Measures for the Investigation and Handling of Secret Leakage Cases

 2018-05-20  33


  • Measures for the Investigation and Handling of Secret Leakage Cases
  • Document NumberOrder No. 2 [2017] of the National Administration for the Protection of State Secrets
  • Area of Law Government Affairs
  • Level of Authority Departmental Rules
  • Date issued12-29-2017
  • Effective Date01-01-2018
  • Status Effective
  • Issuing Authority State Secrets Bureau

Order of the National Administration for the Protection of State Secrets
(No. 2 [2017])
The Measures for the Investigation and Handling of Secret Leakage Cases are hereby issued and shall come into force on January 1, 2018.
Director: Tian Jing
December 29, 2017
Measures for the Investigation and Handling of Secret Leakage Cases
Chapter I General Provisions
Article 1 For the purposes of protecting state secrets, safeguarding national security and interests, and regulating and strengthening the investigation and handling of secret leakage cases of administrations for the protection of state secrets, these Measures are developed in accordance with the Law of the People's Republic of China on Guarding State Secrets (hereinafter referred to as the “Law on Guarding State Secrets”) and the regulation on its implementation, and other laws and regulations.
Article 2 Where an administration for the protection of state secrets conducts legal investigation of or organizes or urges the relevant organ or entity to investigate and handle the clue to a case reported by a citizen, organ or entity, found through the inspection on the protection of state secrets or transferred by the relevant department, which is suspected of divulging any state secret, these Measures shall apply.
Article 3 The investigation and handling of secret leakage cases shall insist on the integration of education and punishment, take facts as the basis and laws as the criterion, have clear facts, concrete and sufficient evidence, accurate determination of nature, legal procedures and appropriate handling.
Article 4 For the purposes of these Measures, “divulging any state secret” means one of the following violations of laws, regulations and rules on the protection of state secrets:
(1) The state secret is known by anyone who should not have known the secret.
(2) Making any state secret exceed the limited scope of contact, and failing to prove that it is not known by anyone who should not have known the secret.
Article 5 Whoever falling under any of the following circumstances shall be punished as divulging any state secret:
(1) The whereabouts of documents and materials or other articles falling under state secrets are unknown within ten days if they are top secrets or within 60 days if they are highly secrets or secrets from the date of discovery.
(2) Failure to take measures for the protection of state secrets that comply with the state's provisions or standards on the protection of state secrets, and transfer of any state secret on the Internet or any other public information network, wired or wireless communication.
(3) Use of information devices such as computers and mobile storage media connected to the Internet or any other public information network to store and process any state secret, and such information devices are remotely controlled.
Article 6 The investigation and handling of a secret leakage case mainly covers:
(1) ascertaining the content and classification level of the divulged state secret;
(2) ascertaining case facts, major circumstances and relevant liable persons;
(3) requiring the relevant organ or entity to take necessary remedial measures;
(4) offering suggestions on punishing liable persons in accordance with relevant laws, regulations and rules, and urging the organ or entity to punish them; and
(5) aiming at the problems exposed in the case, urging the organ or entity to strengthen and improve the protection of state secrets.
Article 7 Secret leakage cases shall be handled according to the work rules of hierarchical handling and taking responsibilities by themselves. The administrations for the protection of state secrets of the state shall take charge of the investigation and handling of secret leakage cases nationwide. Under the guidance of administrations for the protection of state secrets at higher levels, local administrations for the protection of state secrets at all levels shall take charge of the investigation and handling of secret leakage cases within their respective administrative regions.
Relevant organs and entities shall, under the organization, supervision and guidance of administrations for the protection of state secrets, investigate and handle secret leakage cases and take corresponding rectification and remedial measures.
Article 8 The administrations for the protection of state secrets at higher levels shall direct and oversee the investigation and handling of secret leakage cases of administrations for the protection of state secrets at lower levels, and local administrations for the protection of state secrets shall direct and oversee the investigation and handling of secret leakage cases of organs and entities of their respective administrative regions. If it is found that the investigation and handling are inappropriate, corrective action shall be taken in a timely manner.
Article 9 Where the person who handles a case has interest relationship or any other relation with the case, which may affect the impartial handling of the case, he or she shall withdraw himself or herself. The party to the case has the right to require the withdrawal thereof.
