翻译:胡佳给全国人大常委会法制工作委员会关于《刑事诉讼法》修正案

(参与2011929日讯)全国人大常委会法制工作委员会:

我是中国公民胡佳(本名:胡嘉),身份证号:110105197307254115。我因煽动颠覆国家政权罪被判处有期徒刑三年六个月,于20110626日自由刑刑满出狱,现正在被继续执行资格刑—-剥夺政治权利。但即便是服刑公民,也有权利对立法、修法提出建议。

作为经历了完整刑事程序的公民,我充分体会刑法和刑事诉讼法与我们权益的密切关系。2008年我在预审期间,预审警官给我提供了《刑法》,让我知晓罪名和可能刑期,但却始终拒绝提供《刑事诉讼法》。我的律师在为我提供法律帮助时也曾给我打印过刑诉法的在押人、被告人的权益保障条款,预审部门却未转给我阅读。庭审阶段我对此深感困惑。直觉认为刑诉法一定有什么对我有利却制约刑侦机关的内容。直至我在监狱服刑时,才从家人处获得了刑诉法的原文。我方明白原来当局是不想让我了解刑事诉讼程序中我的权利。由此,我认为:第一,现有刑事诉讼法的实施在公检法部门办案中常常不被执行,我们的权益常常处于不知情、不被保障中。二,刑诉法内容对公权力的制约本身很薄弱,对犯罪嫌疑人的权利保障很不力。所以,刑诉法的修改甚为迫切。

法治的内涵是良法善治,而非酷法恶治。我国当前的司法滥权是比腐败更具社会危害性的痼疾。警察机关克格勃化,“国内安全保卫”的政治警察拥有法外特权。但至少他们采取的强制失踪和非法拘禁措施无法可依,公民对权利救济还抱有希望。随着问责制度加强和法治进程向前,政治警察部门也对长期的执法犯法将多少有所顾忌。但这次的刑诉法修正案,却提出了正式的克格勃条款,即第三十条、第三十六条和第三十九条,将侵犯公民权利的非法行为合法化,使实体恶法在程序恶法支持下如虎添翼,贻害无穷。现就个人最为关注的条款提出修改意见和理由。

我国刑法第105条第二款“煽动颠覆国家政权罪”,经常被启动用于报复公开批评政府和执政党的公民,此法条违背宪法中的言论自由原则,属于制造冤案和社会对立的恶法。然而此言论罪也包含于“危害国家安全罪”类别中。长期以来,煽动颠覆国家政权罪受到国际和国内广泛的质疑和反对。执政党和政府因此也多次颜面扫地。而当前的刑诉法修正案将危害国家安全罪统一打包,将非罪混同于国事犯罪之中,更会加剧本已广泛的滥用。

第三十条:“指定居所监视居住的,除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪,通知可能有碍侦查的情形以外,应当把监视居住的原因和执行的处所,在执行监视居住后二十四小时以内,通知被监视居住人的家属。”

第三十六条:“拘留后,应当立即将被拘留人送看守所羁押,至迟不得超过二十四小时。除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪等严重犯罪,通知可能有碍侦查的情形以外,应当把拘留的原因和羁押的处所,在拘留后二十四小时以内,通知被拘留人的家属。”

第三十九条:“逮捕后,应当立即将被逮捕人送看守所羁押。除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪等严重犯罪,通知可能有碍侦查的情形以外,应当把逮捕的原因和羁押的处所,在逮捕后二十四小时以内,通知被逮捕人的家属。”

征求意见稿中的以上三条,均有“涉嫌危害国家安全罪”列为法律要件。而活不见人死不见尸的失踪状态,对当事人很恐怖,对当事人的父母妻儿等家属更是一种痛苦煎熬。对法律未定罪的嫌疑人和无辜家属均丧失基本人道。

我在2006216日至328日期间,被公安部国内安全保卫局和北京市公安局国内安全保卫总队秘密扣押,非法拘禁于通州区台湖和梨园的农村。当时甚至根本就没有任何刑事立案,而是一种侵权违法的维稳措施。我母亲和妻子每日奔波于北京各地各级公安和检察机关,查找我的下落。母亲在我失踪的41天内,体重下降十余斤,常常以泪洗面,噩梦我已遇害。政治警察部门自始至终没有通知过我的家人,因此我家人在怀疑他们非法拘禁我之外,也无法排除我是否因为绑架、急病、车祸等丧失生命。

