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Opinion on Several Issues Regarding the Application of Law in Handling Criminal Cases of Terrorism and Religious Extremism
Public Announcement (2014), No. 34
High people's courts, people's procuratorates and public security departments and bureaus of all provinces, autonomous regions and directly-governed municipalities, the Production and Construction Corps Branch of the Xinjiang Autonomous Region High Court, and the people's procuratorate and public security bureau of the Xinjiang Autonomous Region Production and Construction Corps:
In recent years, violent terrorist cases have presented new forms in some regions of our nation, and have had a direct connection to religious extremist activities, causing a serious threat to national security, social stability, ethnic unity and public security in person and property. The following Opinion on several issues on the applicable law in criminal cases of violent terrorism and religious extremism is is submitted on the basis of the Criminal Law and other relevant laws and regulations, so as to lawfully punish violent terrorist or religious extremist criminal activities and to effectively prevent the occurrence of cases of violent terrorism.
I. Correctly grasp the basic principles of case handling
(1) Adhere to strict handling of cases in accordance with law. Persist in using the facts as the basis and the law as their measure for comprehensively investigating the suspect or defendant's motive, subjective goals, objective conduct and harmful consequences, to correctly understand the delineation between crime and non-crime, between different crimes, and between single and multiple crimes. Strictly follow legal procedures to promptly and comprehensively gather and secure evidence. In major or sensitive cases causing heavy casualties and property losses or seriously endangering national security, public safety, social stability and ethnic unity; adhere to the fundamental criminal procedure principles of dividing labor and responsibility, mutual cooperation and mutual checks, and accuracy and promptness in securing evidence and ascertaining facts, as well as emphasizing efficiency
(2) Adhere to blending severity and leniency, and differential treatment The disposition of criminal suspects and defendants should combine the degree of subjective malice, the extent of the conduct's harmfulness and the role they played in the case; to truly achieve differential treatment. Principle offenders, core members and those perpetrating major criminal acts of organizing, planning or carrying out unlawful violent terrorist or religious extremist criminal activities, as well as those who previously received administrative or criminal punishment for carrying our unlawful violent terrorist or religious extremist criminal activities, or had punishment waived, who again carry out violent terrorist or religious extremist activities, are punished severely in accordance with law. Where they voluntarily surrender, make meritorious service or possess other statutory mitigating circumstances, punishment is mitigated in accordance with law. Criminal punishment may be waived where the circumstances are minor, the harm is not large, and no serious consequences were caused; where a first time offender, casual offender or one who participated in the crime under duress or through deception admits and repents their crime, as well as in other situations were the criminal circumstances are slight and it is not necessary to give a sentence.
(3) Persist in carrying out policies on religion and ethnicity. Strictly distinguish between religious extremist violations and crimes and normal religious activities, strictly carrying out the nation and Party's policies on religion and ethnicity to protect normal religious activity, preserve ethnic unity, strictly prohibit discrimination against religious groups and ethnic minorities, strictly prohibit interference with citizens' freedom of religious belief, and respect criminal suspects and defendants personal dignity, religious beliefs, and ethnic customs.
II. Accurately identify the nature of the case
(1) Where others are organized or gathered to carry out or plan any of the following conduct so as to create social panic, endanger public security, or threaten a state organ or international organization, causing or attempting to cause casualties, major property losses, harm to public facilities or disruption of public order, it is convicted and punished as the crime of organizing, leading or participating in a terrorist organization:
1. Initiating or establishing a terrorist activity organization or a training camp for the purpose of terrorist activities, conducting physical or skills trainings for terrorist activities.
2. Advocating, distributing or transmitting religious extremist or violent terrorist ideology so as to form a terrorist activity organization, develop the organization members, or organize, plot or carry out terrorist activities.
3. After a terrorist organization has been established, using religious extremism or violent terrorist thought to control organization members, or direct organization members, in conducting terrorist activities.
4. Conducting violent activities such as bombings, arson, murder, assault, kidnapping, abduction, intimidation, or the release of hazardous substances and other violence; for specific or unspecified goals.
5. Manufacture, sale, transport or storage of firearms, ammunition, or explosives;
6. Design, manufacture, distribution, mailing, marketing, or displaying markers, flags, insignia, clothing, utensils, or souvenirs with violent content;
7. Participation in activities such as developing action plans or preparing tools for a crime.
Where while organizing, leading or participating in a terrorist organization; homicide, arson, bombings, illegal manufacturing of explosives, kidnapping, robbery or other crimes are simultaneously committed, the crime of organizing, leading or participating in a terrorist organization is combined for punishment with the crime of organizing, leading and participating in terrorist organizations and intentional homicide, arson, bombing crimes, illicit manufacturing of explosives or other crime.