The withdrawal of the person who handles the case shall be decided by the administration for the protection of state secrets to which he or she is affiliated. The withdrawal of the person in charge of the administration for the protection of state secrets shall be decided by the administration for the protection of state secrets at the next higher level.
Article 10 The administrations for the protection of state secrets and their personnel handling cases shall keep confidential state secrets, work secrets, trade secrets and personal privacy obtained in the investigation and handling of cases.
Chapter II Jurisdiction
Article 11 A secret leakage case shall be under the jurisdiction of the administration for the protection of state secrets at or above the county level at the place where the secret leakage act occurred. If it is more convenient to investigate and handle the case if the case is under the jurisdiction of the administration for the protection of state secrets at the place where the relevant organ or entity is located or the party to the case is domiciled, the case may be under the jurisdiction of the administration for the protection of state secrets at the place where the relevant organ or entity is located or the party to the case is domiciled.
In the transfer of a secret leakage case under the jurisdiction of the administration for the protection of state secrets at the place where the relevant organ or entity is located or the party to the case is domiciled, the administration for the protection of state secrets at the place where the secret leakage act occurred shall collect evidence in a timely manner before the transfer and cooperate in the investigation and evidence collection.
Article 12 The administration for the protection of state secrets of the state shall, in accordance with the law, investigate or organize or urge the investigation and handling of the following secret leakage cases:
(1) The case occurs in a central or state organ.
(2) The case involves two or more provinces (autonomous regions or municipalities directly under the Central Government).
(3) It is a major or complicated case nationwide.
Article 13 The administration for the protection of state secrets of a province (autonomous region or municipality directly under the Central Government) shall, in accordance with the law, investigate or organize or urge the investigation and handling of the following secret leakage cases:
(1) The case occurs in a provincial organ or an organ directly under the central organ in the province (autonomous region or municipality directly under the Central Government).
(2) The case involves two or more cities (prefectures, autonomous prefectures or leagues) or departments in the administrative region.
(3) The case occurs in an institution directly under the central or state organ in the province (autonomous region or municipality directly under the Central Government).
(4) It is a major or complicated case within the jurisdiction.
Article 14 Where the central or state organ is of the opinion that the circumstances of the relevant entity of the system where a secret leakage case occurred are particular, and it is inappropriate for the local administration for the protection of state secrets to handle and investigate the case, it may submit written materials to the administration for the protection of state secrets of the state to explain the reason, and the administration for the protection of state secrets of the state shall make a decision.
Article 15 The administration for the protection of state secrets at a higher level may designate the jurisdiction of a major or complicated secret leakage case. If the administration for the protection of state secrets having jurisdiction fails to conduct investigation or organize or urge the investigation and handling due to any particular reason, it may request the administration for the protection of state secrets at the next higher level to designate jurisdiction. If any dispute arises between administrations for the protection of state secrets at the same level due to jurisdiction, it shall be settled through consultation in accordance with the principles conducive to the investigation and handling. If necessary, a report shall be made to the common administration for the protection of state secrets at a higher level to designate jurisdiction.
The administration for the protection of state secrets at a higher level shall, within seven working days from the date of receiving the application for designating jurisdiction, make a decision on designating the jurisdiction, and shall notify in writing the administration for the protection of state secrets designated for jurisdiction and other related administrations for the protection of state secrets. When the original administration for the protection of state secrets that accepted the case receives the written notice of the administration for the protection of state secrets at a higher level, it shall immediately transfer case files to the administration for the protection of state secrets that has been designated for jurisdiction, and notify the relevant organ or entity in writing.
Article 16 Where the administration for the protection of state secrets finds that the case does not fall under its jurisdiction, it shall transfer the case to the administration for the protection of state secrets or any other department having jurisdiction within seven working days from the date of discovery.
Where the administration for the protection of state secrets accepting the transferred case has any objection to the jurisdiction, it shall request the administration for the protection of state secrets at the next higher level to designate jurisdiction, and shall not transfer the case on its own.
Chapter III Evidence
Article 17 The materials that can be used to prove the facts of a case are all evidence. Evidence includes:
(1) physical evidence;
(2) documentary evidence;
(3) witness testimony;
(4) statement of a party to the case;
(5) audio-video recordings and electronic data;
(6) inspection on the protection of state secrets and transcripts of survey, and technical verification reports; and
(7) identification paper of classification level.
