1,260 total views, 6 views today
These Opinions are formulated on the basis of the "People's Republic of China Criminal Law", the "People's Republic of China Criminal Procedure Law", and the "People's Republic of China Counter-terrorism Law", and other laws and Provisions, combined with actual judicial practices, so as to lawfully punish terrorist activities and extremist crimes, to preserve national security and social stability, and to protect public's security in their lives and property.
I. Correct Designation of Crimes
(1) Any of the following circumstances shall be designated as 'organizing or leading terrorist activities or a terrorist organization' as provided for in article 120 of the Criminal Law, and convicted and sentenced as the crime of organizing or leading a terrorist organization:
1. Founding or establishing a terrorist organization;
2. After a terrorist activity organization is established, taking responsibility for the decision making, command, or management of the organization or its routine operations;
3．After the establishment of a terrorist organization, organizing, planning, or commanding the members of the organization to carry out terrorist activities;
4．Other situations of organizing or leading terrorist activities.
Any of the following circumstances shall be designated as 'active participation' as provided for in article 120 of the Criminal Law, and convicted and sentenced as the crime of participating in a terrorist organization:
1．Gathering others to jointly participate in a terrorist organization;
2．Participating in terrorist organizations several times;
3. Where those who have previously been pursued for criminal responsibility or have received an administrative punishment within 2 years, for participating in terrorist activity organizations or carrying out terrorist activities and again participate in a terrorist activity organization;
4．Having a prominent role in implementing terrorist activities in a terrorist organization;
5．Actively assisting the coordinators or leaders in implementing the organization or leadership in a terrorist activity organization;
6．Other situations of actively participation in terrorist activities.
Participation in terrorist activity organizations that does not have the circumstances provided for in the previous two clauses shall be designated as 'other participation' as provided for in Criminal Law article 120, and convicted and punished as the crime of participation in a terrorist activity organization.
Those committing crimes provided for in Criminal Law article 120, and also committing homicide, arson, detonation of explosives, kidnapping, robber or other such crimes, are to be convicted and punished in accordance with provisions for combined punishment for multiple crimes.
(2) Any of the following situations are to be convicted and punished as aiding terrorist activities in accordance with Criminal Law article 120-1:
1. Where funding is raised for, or provided to terrorist activity organizations or individuals carrying out terrorist activities, or training for terrorist activity through means such as donations, real estate sales, or the transfer of funds, or where materials, equipment, vehicles, weapons and other material resources are provided, or other material facilitation is provided;
2．Recruiting personnel for terrorist organizations, to implement terrorist activities, or for terrorist activity training, through means such as publicity, hiring, being an intermediary, or transport;
3. Aiding illegal immigration, or providing services to facilitate illegal immigration, such as intermediary services, transport, accommodations, or forgery of identification documents, or who acts as guides through means such as assisting in the exploration of border crossings, to transport people for the terrorist organizations, implementation of terrorist activities, or training for terrorist activities.
4．Other situations of funding terrorist organizations, individuals carrying out terrorist activities, terrorist activity training, or recruiting or transporting people for terrorist organizations, carrying out terrorist activities, or terrorist activity training.
Individuals carrying out terrorist activities includes individuals that have already carried out terrorist activities, and also includes individuals preparing to carry out, or currently carrying out, terrorist activities. Individuals carrying out terrorist activities includes individuals carrying out activities within our nation's territory, and also includes individual carrying out terrorist activities outside our nation's territory. It includes our nations' citizens, and also includes foreign citizens and stateless persons.
The subjective intent for the crime of aiding terrorist activities shall be determined comprehensively on the basis of the specific circumstances of the case, together with the specific actions, capacity for understanding, normal conduct, and occupation of the perpetrators.
Where, knowing that it is the product of terrorist activity crimes or the benefits produced thereof, capital accounts are provided to hide or concede its origin or nature; assistance is given in exchanging assets for cash, financial certificates, of negotiable securities; or settlement methods such as account transfers are used to assist in transferring assets or assist in wiring funds out of the mainland territory, it is to be convicted and punished as the crime of money laundering. Where there is prior collusion, it is to be handled as a joint crime for the relevant terrorist activity crimes.
