China's Ministry of State Security has published its first regulations on law enforcement and case handling procedures, making "transnational repression" and "pan-national security" more explicit?

Beijing - This Friday (April 26), China's Ministry of State Security announced for the first time the regulations on law enforcement and case handling procedures. This is the first judicial interpretation of the first chapter of the Criminal Law that focuses on situations of "endangering national security."

Prior to this, Chinese security departments often used "confidentiality" as an excuse not to explain the general case handling procedures when handling cases. Following China's large-scale implementation of the Anti-Espionage Law and the National Security Law, the first public case handling procedures of Chinese security departments have attracted attention. According to the relevant details released, new regulations have been made on the inspection of electronic devices, case jurisdiction, detention time, and law enforcement interrogation .

China's Minister of State Security Chen Yixin signed Ministerial Orders No. 3 and No. 4 on Friday (April 26), announcing the "Regulations on the Administrative Law Enforcement Procedures of National Security Organs" and the "Regulations on the Procedures for Handling Criminal Cases by National Security Organs" (hereinafter referred to as the two departmental regulations), which will come into effect on July 1, 2024.

The timing of the new rules is also intriguing. This year marks the third anniversary of the implementation of the Hong Kong National Security Law. At the same time, as China's economic downturn becomes more and more obvious, social contradictions are deepening. From the White Paper Movement in Beijing and Shanghai at the end of 2022 to the recent deaths of some well-known public figures, the authorities have raised concerns about the national security situation.

The introduction of the new regulations seems to be a better way for China to continue to strengthen national security in a more open way, but it has also triggered concerns in Western countries about China's continued adoption of a " pan-national security " policy.

Among them, the "Regulations on the Administrative Law Enforcement Procedures of National Security Organs" has 7 chapters and 140 articles, including general principles, prevention guidance, investigation and evidence collection, expropriation compensation, administrative penalties, time and service, and supplementary provisions. The "Regulations on the Procedures for Handling Criminal Cases by National Security Organs" has 11 chapters and 360 articles, including general principles, jurisdiction, recusation, lawyers' participation in criminal proceedings, evidence, compulsory measures, case filing, case withdrawal, investigation, execution of penalties, special procedures, and supplementary provisions. This makes clearer provisions on the criminal case trial procedures previously clarified in the Chinese Criminal Law. At the same time, the above-mentioned new regulations also clarify the jurisdiction details of overseas Chinese dissidents.

Among them, the acts of overseas Chinese dissidents protesting against the Chinese government or the Communist Party authorities are controlled by the national security departments of the place where they lived or were registered before leaving the country. This move is seen by the outside world as clarifying the fact that there is open "transnational repression" in China.

In the criminal case regulations, Article 21: If a Chinese citizen commits a crime endangering the national security of the People's Republic of China in a Chinese diplomatic mission abroad, the national security agency of the place where his or her dispatching unit is located or his or her original place of residence shall have jurisdiction.

If a Chinese citizen commits a crime endangering the national security of the People's Republic of China outside the territory of the People's Republic of China, the national security authorities of the place where they landed, entered the country, resided before leaving the country, or currently reside, shall have jurisdiction. If the victim is a Chinese citizen, the national security authorities of the victim's place of residence before leaving the country or current place of residence may also have jurisdiction.

Some dissidents living abroad are very dissatisfied with the "transnational repression" adopted by Chinese security departments. In particular, some young people in mainland China spontaneously launched a "white paper movement" around the time when Chinese leader Xi Jinping lifted the COVID-19 control. This move aroused the high vigilance of the authorities. Under the multiple rounds of suppression by China's National Security Bureau (a bureau of the Ministry of Public Security, responsible for domestic political security work) and the national security department, the advocates of these white paper movements are scattered around the world. These advocates are considered to be a potential threat to China's national security.

In recent years, Chinese dissidents living abroad have frequently exposed that China's national security police have used threats to their relatives at home and other means to prevent these dissidents from expressing their views on Chinese politics.

Several departments, including the U.S. Congress, have also put forward relevant legislative demands regarding China's "transnational repression" behavior.

