Of course, whenever you travel abroad, you should follow the generally applicable laws and behave appropriately, taking cultural differences into account. Sometimes, however, a situation can arise when, despite your best intentions, you make an unfortunate mistake and end up arrested. How should you behave? What should you avoid?
- What can you get arrested for?
In principle, similar crimes are prosecuted in China as in Europe – the general principles and a large part of crimes are regulated by the Criminal Law of the People’s Republic of China (Chinese: 中华人民共和国刑法, pinyin: Zhonghua renmin gongheguo xingfa, amended on December 29, 2023) (hereinafter: Chinese Criminal Law), as well as other relevant laws. Therefore, you should not behave in any way that threatens the security of the People’s Republic of China or its citizens. What behaviors can be considered threats? Below are some misdemeanors and crimes that are enough to get you arrested.
- In China, some crimes are punished more severely than in most of Europe – for example, many foreigners are arrested for possession or smoking marijuana (in this respect, the Chinese are extremely strict – drug trafficking is also punishable by death!)
- National symbols are treated with great respect – and above all, they enjoy legal protection. Publicly showing disrespect towards the flag, parodying the national anthem and other such behaviors can end in arrest.
- When visiting national parks and enjoying nature, it is not advisable to uproot plants or damage them in any way. Due to the large geographical difference, the average European may not even be aware of which plants are protected. According to Article 344 of the Chinese Criminal Law, destroying, selling or even buying protected plants is punishable by up to three years in prison.
According to Article 82 of the Criminal Procedure of the People’s Republic of China (Chinese: 中华人民共和国刑事诉讼法, pinyin: Zhonghua renmin gongheguo xingshi susong fa, amended on October 26, 2018) (hereinafter referred to as the Chinese Criminal Procedure), a person may be arrested if the Chinese authorities determine that at least one of the following conditions has been met:
- The person is preparing to commit a crime, commits a crime or is detected immediately after committing a crime;
- The person was identified as the perpetrator of the crime by the victim or an eyewitness at the scene;
- Evidence of the crime was found on the person or at their place of residence;
- The person after the crime: attempted suicide, escaped or is in the process of escaping;
- There is a high probability that the person will attempt to destroy, falsify evidence or persuade other people to give false testimony;
- The person does not provide their real name or address, and their identity cannot be established [especially important in the case of foreigners];
- The person is suspected of committing a crime in a group, committing crimes multiple times.
- What does an arrest look like?
According to Article 86 of the Chinese Criminal Procedure, the law enforcement authorities interrogate the suspect within 24 hours of arrest. The Chinese authorities are obliged to provide an interpreter for people who do not speak the local language, which is expressly stated in Article 9 of the Chinese Criminal Procedure. However, it should be borne in mind that most European languages are relatively unusual in China, so there is a high probability of providing an interpreter who speaks English fluently.
In China criminal detention can generally be used for much longer periods to the equivalent of most European countries. Within three days of arrest, the application is forwarded to the People’s Procuratorate, which must then respond to the application within 7 days (Article 91). Therefore, you can be detained for 10 days without charges being presented. If criminal detention is refused, the person detained must be released immediately. In principle, in China, criminal detention should not exceed two months during the pre-trial proceedings (Article 156), but with the consent of a higher prosecutor (not a court!) it can be extended by one month. The above deadlines do not apply to court proceedings, which means that they can be extended further if the court deems it necessary.
- What to do if you are arrested?
Under Article 36, paragraph 1, point b) of the Vienna Convention on Consular Relations, at the request of a person detained who is a foreign citizen, the Chinese authorities are obliged to inform the relevant consular office of the detention. It is recommended to use this option as soon as possible – while the consulate itself cannot provide legal advice, it can provide assistance with translation, inform the family or employer, and help in finding a lawyer who will take on the case. Moreover, consular officers also have the right to visit, talk and correspond with the detained person, which will also allow the consular authorities to monitor the situation of the person detained on an ongoing basis.
There is also the possibility of release from custody on financial bail, which may occur if the detainee is facing a minor penalty, the detainee suffers from a serious illness or other circumstances. However, it should be noted that it is forbidden to leave the city without prior permission from the authorities, and it is also necessary to report immediately to their summons. Moreover, the Chinese authorities may seize a foreigner’s passport, thus preventing a temporary return to their country.
During the entire process, it is recommended to cooperate with law enforcement authorities and behave with respect towards public officials. Due to the “foreignness” of Chinese law from the perspective of an European citizen, it may be advisable to immediately contact a lawyer familiar with the specifics of Chinese law. The language and cultural barrier can effectively hinder contact with law enforcement authorities, and the arrest itself – the ability to find appropriate law firms. For this reason, it is worth asking the consular office for help in choosing one.
Of course, you should not panic if you accidentally commit a crime. Chinese authorities generally stick to the law, and a consular office or lawyer asked for help will do everything to explain and calm the situation.