(3) Any of the following situations, is to be convicted and punished as the crime of preparing to carry out terrorist activities in accordance with Criminal Law article 120-2：
1. The manufacture, purchase, storage, or transport of weapons, inflammable and explosive materials, or hazardous materials such as corrosive, radioactive, infectious, and poisonous items, or other tools, for the purpose of carrying out terrorist activities;
Organizing training for terrorist activities through methods such as in-person instruction, holding training classes, organizing training businesses, opening forums, organizing accessible audio and visual materials, or through the use of websites, web pages, forums, blogs, microblogs, cloud drives, instant messaging, communications groups, chatrooms, or other online platforms or online application services; or actively participating in psychological and physical training for terrorist activities, instruction, or study of criminal methods for terrorist activities, or the conduct of training for terrorist activities;
3. Using methods such as making phone calls or sending text messages or emails, or using websites, web pages, forums, blogs, microblogs, cloud drives, instant messaging, communications groups, chatrooms, or other online platforms or online application services, to contact terrorist organizations or personnel outside the mainland territory, so as to implement terrorist activities;
Entering or leaving the country, or organizing, planning, instigating, or luring others to enter or exit, for the purpose of carrying out terrorist activities;
5．Planning or other preparatory situations for carrying out terrorist activities.
(4) Carrying out any of the following conduct, promoting terrorism or extremism, or inciting the carrying out of terrorist activities, is to be convicted or punished as the crime of promotion of terrorism or extremism or incitement, in accordance with Criminal Law article 120-3:
1. Writing, publishing, printing, reproducing, issuing, distributing, or broadcasting books, periodicals, documents, pictures, or audio and video materials containing terrorist or extremist content;
2．Designing, producing, making, selling, leasing, transporting, shipping, mailing, distributing, or displaying of markers, flags, insignia, clothing, utensils or souvenirs containing indicators of terrorist or extremist content;
3．Using websites, webpages, forums, blogs, microblogs, cloud drives, instant messaging, communications groups, chatrooms, and other online platforms and network applications, to publish, post, reproduce, send, transmit, or demonstrate books, periodicals, documents, pictures, or audio and video materials containing terrorist or extremist content;
4. Where the establishers, operators, or managers of websites, web pages, forums, blogs, microblogs, cloud drives, instant messengers, communications groups, chatrooms, and other online platforms or online application services, clearly know that others are using the online platforms or application services to disseminate or promote terrorist or extremist content, and after being punished by the competent administrative departments still allow or tolerate publication by others;
5. Exploiting religious teaching, sermons, exegesis, study, weddings, funerals, memorials, gatherings and cultural or recreational activities and so forth to advocate terrorism or extremism, or to incite the carrying out of terrorist activities;
6．Other conduct advocating terrorism or extremism, or inciting the commission of terrorist activities.
(5) Using extremism to commit any of the following conduct, is to be convicted and punished in accordance with Criminal Law article 120-4 as the crime of exploiting extremism to undermine the law:
1．Inciting or coercing the masses to hold religious ceremonies in place of marriage or divorce registration, or interfering with marital freedom;
2. Inciting and coercing the public to undermine the implementation of the judicial system established by the nation's laws;
3．Inciting or coercing the public to interfere with minors' acceptance of compulsory education, or undermining the schools' system of education, they nation's educational testing system, and other educational systems;
4．Inciting or coercing the public to boycott lawful administration by the people's governments, or to obstruct the lawful performance of duties by state organ personnel;
5．Inciting or coercing the public to mutilate, or intentionally mutilating national legal documents such as resident identification cards, household registrations, or Renminbi [currency];
6．Inciting or coercing the public to drive people of other ethnicities and other faiths from their residences, or to interfere in the lives and production of others;
7．Other conduct inciting or coercing the public to undermine the implementation of the nation's legally prescribed systems.
(6) Any of the following situations, is to be convicted and punished as compelling the wearing or bearing of clothing or symbols that promote terrorism or extremism, in accordance with Criminal Law article 120-5.
1. Compelling others, through violence, threats or other means, to wear or bear clothes that advocate terrorism or extremism in a public place;
2．Compelling others, through violence, threats or other means, to wear or bear clothing or symbols that have words, symbols, images, slogans, or insignia with terrorist or extremist content;
3．Other situations of forcing others to wear clothing or symbols that promote terrorism or extremism.
