China: Abuse of ‘residential surveillance’ to detain defenders and lawyers continues

(Geneva) – Despite the ongoing detention of human rights lawyers and activists – and their vulnerability to other serious human rights violations, including torture – the 10 July crackdown (also called the ‘709 crackdown’) in China risks slipping out of the public eye. An overview of the majority of ongoing cases of detention (available in Chinese here, and English summary below) clearly illustrates the continued gravity of the situation and the need for sustained pressure on the Chinese government.

‘According to the China Human Rights Lawyers Concern Group, 28 activists – including 18 lawyers or legal assistants – still remain incommunicado, lost in the legal grey area of “residential surveillance in a designated place”, said Sarah M. Brooks, ISHR’s East Asia programme manager.

There is a strong correlation between incommunicado detention without access to a lawyer and the incidence of torture and ill-treatment in detention.

‘This form of detention as currently practiced effectively allows authorities legal cover to imprison a defender in a secret place and to prevent family notification or access to counsel, often on the basis of spurious or downright absurd criminal charges’.

Residential surveillance in a designated place is a form of detention defined and permitted under the 2012 amendments to China’s Criminal Procedure Law; to justify this form of detention, public security or procuratorial authorities need only argue that ‘residential surveillance is more appropriate considering the special circumstances of the case or the need for case handling’ (CPL Art. 72). In the beginning, this provision was one means of justifying the use of house arrest – the implication being that individuals were detained in their place of residence. However, human rights lawyers detained in July and August of this year are nearly all detained in an undisclosed location, most under the authority of the Tianjin Public Security Bureau Hexi branch, regardless of their place of residence.

The Criminal Procedure Law continues, stating in Article 77:

‘The period granted by a People’s Court, People’s Procuratorate or public security organ to a criminal suspect or defendant for awaiting trial […] shall not exceed twelve months; the period for residential surveillance shall not exceed six months. During the period when the criminal suspect or defendant who is released on bail pending trial or when he is under residential surveillance, investigation, prosecution and handling of the case shall not be suspended. […] when the period for releasing on bail pending trial or the period of residential surveillance has expired, such period shall be terminated without delay.’

This clearly indicates that ‘the period of residential surveillance shall not exceed six months’ and that when the period of residential surveillance has finished it ‘shall be terminated without delay’. Many of the detained lawyers from the 709 crackdown are now nearing the end of their fifth month in residential surveillance; this is a crucial time for sustained pressure to release the detainees. It is imperative that these cases do not slip through China’s judicial cracks, allowing these human rights defenders to remain in indefinite detention, vulnerable to abuse and without contact with family or legal representatives.

Said Ms Brooks, ‘The international community has a critical window of time to pressure the Chinese government to do the right thing. The final month of their “legal” residential detention must be a month of continued advocacy to secure an unconditional release for the detainees and ensure that their detentions are neither prolonged illegally, nor transmuted into unwarranted prison sentences.’

End dates of legal validity of ‘residential surveillance’