(2) Conducting acts in preparation to commit a crime by participating or gathering others to participate in a terrorist organization, or receiving training when participating in a terrorist organization, or leaving the country or organizing, planning, inciting, or courting others into leaving the country, conducting cross-regional activities within the country is convicted and punished as participating in a terrorist organization.
(3) Carrying out any of the following acts to incite separatism and undermine national unity, is convicted and punished as incitement of separatism:
1. organizing or gathering others to advocate, spread, or transmit religious extremist or violent terrorist ideology;
2. Publishing, printing, reproducing, or issuing books, periodicals, audio and video recordings, or electronic publications which advocate religious extremism or violent terrorism, or creating, printing, or reproducing leaflets, images, posters, or newspapers which propagate religious extremism or violent terrorism;
3. Propagating, disseminating, or spreading religious extremism or violent terrorist ideology by establishing , opening, operating, or administering a website, webpage, forum, email list, blog, microblog, instant messaging tool, [chat] group, chat room, web storage, web phone, cellphone application or other online services, or publishing, posting, duplicating, issuing, broadcasting, or displaying books, articles, images, audio feeds, video feeds, audio and video recordings, and related websites which propagate religious extremism or violent terrorist ideology using cell phones, mobile storage media, electronic readers, etc.
4. Creating, translating, compiling, editing, collecting, or directly obtaining from non-domestic organizations, entities, individuals, or websites books, articles, images, audio-video recordings, etc. which propagate religious extremism or violent terrorism, and providing them for others to read, view, hear, publish, print, duplicate, issue, or disseminate;
5. Designing, manufacturing, distributing, mailing, selling or displaying of markers, flags, insignia, clothing, utensils or souvenirs containing indicators of religious extremism or violent terrorist ideological content.
6. Advocating religious extremist or violent terrorist ideology through other means.
Where implementation of the above acts incites ethnic hatred or ethnic discrimination and the circumstances are serious, it is convicted and punished as the crime of inciting ethnic hatred or ethnic discrimination. Where at the same time, the crime of inciting separatism is constituted, follow the provisions for the more serious punishment in conviction and punishment.
(4) Where clearly knowing it is a terrorist organization or persons carrying out terrorist acts, funding is provided or materials, equipment, vehicles, weapons and other material requirements are provided, or venues or other material facilitation is provided; it is convicted and punished as the crime of funding terrorist activity.
If religious taxes or contributions are collected and used to fund violent terrorist or religious extremist of a criminal nature, it is convicted and punished as joint offense for the the corresponding offense; where it constitutes the crime of subsidizing terrorist activities, it is convicted and punished as the crime of subsidizing terrorist activities.
(5) fabricating false terrorist information on matters posing a serious risk to the public safety such as a threat of explosions, biochemical hazards, radiation threats, aircraft hijacking, major disaster or major epidemic, or where clearly knowing it is false terrorist information but intentionally transmitting or distributing it and seriously disrupting the social order; it is convicted and punished as the crime of fabricating or intentionally transmitting false terrorist information.
Where fabricating false terrorist information or clearly knowing information is fabricated and false, and disseminating it on the internet, or organizing others to disseminate it on the internet, causing serious disorder in the social order, simultaneously constitutes the crimes of provocation and causing disturbances [picking quarrels] and intentional transmission of false terrorist information, it is punished in accordance with the provisions providing for a heavier punishment.
(6) Clearly knowing that books, articles, images, audio works, mobile storage media or e-readers have content using religious extremist or violent terrorist ideology to incite separatism and undermine national unity, or to incite ethnic hatred and ethnic discrimination; is convicted and punished as a joint crime of inciting separatism or of inciting ethnic hatred or ethnic discrimination.
Where although it is not clearly known that books, articles, pictures, audio-visual works, mobile storage media or e-readers have content using religious extremist or violent terrorist ideology to incite separatism or undermine national unity or to incite ethnic hatred or ethnic discrimination; national regulations are violated for profit or other goals, to publish, print, copy, transmit or provide services such as storage, mailing, delivery, transport or transmission; follow the specific crime perpetrated for conviction and punishment.