(7) Where, knowing that they have content promoting terrorism or extremism, unlawfully possessing books, periodicals, manuscripts, images, audio or visual materials, clothing, symbols or other items, in quantities reaching any of the standards below, it is to be convicted and punished as the crime of illegal possession of items promoting terrorism or extremism, in accordance with article 120-6 of the Criminal Law:
1. 20 or more volumes of books or periodicals, or 5 or more volumes of e-books, or electronic publications;
2．100 or more newspapers, or 20 or more electronic newspapers;
3．100 or more manuscripts or pictures, or 10 or more electronic manuscripts or pictures, or electronic archives that are 500,000 or more characters;
4．20 or more cassette tapes, video tapes, or other audio-visual products, or 5 or more electronic audio or visual materials, or 20 minutes or more of electronic audio or visual materials;
5．20 or more pieces of clothing or insignia
Illegal possession of items that promote terrorism and extremism that does not meet the quantitative standards set forth in the preceding paragraph may also be convicted and punished where there are circumstances such as having multiple instances of possession, possession of many types of items, causing serious consequences or vile social impact, or where they have previously been pursued for criminal responsibility or received an administrative punishment within the last two years for carrying out terrorist activities or extremist violations or crimes.
The amounts shall be calculated cumulatively for multiple instances of illegal possession of items promoting terrorism or extremism that have not yet been addressed. Where possession of materials promoting terrorism or extremism involves different types or forms, they may be calculated cumulatively after being converted according to the ratios of different volume amounts provided in this article.
The 'clear knowledge' in the subjective intent for the crime of illegal possession of items promoting terrorism or extremism shall be comprehensive judged based on the specific circumstances of the case with the perpetrators' objective conduct as the foundation, combined with their demeanor throughout, their specific acts, extent, methods, attitude after the matter, their age, the extent of their knowledge and education and their occupation.
In any of the following circumstances, where the perpetrator cannot make a reasonable explanation, they may be determined to be 'clearly knowing', except where there is evidence proving that they were truly deceived:
1. Where they have previously been pursued for criminal responsibility, or given an administrative punishment within the last two years, for carrying out terrorist activities or extremism crimes, or they commit the offense after having been ordered to make corrections;
2. Where during law enforcement personnel make inspections, they flee, discard items in their possession, or avoid or resist inspections, or have other such conduct, the items promoting terrorism or extremism that are on them, concealed, or discarded;
3. Using camouflage, concealment, secret codes, gestures, codewords, and so forth to secretly manufacture, spread, or possess items that advocate terrorism or extremism;
4．Items advocating terrorism or extremism found in inspections during transport or mailing, where fraudulent methods such as using fake identities or addresses were used to to handle transport or mailing formalities;
5．Situations where there is other evidence sufficient to show that the perpetrator should have known.
(8) Where the commission of a crime provided for in article 120 of the Criminal Law simultaneously constitutes a crime provided for in Criminal Law articles 120-1 through 120-6, conviction and punishment is to be in accordance with the more serious offence.
Where the commission of a crime provided for in article 120-1 through 120-6 of the Criminal Law simultaneously constitutes another crime, conviction and punishment is to be in accordance with the more serious offence.
(9) Terrorism and extremism, terrorist activities, and terrorist organizations are to be determined according to laws and regulations such as the "Counter terrorism Law of the People's Republic of China".
II. Correct Application of Procedures
(1) Intermediate people's courts have jurisdiction over the first-instance trial of criminal cases of the crimes of organizing, leading, or participating in a terrorist organization; aiding activities; preparing to carry out terrorist activities; advocating terrorism or inciting the carrying out of terrorist activities; compelling the wearing or bearing of clothing or symbols that promote terrorism; or illegal possession of items that promote terrorism; basic level people's courts have jurisdiction over the first-instance trial of criminal cases of the crimes of advocating extremism; using extremism to undermine the implementation of law; compelling the wearing or bearing of clothing or symbols that promote extremism; or illegal possession of items promoting extremism. On the basis of provisions on hierarchical jurisdiction together with the public order situation for that area, the volume of cases, and other such circumstances, High People's Courts may decide to centralize jurisdiction, designating certain intermediate people's courts in their jurisdiction region to concentrate first-instance trials of terrorist activities and extremism crimes, or designate certain basic level people's courts in their jurisdictional region to concentrate first-instance trials of extremism crimes, and report the list of designated courts to the Supreme People's Court.
