Lawyers to fight for forgotten 'hooligan'
Niu Yuqiang was the last person to be jailed for the outdated charge of hooliganism on the mainland. He received the death sentence in 1984, but this was commuted to life two years later, and then reduced to 18 years from April 1990.
Later that year, he was granted a year of medical parole and released from prison in Xinjiang . After a year officials went to his home in Beijing and allowed him to have a second year of parole, but then apparently lost track of him.
When no one came to take him back to prison, Niu married and thought he was a free man - especially since hooliganism was scrapped as a crime in 1997.
But in 2004, police showed up at his doorstep and said he was on their list of fugitives. Niu was sent back to prison to serve the 16 years left on his sentence (18 minus the two years of medical parole). He is now 47. His wife was left to raise their son, who is now 11, by herself.
His crime? Snatching a hat from a passer-by and fighting on the streets with other youths in 1983.
If this sounds like a classic case of the punishment not fitting the crime, Niu's plight has a broader legal significance, says his lawyer. Legal professionals have called for amnesty for him and an official review of cases in which other prisoners are serving excessive punishments under previous criminal codes.
Zhu Baoxia , Niu's wife since 1997, has been petitioning the Ministry of Justice, the Supreme People's Court and the state-level prosecutor's office against the length of his remaining prison term to no avail.
'Of course he did something terribly wrong, but he was just like any other problem youth behaving badly out of a silly gang bond,' she said.
Hooliganism was among the vaguest and most abused charges used on the mainland, used to cover a wide range of offences from bullying to unwanted sexual advances.
Niu's arrest was another in a three-year campaign introduced in 1983 against a rising number of crimes against society and disruptions of the social order concurrent with the country's push for reform and opening up from 1978.
In November 1990, more than six years after Niu's conviction, he was allowed to seek medical treatment for a type of tuberculosis and was put under the watch of the neighbourhood committee and community police. Then came the review of his medical condition and the granting of the second year of medical parole.
But a further 11 years and 10 months passed between the end of the two-year parole and Niu's transportation back to prison, and prison officials' refusal to count that time as an extension of his medical parole is the basis for his wife's petition.
Zhou Ze , a Beijing lawyer who helped Niu and his family with an appeal for clemency, said that extending his term until 2020 was unjustified, because the onus of responsibility should have been on the Xinjiang prison authorities to oversee Niu's medical parole.
'They knew where Niu was, and they could always tell him to go back or take him back at any time they felt he was no longer entitled to medical parole,' said Zhou.
He said that charges against Niu were never properly established in court, and although what he did was certainly a crime against society, he should have been given a five-year prison term at most under the amended criminal law.
To address the inconsistency in the legal application, Zhou said ideally the National People's Congress should initiate an amendment of the criminal code provision to uphold previous sentencing under the old law, but allow prisoners to serve the highest term for the same offences under the new amendment.The problem was that amending the criminal law was a complex and time-consuming matter. He said a clemency motion by the NPC would be more practical to address the plight of Niu and other prisoners.
Xu Lanting, a criminal law professor at the China University of Political Science and Law, said appealing for clemency was a viable option, as the top legislature had used the constitutional tool seven times between 1959 and 1975 to grant amnesty for hundreds of prisoners of war and a small number of other prisoners in 1959.
'Another option available is for Niu and other prisoners to ask for a retrial under the previous criminal law if they believed they did not get a fair trial in the past,' Xu said.
Niu's wife, who was devastated by the extension of his term, said that might be a good idea. 'He has to pay a price for what he did 27 years ago, but he will not be free until he is 57,' Zhu said. 'It's just far too harsh.'