Article 18 In the process of case investigation, the administration for the protection of state secrets shall collect and obtain evidentiary materials in a lawful, timely, objective, and comprehensive manner, and examine and verify them.
Article 19 The physical evidence collected or required for submission shall be the originals. Only when it is difficult to move or keep the original or if the original shall be kept and handled by the relevant organ or entity or the original shall be returned in accordance with the law may photos or video records that can fairly reflect the shape or content of the original be shot or made. Photos or video records of physical evidence can be used as evidence as long as they have been verified as genuine by checking with the originals or by identification or evaluation.
Article 20 The documentary evidence collected or required for submission shall be the originals. Duplicates or photocopies may be used when it is indeed difficult to acquire the originals.
Duplicates or photocopies of documentary evidence may be used as evidence as long as they are verified as genuine by checking with the originals. If any documentary evidence is modified or shows a sign of modification which cannot be justified, or if a duplicate or photocopy thereof cannot reflect the external form or content of the original, such material cannot be used as evidence.
Article 21 The personnel handling a case shall collect the original carrier of electronic data. If it is indeed difficult to collect the original carrier, a copy or an image backup may be made.
Article 22 For the duplicates and photocopies of documentary evidence, photocopies of audio-video recordings and electronic data, and the photos and video records of physical evidence, a written explanation on the storage place of originals shall be accompanied.
Chapter IV Acceptance
Article 23 The administration for the protection of state secrets shall, in a timely manner, accept the clue to a case suspected of divulging any state secret reported by any citizen, organ or entity, discovered in the inspection on the protection of state secrets, or transferred by the relevant department.
Article 24 Where the administration for the protection of state secrets accepts a report on the clue to a case suspected of divulging any state secret, if the informant is unwilling to disclose personal or entity information, he or she shall indicate it at the time of acceptance registration and keep it confidential.
The administration for the protection of state secrets shall register the relevant evidentiary materials and articles, among others, provided by the informant, issue a receipt list, and retain it in an appropriate manner; if necessary, they may take pictures or make audio or video recordings.
Article 25 The administration for the protection of state secrets that accepts the clue to a case suspected of divulging any state secret shall handle them separately:
(1) Where any state secret has been or may be divulged, it shall conduct preliminary investigation.
(2) Where, upon verification, there is any violation of law or regulation on the protection of state secrets, but if the circumstances are significantly minor and no damage has been caused, the relevant organ or entity may be ordered to criticize and educate the liable person.
(3) Where no secret is divulged or the case clue cannot be verified, the clue shall not be handled.
Article 26 Where the administration for the protection of state secrets accepts the clue to a case suspected of divulging any state secret and finds it necessary to take remedial measures, it shall immediately order the relevant organ, entity and personnel to cease the violation of law and take effective measures to prevent the expansion of secret leakage scope.
Chapter V Preliminary Investigation and Case Docketing
Article 27 Before deciding whether or not to docket a case, the administration for the protection of state secrets shall conduct a preliminary investigation of the clue to a case suspected of divulging any state secret to find out whether the secret is divulged. The preliminary investigation shall cover:
(1) the clue to the case involves the person's subject identity and basic information; and
(2) whether the issue reflected in the clue to the case is true or not, whether it has caused the divulge of any state secret, and whether it has reached the standards for docketing a criminal case.
Article 28 After the preliminary investigation is completed, a preliminary investigation report shall be formed, which shall cover the information on the clue to the case, preliminary investigation, and handling suggestion.
Article 29 The administration for the protection of state secrets shall handle the case respectively according to the information on preliminary investigation:
(1) If any state secret is indeed divulged and the standards for docketing a criminal case have been reached, it shall be transferred to the relevant department for investigation and handling.
(2) If any state secret is indeed divulged, the standards for docketing a criminal case have not been reached, and the administration does have jurisdiction, the case shall be docketed. If the administration does not have jurisdiction, it shall transfer the case to the administration for the protection of state secrets having jurisdiction for handling.
(3) Any state secret is indeed divulged, but the content of the case clue is incomplete or incorrect, the department that transfers the case clue or the informant or reporter shall be notified to supplement the content. If the supplemented content of the case clue still fails to meet the conditions for investigation and handling, the case shall not be docketed for the time being and the relevant materials shall be archived for future reference.
