Covert and non-statutory investigation measures – translation (excertps)

Joshua Rosenzweig has observed how the proposed amendments to the Criminal Procedure Law may legalize enforced disappearance. Sharing his concern, I have translated some excerpts from a book by Ma Haijian, a former police officer, prosecutor and a researcher in criminology and forensic science.
Ma candidly admits how the police has been detaining criminal suspects covertly, without notifying their detention to their relatives, even though covert investigation measures have been criticized both by Chinese legal scholars and practitioners.

Non-statutory investigative measures are investigative measures for which there are no explicit provisions in national level laws, but are based on administrative regulations or internal rules, or are compatible with the spirit of the law.


(…)


Covert investigative measures are investigative measures known only to those who decide and enforce them. The most important ones are emergency measures, covert detention and covert arrest, secret search and seizure, surveillance, eavesdropping, audiovisual recording, wiretapping, searching sealed mail, undercover investigation, covert identification, manipulating criminal suspects and so on. (p. 29)


Covert investigative measures have been difficult to legalize, because they pose a challenge to legal rights (p. 341).


In China, for a long time covert investigative measures have been considered as a state secret. Even though they were used, writing about them in public textbooks was not allowed, and legislators avoided mentioning them in laws. No provision about them exists in the Constitution or in the Criminal Procedure Law. Due to the existence of gaps in legislation, scholars and practitioners have rejected covert investigative measures and evidence collected through them. [They believe that] because covert investigative measures have no legal basis, evidence obtained through them should not be used, otherwise citizens´ fundamental rights may be at risk. (345)


Covert arrest


Covert arrest …refers to the covert of certain members of important criminal group or criminal gangs and their shock interrogation. [Its goal is] investigating criminal groups or gangs, create the conditions to use other investigative measures, obtain clues or evidence that can break a case. (…)


According to the Criminal Procedure Law, when a criminal suspect is arrested or detained, information about the reason for his arrest or detention and his place of detention must be notified within 24 hours to his relatives or work unit. If investigation is obstructed, then it is possible not to notify a suspects’ relatives or work unit. This is the legal basis of covert arrest and detention. Clearly the period of secrecy should not be too long, and when secrecy is no more needed during investigation, a notification should be sent to the suspect’ s family or to his work unit (357).
Ma Haijian (2006), Xingshi zhencha cuoshi, Beijing: Falü Chubanshe.

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