China Law Blog

"Shaikh was sentenced to death in 2007, although the British government was not told until almost a year later, in November 2008."

Are there international rules or something, where they are supposed to notify the consulate when a foreigner is arrested. Not doing so makes it look suspect, since he might not have had proper counsel, etc.

I don't think that there is any obligation for them to tell the consulate. He broke the law of the country he was in - a British passport isn't a 'get out of jail free' card.

The main issue is whether or not his defense was properly considered. However, I don't think that the Chinese government would risk the bad publicity of executing a British guy if they weren't sure that the case was secure.

It may be more that what is considered extenuating circumstances in the UK - for example a bi-polar condition - are not considered extenuating circumstances in China.

If the guy was genuinely misled, then he has my sympathy, but this is mainly an example of why you should do your utmost best not to be on the wrong side of the law in a foreign country.

Thanks for posting my email. Looking forward to any reader responses.

The Chinese media were quick to insist that the ruling is in safe legal territory: http://www.chinadaily.com.cn/china/2009-10/13/content_8788764.htm

According to the Criminal Law of PRC, if a totally mental-ill person commits a crime, he or she may be with impunity, however, authentic evidences are needed. Such evidences are usually gained by applying for judicial expertise.

I had a look at some of the reports on this, and it's pretty worrying stuff.
I haven't seen any evidence that the guy has medical records - I don't think he's ever sought psychological/psychiatric help or even assessment. In this case, according to the Chinese foreign ministry, he's insisted throughout that he's perfectly sane, thus they have not carried out an assessment of his psychological state.
However, he is on record claiming to be the second coming, and Elvis. He was apparently flying to China in order to become a rock star - one report says he still believes that's going to happen. At his appeal, his statement was so incoherent, it made the judges laugh. But still, they refuse to carry out a psychological assessment.

If he is found to be incompetent due to psychological illness, that would be likely to affect his sentence. Courts are instructed to take mental illness into account, though I don't believe there are any hard-and-fast rules about what sentences can and can't be given to sufferers.

I haven't heard that the supreme court's review has come out yet. (The supreme court has to review all death penalty cases.) I'm hoping that they will do what they're supposed to do, order a psychological evaluation, and then make a decision based on that.

If I were the British Foreign Office, I'd be getting a bit narky about this. The delay in informing the consulate about the arrest is undiplomatic to the point of being unfriendly.

THE BASIC INTERNATIONAL RECOMMENDATIONS ON THE TREATMENT OF
FOREIGN PRISONERS
Adopted in 1984 by the United Nations Committee on Crime Prevention and Control:
....

6. Foreign prisoners should be informed without delay of their right to request contacts
with their consular authorities, as well as of any other relevant information regarding their
status. If a foreign prisoner wishes to receive assistance from a diplomatic or consular
authority, the latter should be contacted.

Now, I think that the above is optional, and countries may opt in or out of it, with notification. The U.S. has been sued by countries - including Mexico - for violation of this. I am pretty sure the U.S. opted out of this under Bush, not sure if Obama has reversed course on this or not.

For me, this is one of those things that should be a no-brainer. It is well documented that countries expect to be notified whenever one of their nationals is arrested or detained, especially in serious crimes. What is being considered here is (or has been) a matter of international law, right?

Access to a representative from your home country's embassy is not the same as preferential treatment, it's not even close. It's not a lawyer, and it's not even a guarantee that you will receive the same treatment (fair or otherwise) that a local prisoner would face.

Chinese law should be respected when in China. International law should be as well, particularly as China is very keen on seeing their citizens respected and treated equally on foreign soil.

I can recall the outrage over the illegal treatment of Chinese arrested in Malaysia and America (just to name two) in recent years. This case reveals the hypocrisy that usually surrounds this treaty...

Meh.

Hmmm . . . sorry Dan, but I'm not exactly sure how the execution of a mentally ill man in dubious circumstances makes China all that different from, say, Texas.

