Two cases have riveted foreign attention on criminal justice in mainland China this summer. On July 5, the state security agency detained Rio Tinto representative Stern Hu on suspicion of espionage and bribery. On July 29, the ordinary police detained human rights activist Xu Zhiyong on suspicion of tax evasion.
Xu was released on the mainland's equivalent of bail after less than three weeks of investigation. Although the major charge against Hu has been reduced from espionage to theft of business secrets, he is still in detention after nine weeks and may be there for many more months before investigations and expected trial proceedings are concluded.
Every country needs a pre-trial detention system. But pre-trial detention infringes upon the presumption of innocence, since it punishes before conviction. It also tempts police to torture suspects in order to extract confessions and restricts suspects' opportunities to prepare a defence. That is why the International Covenant on Civil and Political Rights, which Beijing has signed but not ratified, mandates a presumption in favour of pre-trial release.
Yet in what circumstances should suspects be released pending completion of investigations and, if necessary, trial? Who should make that decision and when? After what procedures? And what, if any, conditions should be attached to pre-trial release?
Xu's release was a surprise, since on the mainland most accused remain detained throughout the trial and appellate process. Bail applications are seldom granted, even in cases where a long prison sentence is not possible.
On the mainland, bail is not an individual right designed to minimise restraints on freedom but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police. Is the detainee gravely ill, pregnant or unlikely to confess further? Are detention facilities overcrowded? Are there personal or political pressures to release the detainee? Are the generous time limits for pre-trial detention about to expire, but investigation is not completed?
Some suspects cannot receive bail because they are likely to commit harm if free, and migrants are usually not eligible for fear they would disappear. Yet investigators often deny bail because nothing stimulates confession like detention, where conditions can be awful even without torture.