Provisions on Several Issues Regarding the Investigation and Handling of Cases of Leaked Secrets by the People's Procuratorates and Departments for the Administration of Secrecy

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Notification of the Publication and Release of the "Provisions on several issues regarding the investigation and handling of cases of leaked secrets by the people's procuratorate's and Departments for the Administration of Secrecy"

People's procuratorates and Secrets Bureaus of all provinces, autonomous regions and directly governed municipalities; people's procuratorate and Secrets Bureau for the Xinjiang Production and Construction Corps, and military procuratorates:

These "Provisions on several issues regarding the investigation and handling of cases of leaked secrets by the people's procuratorate's and Departments for the Administration of Secrecy" are drafted so as to protect state secrets, preserve national security and interests, and increase cooperation between the departments for the administration of secrecy and the people's procuratorates in investigating and handling cases of leaked secrets. It is hereby issued to you, please earnestly comply with and implement it.

The Supreme People's Procuratorate State Secrets Bureau

December 14, 2016

Article 1: These Provisions are drafted on the basis of the "Criminal Law of the P.R.C." the "Criminal Procedure Law of the P.R.C.", the "P.R.C. Law on the Protection of State Secrets" and other relevant legal provisions, so as to protect state secrets, preserve national security and interests, and increase cooperation between the departments for the administration of secrecy and the people's procuratorates in investigating and handling cases of leaked secrets.

Article 2: "Leaked Secrets Cases" as used in these provisions include cases of illegal cases of leaking secrets and criminal leaking of secrets.

Cases of illegal leaking of secrets refers to cases where the acts of organs, units, or related individuals violate laws, regulations, or rules on preservation of secrets, so that state secrets are leaked or might be leaked; but where a crime has not been constituted.

Cases of criminal leaking of secrets refers to cases where the crime of intentional leaking of state secrets or negligent leaking of state secrets is constituted, as provided for by the Criminal Law and relevant judicial interpretations, and where criminal responsibility should be pursued in accordance with law.

Article 3: The investigation of cases of illegal leaking of secrets is organized by the department for administration of secrecy for the place where the organ, unit or relevant individual that had the leak occur is occur is occurred. Where relevant laws, regulations, or rules have other provisions on the jurisdiction of cases of illegal leaking of secrets, follow those provisions.

Article 4: Cases of criminally leaking secrets are to be filed and investigated by the people's Procuratorate of the place where the crime is committed. When necessary, the people's procuratorate for the site of the suspects' domicile may file and investigate.

The site of the crime for cases of leaked secrets includes the place where the criminal leaking of secrets was carried out; the location of the organ or unit where criminal leaks occurred; the location of media carrying state secretes involved in the case; the location of computer information systems or network servers involved in the case; as well as the location of organs or units that were directly harmed by the case of criminal leaking of secrets.

Article 5: Where upon preliminary investigation, departments for the administration of secrecy investigating and handling cases of illegally leaked secrets, find that there is suspected criminal leaking of secrets that should be pursued for criminal responsibility in accordance with law, they shall immediately suspend the investigation and transfer it to be investigated and the people's procuratorate at the same level that has jurisdiction, within 10 days of suspending the investigation.

The departments for the administration of secrecy shall attach the following materials when transferring cases of suspected leaking of secrets to the people's procuratorate:

(1) Case transfer documents;

(2) A preliminary investigation report on the case circumstances;

(3) a list of items involved in the case;

(4) the relevant inspection reports or classification level appraisal;

(5) Other materials related to proving the suspected criminal leaking of secrets.

Article 6: Departments for the administration of secrecy that receive reports from organs and units, transfer from related departments, and reports by citizens of clues concerning suspected leaking of secrets criminal cases, or if clues of secrecy leaking cases are discovered in secrecy reviews, and it is considered that the matter meets the standard for opening a file for the crime of the leaking of secrets, the clues for the matter should be transferred to the procuratorate at the same level or the procuratorate with jurisdiction.

Article 7: When people's procuratorates directly accept, file, and investigate cases of suspected criminal leaking of secrets, where they discover that state secrets have been leaked or there is a risk of their being leaked, they shall immediately report the situation to the department for the administration of secrecy.

When people's procuratorates handling other cases discover acts that are suspected to be illegal leaking of secrets that do not constitute a crime, they shall promptly report the relevant circumstances to the department for administration of secrecy at the same level.