What kind of drugs did this guy get caught with that warrants a death sentence? Was he selling to kids?

Also, he may be feigning mental illness to try to get out of a death sentence, claiming he is "Elvis Christ" and such. Anyone who is truly retarded enough to not be executed for a capital offense probably won't easily be able to plan a flight, purchase a ticket, make it through security, be able to handle the flight or make it through foreign customs.

If he was selling smack to kids, let the parents man the firing squad.

The relevant treaties merely give the detained the right to seek a foreign representative. If the detained individual doesn't choose to exercise that right, there is no requirement that the foreign embassy be notified. This can pose a problem if the prisoner is crazy.

One important point here is that most people in China that are convicted with the death penalty are not actually executed. It's typical for a death penalty to be commuted for good behavior which is something that very rarely happens in the West. Also Chinese criminal law makes very heavy use of medical parole which is unheard of in the West.

One other thing is that starting in the last year, all capital cases are now reviewed by the Supreme People's Court and this has vastly cut down on the number of death penalty sentences that are actually executed.

My sense is that given the amount of international attention, there is a pretty good chance that the sentence will be suspended and that the defendant will be given medical parole. The fact that the defendant has been around for two years and the sentence has not been executed is a good sign for him, since when the state really does want to execute a defendant it usually happens within weeks after the trial.

There are also three separate issues insanity (was he crazy when he did the act), trial competency (was he crazy when he was on trial), and execution competency (was he crazy when he was executed).

One other thing is that under US law, the criteria for competency is not high. You just have to understand that you are in a trial and what the consequences are.

Also people with bipolar disorder (unlike most people with schizophrenia) can be totally psychotic one moment and completely lucid the next.

Twofish, with all due respect:

TF: "One important point here is that most people in China that are convicted with the death penalty are not actually executed. It's typical for a death penalty to be commuted for good behavior which is something that very rarely happens in the West. Also Chinese criminal law makes very heavy use of medical parole which is unheard of in the West."

Many people are in fact issued a two-year suspended death sentence, which will be announced during sentencing (so in this case, it would have already been announced by the court of first instance). Of course, as you point out, the Supreme People's Court reserves the right to overturn, alter, or uphold the death sentence, and we have yet to hear their decision on this case.

PRC Criminal Code: "Article 48. The death penalty is only to be applied to criminal elements who commit the most heinous crimes. In the case of a criminal element who should be sentenced to death, if immediate execution is not essential, a two-year suspension of execution may be announced at the same time the sentence of death is imposed."

TF: "One other thing is that starting in the last year, all capital cases are now reviewed by the Supreme People's Court and this has vastly cut down on the number of death penalty sentences that are actually executed."

That's been in the Criminal Procedure Law since 1997 in Chapter IV.

On another note, there have been a fairly good number of Africans and South Asians executed in China for drug offenses. A British citizen on death row (who is possibly mentally ill at that) seems to attract much more attention, however.

He was attempting to smuggle in over 4kg of Heroin for crissakes. Seems clear cut to me. Bury the guy.

Twofish,

Whether or not he requested to meet with a rep from his own country, the Chinese waited one year to notify them that he was being held. That doesn't fly.

Those convicted of large scale trafficking crimes sentenced to the death penalty are more likely to receive it. Reducing the problem to whether he gets the death penalty might generate headlines, but it also glosses over other serious issues.

Further, the treatment of the mentally ill in China often involves pumping them full of chemicals to render them docile. In the news report it said that he was so incoherent that he spouted gibberish, causing many to laugh. Was this due to his mental illness, or to his being heavily, perhaps even forcibly medicated? That must be considered.

Saying that "It's typical for a death penalty to be commuted for good behavior which is something that very rarely happens in the West." is not meaningful, as most "western" countries don't have a death penalty, and even in the ones that do (with one amazingly notable exception) it is applied sparingly. I am not sure that comparing everything to "the west" is useful, and I struggle to see it's relevance here. Is the issue a matter of who carries out their death penalties in a better way, or whether this man was given adequate access to legal representation, and whether laws were broken?

