Tuesday, February 9, 2016

China Issues Oversight Rules for “Non-residential” Residential Surveillance

The Supreme People's Procuratorate building in Beijing.

Not long after the draft of the amended Criminal Procedure Law (CPL) was released by China’s National People’s Congress (NPC) for public comment in August 2011, the United Nations Working Group on Enforced or Involuntary Disappearances expressed concern that the provisions relating to the coercive measure known as “designated-location residential surveillance” (zhiding jusuo jianshi juzhu) would legalize enforced disappearances. In late 2015, the United Nations Committee against Torture (CAT) went further and called on China to abolish the measure.

The Supreme People’s Procuratorate (SPP) subsequently issued trial rules for determining the necessity of detention and rules to govern oversight of “designated-location residential surveillance” (DLRS), which had leapt back into the headlines in 2015 as part of a police crackdown against Chinese rights lawyers that intensified in July.

A Coercive Measure

Custodial detention or arrest takes place in detention centers, ordinary residential surveillance in one’s residence. DLRS happens someplace else, perhaps in a hotel or guesthouse, where law enforcement agents hold criminal suspects or defendants for up to six months while they investigate alleged crimes or prepare a case for trial.

Authorities justify the lengthy six-month period by stating that residential surveillance is relatively lenient—not depriving people of their liberty, but merely restricting it. Nonetheless, individuals held under DLRS face an environment ripe with potential abuse and rights violations.

When law enforcement uses the practice against people charged with endangering state security (ESS), terrorist activity, or serious corruption, the outcome is hard to distinguish from enforced disappearance or incommunicado detention. In these types of cases, investigators may use the law to deny families the knowledge of where their loved ones are being held and to deny detainees’ access to a lawyer. Within 24 hours of carrying out DLRS, investigators are only required to provide families with notice of detention and of the alleged offense.

What a Difference Two Years Makes

Faced with public opposition to the practice, legislators granted oversight powers to the procuratorate, but it has taken nearly two years for the SPP to define its role. In the meantime, as predicted, DLRS has become a routine part of handling politically sensitive cases. Though its high costs of facilities and manpower are somewhat prohibitive, DLRS is unparalleled in its long duration, ability to isolate detainees, option to delay intervention by legal counsel, and general capacity to exert psychological (and, in some cases, physical) pressure on suspects.

Unfortunately, the new rules will do little to diminish these serious violations of due process. Procurators are concerned with whether DLRS is carried out lawfully, yet the most concerning aspects of the practice are themselves spelled out in the law.

Focus on Decisions, Implementation

The SPP has yet to publish their oversight regulations, but highly controlled media reporting sheds some light on their content. One thing is clear: the intention of the rules is bureaucratic oversight, not judicial oversight. Procurators will likely focus on examining paperwork, making the occasional inspection, and issuing instructions in case anything is out of the ordinary. People held under DLRS may initiate the oversight process by filing complaints independently or through their advocates. What appear to be missing are mechanisms for hearings to allow for the presentation of evidence or for appeals to challenge procuratorial decisions.

Monitoring by the procuratorate will focus on two areas: (1) whether the decision to impose DLRS was lawful and (2) whether DLRS has been lawfully implemented. The former chiefly concerns whether the case involves a person who either (a) lacks a fixed residence in the county or city where the criminal investigation is taking place, or (b) is suspected of ESS, terrorism-related offenses, or serious corruption. In case of (b), the law requires investigators to substantiate a claim that ordinary residential surveillance would impede their investigation and obtain approval for DLRS from their immediately superior law-enforcement unit.

The second area of focus involves ensuring that all paperwork is in order; necessary notices have been delivered; and the appropriate location, duration, and personnel are employed. Procurators would also ensure that detainees’ lawful rights are being protected, interrogations are held in separate locations, and no “physical punishment or abuse” is inflicted.

Adding Inspections

Oversight activities require procurators to make an on-scene inspection within 24 hours of receiving a copy of a decision to carry out DLRS. This inspection presumably enables inspectors to interview detainees and establish whether they have any allegations to make. It should also allow them to ascertain whether the designated location meets the lawful conditions for “ordinary living and rest” and to ensure that surveillance cameras and safety equipment are installed.

The rules also appear to require procurators to visit the location at least once a week for the duration of DLRS. Periodic inspections should offer minimal guarantees against physical torture or ill treatment. They are inadequate, however, in preventing mental suffering and the use of other cruel and degrading treatment.

Also troubling is the requirement that inspections be carried out in ways that do not interfere with investigations. This prioritizes the needs of investigators over the rights of detainees and may give investigators broad discretion to delay access to facilities.

Missing the Mark

This type of oversight, with its emphasis on ensuring adherence to applicable laws and regulations, will no doubt help to limit certain kinds of arbitrary and abusive behaviors. Other arbitrary practices and violations of due process will remain unaffected because they are legally sanctioned. For example, procurators are very unlikely to challenge investigators’ decisions to deny access to legal counsel to individuals charged with ESS or terrorism. The CPL empowers investigators to deny such access if they believe it might interfere with their investigation.

In their attention to the legality of decision and implementation, procurators may also fail to scrutinize the legitimacy of charges made against detainees. Investigators can use flimsy evidence to initiate ESS investigations—thereby justifying the use of DLRS and exclusion of legal counsel—only to modify the charges when requesting approval of formal arrest after expiry of the six-month time limit.

Ultimately, however well intentioned it might be, this kind of bureaucratic review cannot address the risks of DLRS. The measure grants law-enforcement investigators too much power over individuals, and the procuratorate lacks both power and incentive to challenge DLRS decisions, especially in the kinds of politically sensitive cases where abuse is most likely.

The best solution would be for China to abolish DLRS, or at the very least, to restore detainees’ rights to full access to legal counsel and to communicate with the outside world. Anything less, and China is sanctioning enforced disappearances.