Law by Fa Du｜A 60-year-old retired cadre delivers petition materials to the leader and is detained for seven days. Lawyers interpret

After retired cadre Ms. Lei submitted petition materials to a leader of a certain political and legal department in the Opera House Square, she was taken away by the police for “picking quarrels and provoking trouble” and administratively detained. Ms. Lei filed an administrative lawsuit, requesting the court to revoke the relevant administrative penalties and review decisions, but did not get ideal results in both trials. Ms. Lei said that on April 15, she also submitted relevant reporting materials to the Ministry of Public Security.

Ms. Lei is a retired cadre from Daqing City, Heilongjiang Province, and has repeatedly reported to relevant departments the issues of Heilongjiang Huahui Wealth Investment Management Co., Ltd. suspected of illegally absorbing public deposits, loan sharking, and illegal violent debt collection. She believes that the local public security organs have not comprehensively investigated the relevant situation.
On the evening of June 29, 2023, the 5th Heilongjiang Provincial Tourism Industry Development Conference and the 1st Heilongjiang Culture and Tourism High-Quality Development Forum opened in Daqing City.

At around 9 a.m. that day, Ms. Lei, who was 60 years old at the time, came to the main venue of the opening ceremony, the Daqing Opera House. Ms. Lei said that the square was as quiet as usual, with only a few tourists taking photos. She happened to see a leader of a certain political and legal department coming out of the opera house and about to get into the car, so she walked to the right side of the car and shouted softly.

“After hearing it, the leader came down from the car. I explained to him that I was reflecting the materials of the Huahui case, and he took the materials and went back to the car.” Ms. Lei said that there were no warning lines around the square and the car, and there were no guards or on-duty personnel around her when she submitted the materials. No one intercepted or dissuaded her at the time. After the leader’s car drove away, other leaders criticized her for not sending the materials in this way, and then let her leave.
Ms. Lei told “Fadu law” that a few days earlier, she wanted to hand over the materials to another leader but failed, so she kept them in her bag. On the day of the Tourism Development Conference, because her home was not far from the opera house, she wanted to go and see the excitement, and happened to see the car of a leader of a certain political and legal department.
“I was very happy at the time, so I went over.” Ms. Lei felt at the time that there was no one around, “because no one stopped me, otherwise I wouldn’t be able to get through.”

Ms. Lei recalled that after submitting the materials, the police who might have been standing nearby had already walked over. The leader looked at the materials and got into the car, and after the car drove away, she also said a few words to the police. When she was about to walk out of the Opera House Square, she was chased by two people and taken to the police station.
However, the police’s statement is significantly different from Ms. Lei’s statement.

A “Decision on Administrative Punishment” provided by Ms. Lei shows that the Gaoxin Branch of the Daqing Public Security Bureau (hereinafter referred to as “Gaoxin Branch”) believes that at around 9 a.m. on June 29, 2023, during the Daqing Tourism Development Conference, Ms. Lei, holding petition materials, went to the opera house, which is not a petition department, to intercept the leader’s vehicle and, in a manner that disobeyed the instructions of the police officers, forcibly submitted petition materials to the leader, and decided to give Ms. Lei an administrative detention of 7 days.
In the administrative lawsuit filed by Ms. Lei, the Gaoxin Branch argued that according to Ms. Lei’s interrogation record, Ms. Lei learned about the location of the opening ceremony of the Tourism Development Conference through her neighbors in the community and arrived in front of the opera house in advance to attempt to submit petition materials. According to the on-site monitoring video and the situation description provided by the on-duty police officers, on the day when the leader and police officers got into the car, when the vehicle was about to start, Ms. Lei quickly came to the right side of the leader’s special car, and when several guards and on-duty personnel tried to dissuade and intercept her, she disobeyed the instructions of the guards and on-duty personnel and still forcibly submitted petition materials to the leader.
On December 4, 2023, the Longfeng District People’s Court of Daqing City ruled in the first instance that the police’s statement was correct and dismissed Ms. Lei’s request for litigation.
The first-instance judgment shows that the court did not approve Ms. Lei’s application for the identification of the video provided by the police, and Ms. Lei’s application for the relevant personnel to appear in court for questioning.
Ms. Lei did not appear in court after appealing, and the Daqing Intermediate People’s Court handled the appeal as withdrawn by Ms. Lei.