However, China’s Ministry of Foreign Affairs and Ministry of State Security have repeatedly stated that “there is no such thing as “transnational repression” in China, and that the “so-called facts” are intended to smear and hinder China’s legitimate right to development.”

Among the two new regulations issued, any acts of "endangering national security" committed by foreign citizens in China will also be handled in accordance with the regulations, including clarifying the law enforcement procedures such as "confirming nationality, notifying and reporting".

Before the new regulations were introduced, when Chinese citizens committed acts endangering national security, they were subject to the jurisdiction of the national security department in the place where they were registered. However, for some cross-provincial cases, there was always uncertainty in the jurisdiction. This time, the new regulations have made the form and method of jurisdiction of dangerous security cases more clear.

In the criminal case regulations, Article 25 states that cases over which multiple national security agencies have jurisdiction shall be under the jurisdiction of the national security agency that first accepted the case. If necessary, the national security agency in the main crime location may have jurisdiction.

Article 26: For cases where the jurisdiction is unclear or disputed, the relevant national security agencies may negotiate. If no agreement is reached, the common superior national security agency shall designate the jurisdiction.

For cases with special circumstances, the common superior national security agency may designate jurisdiction.

If a criminal case involving multiple provinces, autonomous regions, or municipalities directly under the central government has special circumstances and it would be more conducive to ascertaining the facts of the crime and ensuring fair handling of the case if the case is filed and investigated by a national security agency in a different place, the Ministry of National Security may consult with the Supreme People's Procuratorate and the Supreme People's Court to designate jurisdiction.

In the cases of being questioned by Chinese security departments that have been made public, many of the people being questioned were required to hand over all electronic devices and not disclose the content of the conversation. However, some people who have been questioned have said that there are phenomena of illegal law enforcement.

In the administrative law enforcement regulations, Article 40: When national security organs conduct inspections of electronic equipment, facilities and related programs and tools of relevant individuals and organizations in accordance with the law, they must issue an inspection notice with the approval of the head of the national security organ at or above the prefecture-level city.

In an emergency, if it is truly necessary to conduct an immediate inspection, with the approval of the head of the state security agency at or above the prefecture-level city, law enforcement personnel may conduct an inspection on the spot after showing their police credentials or reconnaissance credentials.

Article 41 During the inspection, the person being inspected or a witness must be present, and care must be taken to maintain the authenticity and integrity of the electronic data to avoid unnecessary damage to electronic equipment, facilities, and related programs and tools.

Persons inspected include the owners, holders, custodians or entities of electronic equipment, facilities and related programs and tools.

For dissidents overseas and in mainland China who have been interviewed by Chinese security departments, the relevant content was previously retrieved through remote technical reconnaissance means. The introduction of the new regulations also clarifies how Chinese security departments can review electronic data.

In the criminal case regulations, Article 70: The state security organs must, in accordance with legal procedures, comprehensively, objectively and promptly collect all kinds of evidence related to the case that can prove the guilt or innocence of the suspect and the severity of the crime. It must ensure that all citizens who are related to the case or have knowledge of the case have the conditions to objectively and fully provide evidence, and except in special circumstances, they can be recruited to assist in the investigation.

Article 81 The collection and extraction of electronic data shall be conducted by two or more investigators. The evidence collection equipment, methods and processes shall comply with relevant technical standards and work specifications, and ensure the integrity and objectivity of the collected and retrieved electronic data.

The collection and extraction of electronic data shall be witnessed by a qualified person. When collecting and extracting electronic data from multiple computer information systems at the same site, one witness may be present. If a qualified person cannot serve as a witness due to objective reasons, the circumstances shall be noted in the record and the relevant activities shall be recorded.

In the administrative law enforcement regulations, Article 46: When national security agency staff review or retrieve relevant documents, data, materials, or items in accordance with the law, they must obtain approval from the head of the national security agency at or above the municipal level and prepare a notice for review and retrieval. The holder or custodian must sign or stamp the notice.

For a long time, China's highly enhanced pan-national security issue has caused concerns among Western countries, and many foreign corporate entities in China have chosen to leave mainland China.

Some multinational companies have also reduced the number of business branches in mainland China to reduce the risks brought about by the policy of "pan-nationalization".