(4) If no state secret is divulged, but there are facts of violating the law or regulation on the protection of state secrets, the relevant organ or entity shall be urged or directed to conduct investigation and handling. When necessary, the administration for the protection of state secrets may conduct direct investigation.
(5) If there is no violation of law or regulation on the protection of state secrets, but the fact of any other suspected violation of law or discipline exists, it shall be transferred to the relevant functional department for handling.
(6) If the circumstances reflected in the case clue are inaccurate, the clue shall not be handled. If necessary, it may explain the situation to the relevant organ, entity and the party to the case.
Article 30 The period of preliminary investigation is two months, and when necessary, it may be extended by one month. If the preliminary investigation of the clue to a major or complicated case cannot be completed during the extension period, it may be extended after being approved by the person in charge of the administration for the protection of state secrets.
The period of preliminary investigation shall be calculated from the date of receipt of the case clue and ends on the date of submission of the preliminary investigation report.
Article 31 Where the case shall be docketed upon preliminary investigation, the personnel handling the case shall enter the case docketing form, attach case clue materials and preliminary investigation report, and submit it to the person in charge of the administration for the protection of state secrets for approval.
Article 32 After docketing the case, the administration for the protection of state secrets shall prepare a case docketing notice and notify the relevant organ or entity. If the notification of case docketing may affect the investigation and handling of the case, it may directly notify the competent authority at the higher level.
Chapter VI Investigation and Handling
Article 33 After the case is docketed, the administration for the protection of state secrets shall appoint two or more persons handling the case to conduct investigation or direct and urge the relevant organ or entity to conduct investigation.
For a major or complicated case, the administration for the protection of state secrets may organize relevant departments to set up task forces to investigate the case.
Article 34 The investigation of a case shall cover:
(1) basic information on a party to a case;
(2) whether the party to a case violates any law or regulation on the protection of state secrets;
(3) the time when and the place where the violation of the law or regulation on the protection of state secrets is committed, the means, consequences and other circumstances;
(4) whether it falls under the statutory circumstance where a heavier, lighter, mitigated or exempted penalty shall be imposed; and
(5) other facts relating to the case.
Article 35 When the administration for the protection of state secrets conducts direct investigation and inspection, there shall be not less than two persons who handle a case, and they shall show their identity certificates and indicate their identity.
Article 36 Organs and entities shall actively cooperate in case investigation and provide relevant evidence.
The organ or entity shall examine the party to a case leaving the country (territory) and if the leave may affect the investigation and handling of the case, shall not approve his or her leave from the country (territory).
Article 37 The party to a case shall consciously accept and cooperate in the investigation and truthfully explain the situation. It shall not collude with the accomplice or insider, shall not resist against the investigation, and shall not inform the investigation and handling of the case to any other person.
Article 38 In the process of case investigation, the personnel who handles a case may interview the party to the case, the witness or any other party to the case, and prepare interview transcripts. Interviews shall be conducted individually.
Article 39 The interviewed content shall cover:
(1) basic information on the interviewed person;
(2) the relationship between the interviewed person and the party to the case or the case;
(3) facts proving whether the party to the case is liable and the seriousness of circumstances;
(4) the reason for the occurrence of the proved fact, the time and place of occurrence, the means and circumstances; and
(5) other content relating to the case.
Article 40 Interview transcripts shall adopt a question-and-answer type and truthfully record the questions of the personnel handling the case and the answers of the interviewed person. The statement of the interviewed person shall be specific and detailed and faithful to the original intention. The circumstances which the interviewed person cannot remember clearly shall be truthfully reflected in the transcripts.
Interview transcripts shall be turned over to the interviewed person for verification, and if the person is incapable of reading, shall be read aloud to him or her. In the case of any mistake or omission in the records, correction or supplement shall be allowed. Upon verification, the interviewed person shall affix his or her signatures to each page of the transcripts. If the interviewed person refuses to affix his or her signature, investigators shall note on the interview transcripts.
An audio or video record of the whole interview process may be kept at the time of interview and the integrity thereof shall be ensured.
Article 41 Where a party to a case, a witness or any other party to a case requests the provision of written materials by himself or herself, it shall be permitted. When necessary, the person who handles the case may also require the party to a case, the witness or any other party to the case to write down his or her statements by himself or herself.
