Amidst continuing concern about the detention of Chinese Artist Ai Weiwei, I received this note today from Professor Jerry Cohen, an expert in international law who heads a Council of Foreign Relations initiative on human rights. He gave me permission to blog it.
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A Background Note on Ai Weiwei's Situation
There seems to be silence about the case while the police undoubtedly go through the over 100 items seized in the search of his home/studio and interrogate the aide who reportedly was detained and retained with him after the other assistants and wife were released. Going through his computer data and following up on leads may take some time. Although the Criminal Procedure Law (CPL) in most cases gives the police only three days to hold someone before deciding whether to release him or apply to the prosecutors for an arrest warrant, exceptions allow them up to seven days and in very limited circumstances up to thirty days. Invariably the police turn the exceptions into a thirty-day rule, so nothing may be heard from them or Weiwei for a month. The prosecutors have seven days to decide whether to approve the arrest request, and usually do approve arrest and continuing detention. Approval of arrest usually guarantees later indictment, conviction and punishment, usually prison time.
It's possible because of Weiwei's family and personal connections and outside pressures that he may be released soon. What is worrisome is that his detention was not a spontaneous response to Weiwei's well-known in-your-face lecturing of police for their abuses but a carefully thought out plan to at least keep him in the country and perhaps keep him in criminal detention, not mere house arrest. They may have chosen an intermediate course of taking him, initially, not to a regular detention house but to a "safe house", where he is just as effectively isolated but kept in better conditions than an ordinary cell.
The formal search and seizure of his home/studio suggests that the police may have in mind a conventional criminal prosecution rather than the informal detention and quick release after some hours or days of intimidation in their custody that they frequently practice in their early days of deterring dissidents. Yet no detention notice has been received by his family and none may be since, again, there is an exception in the CPL that releases police from giving required notice of detention if to do so might interfere with their investigation. Without a detention notice, we do not know what the suspected charge might be, where he is located and who is holding him. We believe, from the search and search warrant, that the National Security Division of the Beijing Public Security Bureau (the regular police) is the authority in charge rather than the Beijing State Security Bureau (the KGB of China, responsible for international-related matters).
Without a detention notice it is sometimes difficult for a defense lawyer to enter the case, which is a reason why police sometimes use the excuse of "interference with the investigation" to fail to send a detention notice. Weiwei reportedly has the well-known and dynamic lawyer PU Zhiqiang as his lawyer. What Pu has been able to accomplish so far is unclear. The recently-amended Lawyers Law gives the detainee's counsel the right to see him, albeit in monitored circumstances and for a limited time and with limited scope of discussion. BUT the CPL gives the investigators the right to deny access to the detainees in cases they claim involve "state secrets". So there is an unresolved legislative clash and we are waiting for the next amendments to the CPL, due soon, to resolve the clash. Pu cannot do much else to combat the police actions at this time.
Jerome Cohen
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Since the above was written, the state news agency came out with a brief statement saying Ai Weiwei was being investigated for economic crimes. Meanwhile here is the courageous video he shared at TED last month.