In light of the ongoing disappearances and reappearances of lawyers, intellectuals and activists the legality [or lack thereof] of house arrest repeatedly came up in the news coverage, although not much explanation was given on one of the Chinese governments more peculiar measures in dealing with its subjects. Just as I was wondering where I could find further information I stumbled over a series of posts on Liu Xiaoyuan’s blog, who went into great detail to discuss what it’s all about. Obviously he had gotten a whole bunch of emails from people for whom the legal intricacies of house arrest or—in proper terminology—residential surveillance were equally hazy.
I guess most of these requests were related to Ai Weiwei’s whereabouts (as he is also believed to be under RS),considering that Liu might take over his defense. ((Unless he disappears into said legal limbo himself that is.)) For two interesting posts on the legality of Ai’s situation, albeit from opposite perspectives, check here and here.
In the first post Liu gives a detailed overview of the relevant laws and regulations, in the second post (translated below) he discusses legal ambiguities and cases of abuse of RS. In the third post (which I’ll try and post soon), he argues for an abolition of said measure due to the widespread problems arising in its implementation.
A further discussion of residential surveillance
Posted on May 26, 2011 by Liu Xiaoyuan
Residential surveillance is defined as a coercive measure that can be imposed on a suspect by the People’s Courts, the People’s Procuratorate and public security organs. In accordance with the Criminal Procedure Law a suspect can be ordered not to leave his home or designated residence for a certain amount of time, during which his actions can be monitored and his personal freedom restricted.
But to what extent can the personal freedom of a person under RS be restricted? How big a range of movement or action should people under RS still be entitled to? In regard to these questions the relevant laws and regulations, the interpretations by the judicature as well as further regulations by different departments [involved in its execution] are far from clear.
Article 57 of the Criminal Procedure Law states that criminal suspects or defendants under residential surveillance should not leave their domicile [or home residence] without permission of the executing organ, or, if the person in question has no fixed domicile, not to leave a designated residence without prior permission. Thus, without obtaining prior permission stating otherwise, their freedom of movement is limited to those places.
But it is not further elaborated what a home or designated residence exactly is.
Article 98 of the “Provisions on the Procedures for Handling Criminal Cases by Public Security Organs” defines the home residence as the legitimate residence the suspect holds in the city or county where the case is handled. The designated residence is defined as the residence a suspect is appointed, due to case-specific circumstances, by the PSB in the city or county where the case is handled. The police is not allowed to set up a special place for residential surveillance, in order to avoid that the suspect is actually put under a disguised form of detention. Furthermore, it can not be carried out in detention facilities or any kind of designated PSB work place.
But these explanations also lack clarity.
If a suspect under RS has an apartment in a residential compound, should his movements be restricted only to his apartment or should the residential compound be included? In other words, can he exit the door of his apartment and move around in his compound? The same question can be asked in regard to an assigned place of residence.
One reading of the law is, that “home residence” in rural areas should be understood as the entire village in which the home of the person in question is located or, in cities, should be interpreted as the entire compound surrounding the house. The assigned place of residence should be understood as the house or courtyard in which the living quarters are located.
Another interpretation is that while the requirements of an ongoing investigation and trial have to be met in order to guarantee that further steps can be executed swiftly, consideration should also be paid to enabling a suspect to lead a regular life and resume his work or study, when he is not demanded in court.
In my personal opinion, [the definition of] home or assigned residence should not be interpreted in a narrow and limiting sense. A person under RS can hardly remain in the confinement of his living quarters all day, without ever leaving the apartment. There should be some space and range for movement. Because if a suspect’s or defendant’s range of movement is limited to residential quarters alone, then he is de facto deprived of his personal freedom.
The longest duration of RS allowed by law is six months. If the suspect isn’t even allowed to step out of the door in such a long period of time, the severity of this measure would be so grave that there is virtually no difference to official custody or detention. The original intent of the RS legislation was to define a coercive measure that would only partially restrict a suspect’s or defendant’s personal freedom, and not another form of detention or arrest.
When put into practice, a multitude of problems arise:
1. Abuse of the measure as intended by law. The boundaries, subjects and conditions of RS are clearly defined, but some investigative organs severely breach the relevant laws and regulations in its implementation. This has for example happened in cases where the prosecution has decided against raising charges and authorizing an arrest, but instead of dropping the proceedings, as it should be done, the persons in question were subjected to RS. In other cases the relevant departments used RS as an alternative to conducting a proper investigation and thus put people in RS who shouldn’t be subjected to this coercive measure under the legal framework. In some cases RS was used as a means of resolving cases in which civil disputes had led to minor injuries. In all these particular cases RS was used due to intervention or under influence from forces outside the legal institutions, leading to a much higher amount of RS cases than would have been allowed by law.
2. RS is executed in locations that are in breach of the law and regulations. In these cases the suspect or defendant is subjected to a disguised form of detention, as intended for a criminal offense. Article 57 of the Criminal Procedure Law defines the locations where RS can be implemented as the home residence of a suspect or defendant or —if this is not possible— as a designated residence. But some of the departments entrusted with carrying out RS used some form of hotel, hostel, guesthouse or basement accommodation instead. In other cases the suspects where held at places meant for handling cases and carrying out administrative detention as well as property of security companies. In addition, some of the investigative organs denied the person under RS any direct contact with other people and even installed surveillance technology to keep constant watch. Others ordered that even people also living in the residence and appointed lawyers needed to obtain permission to gain access.
In cases where the suspects or defendants did not have a place of residence or their home residence was relatively far away from the place the case is handled, the investigative organs routinely put people in preinstalled “surveillance houses.” But bringing a suspect to a fixed location for the purpose of carrying out surveillance is nothing but taking someone into custody or putting him in detention. If the place where RS in carried out is illegal, resulting in a situation of disguised detention, it constitutes a serious violation of a suspects human rights.
3. The choice of the executing organ is illegal. Article 51 of the Criminal Procedure Law states that RS has to be carried out by public security organs. But PSBs, in whose jurisdiction the suspect or defendant falls, often hand the implementation out to “hired cops” or local public security defense forces, due to a lack of resources or other reasons. Situations where the number of PSB personnel is not sufficient and additional manpower is contracted from the civil sector certainly exist. Furthermore, some investigative organs authorize other departments or subordinate private security companies entirely with the implementation. Others hand the management of RS into the hands of local village committees and thereby turn [the legal intend of] RS into a mere formality. Because all these actors haven’t obtained the formal approval by the relevant body responsible for law enforcement, they don’t have the legal power to carry out RS and thus their actions are illegal.