The party to a case, the witness or any other party to the case shall affix his or her signature to the end of his or her written materials, and shall affix his or her signature to each page of the printed written materials. The person who handles the case shall, after receiving the written materials, indicate the date when they are received and sign his or her name.
Article 42 When the party to a case is interviewed, the person who handles the case shall listen to his or her statements and arguments. The statements and arguments of the party shall be verified.
Article 43 In the process of case investigation, the person who handles the case may consult and copy the documents, materials, meeting minutes, work notes and other materials relating to the case, and consult and obtain the identity information, actual performance and other information of the party to the case, and relevant organ, entity and individuals shall cooperate.
Article 44 In the process of case investigation, the person who handles a case may inspect places and articles related to the secret leakage case. When conducting inspection, the inspected person or the witness shall be present.
The person who handles the case may prepare inspection transcripts based on the inspection. Inspection transcripts shall be signed by the person who handles the case, the inspected person or the witness; and if the inspected person or the witness is not present at the scene or refuses to sign his or her name, it shall be noted in the inspection transcripts by the person who handles the case.
Article 45 In the course of investigation of a case, the registration and preservation of state secret carriers or related facilities, equipment, and documents and materials, among others, shall be governed by the relevant provisions of the Administrative Compulsion Law of the People's Republic of China. The aforesaid articles shall be subject to the check of the person who handles the case together with the holder or the witness, and a checklist shall be issued in duplicate on the spot, specifying the name, specifications, quantity, features and registered preservation places of the objects subject to registered preservation. After the checklist is signed by the person who handles the case and the holder or the witness, one copy shall be held separately.
For the facilities and equipment registered and preserved at the relevant organ or entity, the measures sufficient to prevent the loss or transfer of relevant evidence shall be taken.
Article 46 For a secret leakage case involving information devices such as computers and mobile storage media, the administration for the protection of state secrets may organize or entrust a department or an entity with technical verification and evidence collection functions to conduct technical verification and evidence collection.
Article 47 In the process of case investigation, if it is necessary to identify whether the relevant matter falls under state secret and its classification level, it shall, in a timely manner, request the administration for the protection of state secrets that has the right to identify the classification level to conduct identification.
Article 48 Where, in the process of investigation of a case, the administration for the protection of state secrets finds that the relevant organ or entity has any potential hazard of secret leakage, the administration shall immediately require it to take measures and make rectification within a prescribed time limit, and in accordance with the law, order it to cease the use of the facilities, equipment and places which has any potential hazard of secret leakage.
Article 49 Where, upon investigation, there is insufficient evidence to determine the existence of the secret leakage fact, the decision of revoking the case shall be made with the approval of the person in charge of the administration for the protection of state secrets. The decision to revoke the case shall be notified to the relevant organ or entity in a timely manner.
Article 50 Where, upon investigation, the administration for the protection of state secrets is of the opinion that the violation of law or regulation on the protection of state secrets committed by the party to the case is suspected of any crime, it shall, in a timely manner, transfer the case together with case materials to the relevant department for investigation and handling.
Article 51 After the completion of investigation, if the administration for the protection of state secrets is of the opinion that there are secret leakage facts and the violator shall be held liable, it shall offer personnel handling suggestions to the relevant organ or entity. The relevant organ or entity shall, in a timely manner, notify the administration for the protection of state secrets at the same level of the handling result.
Where the relevant organ or entity fails to impose sanctions on the liable person in accordance with the law, the administration for the protection of state secrets shall propose corrective action in accordance with the law. If the liable person refuses to take corrective action, the administration for the protection of state secrets shall, in accordance with law, request the organ at the next higher level or supervisory organ to punish the liable leader of the organ or entity and directly liable persons in accordance with the law.
Article 52 The administration for the protection of state secrets shall, in response to the problems exposed by the case, urge the relevant organ or entity to take rectification measures and strengthen and improve the protection of state secrets.
The organ or entity shall submit a written report on rectification to the administration for the protection of state secrets within the prescribed time limit. The administration for the protection of state secrets may reexamine the rectification of the organ or entity.
Chapter VII Case Conclusion
Article 53 The conclusion of investigation of a secret leakage case shall meet the following conditions:
(1) The facts of divulging any state secret have been investigated.