Ms. Lei told “Fadu law” that after the appeal, she requested to identify the narrative content of the “Case Source and Arrest Process” and whether the two signatures were genuine, and also requested the relevant personnel of the police to appear in court. “After the dispute, I verbally requested a postponement of the hearing, which was not approved, so I did not appear in court.”
Ms. Lei also questioned that the descriptions of the time of the incident in the multiple pieces of evidence materials provided by the police were inconsistent.
On April 18, “Fadu law” called the political and legal department multiple times but was unsuccessful.

Regarding Ms. Lei’s administrative lawsuit, Lawyer Yang Qun of Beijing Cailiang Law Firm told “Fadu law” that petitions need to be carried out in accordance with the provisions of the Petition Regulations, but when the petitioner reaches the point of “submitting materials in a non-petitioning occasion to seek help from leading cadres”, does it also indicate other problems?

Lawyer Yang Qun pointed out that in the case of Ms. Lei, whether there is indeed a situation where the fixed appeal process fails? Are the problems raised by Ms. Lei true? Should the government perform its duties in a timely manner and deal with them as soon as possible? In addition, what kind of law enforcement standards should the public security organs adopt when handling such cases?
Lawyer Yang Qun believes that if Ms. Lei made this move for the first time, the necessity of being administratively detained for 7 days is open to question. Both the police when making administrative punishment decisions and the court when hearing the case need to carefully consider.

“A balance should be struck between social management and public opinion expression. Coming from the masses and going to the masses is a principle that the government should adhere to.” Lawyer Yang Qun said, “Only when the channels of speech are open and only when disputes can be substantively resolved, will the behavior of ‘inviting vehicles’ become less and less.”

Lawyer Zhang Tianzeng of Beijing Jingzhe Law Firm mentioned to “Fadu law” that Article 33 of the “Administrative Litigation Law” stipulates that evidence includes documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, statements of the parties, appraisal opinions, and inspection records, on-site records, etc.

Lawyer Zhang Tianzeng said that the most direct proof of whether Ms. Lei “intercepted the leader’s vehicle”, “disobeyed the instructions of the police officers” and “forcibly submitted petition materials to the leader” is the on-site video or the on-site law enforcement record video. If the Gaoxin Branch cannot provide evidence of the above-mentioned illegal acts stated in the punishment decision, it should bear the legal responsibility of failing to provide evidence. Ms. Lei can consult and copy the video materials submitted by the public security organs in the administrative litigation stage.

However, according to the judgment record, the public security organs provided a video, indicating that the on-site video was provided to the court, and Ms. Lei can obtain the on-site video through legal channels from the court.

Lawyer Zhang Tianzeng said that when a party submits a statement of circumstances, reporting materials, etc. to the municipal government leader, it is essentially a petitioning behavior. According to Article 20 of the “Regulations on Petition Work”, “If a petitioner adopts the form of visiting to raise petition matters, he or she shall go to the reception place established or designated by the competent authority at the same or higher level”, submitting petition materials to the leader should be done in the designated place. In this case, Ms. Lei submitted petition materials in a non-designated place, which is obviously illegal.
However, whether Ms. Lei should be detained also depends on whether this kind of illegal petitioning behavior has reached the degree of administrative detention, and should be comprehensively evaluated according to the number of illegal petitioning, the location of illegal petitioning, and the degree of impact on society. If Ms. Lei has the circumstances of “intercepting the leader’s vehicle”, “disobeying the instructions of the police officers” and “forcibly submitting petition materials to the leader” described in the punishment decision, it should be a serious act, and she can be detained; but if there are no such acts described in the punishment decision, the police’s administrative detention of her is definitely beyond the necessary limit.

但关于雷女士是否就应被拘留，也要看此种非法信访行为是否达到了被行政拘留的程度，应当根据其非法信访的次数、非法信访的地点、对社会的影响程序等综合评判。如果雷女士存在处罚决定书中所描述的“拦截领导车辆”“拒不听从警务人员指令”和“强行向领导递交信访材料”等情形，应当属于情节严重行为，可以对其拘留；但如果没有处罚决定书中描述的上述行为，警方对其行政拘留肯定就超过了必要限度。