One of the cases not yet resolved is that of pro-democracy activist and U.S. permanent resident Dr. Yang Jianli, who has been in detention in China since he was first taken into custody in late April 2002. Yang was tried on August 4, 2003 in a three-hour secret trial for illegal entry into China and espionage for Taiwan. More than 8 months later, he is still waiting for a verdict. There is simply no basis under Chinese law for his ongoing posttrial detention. Indeed, members of Yang Jianli¡¯s family, both inside and outside China, submitted a petition to the National People¡¯s Congress to draw attention to his case and ask that a special investigative committee be formed to inquire into the reasons behind his unlawful extended custody. (boxun.com)

Illegally prolonged detent ion can occur at any stage of the criminal justice process, from pre-arrest detention through the post-trial phase when the verdict and sentence are being decided. In addition to the cases resolved last year, more than 308,000 cases of illegally prolonged detention were reportedly cleared up during the period from 1998 through 2002 ¨C numbers which suggest that extended custody is indeed a widespread and serious problem. One particularly egregious case that was widely reported on by the Chinese media involved a farmer in Guangxi province who literally had been ¡°forgotten,¡± spending 28 years in detention without ever being charged or tried, before his case was discovered.

Unlawful extended custody often accompanies the detention and trial of people the Chinese government is not happy with¡ªwhether Internet political essayists, labor protest organizers, or exiled democracy activists who return to China. In addition to frequent occurrences of extended pretrial detention in ¡°sensitive¡± cases, unlawful extended detention after trial is also prevalent. Under China¡¯s criminal procedure law, a court has, at a maximum, two and a half months from the date it receives a case to announce a verdict in the case. Although the criminal procedure law contains several exceptions to this time requirement, none is relevant once the courtroom hearing has concluded. Nevertheless, Internet activist Huang Qi spent nearly two years in detention awaiting a verdict after his trial for inciting subversion, and four Internet activists known as the New Youth Society waited more than 18 months in detention after their courtroom hearing for their verdicts on subversion charges. Liaoyang labor protest leaders Yao Fuxin and Xiao Yunliang were tried for subversion in mid-January 2003, but did not learn of their verdict until early May 2003.

In addition to his current post-trial unlawful extended custody, Yang also spent more than 15 months in pretrial detention, during which the UN Working Group on Arbitrary Detention found that he was being arbitrarily detained in violation of international human rights standards. Moreover, Yang¡¯s pretrial detention was extended repeatedly without any clear basis under Chinese law. There is no effective mechanism for a detainee in China to challenge extensions of detention or the lawfulness of his detent ion. Yang was not even able to meet with his lawyer until July 2003 -- about one month before his trial. During Yang¡¯s prolonged pretrial detention, he was interrogated more than 100 times by public security and state security officials, who were undoubtedly eager to obtain information about the pro-democracy movement abroad from a prominent activist. During last year¡¯s campaign to resolve the problem of illegally prolonged detention, the SPP and SPC announced measures designed to prevent future occurrences of illegally prolonged detention. These measures include disciplinary punishment and possible criminal prosecution for law enforcement officers who intentionally hold detainees in extended custody, enhanced procedures for supervision of detention time limits and better case management, the establishment of an early warning system as detention period deadlines approach, and greater use of non-custodial detention measures. In addition, in order to deal with the problem of multiple rounds of appeals and remands for retrial to the trial court in cases involving unclear facts or insufficient evidence -- during which defendants might languish in detention for years -- the appellate court is now limited to only one remand to the trial court for retrial.

Although these measures are a good start, more is needed to resolve the problem of illegally prolonged detention at a systemic level. A promising development is that many such reforms are currently being discussed and debated in China, and revision of the criminal procedure law was included in the recently issued 5-year legislative agenda for the National People¡¯s Congress. In March 2003, an international symposium on bail was held in Beijing. A bail-type system is necessary to satisfy the requirement of the International Covenant on Civil and Political Rights (which China has signed but not yet ratified) that pretrial detention not be the general rule, but rather the exception. In the fall of 2003, another international conference in Beijing addressed the problems facing criminal defense lawyers in China, including lack of access to detained clients and other issues relating to pretrial detention. Adoption of the right to remain silent and the presumption of innocence, which have been hot topics in Chinese legal circles for quite a while, would remove the incentive the police currently have to hold suspects for as long as it takes to extract a confession. Moreover, there is also discussion of the need for independent judicial review of arrest and detention, and the right for a detainee to challenge the lawfulness of his detention through a habeas corpus-type provision. It remains to be seen, of course, how many of these and other reforms aimed at dealing with the problem of unlawful detention (and confessions coerced through torture) actually make it into the next revision of the criminal procedure law, and even if written into law, how effective its implementation will be.

But even if suc h reforms were instituted tomorrow, it is unlikely that they would help Yang Jianli and other defendants like him. The Chinese authorities know about Yang Jianli and they must know that he is being unlawfully detained. Unlike the case of the farmer in Guangxi, Yang most certainly has not been forgotten; his case is frequently raised by the U.S. State Department and members of Congress, as well as other supporters. Other factors are at play: most likely there¡¯s a dispute at high levels of the Party/state over how to ¡°handle¡± his case, or he is being held as a political bargaining chip. Or the Chinese authorities may possibly be concerned about international and domestic reaction once they actually pronounce a verdict and sentence (China has close to a 100% conviction rate in political cases).

Thus for Yang and others like him, the problem of unlawful extended custody will be resolved only when the concept and term ¡°political dissident¡± no longer has currency in China and the criminal justice system and judiciary are protected from Party/state interference and manipulation. For now, Yang remains in detention beyond the legal time limit, and sadly, there¡¯s not much his lawyer or family can do about it, except join the ranks of the more than 80,000 other Chinese citizens who have already petitioned the National People¡¯s Congress this year in a final attempt to get their grievances heard. Andrea Worden, a former senior counsel at the Congressional-Executive Commission on China, is currently a Fellow at the Yale Law School. _(²©Ñ¶×ÔÓÉ·¢¸åÇø·¢¸å) (boxun.com)