此类克格勃秘密警察式的红色恐怖手段,并非仅在我身上实施过,而是针对很多维权律师、异见人士、艺术家、上访者、以及政治犯家属都采用过。例如高智晟、艾未未、滕彪、江天勇、刘霞、曾金燕等。并且全国各地也都广泛采用,例如山东临沂的陈光诚、湖北潜江的姚立法等。政法机关的统一做法都是秘密扣押、肆意虐待,事中事后皆矢口否认。并施压当事人和家属三缄其口,不得向外界透露受侵害情况。而如果刑诉法修正案中的以上三条通过,将助纣为虐,使司法滥权更有恃无恐,法治进程发生倒退。政法机关依法侵权的直接恶果就是民怨沸腾,党民矛盾和官民矛盾更趋对立,社会加剧动荡。因此建议删去以上三条的但书,无论何种强制措施,皆应在24小时内通知家属。

除此信之外,我已在“全国人大法律草案征求意见系统”中提交以上意见,排第66730位。望全国人大广泛听取民意,立良法,图善治。

公民 胡佳

20110929日周四

—————————————–英文翻译—————————————–

September 29, 2011

To the National People’s Congress Standing Committee Legal System Working Group:

I am the Chinese citizen Hu Jia, ID card number 110105197307254115. I was imprisoned for three years and six months for the crime of incitement to overthrow state power and was released from prison on June 26, 2011. My sentence is not yet complete since I am still deprived of political rights. However, as a citizen who is serving a sentence, I still have the right to make suggestions on legislation and the revision of laws.

As a citizen who has gone through the complete judicial process, I fully realize that the criminal law and the code of criminal procedure are closely connected to our rights. In 2008 at my preliminary hearing, the police officials at the hearing gave me a copy of the “Criminal Law” so that I would understand the crime I was charged with and my possible sentence. However, they refused to give me the “Code of Criminal Procedure”. My lawyer, while giving me legal assistance, provided the articles protecting the rights of people who are in custody or who have been indicted. However, the departments responsible for my preliminary hearing refused to pass it along to me so that I could read it. During the preliminary hearing stage this puzzled me. I assumed that the criminal law must have something that benefits me and constrains the interrogating departments. Not until I was in prison serving my sentence did I finally get from my family the original text of the criminal law. I understand now that the authorities did not want me to understand my rights under the code of criminal procedure.

Therefore, I believe that first, the code of criminal procedure is often not followed by the security and prosecutorial organs in their handling of cases. We are not aware of our rights and they are not protected. Second, the constraints that the criminal law places on the security and prosecutorial organs are very weak. This is very detrimental to the protection of the rights of criminal suspects. Therefore, the revision of the criminal law is urgent.

The rule of law means good laws and good governance, not cruel laws and evil governance. Abuse of power by the administrators of justice is China today is an even worse social plague than corruption. The police organs have become KGB-like and the political police responsible for “protecting domestic security” have extralegal privileges. However, since when they make people disappear or detain them illegally they clearly cannot point to any provision of the law to justify themselves, citizens can still hope that their rights will be vindicated.

With the strengthening of the system that enables citizens to raise questions about the legality of official acts and the advance of the rule of law, the political police departments have had some misgivings about their illegal law enforcement actions. However, this revision of the code of criminal procedure and the addition of truly KGB-like provisions — that is articles 30, 36 and 39 — will legalize illegal violations of citizen rights. These changes will give the actual evil methods greater power than before and cause endless problems since they will be supported by evil provisions in the code of criminal procedure. Here I will present my personal views on the revision of these articles and the reasons behind them.

Article 105, Section 2 of the PRC Criminal law “incitement to overthrow state power” is often used to take revenge on citizens who criticize the government and the ruling political party. This article violates the provision in the PRC Constitution on freedom of speech and is an evil law that is used to accuse people unjustly and create conflict in society. Moreover, this speech crime falls under the category “crime of injuring national security”. For a long time, the “crime of inciting the overthrow of state power” has been widely questioned both within China and abroad. The government and the ruling party have on many occasions because of this have suffered a serious loss of face. The current proposed revision to the code of criminal procedure will combine all national security offenses into one “harming the national interests” category that will sweep up both the innocent and the guilty and will make the already serious abuses even worse.