(7) Those establishing, opening, operating, or managing websites, web pages, forums, email lists, blogs, micro blogs, instant messenger tools, [chat] groups, chat rooms, web storage, web phones, cell phone applications, and other online services, clearly knowing that others are disseminating or advocating content using religious extremist or violent terrorist ideology to incite separatism, undermine national unity, or incite ethnic hatred, or ethnic discrimination, but allow or tolerate others to so distribute on those websites, web pages, forums, email lists, blogs, micro blogs, instant messenger tools, [chat] groups, chat rooms, web storage, web phones, cell phone applications, and other online services; it is convicted and punished as a joint crime of inciting separatism or of inciting ethnic hatred or ethnic discrimination.
(8) Where others are wantonly beaten, chased, intercepted or cursed for being infidels or religious traitors, disrupting social order, and the circumstances are heinous, it is convicted and punished as the crime of provocation and causing disturbances [picking quarrels]
Where performance of the conduct in the preceding clause, at the same time constitutes another crime such as intentional harm or obstructing public functions, convict and punish in accordance with the prisons for more serious punishment.
(9) Where imparting techniques or experience for violent terrorism or other crimes, cannot lawfully be held to be the crime of organizing, leading or participating in a terrorist organization, it is convicted and punished as the crime of imparting criminal methods.
Where, to realize the abetted crime, the abettor also imparts criminal methods, choose the more serious crime to convict and punish as.
(10) Where activities provided for in this Opinion are carried out, but a crime is not committed, follow laws and regulations such as for public security management, management of religious affairs, and for internet, printing and publication management; to give an administrative punishment or conduct education, admonish, or order the activity to be stopped. Items involved in the case are held in accordance with law.
III. Clear up identification standards
(1) An appraisal is not made of the content of publicity materials involved in the case; the public security organs comprehensively review and item by item make notes or excerpts, and the original copies of publicity materials involved in the case are sent to the people's procratorate for review along with the list of seized and transferred items. Where it is not possible to conduct one's own review because the materials involve specialized religions knowledge or language, or for other such reasons, departments such as for religion, ethnicity, or news publications may be requested to review and comment, and then their comments will be sent to the people's procuratorate for review along with the original copies of the publicity materials. Where it is necessary to conduct an appraisal of the legality of publicity publications, print outs, works or circulars involved in the case, the public security organs entrust the news media authorities to put forward an evaluation opinion. People's procuratorates and people's courts shall comprehensively review the content of publicity materials that will be used as evidence.
(2) Determination of whether there was "clear knowledge" shall combine the specific facts of the case, follow the weight of the evidence and emphasize investigation and research to make a comprehensive judgment with the perpetrators' objective conduct as its foundation, combined with their performance throughout such as specific acts, degree, methods, attitude after the matter, their age, the extent of their knowledge and education and their occupation. Those previously given an administrative or criminal punishment for criminal or illegal acts of violent terrorism or religious extremism, who had punishment waived, or those who were given a rectification order but again carried out [prohibited conduct], shall be found to be clearly knowing. Where other suspects or defendants in a joint crime, or others with inside knowledge, confess or testify, but the perpetrator does not concede his subjective "clear knowledge", although he cannot give a reasonable explanation; clear knowledge shall be found where based on his conduct itself or the degree of awareness, it is sufficient to establish that they actually 'clearly knew' or 'should have' known.
Four, clarify jurisdiction principles
(1) Crimes provided for in this Opinion are usually in the jurisdiction of the public security organs at the site of the crime, but where the public security organ for the residence of the suspect is more appropriate, the public security organs for suspects' residences may have jurisdiction. Where there is dispute over a case's jurisdiction, the shared public security organ at the level above may designate jurisdiction; in special circumstances, the public security organ at the level above may designate another area's public security organ for jurisdiction. Where it is necessary to designate jurisdiction in a case that crosses provinces, regions or municipalities, or in a case involving foreign parties or assets, the Ministry of Public Security will designate jurisdiction.
(2) If a criminal suspect must be arrested in a case assigned by a superior public security organ to a subordinate public security organ for filing and investigation, the public security organ investigating the case shall submit the case to the people's procuratorate at the same level for examination and approval, and the people's procuratorate shall make the decision as to whether to approve the arrest in accordance with the law; if the case must be transferred for examination before prosecution, it shall be transferred to the people's procuratorate at the same level by the public security organ investigating the case.
(3) If case examinated before prosecution by the people's procuratorate is believed If the people's procuratorate believes that the case that it is examining before prosecution should be prosecuted by a superior people's procuratorate or a different people's procuratorate at the same level per the provisions on jurisdiction under the Criminal Procedure Law, it shall transfer the case to the people's procuratorate with jurisdiction and at the same time notify the public security organ which transferred the case to it for examination.
Supreme People's Court, Supreme People's Procuratorate, Ministry of public security