 15 days, and foreigners may also be determined with an immediate deportation. Similar to fighting behaviors, the behaviors that may be punished by Public Security Penalty Law also include prostitution, drug use and other minor violations. Public security penalties are also called administrative penalties. In other words, for minor violations, detention, as an administrative penalty, which restricts personal freedom, is a punishment, and is usually the final measure of the entire procedure. This type of detention is also called administrative detention.
The Criminal ProceduralLaw is a procedural law for the treatment and punishment of illegal acts that are serious enough to violate the Criminal Law, such as a fight, of which the injury caused reaches a minor or severe injury, such as a severe fracture, loss of vital organ function, partial disfigurement, etc. Another example is for a drug-related illegal act, taking drugs is an act at the public security / administrative penalty level, but selling drugs or sheltering others to take drugs is a criminal act that violates the criminal law. Different from public security / administrative punishment, in criminal proceedings, detention is only a means of investigation. In other words, detention is a temporary restriction on the personal freedom of the suspect only for the public security organs to carry out investigations, prevent the suspect from escaping and from continuing to engage in criminal acts, and wait the procuratorate to approve the arrest application of the criminal suspects, and not a punishment measure, and therefore is usually the initial measure of the entire procedure. This kind of detention is also called criminal detention.
Therefore, if you are detained, you first need to know whether you have violated the law, and whether this violation is serious enough to violate the Criminal Law orit is just a minor violation of the Public Security Penalty Law, which may only be subject to administrative penalties. Regarding the judgment of the degree, there are generally systematic basis and standards, such as the hospital’s wound inspection report, the hairy drug test report, etc. Generally speaking, asking the police officer who detained you or your lawyer will help you to have a general understanding.
Okay, now let’s officially enter the topic. If you are detained,
(1) what problems you will usually encounter,
(2) and what you may face later,
(3) and some suggestions of mine:
First of all, if you are detained, the problems you will usually encounter:
As mentioned above, under normal circumstances, you may encounter a detention caused by a lighter violation of the Public Security Law (the lighter here is compared with criminal offenses), or in a more serious case a criminal detention caused by a serious conduct that violated the Criminal Law. In fact, these two types of detention are not difficult to judge. Generally speaking, if it is a mild fight, prostitution, or drug use, it may usually be in the scope of public security punishment, but if the fight has caused serious injury to the other party, such as a comminuted fracture, partial disfigurement, partial loss of organ functions (such as missing ears or broken thumbs), the police may ask the injured party to go to the hospital for an examination and if the result of the examination is a minor injury or a severe injury, instead of a slight bodily injury (note that the degree of injury is divided into three types, slight bodily injury, minor injury, and severe injury), a public security / administrative punishment may be upgraded to a criminal penalty. You may not face to warnings, fines, or administrative detention of up to 15 days, but a court trial and several years of imprisonment. Similar examples include if you are only a prostitute, then you are likely to face fines and several days of detention, and this is an administrative penalty, but if your behavior is to organize others to engage in prostitution, or the other party reports that you have had a relationship with her, in which you went against her will, you may face a criminal charge of organizing prostitution or rape. At this time, if you are detained, this detention is no longer an administrative punishment, but an initial step of a criminal procedure and in that way you may be detained for up to 37 days. During this 37 days, the public security organ will conduct investigations against you and collect relevant evidence and then apply to the prosecutor for an approval of arrest upon you. If the evidence collected is reliable and sufficient, the prosecutor may approve the arrest application and at that time, you will face a longer period of detention, which may last as long as several months, until a trialing judgment is made. At that time, You may face more severe penalties, such as years of imprisonment.
Going back to the topic above, if you are in administrative detention, you will usually be fined between RMB 200 and RMB 500. If you cause damage to someone’s property, you may also need to make compensation, and if the other party is not satisfied with the compensation, they may file a civil lawsuit against you. If you are a foreigner, then you have to be more careful, because if your behavior is serious enough, in addition to warnings, fines, and detention, the police may also decide to impose deportation punishment on you. Of course, because of this punishment is more serious and needs to be approved by the Ministry of Public Security of China, unless your behavior is really severe, the public security organs will generally be quite cautious in applying it.
In addition, if you are in administrative detention, you should also ask for a written document named “Public Security Punishment Notice” from the policeman who punished you, which will list your personal information, violations, punishment basis, and the punishment results.