Look at the US jails of how many mentally ill gets sentenced anyways.

James G: Whether or not he requested to meet with a rep from his own country, the Chinese waited one year to notify them that he was being held. That doesn't fly.

If you look at the rules it does. There's no requirement here that consular officials be notified if the prisoner does not request it. Now this poses huge problems if the prisoner is mentally incompetent.

6. Foreign prisoners should be informed without delay of their right to request contacts
with their consular authorities, as well as of any other relevant information regarding their
status. If a foreign prisoner wishes to receive assistance from a diplomatic or consular
authority, the latter should be contacted.

Richard: That's been in the Criminal Procedure Law since 1997 in Chapter IV.

But it's quite a bit more complex than that.

http://www.pressinterpreter.org/index.php?q=node/340

Formally review of death penalty cases by the SPC has been in Chinese criminal law since 1979.

Until 2007, what the SPC did was to delegate this authority to the provincial courts, which meant that there was no real review since it was the provincial courts that passed the initial sentence. It's only since 2007 that the SPC has taken the power back and reviewed all death sentences directly, and one side-effect is that the number of death sentences carried out has been reduced dramatically.

One other thing is that if Chinese rules on the insanity defense are similar to US rules, then I can see why the defense didn't invoke them. The problem is that lets suppose that the defendant smuggled heroin because he thought that he would be given $1 trillion in cash and a movie contract. The problem with that is that under the M'Naughten rules, that would not qualify you for a NGI. The trouble is that if it were the case that someone would give you a $1 trillion in cash and a movie contract, then smuggling heroin would still be a crime.

Point taken about suspended sentences and not using the China/West dichotomy. I shouldn't have used that because I tend to complain a lot when other people use it. Texas is very different from Norway.

James G: Reducing the problem to whether he gets the death penalty might generate headlines, but it also glosses over other serious issues.

It may, but many the people that are trying to get him not executed have as their main goal right now to not get him executed, and they really don't care much about the general policy issues.

One reason I suspect that the NYT is reporting on this now is that his case is going before the SPC, and his supporters are having a public relations campaign to put pressure on the SPC to commute the sentence.

I should note that I don't think this is a bad thing. On the one hand it does make the system rather unequal (i.e. people that have access to the news media get off, people that don't, don't) but on the other hand, if it was someone that I cared about, then I'd want them not executed, and I'd pull every string that I could to get that to happen, and the general fairness of the system would be of secondary concern.

This does pose a general problem. The trouble is that it's really difficult to get the public interested in something. So if you want the public to support you, it's better that you portray the issue as "good versus evil" and in as morally unambigious terms as possible. The dilemma is that this helps you put pressure on prisoner #1 or dissident #1, but if you keep doing it, then there is a public backlash when you try to do it for prisoner or dissident #500. If you keep using the "good versus evil" narrative, then people will react badly when (as usually the case) you find out that things aren't that simple.

Now if my relative were prisoner #1, then I'd wouldn't care what you need to do to get them out. But something that helps prisoner #1 to get out, will hurt prisoner #500.

One other bit of weird human psychology is that people compare things with a baseline, and that leads to some strange consequences.

Suppose Mr. Sklaih, after review of the SPC gets a suspended death sentence based on medical parole. In that situation, even though Mr. Sklaih is still in jail, people will end up more happy and think better of the PRC government than if he had just gotten a 20 year sentence to begin with.

You see the same thing in the Rio Tinto bribery case, when you ended up with people declaring victory because the defendant was no longer charged with state secrets. The fact that the person involved is now in jail and will likely be there for a while has been forgotten, and curiously the authorities probably end up looking better by charging him with state secrets and then withdrawing the charge than if they had charged him with commercial bribery in the first place.

It's not necessarily good or bad, it just is interesting....

Chinese courts can and do consider evidence about the mental state of defendants on a regular basis.