by Jeremy Daum May 6， 2014 （update May 9） Today, Chinese lawyer Pu Zhiqiang and four others were reportedly detained by Haidian police on suspicion of the crime of “picking quarrels and provoking troubles” (aka provocation and causing disturbances, 寻衅滋事) after attending an event commemorating the Tiananmen incident.
This is the same offense that police invoked to arrest activist Cao Shunli when she attempted to travel to Geneva to participate in a human rights training. It is also the offense for which labor activist Lin Dong is being held following his suspected involvement in a massive strike at the Yue Yuen shoe factory in Guangdong. Pu Zhiqiang is now the second lawyer this year to be taken into custody by Haidian police on this charge, the first being Wang Quanping who put slogans on his car satirizing the trial of another lawyer, Ding Jiaxi, a member of the New Citizens Movement.
One might expect this to be an offense of that sort which is broadly defined and can easily be stretched to provide a fig leaf of legality when police decide to take someone into custody but can’t (or can’t yet) make any other offense stick. A binding interpretation jointly released last year by China’s highest judicial and prosecutorial authorities, however, has already significantly clarified when this charge is supported, but this doesn’t seem to have slowed police.
The crime’s basis is in article 293 of China’s Criminal Law, where four types of activity are prohibited:
1) arbitrarily attacking people with heinous circumstances, or
2) “chasing, intercepting, berating or intimidating” others, where the “circumstances are heinous”;
3) forcibly taking, destroying or occupying public or private property where the circumstances are serious; and
4) making a commotion and causing serious disorder in a public place.
A single offense by an individual is generally punishable by up to five years in prison, but up to 10 years may be given if their are multiple group offences handled together.
Even at first glance the crime looks too specific to be drafted into service as a catch-all offense, and the new interpretation raised the bar even higher by defining when ‘circumstances are heinous’ for the first and second items, and ‘serious’ for item three. Casual violence is heinous, for example, when done with a weapon; when it causes a minor injury (defined to include simple skull fractures or perforated eardrums) or slight injuries to two people (e.g. broken hand, blood in urine); or when it targets vulnerable populations such as children or the disabled. The property offenses only become serious when taking at least 1000 yuan ($160) or destroying 2000 yuan ($320); targeting vulnerable populations or committing multiple offenses.
Of course, the police are probably hanging their case against Pu Zhiqiang et al on the fourth item, the serious disruption of public order. Its inclusion here within the same charge as random attacks and property destruction, and the high bar set for those acts, make clear that the level of disturbance must require a fairly severe disruption before it constitutes the crime. This clause is by its nature more malleable and situation-specific, but the interpretation counsels caution by saying that:
“Whether causing a commotion at a bus station, port, airport, hospital, market, park, theater, exhibition hall, stadium or other public venue amounts to ‘causing serious disorder at a public venue’ shall be judged upon the totality of factors such as the type of public venue, the importance of the public event, the number of people at the venue, the time of the commotion, and the scope and degree to which the forum was impacted.”
Chinese police have argued in the past that the internet is also a public venue for the purposes of this law, to pursue people who have placed information online that might cause a commotion either on or offline. While this interpretation doesn’t rule out this proposition, the internet seems qualitatively different from the examples of public venues given, and it would be difficult to perform the comprehensive test described on the internet as a whole.
A second judicial interpretation, however, makes clear that ‘picking quarrels’ does in fact sometimes apply to the internet. The controversial SPP and SPC joint interpretation on using information networks to commit defamation and related crimes released in September of last year, made clear that two types of online conduct can, in fact, be tried and punished under this charge. First, use of the internet, mobile networks or other information networks to berate others can be punished under the item (2) prohibition against berating others. It would still be subject to the requirements of the picking quarrels interpretation that it involve multiple offenses, target vulnerable populations or cause a serious harm such as suicide.