You can call your lawyer immediately when you are administratively detained by the public security organ and ask him how to deal with it. Normally, if a violation exists and it is not a serious violation, all you need to do is to accept the administrative penalty according to the lawyer’s advice and no further actions need to be taken. However, if your illegal behavior is more serious, for example, if you find that the other party is seriously injured by you and the police asked the other party to examine the injuries, or the police is handing to you a Notice of Criminal Detention, instead of a Notice of Administrative Penalty, then you should contact your lawyer immediately, inform him of the seriousness of the situation, and ask him to help you without any hesitation.
Lately, if you are under criminal detention, the problems you face may be much more serious: one of the biggest differences between Chinese criminal procedures and Western countries is that the Chinese police generally does make a criminal detention on people before they have done some preliminary investigation and convinced that you are under sufficient suspicion, and in that way, you have a certain possibility of facing a criminal trial and punishment. In such case, a more optimistic situation is that the police will release you within 24 hours after detaining you – usually the police will require you to stay in a fixed place and not leave away within a short period of time and wait until they decide whether to subpoena and detain you again. This usually happens when they think your violation is minor, and may not constitute a criminal offense after further argumentation and judgment and in order to protect your rights, they decided not to continue the detention on you for the time being. In contrast, a more serious situation is that you have received a detention notice issued by the police, which clearly states the alleged crimes, such as rape, drug smuggling, etc., and you find that the police have detained you for more than 24 hours hours, then, as mentioned above, you may face 37 days of detention, and if your arrest is approved by the prosecutor, you may be detained for a longer period of time. At this point, except for the 24 hours you just detained you will spend in the police station or the Public Security Bureau, you will soon be transferred to a detention center, where you will spend the entire detention time until you are released or approved for arrest during this period. If you are noticed for a Notice of Arrest, which means the application of arrest on you is approved, you then usually will face a trial. Of course, if the police fail to obtain decisive evidence, they may release you directly, or they may not be able to obtain the prosecutor’s approval to arrest you and have release you on bail awaiting further findings, that is, you will not be detained temporarily but will be required to live at a fixed address, and not allowed to stay away at will without endorsements, and to be prepared for the police’s further summons at any time. Here is also a point: detention and arrest are different procedures in China. The two have a sequence and the police can decide whether to detain you, but an arrest requires the approval of a prosecutor.
Speaking of bail pending trial, under normal circumstances, if you do have evidence to prove that you have a serious illness or pregnancy, and your bail pending trial will not cause further harm to society, and there is no situation where you may destroy or hide the evidence, and of course your suspected criminal act is relatively minor, you can apply for bailing by providing a guarantor to the public security organ or paying a deposit. However, it is more difficult for foreigners to successfully apply for bailing because the risk of escaping overseas of a foreigner is generally believed bigger than a Chinese citizen. At the same time, it is more difficult for foreigners to find a suitable guarantor and a fixed place of permanent residence. Therefore, public security organs often refuse their application of bailing pending for trial.
Finally, a few suggestions: first of all, if the police tells you that you will be detained, whether it is administrative detention or criminal detention, you better contact your lawyer for help as soon as possible as a freedom restriction in China is a quite severe issue. You can contact your lawyer at any time before or during the process of an administrative detention, while in criminal detention, you can only contact and hire a lawyer to intervene in the case right after the police first interrogation with you ( and this is recommended). This is because if it is a criminal detention, your mobile phone will be confiscated immediately and if you need to contact and hire a lawyer, you must make it clear to the police during the first interrogation and urge them to allow you to do so. Secondly, you can choose to remain silent during your first interrogation. Of course, this is not to suggest you to refuse to cooperate with the investigation or to conceal the facts, or even to deceive the police, because such behaviors may affect the outcome of your final trial and cause disadvantages to you. Keep silent or speak less for those questions that you are not sure about or whether the answers are beneficial to you is because at your first interrogation, you have not contacted a lawyer and got enough advise from. Specifically, you can keep silent about what you’re not sure, disagree with, or don’t understand, or clearly inform the police that you don’t know the answer or cannot clearly recall them. In addition, the police will ask if you want to notify your family members during the interrogation and if you are a foreigner, the police will most likely contact the embassy or consulate of your country of nationality. If you failed to contact your lawyer in time before you are moved to a detention center, you can still ask your embassy or consulate to help you appoint a lawyer when you are in the detention center since most likely the embassy or consulate will send someone to visit you at the time.