For China, human rights is disturbing social order
- China primarily criminalizes human rights defenders with laws on Disturbing Social Order
- In contrast, top crime category across whole population is Endangering Public Security
- Endangering Public Security is a broad category encompassing violent crimes, dangerous driving to selling fake medicine
China’ Criminal Code divides crimes up into nine different categories or chapters, which cover different areas of society and behaviour from national defense to malfeasance in public office. Each category has dozens of Articles describing many actions that constitute a crime. Some categories appear to overlap – for example fraud can be found in five categories - from Undermining the Socialist Economic Order to Obstructing the Administration of Social Order. The number of laws in each category can also change with each revision of the Criminal Code over time.
Earlier this year, Safeguard Defenders analysed around 1,400 human rights-related court cases in China over the past 15 years. We used it show that the Chinese Communist Party continues to arrest and impose lengthy sentences on Falun Gong practitioners.
We found that more than 62% of cases in our database belong to Obstructing the Administration of Social Order, in particular its subset Disturbing Social Order. The most common crimes within that category were Picking Quarrels and Provoking Trouble (Article 293), aimed at petitioners and activists, and the Anti-cult law (Article 300), targeting Falun Gong and other banned religions.
A smaller number of human rights defenders, especially human rights lawyers, are accused of Endangering National Security crimes – Subversion of State Power and Incitement to Subvert State Power (Article 105).
Getting official data on court judgements is not easy as China has been restricting access to data for people outside China and also removing existing data from its databases.
The Supreme Court’s National Court Judicial Statistics Bulletin (Gongbao) [全国法院司法统计公报] records decided criminal court cases. Decided cases are close to, but not exactly the same as, convictions. Decided cases are those that have gone to trial and reached a verdict (both guilty and non-guilty) in a court of first instance (that means it does not include appeals). Since convictions in China are near 100%, we can assume that this number is almost the same as first-instance convictions.
Gongbao only provides data by category, not by crime, so it is not possible to see the most common crime within a category. It does not include Endangering National Security crimes and may also omit other crimes or cases, so it is far from complete.
Our data on human-rights related cases were culled from our own database, the US Congressional-Executive Commission on China (CECC), and the NGO Chinese Human Rights Defenders (CHRD). There are caveats to this data, including non-random sampling and a relatively small number of cases per year due to manpower limitations.
While accepting the shortcomings of both datasets and remembering that exact comparison by year is not possible because our dataset records convictions and Gongbao records decided cases, which may not align by year, it is still interesting to compare the two.
The top crime category on Gongbao since 2018 is Endangering Public Security. For example, in 2019, 32.3% of decided cases in courts of first instance belonged to this category.
Endangering Public Security spans a wide range of illegal behaviour from dangerous driving to terrorism and hijacking a plane to selling fake medicines.
According to a notice released by the Supreme People’s Procuratorate in March 2022, the top prosecution in 2021 was in the Endangering Public Security category of dangerous driving with 351,000 defendants. Not all prosecutions reach trial so these do not equal decided court cases.
In our dataset (2009 to 2020), only three cases were Endangering Public Security.
Many of China’s laws are left intentionally vague, allowing the justice system great freedom to define its limits at will.
This is particularly true of the Disturbing Social Order category of Picking quarrels and provoking trouble (Article 293). Legal scholars have long criticized it for its vagueness, allowing it to be applied to a wide range of activities, from online speech to public protests.
Article 293 covers behaviours that “undermine public order” and include physical attack, chasing others, destroying public property and causing a disturbance in a public place. It is a catch-all, flexible net to catch anyone.
We have also seen police target rights defenders with a Disturbing Social Order charge (which on average carries a lower sentence) to a more serious Endangering National Security offense, such as incitement to subvert state power or subversion of state power (for example, human rights lawyer Tang Jingling in 2014 and rights activist Ou Biaofeng in 2021).
The above bar chart using our dataset shows that subversion and incitement to subvert the state carried an average 6 years sentence, while picking quarrels’ average was 2.3 years.
China’s criminal code is regularly revised, and categories expand or contract with each revision. However, it is interesting to trace the number of court cases and the number of court cases by category over the years.
Decided criminal cases in courts of first instance as recorded on Gongbao have grown from 766,746 in 2009 to 1,038,523 in 2022. That’s an increase of more than one third over 13 years. Total decided cases reached a peak in 2019 at almost 1.3 million.
Decided cases in courts of first instance in the category Endangering Public Security have risen four-fold from 86,814 in 2009 to 350,290 in 2022.
Obstructing the Administration of Social Order has also more than doubled from 133,639 to 298,803 over the same period.
