Criminal Detention of Foreign Nationals in China: What Should Families Do?

When a foreign national is placed in criminal detention in China, family members — whether in China or abroad — most often face the same problem: not “unwilling to act,” but not knowing where the person is, what crime is suspected, how to contact the person directly, or what procedural steps will follow.

It should be made clear at the outset that criminal detention is a compulsory measure in criminal proceedings, not a determination of guilt. No person shall be determined guilty without a judgment by a People’s Court in accordance with the law. In the early stage of detention, the handling authority is typically interrogating the criminal suspect, collecting evidence, and deciding whether to request approval of arrest from the People’s Procuratorate based on the circumstances of the case. Therefore, the family’s first priority is to confirm the detention and case-handling information and to assess whether defense counsel should be retained.

This article is principally based on ordinary criminal cases investigated by the public security organs. Cases involving endangering national security, terrorist activities, or special cases handled by other authorities may be subject to different or stricter procedural requirements.

1. First Confirm Where the Person Is Being Held and Which Authority Is Handling the Case

After family members learn that a relative has been taken away by the police, they should first verify the most basic information as fully as possible: the detained person’s name, nationality and passport information; the approximate time compulsory measures were imposed; the name of the handling authority; the suspected crime; the detention center where the person is currently held; and whether the family has received a Detention Notice.

Under Article 85 of the Criminal Procedure Law of the People’s Republic of China, after placing a person in detention, the public security organ shall immediately deliver the detainee to a detention center for custody, and in no case later than 24 hours. Except where notice cannot be given, or where the suspect is suspected of endangering national security or terrorist activity and notice might impede the investigation, the family shall be notified within 24 hours of the detention. The Provisions on the Procedures for Handling Criminal Cases by Public Security Organs further provide that the Detention Notice shall state the reason for detention and the place of custody.

Accordingly, the Detention Notice is usually an important document for the family to confirm case information. If it has been received, it is advisable to keep the original or a complete, clear photograph, and not to judge the case solely on the basis of another person’s oral account.

However, the fact that the family has not yet received a Detention Notice does not, by itself, establish that the detention procedure is unlawful. It is necessary to further verify whether the case falls within the statutory exception of “notice cannot be given” or involves a suspected crime of endangering national security or terrorist activity where notice might impede the investigation.

2. Why Family Members May Know Very Little About the Case at the Beginning

After a case enters the investigation stage, the information that family members can obtain directly from the handling authority is usually quite limited.

The detention notice mainly addresses basic procedural information such as why the person was detained and where they are held. It is not a complete account of the case, and certainly does not provide the family with the evidentiary material in the hands of the investigating authority.

Therefore, even if the family has obtained the Detention Notice, they may still not know the specific course of conduct, the amount involved, other suspects or persons involved in the same case, or what evidence the police have gathered. This is not unusual in the early investigation stage.

After being retained, a defense lawyer may, in accordance with the law, learn from the public security organ the crime suspected, the principal facts of that crime already ascertained, and matters such as the imposition, modification or lifting of compulsory measures and any extension of the investigation custody period; at the same time, the lawyer may meet the criminal suspect to understand the suspect’s own account of the case facts and the handling process.

It should be noted that a lawyer’s ability to obtain information about the case during the investigation stage does not mean that the lawyer already has access to the entire case file. Defense counsel may, from the date on which the People’s Procuratorate begins its review for prosecution, inspect, extract, and reproduce the case file materials in accordance with law. Therefore, at the early stage of a case, a distinction should be drawn between information lawfully obtained by defense counsel and a full review of the case file.

3. Can Family Members Visit a Foreign National in Detention?

Family visits and meetings with defense counsel should generally not be understood as the same institution.

Article 39 of the Criminal Procedure Law provides that defense lawyers may meet and correspond with a criminal suspect in custody. When a lawyer, presenting a lawyer’s practice certificate, the law firm’s certificate, and a power of attorney or legal aid letter, requests a meeting, the detention center shall arrange it promptly, and in no case later than 48 hours. For crimes of endangering national security or terrorist activity, special permission rules apply to meetings with defense counsel during the investigation stage.

The “48 hours” is the latest deadline prescribed by law, not a requirement that a lawyer must wait the full 48 hours before a meeting can take place.

Family visits are different. The Provisions on the Procedures for Handling Criminal Cases by Public Security Organs, Article 370, explicitly provide that during the investigation and custody period under the public security organ, a foreign national criminal suspect may meet with close relatives or guardians and correspond with the outside with the approval of the public security organ.

Therefore, after a foreign national is placed in criminal detention in China, family members do not have the same automatic right of meeting as defense counsel. Family visits, meetings with defense counsel, and consular access referred to below should be understood as three distinct institutions.

