Well-known house church minister in Shenzhen initiates administrative litigation against policeFriday, February 8, 2013
China Aid Association
(Shenzhen—Feb. 8, 2013) A well-known Chinese minister taken into police custody twice for evangelizing before Christmas in a public park and administratively detained for 13 days has initiated administrative litigation against the police, using the law to protect his legal and religious rights.
Cao Nan was taken into police custody on Dec. 8 and 15 while he was evangelizing at the Lychee Park in Shenzhen. On the first occasion, seven other church lay leaders who were evangelizing with him were also detained, and everyone was released the next day. On Dec. 15, eight other church lay workers evangelizing with Cao were also detained. They were released the very late the same day, but Cao was transferred to the local detention center. The next day, he was administratively detained by the Futian Sub-Bureau of the Public Security Bureau for "masquerading under the name of Christianity to disturb social order multiple times at Lichi Park in Futian District." He was not released until Dec. 28.
See our earlier reports about Cao Nan's detention:
Below is the full text of the litigation:
Plaintiff: Cao Nan, male, born April 14, 1975.
ID number: 320826197504143819.
Native place: Anhui. Household registration: Caotai Group, Dengwei Village, Fanqiao Township, Huoqiu County, Lu’an City, Anhui Province.
Residence: Unit 203, Door 2, Building 9, Yangguang Garden, Buji Township, Shenzhen.
Defendant: Futian Sub-Branch, Shenzhen Municipal Public Security Bureau.
Legal representative: Qiao Zhi. Position: Director
Residential address: Courtyard 123, Fumin Road, Futian District, Shenzhen City. Zip: 518048
Cause of action: Refusal to accept the administrative punishment decision.
Confim, according to the law, that the “Public Security Administrative Penalty Decision” Shen Gong Fu Jue Zi (2012) No. 044018 imposed on the plaintiff by the defendant on December 16, 2012 was illegal and rescind the administrative penalty decision.
Facts and reasons:
At about 15:30 on December 16, 2012, the plaintiff, Wang Ruien, Wang Silang and several other Christians arrived of their own accord at Lizhi (Lychee) Park in Futian District, found a suitable place (many other people were singing and dancing nearby) and began to sing song, dance and talk about life experiences and Christian ideas. Some spectators gathered around, including some park security guards who were using their cameras to videotape the plaintiff, Wang Ruien, Wang Silang, and the others. As the plaintiff, Wang Ruien, Wang Silang and the others were engaged in their activities, a police officer and a government security officer arrived at the scene and told us to stop. The plaintiff stepped forward to explain, and the police officer took the plaintiff to the local police station, where they took down a written record of the questioning of the plaintiff. After the questioning, they made the plaintiff wait at the local police station until about 11 o’clock at night when the defendant issued “Public Security Administrative Penalty Decision” Shen Gong Fu Jue Zi (2012) No. 044018. The reason given was " harming society by masquerading under the name of religion,” and the punishment of 12 days of administrative detention was imposed based on Article 27, Paragraph 2 of the Law of the People's Republic of China on Penalties for Administration of Public Security. The plaintiff did not agree and asked that the implementation be delayed. But they refused and sent the plaintiff straight to the detention center. Therefore, the plaintiff refused to sign the papers for the “penalty decision.”
The plaintiff believes that the defendant’s administrative penalty not only violated statutory procedures but also violates the corresponding substantive law and therefore should be rescinded for the following reasons:
I. The defendant violated statutory procedure
(1) The defendant's law enforcement officers did not show their law enforcement identification papers as required by law. Article 37 of the Law of the People’s Republic of China on Administrative Penalty stipulates: “When administrative organs conduct investigations or inspections, there shall be not less than two law-enforcing officers, who shall show their identification papers to the party or other persons concerned.” However, on December 16, 2012, the defendant's law enforcement officers initiated their law enforcement activities by force on the plaintiff's person without showing their law enforcement identification papers, and without any questioning, took the plaintiff straight to the local police station.
(2) The defendant failed to fulfill its responsibility to notify [the plaintiff] prior to [imposing] the penalty. Article 94 of the Law of the People's Republic of China on Penalties for Administration of Public Security states: “Before making a decision on a penalty for administration of public security, the public security organ shall notify the person who commits an act against the administration of public security of the facts, reasons and basis for such penalty, as well as of the rights he enjoys according to law.” However, the defendant did not in any way fulfill its responsibility to notify the plaintiff prior to [making a decision on] the penalty.