Article 8: People's procuratorates shall conduct a review of materials sent by the departments for the administration of secrecy on cases of suspected criminal leaking of secrets, and when necessary may conduct a preliminary investigation. Where upon review it is found to meet the requirements for filing a case, they shall promptly make the decision to file the case and notify the department for administration of secrets that transferred the case within 10 days of making the decision to file the case.

When people's procuratorates decide not to file a case, they shall draft a No Case Filing Notice indicating the case’s subject matter, source, reasoning, and legal basis for not filing; to be delivered to the Bureau for Administration of Secrecy within ten days of the date on which the decision to not file the case was made.

Article 9: The department for the administration of secrecy that transferred a case which the procuratorate decides not to file may make a request that the people's procuratorate reconsider the decision,within 5 days of receiving the written notification of the decision. People's Procuratorates shall separately appoint someone to review and make a reconsideration decision within seven days after receipt of the department for administration of secrecy's written reconsideration request.

Where departments for the administration of secrecy is dissatisfied with the reconsideration decision, ithey may request a review from the procuratorate at the level above within 5 days of receiving a people's procuratorate's written reconsideration decision. The people's procuratorate at the level above shall make a review decision within 5 days of receiving the department for the administration of secrecy's request for a review. Where the original decision not to file was in error, it shall be corrected promptly, and the lower level people's procuratorate that made the decision shall be informed to enforce it.

Article 10: Where during or after investigation, people's procuratorates discover situations provided for in article 290 of the "Preople's Procuratorate Rules of Criminal Procedure (Provisional)", they shall revoke the case and promptly send the written decision to revoke the case to the department fo administration of secrecy that transferred the case.

Article 11: Where after people's procuratorates conduct a review of cases of criminal leaking of secrets, they find that the facts of the suspects' crime are already clear and the evidence is credible and sufficient, and criminal responsibility shall be pursued in accordance with law, they shall make a decision to prosecute and promptly notify the department for the administration of secrecy that transferred the case.

Where, after people's procuratorates conduct a review of cases of leaked secrets, they find it is elligible for non-prosecution as provided for in the "People's Procuratorates' Rules of Criminal Procedure (Provisional)", they are to lawfully make a decision to not prosecute, and promptly send a copy of the written non-prosecution decision to the department for the administration of secrecy, and explain the reasons and legal basis for deciding not to prosecute.

Article 12: Where people's procuratorates discover any of the following situations in the course of handling a case of criminal leaking of secrets, they may submit a procuratorial recommendation to the relevant competent department, or the organ or unit where the case occurred, and so forth, calling for handling in accordance with law and discipline, improving work, and so forth:

(1) Where it is decided to not file a case, revoke a case, or not prosecute, but it is necessary to give sanctions to the responsible persons in charge or other directly responsible persons at the organ or unit where the incident occurred;

(2) Where the organ or unit where the case occurred has not improved in terms of administrating for prevention of leaks, has an incomplete system or unimplemented system, and there is a danger of criminal leaking of secrets;

(3) Where the competent industry department or supervisory organ fro the organ or unit where the case occurred needs to strengthen of improve that industry's efforts to preserve secrecy;

(4) Others where it is necessary to submit a procuratorial recommendation.

Where people's procuratorates make a procuratorial recommendation to competent departments or units, they shall simultaneously send a copy to the department for administration of secrecy with jurisdiction.

Article 13: Departments for the administration of secrecy transferring cases of suspected criminal leaking of secrets to the people's procuratorate, shall transfer evidence materials collected in the course of administrative law enforcement such as physical evidence, documentary evidence, AV evidence, and electronic data, to the people's procuratorate along with the case, in the name of that department for the administration of secrecy. Those meeting legally prescribed requirements upon review by the people's procuratorate may be used as evidence in criminal procedures.

All appraisals, inquests, and investigation records gathered by Bureaus for the Administration of Secrecy in the course of investigating a case of leaked secrets may be used as evidence in a criminal case upon review for compliance with statutory requirements by a people's procuratorate.

People’s procuratorate handling cases involving secrecy shall recollect all statements and testimony from persons involved in the case, which were collected during the course of Bureau for the Administration of Secrecy in the course of handling a case of leaked secrets. In cases where there is credible evidence that persons involved in the case are too remote or have died, disappeared, or lost their capacity to testify, and the statement or testimony was collected legally from a lawful source and there is other corroborative evidence, it may be used as evidence in a criminal case upon review for compliance with statutory requirements by a people's procuratorate.

Article 14: In the course of investigating cases of criminal leaks of secrets, the people's procuratorate shall promptly adopt measures to seal or seize the media containing state secrets involved in the case, to prevent any increase in the scope of the leak.