4. When Can a Chinese Criminal Defense Lawyer Be Retained?

There is no need to wait until after approval of arrest.

Article 34 of the Criminal Procedure Law provides that, from the time a criminal suspect is first interrogated by the investigating authority or compulsory measures are imposed, the suspect has the right to retain defense counsel; during the investigation stage, only a lawyer may serve as defense counsel. The guardian or close relatives of a criminal suspect in custody may also retain defense counsel on the suspect’s behalf.

Therefore, once criminal detention is confirmed, the suspect has, in principle, already entered the stage where a defense lawyer may be retained in accordance with the law.

For foreign national criminal suspects, Article 369 of the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs further provides that, where a suspect retains defense counsel, the counsel must be a lawyer practicing at a law firm within the territory of the People’s Republic of China. The Supreme People’s Court’s current interpretation on the Criminal Procedure Law also makes clear at the trial stage that, where a foreign national defendant retains defense counsel, the counsel must be a lawyer qualified as a lawyer of the People’s Republic of China and holding a practice certificate in accordance with the law.

Therefore, a foreign lawyer does not, by reason of being retained by the family, automatically acquire the qualification to act as defense counsel in criminal proceedings in China.

Who Qualifies as “Close Relatives” Able to Retain Counsel on the Suspect’s Behalf?

“Close relatives” has a specific legal meaning in Chinese criminal procedure. Article 108 of the Criminal Procedure Law provides that close relatives means:

husband, wife, father, mother, son, daughter, and siblings of the same parents.

Therefore, if the person contacting the lawyer is a friend, romantic partner, distant relative, colleague, employer, or business partner, one should not simply assume they automatically have the qualification to retain defense counsel in the capacity of “close relative”; the appropriate method of retaining counsel should be determined further in light of the specific relationship and the stage of the case.

5. What Can a Defense Lawyer Do During the Investigation Stage?

A lawyer’s work during the investigation stage is not merely “to visit the person in custody once.”

First, a lawyer may meet the criminal suspect in accordance with the law, verify the circumstances of the compulsory measures, the suspected crime, the interrogation, and the suspect’s account of the case facts, and explain the relevant procedural rights and legal issues to the suspect.

Second, the lawyer may learn from the investigating authority the suspected crime, the principal facts already ascertained, and the compulsory measures and relevant procedural progress. The current provisions of the public security organ expressly require this.

Third, Article 38 of the Criminal Procedure Law provides that, during the investigation stage, defense counsel may provide legal assistance to the criminal suspect, acting as agent for petition or accusation, apply for modification of compulsory measures, and learn the suspected crime and relevant case information from the investigating authority and present opinions. The criminal suspect, defendant, their legal representative, close relatives, or defense counsel also have the right in accordance with the law to apply for modification of compulsory measures.

Where the public security organ considers it necessary to arrest the criminal suspect, it shall request the People’s Procuratorate to review and approve the arrest in accordance with the law. When the People’s Procuratorate reviews and approves the arrest, if the defense lawyer so requests, it shall hear the defense lawyer’s opinions. Therefore, the early stage after detention is not one of passively waiting; the lawyer may, in light of the case circumstances, lawfully carry out meetings, present opinions, and apply for modification of compulsory measures.

Whether release on bail pending investigation or other lighter compulsory measures may be granted must be determined in accordance with the law based on the nature of the suspected crime, the evidence, the danger to society, and the specific circumstances of the case; it cannot be concluded solely from the suspect’s nationality, family financial condition, or the family’s willingness to provide a guarantee.

6. What Documents May Family Members Abroad Need to Retain a Lawyer?

One of the most common problems with retaining a lawyer from abroad is that the family has decided to engage counsel, but identity documents, proof of kinship, or authorization documents cannot be directly verified by the Chinese handling authority.

Generally, the family may first assemble the detained person’s name, nationality, passport or other identity information; existing case documents such as the Detention Notice; the identity documents of the family member retaining counsel; and materials that can prove the relationship between that family member and the detained person. Whether non-Chinese documents require translation and what form of translation is adopted should be determined in light of the requirements of the handling authority and the specific procedure.

A point requiring particular attention is: the formalities for overseas documents must be distinguished by stage of proceedings and cannot be treated uniformly.

During the Investigation Stage

During the investigation stage under the public security organ, the Criminal Procedure Law expressly provides that the guardian or close relatives of a criminal suspect in custody may retain defense counsel on the suspect’s behalf. However, the specific form of proof required for identity documents, proof of kinship, and authorization documents formed overseas should be determined in light of the country of issuance, the nature of the document, and the review requirements of the specific handling authority.

