During almost 10 months of home detention following their arrests, the two men have been unable to travel or work. Following the policy shift, they submitted applications for a retrial to a local court, Han said last week.

The drivers’ case was one of many during three years of draconian zero-Covid restrictions. Now that China has scrapped its zero-Covid policy and reopened borders, some people have begun to review past cases and ask whether amends should be made.

Legal experts said cases that had been heard without sufficient evidence might stand a chance of retrial, but it would be too complicated to hold local governments legally accountable for malpractices over the past three years.

11:33

Trace, test, lock down, repeat: Three years under China’s zero-Covid strategy

Trace, test, lock down, repeat: Three years under China’s zero-Covid strategy

Han, 42, and He, 45, are brothers-in-law from Suizhong county, Liaoning province. From January 22 to 25 last year, they drove a truck together to Heilongjiang province to deliver vegetables for sale, the court was told.

After returning home, they reported their trip from Jinzhou to Suizhong in a local community WeChat group, but not the ones to Suifenhe and Dongning, which sit on the border with Russia.

During the implementation of China’s zero-Covid policy, control measures often varied from city to city and changed rapidly depending on whether there was a local outbreak. Common regulations included reporting travel itineraries to local communities, getting tested and showing health codes to enter public venues.

A few days after they returned home, Han learned there had been an outbreak in Suifenhe, but he did not think it mattered as they had already returned home. They both went on meeting people and running errands as usual.

On February 2, Han had a stuffy nose and went to get tested for the coronavirus that causes Covid-19. The result was negative, and that night, he went with his wife to her aunt’s house for dinner, with about 10 other people.

‘Don’t rush to indict’: ex-judge calls on China to let zero-Covid violators go

On February 8, 15 days after their return home, the aunt’s son became patient zero in a Covid-19 outbreak in the county. Two days later, Han also tested positive and the drivers were soon investigated on suspicion of causing the outbreak.

Suizhong county prosecutors told the court the drivers had not followed pandemic control regulations and reported their travel to Suifenhe, even after they learned of the outbreak in the city. Neither driver appealed against their conviction.

The prosecutors said 183 people in Suizhong were infected in the outbreak and 7,865 people quarantined, costing the county a total of 155 million yuan (US$22.87 million).

Suizhong’s discipline inspection commission said in a statement posted on WeChat on February 15 that multiple officials were also punished for their lack of oversight.

One of the earliest, in February 2020, involved a driver from Hubei province who twice drove passengers out of Wuhan after the city implemented a lockdown at the beginning of the pandemic. Less than two weeks after those trips he was diagnosed with Covid-19 and more than 20 of his close contacts were put into centralised quarantine.

The other cases more or less followed similar patterns of travel between two cities, failing to report itineraries, carrying on life as usual and then being diagnosed with the disease.

The legal basis for such cases is China’s Law on Prevention and Treatment of Infectious Diseases, and a clause in the Criminal Law dealing with those at risk of spreading a category A infectious disease.

While Covid-19 has always been a category B infectious disease in China – like HIV, viral hepatitis and bird flu – authorities declared in January 2020 it would be managed as category A, empowering local governments to impose strong measures such as lockdowns, isolation and quarantine.

But in practice, vague areas made it difficult to determine an individual’s legal responsibilities, legal experts said.

China’s reopening: the impact of Beijing’s U-turn on zero-Covid

The basic rule in criminal law was to establish causation, He Zhiwei, a Beijing-based lawyer, said.

“In the drivers’ case, it meant finding out at what specific times they had become infected, how they were infected, and whether they knew they were infected,” he said.

Furthermore, evidence needed to prove they had directly contacted and infected all the other patients in the outbreak. It was also difficult to rule out other infections already in the county or the possibility of other individuals bringing back the disease, He said.

China’s zero-Covid U-turn also led to the adjustment of legal measures.

On January 7, the day before China completely reopened its borders, the Supreme People’s Court issued a notice declaring that since Covid-19 would be managed as a category B infectious disease, breaking pandemic restrictions would no longer be a criminal offence.

It suggested that suspects in cases being processed be released, but did not mention concluded cases.

However, He said, there was a chance they could be corrected on the basis of flawed evidence.

“During the years of pandemic control, many officials were held accountable, and in later stages prevention and control became the top political task,” he said. “It meant that administrative decisions outweighed judicial ones.”

02:13

Over one-fifth of China’s total GDP under lockdown amid record Covid surge, new report finds

Over one-fifth of China’s total GDP under lockdown amid record Covid surge, new report finds

Academics and legal experts have also warned that many instances of government malpractices in the past three years would leave “legal and societal scars” if they were not addressed.

During Shanghai’s lockdown in March, more than 20 university professors led by Tong Zhiwei, a professor of constitutional studies at East China University of Political Science and Law, argued in an open letter that some policies, such as mandatory centralised quarantine for a whole building, contradicted the rule of law and could lead to “some kind of legal disaster”.

Dali Yang, a political scientist at the University of Chicago, said that during the state of emergency in public health in the past three years, most residents had no freedom to fight back, and nor could they receive legal aid.

How political and economic pressure led to Beijing’s zero-Covid U-turn

“Some cities would lock down for months, which not only restricted people’s movements, but also affected their chance to attend to medical needs and even endangered their lives,” he said. “In these cases, the government undoubtedly should be held responsible.”

But he said it would be complicated to reverse all illegal actions by local governments.

Governments around the world had obtained a variety of emergency powers during the pandemic, said Sida Liu, a professor of law and sociology at the University of Hong Kong, but the key point was whether such powers would continue to exist after it subsided.

“If the pandemic had passed and the government never gave up these temporary powers during these special periods, that would be an even bigger invasion of citizens’ basic rights,” he said.