(2) Where the national leading institution for counter-terrorism efforts has identified and announced terrorist organizations and terrorist activity personnel, the people's courts may directly make an identification on the basis of the announcement. Where the national leading institution for counter-terrorism efforts has not made an announcement, the people's courts shall strictly follow the "Counter-terrorism Law of the People's Republic of China". As for the determination of definitions of terrorist organizations and terrorist activity personnel, when necessary, the public security organs at the municipal level or above may be asked to issue opinions as a reference.
(3) The determination of pictures, audio-visual materials, clothing, symbols, or other items promoting terrorism or extremism, shall be analyzed and judged based upon the provisions of the "Counter-terrorism Law of the People's Republic of China" regarding terrorism and extremism, their content, external appearance, and so forth. Public security organs shall comprehensively review the items involved in cases individually, and label them or take excerpts, submit review opinions, and transfer them to the people's procuratorate for review together with the list of items involved in the case that were seized and transferred and the original items. The People's Procuratorates and the People's Courts may combine the evidence of the case, the circumstances of the case, and case handling experience to make a comprehensive review and judgment.
(4) Electronic data collected or extracted during the preliminary investigation of cases of terrorist activities or extremism crimes, as well as electronic data extracted online, may be used as evidence. Electronic data on terrorist activities or extremism crimes for which the original storage medium is outside the mainland or which is on a remote computer information system, may be extracted online through the networks. When necessary, remote computer information systems can be inspected remotely online. After a case is opened, technical investigation measures may be employed upon approval of the responsible person for a public security organ at the districted city level or higher. Electronic data on terrorism and extremism crimes may be frozen upon the approval of the responsible party at a public security organ or a chief procurator at the county level or above where it is large or will take a long time to obtain. Where specialized issues involved in electronic data are difficult to determine, qualified forensic evaluation establishments are to issue an appraisal opinion, or an establishment designated by the Ministry of Public Security is to issue a report.
III. Improving Work Mechanisms
(1) People's courts, people's procuratorates, and public security organs handling cases of terrorist activities or extremist crimes shall cooperate with each other and restrain each other to ensure that the effective implementation of the law, and where the primary facts, key evidence, and application of the law might produce differences of opinion, or in major, difficult, or complicated cases of terrorist activities or extremist crimes, where the public security organs request to hear the opinions and recommendations of the people's procuratorate with jurisdiction, the people's procuratorate may put forward opinions and recommendations。
(2) The public security organ for the site of the crime usually has jurisdiction over terrorist activities and extremist crime cases, but where it is more appropriate for the public security organ at the place of the criminal suspect's residence to have jurisdiction, then it may exercise jurisdiction. Cases shall be transferred individually and in their entirety, with collected physical evidence and seized items all transferred with the case. The public security organ that transferred the case shall assign a special person to cooperate with the public security organ that receives the case to carry out follow-up case handling.
(3) People's courts, people's procuratorates, and public security organs handling cases of terrorism or extremist crimes shall persist in treating persons involved in the case differently, carrying out education and reform of persons incited, coerced or enticed into participating in terrorist or extremist activities or persons who participated in terrorist or extremist activities or those where the circumstances were minor and do not constitute a crime, and shall organize relevant departments, villagers' committees, residents' committees and workplaces, schools, families and guardians to conduct aid and education. For criminals convicted of terrorism or extremism crimes who are given a criminal punishment of imprisonment or higher, the intermediate people's court for the place where they are serving their sentence shall make a decision based on the outcome of the assessment of their dangerousness to society and recommendations on educational placement, as to whether to put them in education placement at the completion of their sentence The people's procuratorate is to conduct supervision of the educational placements in accordance with the law, and where there is any illegal act during the implementation of educational placements, they shall promptly issue corrective opinions or procuratorial recommendations.