(3) The defendant's law enforcement officers did not listen to the plaintiff’s defense and statements. Clause 2 of Article 94 of the Law of the People's Republic of China on Penalties for Administration of Public Security states: “A person who commits an act against the administration of public security shall have the right to make statements and defend himself. The public security organ must fully listen to the opinions of the said person and shall review the facts, reasons and evidence put forth by the person; and if the facts, reasons or evidence put forth by the person are tenable, the public security organ shall accept them.” However, when the defendant imposed the penalty, it did not in any way listen to the plaintiff’s defense and statements.
The above does not cover all the defendant's actions that violated legal procedure, but the defendant's actions mentioned above are sufficient to prove: the law enforcement actions of the defendant seriously violated statutory procedures and its administrative penalty is illegal and invalid. China is a country under the rule of law and administration in accordance with law is a key to the building of a country under the rule of law. Illegal administration must be strictly prohibited.
II. Insufficient facts to support the defendant’s administrative penalty decision
In the defendant's Penalty Decision, reason given was “disturbing social order by masquerading under the name of religion” and the decision to impose the penalty of 12 days of administrative detention was based on Clause 2 of Article 27 of Law of the People's Republic of China on Penalties for Administration of Public Security. Clause 2 of Article 27 of Law of the People's Republic of China on Penalties for Administration of Public Security says, “disturbing social order and harming the health of another person by masquerading under the name of religion.” However, the plaintiff's actions were exactly the opposite of the facts as determined by the defendant. The plaintiff was preaching the Christian Gospel in the park and this activity of the plaintiff is fully in line with Article 36 of the Chinese Constitution and it is an act of exercising ones freedom of religious belief.
The defendant is asked to produce evidence of “disturbing social order,” because the plaintiff never heard of any complaint from anyone while he was engaged in the activity of preaching the Gospel in the park. If the plaintiff cannot produce evidence that the plaintiff’s activity “disturbed social order,” then the defendant's penalty decision is both not based on facts and without legal basis, and is therefore clearly a concrete administrative act that violates the law.
III. No legal basis for the defendant's administrative penalty [decision]
This case clearly does not involve public security and the defendant has no authority to exercise jurisdiction. Article 2 of the Law of the People's Republic of China on Penalties for Administration of Public Security stipulates: “A person who disturbs public order, endangers public safety, infringes on the rights of person and property or hampers social administration, which is harmful to the society and which, according to the provisions of the Criminal Law of the People’s Republic of China, constitutes a crime, shall be investigated for criminal responsibility according to law; and if such an act is not serious enough for criminal punishment, the public security organ shall impose on him a penalty for administration of public security according to this Law.” In preaching the Gospel in accordance with Article 36 of the Constitution, the plaintiff was exercising his freedom of religious belief and was not in any way disturbing social order; [so] this was not a case [involving] public security. Therefore, the plaintiff's actions do not constitute the situation described in Article 27, Clause 2, of the Law of the People's Republic of China on Penalties for Administration of Public Security, and according to Law of the People's Republic of China on Penalties for Administration of Public Security the defendant has no authority to impose penalties on the plaintiff.
To sum up, the administrative penalty imposed by the defendant on the plaintiff violates the statutory procedures stipulated in the Law of the People's Republic of China on Penalties for Administration of Public Security and the Law of People’s Republic of China on Administrative Penalty and is illegal and invalid. Pursuant to Article 11 of the Administrative Procedure Law of the People’s Republic of China, the plaintiff is filing a complaint against the defendant in accordance with the law, asking the People’s Court of Futian District of Shenzhen City to confirm that the administrative penalty imposed by the defendant on the plaintiff violates the law and to rescind the administrative penalty decision made by the defendant on December 16, 2012.
To: The People’s Court of Futian District, Shenzhen City.
Date of complaint: (month) (day), 2013
1. One copy of this indictment.
2. One photocopy the defendant's December 16, 2012, “Public Security Administrative Punishment Decision” Shen Gong Fu Jue Zi (2012) No. 044018.
3. One photocopy of the plaintiff’s ID card.
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