China's Legal Framework and Measures for Counterterrorism

II. Clear Provisions for the Determination and Punishment of Terrorist Activities

Chinese law has clear provisions for the determination and punishment of terrorist activities. It distinguishes between administrative violations and criminal acts based on the degree of harm they cause, and affixes different legal liabilities accordingly. The criteria for the determination of terrorism-related violations and penalties are stipulated in the Counterterrorism Law, and the criteria for the determination and punishment of terrorist crimes are stipulated in the Criminal Law.

– The concepts of terrorism and terrorist activities are clearly defined. China's Counterterrorism Law provides concrete and precise definitions of terrorism, terrorist activities, and related concepts, consistent with the principles championed by the international conventions it has entered and concluded, and in agreement with the practices of other countries.

In the Counterterrorism Law, the concept of terrorism encompasses the means, ends and forms, and is defined as propositions or acts that by means of violence, sabotage or intimidation, create social panic, undermine public security, violate personal and property rights, or coerce state agencies and international organizations, to realize political, ideological or other purposes. The Counterterrorism Law defines the nature of terrorist activities and their specific forms, including organizing, planning, preparing for, or conducting acts that cause serious social harm.

The Counterterrorism Law and the Regulations of Xinjiang Uygur Autonomous Region on Deradicalization define the concept of extremism and specific forms of extremist activity, and highlight the link between extremist thought and terrorism.

– The criteria for determining law-breaking terrorist activities are accurately defined. China's Criminal Law assigns criminal liability only for terrorist activities that inflict grave harm on society. Minor violations of the law that do not constitute crimes instead receive administrative penalties in accordance with the Counterterrorism Law and other relevant laws. The Counterterrorism Law lists terrorist activities that are punishable by administrative penalties issued by public security agencies, including advocating terrorism and extremism or inciting the commission of terrorist and extremist acts. Whether the violations are minor or not is subject to the judgment of judicial and law enforcement agencies, based on whether the activities involve the essential condition of crime. Judicial and law enforcement agencies take into account the motive of the offender, their role in the activities, and the harm caused to society.

Example 2 Determination of Law-breaking Terrorist Activities

A suspect surnamed Wan posted on his social media account a video with scenes of bloodshed and violence. The video was forwarded numerous times and generated harmful social impact. It was determined that the video contained illegal elements advocating terrorism, and should be banned from dissemination. Based on the Counterterrorism Law, a public security agency in Sichuan Province determined that Wan's act constituted a violation of the law by spreading items advocating terrorism.

– The criteria for determining criminal terrorist activities are accurately defined. The criteria are laid out in China's Criminal Law, judicial interpretations, and standards for filing and prosecuting cases. The Criminal Law has clear and specific provisions on the constitutive elements of terrorist crimes in terms of the object and the objective circumstances, and the subject and the subjective circumstances. It strictly distinguishes between crimes and non-crimes, between different crimes, and between punishment for a single crime and for multiple crimes.

Under the principle of legality, no one should be convicted of a terrorist crime for any reason if there are no explicit provisions in law. Judicial agencies have outlined the criteria for determining criminal terrorist activities in detail by issuing judicial interpretations and documents and setting standards for filing and prosecuting criminal cases. The Opinions on Certain Issues Concerning the Application of Law in Handling Criminal Cases Involving Terrorism and Extremism, jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, and other authorities in 2018, specify the quantitative criteria that constitute the crime of illegally possessing materials propagating terrorism or extremism.

Example 3 Determination of Criminal Terrorist Activities

Between 2004 and 2010, a suspect surnamed Bai provided transfer, accommodation, and false identity certification for persons trying to leave China to conduct terrorist activities abroad, with full knowledge of their intentions. Bai's actions had serious consequences. The case was tried in a court in Henan Province, which ruled that Bai's actions constituted the crime of sponsoring terrorist activities, in accordance with the Criminal Law.

– The punishment for law-breaking terrorist activities follows statutory principles. China's law enforcement agencies adhere to the principle of legality in applying administrative penalties in accordance with the Counterterrorism Law, Public Security Administrative Punishment Law, Law on Administrative Penalty, and other relevant laws.

Law enforcement agencies pursue the principle of proportionality to ensure that punishment is appropriate to the facts, nature and circumstances of the offense, and the degree of harm it caused to society.

Law enforcement agencies execute the principle against double punishment to ensure that no person can be subject to more than one administrative fine for the same offense. Should an offense violate several legal provisions that are punishable by multiple fines, the highest of the fines applies.

Law enforcement agencies implement a system of benchmarks for administrative discretion, working out quantitative indexes on the scope, type and extent of discretion in acts of law enforcement and making the information available to the general public. Since 2018, public security agencies in Anhui, Zhejiang, Beijing and Heilongjiang have established and implemented administrative discretion benchmarks to regulate administrative law enforcement against terrorism.

Example 4 Administrative Penalty for Law-breaking Terrorist Activities

A suspect surnamed Zhan posted videos containing scenes of violence and bloodshed on the internet. A public security agency in Fujian Province issued Zhan an administrative penalty in accordance with the Counterterrorism Law.

– Discretionary power in the punishment of criminal terrorist activities is well regulated. In trials of criminal cases involving terrorist activities, people's courts follow the principle that punishment should be proportionate to the gravity of the crime and the criminal liability involved, and apply the Criminal Law to determine the appropriate punishment for offenders, taking into consideration the facts, nature and circumstances of the offense, and the harm it caused to society.

China's judiciary has undergone reform to improve and standardize the consistency of sentencing. It has formulated normative documents that provide a complete set of standards for the principles and conditions of exercising discretion and the correct exercise of measures governing applicable law, legal interpretations, and sentencing procedures. These normative documents include the Guiding Opinions of the Supreme People's Court on Effectively Regulating the Exercise of Discretion in Trials and Enforcement to Ensure the Consistent Application of Law, the Guiding Opinions of the Supreme People's Court and the Supreme People's Procuratorate on the Sentencing of Common Crimes (Trial), and the Opinions of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice on Issues Concerning the Standardization of Sentencing Procedures. In the adjudication of criminal cases involving terrorist activities, judicial agencies made consistent efforts to standardize the exercise of discretionary power, striking the right balance between leniency and severity while ensuring that offenses receive due punishment.

Example 5 Punishment for Criminal Terrorist Activities

A defendant surnamed Liu was prosecuted for advocating terrorism. A court in Chongqing found Liu guilty. Taking account of the facts, nature and circumstances of the offense, and the degree of harm it caused to society, the court sentenced Liu to a suspended fixed-term imprisonment and a fine in accordance with the Criminal Law.