Tuesday, January 8, 2013

China Ushers in Non-Residential Residential Surveillance

Zhu Chengzhi (right) visits his friend, deceased democracy activist Li Wangyang. Photo credit: Deutsche Welle

Considerable public controversy erupted in China in late 2011 and early 2012 over proposed amendments to the Criminal Procedure Law (CPL) that would have allowed police to detain certain suspects without notifying the suspects’ family. One of the most troubling examples was the proposal concerning the measure known as “residential surveillance,” which—in spite of the name—was revised to include certain circumstances under which police could choose to carry out the coercive measure in a “designated residence” that was not the suspects’ home for up to six months. Critics argued that the ability to employ this measure without family notification would be tantamount to enforced disappearance and, therefore, a violation of international human rights law.

Public criticism over the “disappearance clauses” may have ultimately contributed to some salutary changes to the legislation, including the removal of exemptions for providing notification of residential surveillance (but not carrying out residential surveillance in a designated residence). Under the revised CPL, which took effect on January 1, 2013, police are thus required to give notice to relatives within 24 hours of all individuals being subjected to “non-residential residential surveillance.” This limits the ability of police to make an individual disappear without a trace, but the practice of non-residential residential surveillance remains deeply problematic, even though its inclusion in the CPL has given it a veneer of legitimacy.

This situation is illustrated by the case of Zhu Chengzhi, who, according to Zhu’s defense lawyer Liu Xiaoyuan, is likely to be the first person in China to be placed in this form of residential surveillance (the number of the notice issued by local police is “A01”) since the new CPL took effect earlier this month. Zhu, age 62, was detained in June 2012 by police in Shaoyang, Hunan, after he allegedly disseminated information that raised doubts about local authorities’ official finding of suicide in the death of his friend and long-time political prisoner Li Wangyang (李旺阳). After reportedly refusing to sign a guarantee that he would cease his efforts to draw attention to suspicions surrounding Li’s death, Zhu was placed under criminal detention on suspicion of “inciting subversion,” charges for which he was formally arrested on July 25, 2012.

After five months of incommunicado detention, Zhu’s case was transferred to prosecutors on December 25. On January 4 (the first day of business for Chinese government offices following the New Year’s Day holiday), Zhu’s wife, Zeng Qiulian, retained Liu Xiaoyuan to represent her husband. That same day, the Shaoyang People’s Procuratorate handed the case back to police for additional investigation, and police decided to place Zhu under residential surveillance and delivered an official notification (translated below) to his wife.

Even though Zhu Chengzhi has a legal residence in Shaoyang, police have chosen to carry out residential surveillance in a designated location under the provisions of Article 73 of the CPL, which allows for use of this measure “in cases involving crimes of endangering state security, terrorist activity, or especially serious bribery, if carrying out [residential surveillance] in the residence [of the criminal suspect or defendant] has the potential to interfere with the investigation.” The official notice of residential surveillance provided to Zhu’s wife does not identify the location where he is being held, meaning that his current whereabouts are unknown. The new CPL does not specify what information is to be included on notices of residential surveillance. Stipulations included in the August 2011 draft of CPL revisions said that the grounds and whereabouts of detention should be disclosed, but these clarifications were removed for residential surveillance and other coercive measures in the final law. Zeng told Reuters that police were moving her husband to a hotel but that they did not provide an exact location.

On January 5, Liu Xiaoyuan met with Shaoyang police and filed a request to meet with his client. Article 37 of the CPL gives lawyers the right to meet with clients who are under residential surveillance but also gives police discretion to deny lawyers’ requests when the client’s alleged offense falls under the category of “endangering state security,” which includes inciting subversion. Liu told Voice of America that he suspects Zhu was placed under non-residential residential surveillance precisely in order to prevent him from having access to a lawyer.

Under the new CPL, will this kind of long-term, incommunicado detention for people charged with state security crimes become more routine? It is still too early to say, but Zhu Chengzhi’s example is a very worrying sign.

Shaoyang Public Security Bureau
Notice of Residential Surveillance in a Designated Residence

SY PSB (     ) Res. Surv. Not. (2013) No. A01

Zeng Qiulian:

        In accordance with the provisions of Article 73 of the Criminal Procedure Law of the PRC, our bureau on January 4, 2013 at 11 a.m. carried out residential surveillance in a designated residence against Zhu Chengzhi (sex male, birthdate 1950.10.18, residence 1469 Baoqing East Road, Shuangqing District, Shaoyang, Hunan Province) on suspicion of the crime of inciting subversion of state power.

Shaoyang Public Security Bureau (chop)
January 4, 2013

This notice is given to the family member of the person under residential surveillance.