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"When Chinese police raided the Guangzhou hotel room of Mark Swidan and arrested him on 13 November 2012, he was on the phone to his mother, Katherine. Swidan had been in China sourcing building materials for his business , Katherine says, and they were discussing booking his ticket home to Houston, Texas, for his wedding, when he said there was a knock at the door.

“I heard banging, then I didn’t hear anything after that,” she recalls."

'He's been set up': the American whose life may depend on US-China relations

1) False Accusations & Arrest by CCP Authorities:

"According to a summary of the case published by the Dui Hua Foundation in November 2017, “Mark Swidan was taken into custody during a police raid on his hotel room (Guangzhou) on November 12, 2012. He was on a business trip.

Two individuals – an interpreter and a driver – had come to his room. Police reportedly found drugs on their persons. No drugs were found on Mr. Swidan or in his room. Drugs were found in the room of another suspect.

No forensic evidence has been produced – no drugs in his system, no DNA on the packages, no fingerprints on the packages or drug paraphernalia – tying Mr. Swidan to the drugs. No emails, letters, or phone calls have been found that link Mr. Swidan to any drug transaction.

The indictment states that Mr. Swidan played a secondary role in the alleged crime. Prosecutors recommended a lesser sentence. Mr. Swidan has no history of criminal behavior, including using or trafficking in drugs.

Five Years and Counting

Dui Hua

2) China's Corrupt Communist Courts

"According to a human rights officer working for the United Nations in Geneva, the way Mr. Swidan's case has been handled is a "cut and dry case of arbitrary detention."

It is not unheard of for Chinese defendants to have their judgments delayed for a period of several months. Prominent dissidents like Gao Yu, Guo Feixiong, and Pu Zhiqiang all had their judgments delayed for many months. But holding a foreigner for five years without adjudication is unheard of. No Chinese official has given an explanation for this interminable delay, merely stating that the case is "complicated."

Article 202 of China's Criminal Procedure Law (CPL) states that a people's court should announce judgment within two months of the completion of the trial, and no more than three months can pass without a judgment being announced. If the crime can result in a death sentence or if there are complicating factors, then the higher court can extend the time for rendering a judgment by three months. "If there are special circumstances requiring additional extensions, the court must apply to the Supreme People's Court for approval." There is no statutory limit for the number of times a judgment can be extended.

Complicating factors leading to an extension of the judgment include 1) if the offense involves both criminal and civil penalties (Article 202); 2) if the case is an important or complicated one in rural areas with inconvenient transportation; 3) if the case involves large criminal organizations; 4) if it is an important case involving crimes committed in multiple locations; and 5) if collecting evidence is difficult (2-5 are covered by Article 156.) In short, there are many reasons why a Chinese court can extend a judgment for as long as it wants, and there are no means to force a decision.

"Justice delayed is justice denied" is a legal maxim, widely ascribed to the British jurist William Gladstone, that is the basis of a fundamental due process right, the right to a speedy trial and judgment. Another legal maxim is that a suspect is innocent until proven guilty. In the eyes of the law, Mark Swidan is an innocent man."

Five Years and Counting

Dui Hua

3) Sentenced: Death Penalty

"After spending nearly six and a half years in a Chinese detention center without having been convicted of a crime, 44-year-old American businessman Mark Swidan has been found guilty of trafficking and manufacturing drugs and sentenced to death, suspended for two years. The Jiangmen Intermediate People’s Court announced the sentence on April 30, 2019, more than five years after Swidan’s trial in 2013.

Mark Swidan and ten other individuals were found guilty by the Jiangmen court, including two who were sentenced to death. One of those sentenced to death is a Canadian citizen. All of those convicted have 10 days to appeal their sentences.

Since Swidan’s trial in 2013, the Jiangmen court has applied for extensions of the statutory requirement to announce a judgement no later than three months after the trial. The Supreme People’s Court in Beijing granted the extensions on more than 20 occasions. No explanation was provided to the family.

Katherine Swidan has led the fight for her son’s freedom. The news of this cruel sentence is a crushing blow to her and her family in Houston, Texas.

The American consulate in Guangzhou has paid Mr. Swidan monthly visits and consular officers attended both the 2013 trial and the 2019 sentencing. The Department of State and the White House have raised his case with the Chinese government on numerous occasions. More recently, a local Catholic Church in Houston has offered support for the family. The family’s congressman, Representative Vicente Gonzalez (D-TX), has taken up Mr. Swidan’s cause, as well.

Mr. Swidan’s sentence is believed to be the first time an American citizen has been sentenced to death, suspended for two years, by a Chinese court."

Chinese Court Sentences American Mark Swidan to Death with Two-Year Reprieve

Dui Hua

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