The departments for the administration of secrecy shall promptly notify the people's procuratorate to seal or seize facilities, equipment, documentary materials and so forth, that have been previously registered and stored or taken in; and provide necessary support.

Article 15: Where, in the course of handling cases of criminal leaking of secrets, people's procuratorates need to conduct an evaluation of whether matters are state secrets and what level of classification they have, they shall request a classification level evaluation from a department for the administration of secrecy with the authority to make an evaluation. The departments for the administration of secrecy shall make an evaluation and issue a classification level evaluation document.

Article 16: For difficult or complicated cases of leaking secrets, the departments for the administration of secrets may submit questions or consultative opinions to the people's procuratorate on the nature of the case, prosecution criteria, fixing evidence, and other issues.

Article 17: Where departments for the administration of secrecy should transfer cases of suspected criminal leaking of secrets to the people's procuratorate, but do not transfer it, or do not transfer within the allowed time, or where they give sanctions instead of transferring the case, higher-level departments for the administration of secrecy shall order it to be transferred within a fixed period of time; where the circumstances are serious, the responsible managers and other directly responsible persons are to be given sanctions in accordance with law.

People's procuratorates accepting accusations or reports, or discover that departments for the administration of secrecy shall transfer cases of suspected criminal leaks of secrecy, but do not do so, or do not do so within the prescribed time period, or use sanctions in place of transferring the case, they shall submit a procuratorial opinion to the department for the administration of secrecy, suggesting it be transferred, and the department for the administration of secrecy shall immediately transfer it. Where the departments for the administration of secrecy do not make a transfer, the people's procuratorate shall report the relevant circumstances to the department for the administration of secrecy at the level above, and when necessary directly file and investigate the case of the suspected criminal leaking of secrets. Criminal responsibility of those who criminally derelict their duty to transfer a case is to be pursued in accordance with law.

Article 18: Where the relevant departments of people's procuratorate do not accept a case transferred by the departments for the administration of secrecy, or do not make a decision to file or not file a case within the legally prescribed time, the department for the administration of secrecy shall report the situation to the people's procuratorates and submit opinions. Where upon review the people's procuratorate finds that situations of illegality exist, they shall promptly make corrections; where the circumstances are serious, the managers and other directly responsible personnel are to be give sanctions in accordance with law; where a crime is constituted, criminal responsibility is pursued in accordance with law.

Article 19: The people's procuratorates are to establish and improve mechanisms for aggregation and control of leads in cases of criminal leaking of state secrets. The relevant department of the people's procuratorate shall employ classified registration, designating responsible persons, periodic reporting, and other such measures to prevent cases or leads on the criminal leaking of secrets transferred by the departments for the administration of secrecy.

Article 20: People's procuratorates and departments for the administration of secrecy are to establish and improve mechanisms for coordination and consultation in cases of leaked secrets. Before the departments for the administration of secrecy transfer major, difficult, or complicated cases of criminal leaking of secrets in accordance with provisions, they may initiate coordination mechanisms to carry out discussions with the people's procuratorates on the nature of the case, the applicable law, case jurisdiction, and other such issues.

Article 21: The people's procuratorate and departments for the administration of secrecy are to establish and improve emergency response and disposition mechanisms for cases of criminal leaks of secrets. Where there is an emergency secrecy incident, the departments for the administration of secrecy may lawfully initiate the emergency response and handling mechanisms, and request that the people's procuratorates provide assistance within the scope of their duties in accordance with law.

Where in the course of investigating a case of criminal leaking of secrets the people's procuratorate discover it is necessary to immediately employ preventative or remedial measures, they may discuss activating the emergency response and disposition mechanisms with the departments for the administration of secrecy.

Article 22: The people's procuratorate and departments for the administration of secrecy are to establish joint conference mechanisms. Both parties shall promptly mutually transfer and handle situations related to cases of suspected criminal leaking of secrets as well as work linkage, shall consult on legal and policy issues that arise in case transferring and handling, and shall research key points and measures for incremental work.

Article 23: The people's procuratorate and departments for the administration of secrecy are to establish information sharing mechanisms. Strengthen and advance the establishment of platforms for linking work and sharing information, realizing the mutual exchange of administrative law enforcement information and criminal justice information between the people's procuratorates and the departments for the administration of secrecy.

Article 24: The Supreme People's Procuratorate and State Secrets Bureau are responsible for interpreting these Provisions, which are to take effect when released.

 

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