Xing Hu
One of the most frequently asked questions we receive in our criminal practice is “when will they be released after being detained by the police?”. Another one is, “we received a detention warrant of 3 days, so will they be released after 3 days?”.
Chinese Criminal Procedure Law dictates that when criminal investigatory authorities (in most of the cases, the police, so hereafter referred to as the Police) detain a suspect during a criminal investigation, they shall produce a detention warrant. It is notable that, unlike most Western countries, Chinese law does not require a judicial warrant for detaining a person. The police can decide by themselves whether or not detain the suspect for investigation purposes. So, back to the questions. How long can the Police detain a person without any “outside” supervision?
Under the Chinese criminal law, there is no explicit definition of “reasonable time” or “without unreasonable delay” with respect to criminal detentions. However, the Criminal Procedure Law sets maximum time periods under different circumstances.
Generally speaking, time periods for criminal detentions are composed of two parts:
- One sets a time frame for the police to investigate and if necessary, to submit an arrest request to the People’s Procuratorate for examination and approval;
- the other sets a time frame for the People’s Procuratorate to examine the request and make a decision. The People’s Procuratorate, although technically not a judicial organ, is given the power to approve arrest requests submitted by the police.
The time limit for the People’s Procuratorate to either approve or deny an arrest request is specified as 7 days, while the detention durations for the police investigation and submission of arrest requests differ under three different circumstances:
- For “ordinary cases”, if the police deem it necessary to arrest a suspect, they shall, within 3 days after the detention, submit an arrest request. Under this circumstance, the time period for detention is 10 days in total (with 7 days for the People’s Procuratorate to make a decision).
- Under special circumstances, the time limit for submitting an arrest request may be extended by 1 to 4 days. Therefore, the time period for detention can be up to 14 days.
- With respect to a prime suspect involved in crimes considered as major and complex, the time period for submitting a request may be extended to 30 days. Therefore, the total time period for detention in such circumstances can be up to 37 days.
In practice, it’s quite common for the Police to extend the detention to 30 days without really explaining the “complexity” of the case. Therefore, without any judicial supervision or approval, a criminal suspect can be detained for up to 37 days by the Police, which is quite a long period.
This power of the Police to detain a suspect for a relatively long period is due to the crime-control model of the criminal process in China; the focus on repression of criminal conduct as by far the most important function of the criminal process is central. To achieve this purpose, the law focuses primarily on the efficiency of the criminal process to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of crimes.
It is important to note that under certain circumstances it is possible for suspects to apply for bail through their legal counsel during the detention period. Feel free to reach out to us for more information on this topic.