The rules on overseas authorization at the trial stage of the People’s Courts should not be applied indiscriminately to all engagements of counsel during the investigation stage.

During the Trial Stage

After a case enters the trial stage of the People’s Court, Article 485 of the SPC Interpretation provides that where a foreign national defendant is in custody, their guardian, close relatives, or the diplomatic or consular mission of their country of nationality in China may retain defense counsel on their behalf; where a guardian or close relatives retain counsel on the defendant’s behalf, they shall provide valid proof of their relationship with the defendant.

Article 486 of that Interpretation further prescribes special proof formalities for powers of attorney sent or entrusted from outside the territory of the People’s Republic of China by a foreign national party, and for proof of guardianship or close-relative relationship provided overseas, and at the same time makes clear that the matter may be handled in accordance with treaties concluded between China and the relevant state.

Therefore, when preparing documents, overseas family members should first confirm which stage the case is currently at — investigation, review for prosecution, or trial — and then determine what formalities are required.

Apostille Does Not Mean That All Notarization Requirements Have Disappeared

Since November 7, 2023, the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the “Apostille Convention”) has been in force in China. For public documents issued by a contracting state, sent for use in mainland China, and within the scope of the Convention, the competent authority of that state may issue an Apostille, and there is no need to undergo the traditional consular legalization by the Chinese embassy or consulate in that locality. Between China and non-contracting states, the original system of consular legalization continues to apply.

However, an Apostille replaces the consular legalization step; it does not automatically eliminate notarization or other prerequisite formalities that the document itself may need to satisfy.

An Apostille certifies the authenticity of the relevant signature or seal on a public document; it does not establish that the contents of the document are true or legally valid. Whether a particular document, such as a power of attorney or proof of relationship, must first be notarized or otherwise converted into a form eligible for an Apostille depends on the nature of the document, the law and practice of the issuing state, and the requirements of the Chinese receiving authority.

Therefore, it is no longer accurate to tell all overseas family members broadly that:

“Retaining a lawyer from abroad must uniformly undergo notarization, Ministry of Foreign Affairs authentication, and Chinese embassy authentication.”

A more sound approach is: first determine the country where the family member is executing or obtaining the document, the nature of the document, the kinship, and the stage of the proceedings, then determine the form of proof in light of that country’s document system, China’s current treaty relationships, and the requirements of the receiving authority.

7. What Additional Procedures Apply in Cases Involving Foreign Nationals?

Where a foreign national is placed in criminal detention in China, Chinese criminal procedure applies, and there are also certain special procedures related to foreign nationality.

Consular Notification

The current Provisions on the Procedures for Handling Criminal Cases by Public Security Organs provide that, after a decision is made to release a foreign national criminal suspect on bail pending investigation or place the suspect under residential surveillance, or after criminal detention or arrest is executed, the matter must be reported through the prescribed channels. The provincial-level public security organ shall then notify the embassy or consulate of the suspect’s country of nationality in China in accordance with the applicable rules.

At the same time, Article 36 of the Vienna Convention on Consular Relations provides that, when a foreign national is arrested, imprisoned, detained pending trial, or otherwise taken into custody, the competent authority of the receiving state shall, upon request of the person, promptly notify the consular post of the state of nationality, and shall promptly inform the person of the relevant consular communication rights; consular officers have the right to visit the national, correspond with them, and may assist in arranging legal representation. The Convention entered into force for China on August 1, 1979.

It should be noted that China has also concluded bilateral consular treaties with some states. Different treaties may provide differently as to the manner, timing, and specific procedures of notification. Therefore, the specific rules on consular notification and access should be assessed comprehensively in light of the suspect’s nationality, whether a bilateral consular treaty exists between China and that state, the Vienna Convention on Consular Relations, and China’s domestic procedural provisions; they cannot be generalized identically for all states.

Consular Access Is Different From Family Visits and Meetings With Defense Counsel

Under the current provisions of the public security organ, where a foreign diplomatic or consular officer in China requests to visit a national of their state who is under residential surveillance, detention, arrest, or serving a sentence in a detention center, the meeting shall be arranged in accordance with the provisions; if the criminal suspect themselves refuses consular visit by a diplomatic or consular officer of their country of nationality, the public security organ may decline to arrange it, but the suspect must make a written declaration to that effect.

Therefore:

Meetings with defense counsel, consular access, and family visits are three distinct institutions, with different conditions of application and functions.

The embassy or consulate may provide consular assistance, but it does not thereby replace the defense lawyer in performing the specific defense work in Chinese criminal proceedings.