(2) Necessary remedial measures have been taken.
(3) The relevant liable persons of the case have been punished or transferred to the relevant department for investigation and handling.
(4) The relevant organ or entity has taken rectification measures.
Article 54 After completing the investigation and handling of a case, the personnel handling the case shall submit a case closing report, and close the case after being approved by the person in charge of the administration for the protection of state secrets that dockets the case. The case closing report shall cover:
(1) the occurrence and discovery of the secret leakage case;
(2) the classification level, quantity, carrier form and summary of the state secret involved in the case;
(3) the damage that has been or may be caused by the secret leakage case;
(4) the major reason for the occurrence of the case;
(5) remedial measures that have been taken;
(6) handling of liable persons;
(7) rectification of the relevant organ or entity; and
(8) other information that needs to be explained.
Article 55 The period for the investigation and handling of a secret leakage case is three months. If the case cannot be closed upon investigation within three months from the date when the case is docketed, the period may be extended by one month with the approval of the person in charge of the administration for the protection of state secrets that investigates and handles the secret leakage case.
Where the secret leakage case cannot be closed upon investigation within the extension period, the administration for the protection of state secrets which investigates and handles the case shall explain the reason to the administration for the protection of state secrets at the next higher level, and if it fails to explain the reason within the prescribed time limit or the reason is insufficient, the administration for the protection of state secrets at the next higher level shall conduct inspection and urge the handling.
Chapter VIII Cooperation Mechanism
Article 56 The administrations for the protection of state secrets of provinces (autonomous regions and municipalities directly under the Central Government) and work bodies for the protection of state secrets of central and state organs shall cooperate with each other in the investigation and handling of secret leakage cases.
Where the local administration for the protection of state secrets at or below the level of a districted city or autonomous prefecture requires the work body for the protection of state secrets of a central or state organ in work, it shall request the administration for the protection of state secrets of the province (autonomous region or municipality directly under the Central Government) to which it is subordinated to coordinate.
Article 57 The administration for the protection of state secrets shall strengthen the coordination and cooperation with disciplinary inspection and supervision, cyberspace administration, trial, prosecution, public security, national security and other organs at the same level, establish a sound coordination and cooperation mechanism, and work together to investigate and handle secret leakage cases in an effective manner.
Article 58 Where the cooperation between armed forces and local administrations is required in the investigation and handling of secret leakage cases, the corresponding departments for the protection of state secrets of the armed forces and local administrations for the protection of state secrets may directly contact each other and shall support each other.
Chapter IX Legal Liability
Article 59 Where the relevant organ, entity or any of its staff members refuses to cooperate, practices fraud, conceals or destroys evidence, or evades or obstructs the investigation and handling of a case in any other form in the investigation and handling of a secret leakage case, disciplinary actions shall be taken against the directly responsible person in charge and other directly liable persons in accordance with the law.
An enterprise, public institution or any of its staff members that assists any organ or entity in evading or disrupting the investigation and handling of a case shall be punished by the relevant competent department in accordance with the law.
Article 60 Where the administration for the protection of state secrets that handles a secret leakage case fails to perform functions in accordance with the law, or abuses power, neglects duty, practices favoritism, or makes falsification, the directly responsible person in charge and other directly liable persons shall be subject to disciplinary actions in accordance with the law. If any crime is constituted, the violator shall be subject to criminal liability in accordance with the law.
Chapter X Supplementary Provisions
Article 61 The administrations for the protection of state secrets may, by reference to these Measures, investigate or organize or urge the organ or entity to investigate and handle any other violation of law prescribed in Article 48 of the Law on Guarding State Secrets.
Article 62 The format of documents required for the implementation of these Measures shall be uniformly determined by the administration for the protection of state secrets of the state. If the administration for the protection of state secrets of the state has not determined the format, the format of other documents required in law enforcement may be determined by the administration for the protection of state secrets of the province (autonomous region or municipality directly under the Central Government).
Article 63 These Measures shall be subject to interpretation by the National Administration for the Protection of State Secrets.
Article 64 These Measures shall come into force on January 1, 2018. The Measures for the Investigation and Handling of Secret Leakage Cases (for Trial Implementation) issued by the National Administration for the Protection of State Secrets on November 20, 1992 shall be repealed concurrently.