Second, dissemination of false information on the internet, personally or through others, which causes a public uproar, can be charged under item (4) disrupting public order. This situation applied against internet blogger Qin Huohuo, who was also charged with online defamation, after he repeatedly released inflammatory rumors on the internet. For his crime he received 3 years in prison (1.5 years was the sentence for the ‘quarreling and provocation alone). The internet crimes interpretation and the Qin huohuo court, both emphasized that a crime is committed when the disseminated information is false. The interpretation clearly states that information released on the internet becomes a problem only when it is fabricated or clearly known to be fabricated.
These two situations are the sole mentions of the use of the ‘picking quarrels’ offense for online crimes, and they were already viewed as a bold expansion of the existing crime; making it difficult to imagine the SPP and SPC intended an even broader expansion which includes situations such as discussion of sensitive topics.
In the case of lawyer Pu et al, it is still unknown what conduct is alleged to have violated article 293 of the Criminal Law. Likely, it was the release to journalists of a public Statement regarding the symposium– requiring the assertion that it contains false statements. Given that the thrust of the Statement is to call for reflection on the events of 1989, it would be ironic if its authors’ trial required a detailed inquiry into the truth of their comments.
— As for what punishment those detained today might expect, increased transparency in China’s courts makes it possible to review other cases to compare sentencing. There are no trials posted yet for the ‘disturbing order’ portion of the law （other than Qin huohuo above), but the types of prohibited conduct are clearly listed from most to least serious, so one would expect that the base sentence would be more mild than for violence against people or property. The list below contains a few examples of trials for ‘picking quarrels’ published this year by the Haidian court:
1. Offender: Mr. Lu, 20 yrs old
Facts: Joined with groups that carried knives and other weapons to randomly attack motorcyclists and pedestrians on two occasions, causing ‘slight injuries’. Turned himself in.
Sentence: 6 months, short-term detention.
2. Offender: Mr. Bai, 39 yrs old previously sentenced to 1 year for same offense in 2005.
Facts: Hit two cars with a brick for no apparent reason while drunk, causing 6,741.5 yuan in damages. Partially compensated one of the car owners (4500 yuan) and obtained forgiveness from both victims.
Sentence: 6 months imprisonment.
3. Offender: Mr. Zhang, 33 yrs old, Masters Degree.
Facts: While drunk began to cause a scene, argued with police officer, tearing at the officers clothes and arms, causing bruises but not enough to consider a “slight injury”. Broke a small window on a police car (360 yuan) and then two chairs in the jail once detained (2,880 yuan). Paid compensation for all property damage he caused.
Sentence: 6 months imprisonment, one year suspended sentence.
It may be several months before a trial begins in these new cases, if they ever reach that point, but the courts and prosecutors can use this opportunity to follow the letter of their interpretation, and fulfill their commitment to preventing wrongful convictions. The alleged charge is a serious offense, and the courts and prosecutors should demand that police provide them with evidence sufficient to meet the burden the laws and their interpretation have set. If a sentence is given, it should be commensurate to the crime as other crimes of this type tried by the Haidian courts.
UPDATE (8/1/2014) : The one relevant document that was not mentioned in the original version of this note was the Supreme People’s Court’s Sentencing Guidelines for Commonly seen Crimes for 2014. For the crime of ‘picking quarrels’, Section 4.13 of that document clarifies what base penalties should be given on review of the specific case facts, and this base would then be modified to reflect any mitigating or aggravating factors. Pu is seemingly accused of only a single instance of ‘provocation’ with little or no harm:
IV. Sentencing of Common Crimes
(13) Provocation and causing disturbances
- Where the crime of provocation and causing disturbances is established, a point of departure for sentencing within the statutory range may be found in accordance with the following distinct situations:
- Where there is one incident of provocation and causing disturbances, the departure point for sentencing may be set starting within the range of short-term detention to up to 3 years imprisonment.
- Organizing others for provocation and causing disturbances three times (with each time constituting a crime), where social order is seriously disrupted, may be have sentencing set starting within the range of 5 to seven years imprisonment.
- From the sentencing starting point, a base sentence may be set based on criminal facts that influence the establishment of the crime and increase punishment such as the number of incidents, the injury caused, the amount forcibly taken or wantonly destroyed, or the amount of public or private property occupied.