Language and Interpretation

Article 362 of the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs provides that the public security organ uses the common language and script of the People’s Republic of China in handling criminal cases involving foreigners. Where the criminal suspect does not understand the Chinese language or script, the public security organ shall provide interpretation; if the person understands Chinese and does not require interpretation, a written declaration to that effect shall be made in accordance with the provisions.

Therefore, when meeting a foreign national criminal suspect, the lawyer also needs to pay attention to whether the suspect truly understands the interrogation, legal documents, and their own procedural rights. The mere formal existence of interpretation does not by itself mean that the language comprehension issue has been fully resolved.

8. What Should Family Members Avoid Doing During the Early Stage of the Case?

It is normal for family members to feel anxious in the early stage of a case, but the more the facts and evidence have not yet been clarified, the more they need to avoid creating new problems out of a rush to “help.”

First, do not delete or alter, on your own initiative, mobile phones, computers, chat records, emails, transfer records, or other electronic data that may be related to the case. Even if the family considers certain content “harmful” or “easily misunderstood,” they should not decide on their own to delete it.

Second, do not contact other suspects in the same case, witnesses, or other relevant persons in an attempt to coordinate their accounts, and certainly do not convey messages such as “what should be said” or “which matters must not be admitted.”

Third, maintain caution toward promises of so-called “internal connections,” “guaranteeing the person’s release,” or “certainly obtaining bail.” The detention, approval of arrest, release on bail pending investigation, and subsequent handling in criminal cases are all governed by statutory procedure; they cannot be replaced by so-called connection promises in place of an assessment of the case facts, evidence, and legal conditions.

Fourth, before the full picture of the case is understood, avoid rushing to publicize the person’s identity, case materials, and unverified case facts on social media.

A more sound approach is: preserve the materials intact first, then assess their legal significance. The Detention Notice, police contact details, contracts, chat records, payment records, work and residence materials, entry-exit materials, etc. can all first be kept in their original state, and the lawyer can determine their evidentiary value after understanding the case facts.

9. Frequently Asked Questions

1. If a foreign national is placed in criminal detention, is the maximum detention period 37 days?

This cannot be understood so simply.

Article 91 of the Criminal Procedure Law provides that, where the public security organ considers it necessary to arrest a detainee, it shall, as a general rule, request the People’s Procuratorate to review and approve the arrest within three days of the detention, and under special circumstances this may be extended by one to four days.

For major suspects suspected of committing offenses while moving across different city or county jurisdictions, committing offenses repeatedly, or committing offenses jointly with others, the public security organ may extend the period for requesting approval of arrest to 30 days. Upon receiving the request for approval of arrest, the People’s Procuratorate shall decide whether to approve or not approve the arrest within seven days.

Therefore, the commonly discussed “37-day period” applies only in specified circumstances. For major suspects suspected of committing offenses while moving across different city or county jurisdictions, committing offenses repeatedly, or committing offenses jointly with others, the public security authority may have up to 30 days to submit a request for approval of arrest, after which the People’s Procuratorate has up to seven days to decide whether to approve the arrest.

It is not a standard detention period applicable to every criminal case, and foreign nationality does not itself trigger a 37-day period.

2. If the family has not received a Detention Notice, does that mean the person has not yet been formally detained?

This cannot be concluded from that fact alone.

The handling authority, place of custody, and the compulsory measures actually imposed should first be verified. The law expressly provides for notice to the family after detention, while also prescribing exceptions such as “notice cannot be given” and, in specified crimes, circumstances where notice might impede the investigation.

3. Can family members go directly to the detention center to see the person?

Family visits should not be understood as an automatic right of visitation.

During the investigation and custody period under the public security organ, a foreign national criminal suspect’s meeting with close relatives or guardians is subject to the approval of the public security organ. Meetings with defense counsel are governed by independent rules.

4. May a foreign lawyer be engaged to act as defense counsel at a Chinese detention center?

In Chinese criminal proceedings, where a foreign national criminal suspect retains defense counsel, the counsel must be a lawyer lawfully practicing at a law firm within the territory of the People’s Republic of China. A foreign lawyer does not, by reason of being retained by the family, automatically acquire the qualification to act as defense counsel in Chinese criminal proceedings.

5. If the national’s embassy or consulate in China has already been contacted, is a lawyer still needed?

The two functions differ.

The embassy or consulate in China may, in accordance with relevant international treaties and Chinese law, carry out consular communication and consular access, and within the corresponding scope assist the national in obtaining legal representation. However, the meetings with defense counsel in the specific case, analysis of case facts and evidence, applications for modification of compulsory measures, procedural opinions, and subsequent criminal defense remain defense work within Chinese criminal proceedings.

Therefore, consular assistance cannot simply replace criminal defense.