Article 30: “Notification of residential surveillance, except in cases where serving notice is not possible or in cases where the crime of harming national security or terrorist activities is suspected, or where serving notice would hinder the investigation, should be given to the family members of the person who is under residential surveillance within 24 hours of the beginning of surveillance.”

Article 36: “A detained person should be sent to a detention center immediately upon detention and in no case more than 24 hours after detention. Except for cases in which notification is not possible or in which there is suspicion of the crime of harming national security, terrorist activities or other serious offenses, or in which notification might hinder the investigation, the reason for the detention and the address of the detention center should be given to the detained person’s family within 24 hours.”

Article 39: “Upon arrest, the arrested person should be sent to a detention center immediately. Except for cases in which notification is not possible or in which there is suspicion of the crime of harming national security, terrorist activities or other serious offenses, or in which notification might hinder the investigation, the reason for the arrest and the address of the detention center should be given to the arrested person’s family within 24 hours.”

The request for comments on the draft of these three articles all include “suspicion of a crime against national security” as on of the specified conditions. People who are in the situation of “living but can’t have visitors, die and your body will never be seen” are terrorized. This situation tortures their parents and families as well. This provision lacks basic human decency in its treatment of suspects who have not been convicted and to their innocent families.

Between February 16, 2006 and March 28, 2006, I was illegally detained by the Domestic Security Protection Bureau (Guonei anquan baoweiju) of the Ministry of Public Security and by the Beijing Municipality Public Security Bureau Domestic Security Protection Detachment (guobao) in the villages of Taihu and Liyuan in the Tongzhou District of Beijing. There was no criminal case against me at the time. This was purely a illegal rights violation intended as a measure to ensure stability.

My mother and wife every day visited public security and prosecutorial offices in the Beijing area but were unable to determine where I was being held. My mother during the 41 days I was disappeared lost over ten kilograms and often cried, fearing that I had been murdered. The political police from start to finish never notified my family. Therefore my family, not only worried that I had been illegally detained but also could not exclude the possibility that I had been kidnapped, become seriously ill or had died in a car accident.

I was not the only one to suffer from these KGB secret police style red terror tactics. They have been used against many rights protection lawyer, dissidents, artists, petitioners and the families of political prisoners. Examples include Gao Zhosheng, Ai Weiwei, Teng Biao, Jiang Tianyong, Liu Xia, and Ceng Jinyan. These methods are used all around the country as we seen in the case of Chen Guangcheng in Linyi City, Shandong Province and Yao Lifa of Qianjiang City, Hubei Province. The government and legal organs all use secret detention and wanton cruelty — and then flatly deny it ever happened. Moreover they put pressure on the people involved and their families to keep quiet and not tell the outside world about violations of the law. If these three provisions to the code of criminal procedure are passed, it will only encourage these abuses and those abusing legal authority will feel secure that they have strong backing. China will have a setback on its progress towards the rule of law. The poisoned fruit of legalizing violations of rights will be the anger of the public and ever more serious confrontations between the people and the Party and between the people and public officials. Social upheavals will become more serious. Therefore I suggest deleting these three articles with the proviso that families must be notified within 24 hours in all cases.

In addition to this letter, I have also uploaded the opinions above to the “National People’s Congress Draft Law Request for Opinions System” where it is #66730. I hope that the National People’s Congress will broadly solicit public opinion, enact good laws and seek to improve governance.

Citizen Hu Jia

September 29, 2011

First released on Canyu, if reposting, please indicate the source. ( http://www.canyu.org)

参与首发,转载请注明出处。(http://www.canyu.org

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2 Responses to 翻译:胡佳给全国人大常委会法制工作委员会关于《刑事诉讼法》修正案

  1. hi, subscribed to your blog, and just like to let you know the articles do not display properly in Google reader, it became one huge paragraph.

    • gaodawei says:

      Thanks, I didn’t know about that. The formatting looks OK in my browsers. I’ll see if someone can give me advice about that.

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