STATE SECRETS: CHINA'S LEGAL LABYRINTH - HRIC

22 HUMAN RIGHTS IN CHINA STATE SECRETS: CHINA’S LEGAL LABYRINTH
Under the State Security Law and the Criminal Law, association or collusion with
overseas individuals, organizations, or groups brings state secrets offenses within
the scope of “endangering state security.” 88 Article 111 is an endangering state security
crime, but includes the disclosing of any state secrets or intelligence, and in
criminal proceedings against individuals, as in the case of Zhang Shanguang, the
exact provision invoked is often unclear or changeable. And as seen in various
cases, the information transmitted—or which has been attempted to be transmitted—does
not necessarily need to be connected to intelligence or espionage. 89 Like
other criminal offenses in the PRC, subjective and objective requirements must be
met in order to establish the offense of illegally providing state secrets outside the
country. Actual or successful transmission is not necessary to the determination of
the crime, as long as the individual carried out one of the acts of stealing, gathering
or procuring state secrets for individuals or organizations overseas.
Especially Serious Circumstances
Crimes of endangering state security, including that in Article 111 of the Criminal
Law, are a particular subset of offenses eligible for the death penalty, as laid out in
Article 113 of the Criminal Law. 90 These include the serious crimes of subversion,
defecting to the enemy, sabotage, and espionage. Where “especially serious harm” is
caused to the state as a result of the crime, the death penalty can be imposed. 91
Some direction towards defining “especially serious circumstances” is given by the
Supreme People’s Court in its Interpretation of Certain Issues, which considers:
the nature of the secrets involved; the number of incidents; and the consequences
of their disclosure.
Any disclosure of “top secret” level secrets or of three “highly secret” state
secrets to anyone outside the country constitutes “especially serious circumstances”
and can be punishable by imprisonment of ten years to life, plus
confiscation of property.
The disclosure of state secrets or “intelligence” to anyone outside the country
is considered to be a crime committed under serious circumstances if “especially
serious harm” to state security or interests has been caused. 92
Where the harm caused to the state and the people is considered to be “especially
serious,” and where the circumstances of the crime are deemed be
“especially reprehensible,” a death penalty can be imposed. 93
Because the provision separates the disclosing of information from harm
that results, it is clear that the “especially serious consequences” provision
can be invoked regardless of finding objective harm. 94